Link to original WordPerfect Document here
ATTORNEY FOR APPELLANT|
Hilary Bowe Oakes
ATTORNEYS FOR APPELLEE|
Jeffrey A. Modisett
Attorney General of Indiana
Carol A. Nemeth
Deputy Attorney General
SUPREME COURT OF INDIANA
KEVIN WEBSTER, )
Appellant (Defendant Below ), )
v. ) Supreme Court
) Cause No. 49S00-9709-CR-481
STATE OF INDIANA, )
Appellee (Plaintiff Below ). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Craig O. Wellnitz, Judge Pro Tempore
Cause No. 49G03-9604-CF-056543
ON DIRECT APPEAL
August 31, 1998
Kevin Webster was convicted of murder and of carrying a handgun without a license,
Ind. Code § 35-47-2-1 (1998), a Class A misdemeanor. After the convictions he pleaded
guilty to carrying a handgun without a license as a Class C felony,See footnote 1
and to being a habitual
offender. The trial court sentenced Webster to consecutive terms of fifty-five years for
murder and four years for the handgun violation. The sentence was enhanced by eleven
years for the habitual offender charge for a total of seventy years. In this direct appeal,
Webster contends that: (1) the evidence was insufficient to support the convictions; and (2)
the trial court erred in denying his motion to correct error because of newly discovered
evidence. We affirm the trial court.
Viewed most favorably to the verdict, the facts are that on the day of the killing
Webster and three friends were driving around smoking marijuana on the West side of
Indianapolis in a Suburban van. The van stopped on Udell Street headed east where
Webster left the vehicle. The driver, Kermit Tinnin, soon heard gunshots from Webster's
direction. Tinnin then saw a turquoise car drive past headed eastbound. An eyewitness,
Linda Norwood, testified that she was cleaning out the trunk of her car also parked on the
eastbound lane of Udell when she heard gunshots. She moved toward the center of the street
and saw a man standing with his back toward her at the passenger side of a turquoise car,
firing a gun into the car. The man stood between a parked Suburban van and the turquoise
car in plain view. Norwood memorized the Suburban's license plate number and walked
around to the passenger side of her car to look for a pen to write it down. From her position
on the sidewalk she again looked toward the Suburban and saw the shooter's face to about
chin level. She recognized Webster whom she knew from the neighborhood. Webster, six
feet one inch tall, was standing on the driver's side of the Suburban. He stared at her over
the top of the vehicle for forty-five seconds to a minute. Norwood testified that only seconds
passed between the time the shots were fired and the time she stared directly at Webster's
face. She said that there were no other people in the area. Norwood went into her house for
a few minutes. After the Suburban drove away she started back towards a public telephone
booth to telephone the police. On the way to the booth she heard sirens and correctly
surmised that the turquoise car, which had been weaving as it drove away, had crashed.
Norwood went to the accident scene where she reported what she had seen to police.
Reginald McGraw, the victim, was alive in the turquoise car but subsequently died from
multiple gunshot wounds. The State's firearm's expert testified that casings found both in
the turquoise car and on the street at the location of the shooting were fired from the same
I. Sufficiency of the Evidence
Webster contends that there was insufficient evidence to support his convictions. The
legal propositions governing this appeal are well settled. In reviewing a claim of insufficient
evidence, we look only to the evidence most favorable to the State and all reasonable
inferences that support the judgment. Wright v. State, 690 N.E.2d 1098, 1106 (Ind. 1997).
We neither reweigh the evidence nor judge the credibility of witnesses and will affirm the
conviction unless, based on this evidence, we conclude that no reasonable jury could find the
defendant guilty beyond a reasonable doubt. Id. A person who knowingly or intentionally
kills another human being commits murder. Ind. Code § 35-42-1-1 (1993). The intent to
kill may be inferred from the use of a deadly weapon in a manner likely to cause death or
serious bodily injury. Johnson v. State, 622 N.E.2d 172, 173 (Ind. 1993).
Webster contends that Norwood's eyewitness testimony falls under the doctrine of
incredible dubiosity. Under this malaproprian but frequently invoked doctrine, if a sole
witness presents inherently contradictory testimony which is equivocal or the result of
coercion and there is a complete lack of circumstantial evidence of the appellant's guilt,
then a reviewing court may reverse the trial court. Tillman v. State, 642 N.E.2d 221, 223
(Ind. 1994). Norwood's testimony does not meet this high standard. She unequivocally
identified Webster as the person who fired gunshots at the turquoise car. Her testimony was
not inherently contradictory or coerced and was corroborated by Tinnin's testimony that he
dropped Webster off at Udell and shortly thereafter heard gunfire. As such, there was
sufficient evidence to support the convictions.
II. Newly Discovered Evidence
Within thirty days of his conviction Webster filed a motion to correct error and
accompanying affidavits contending that new evidence had been discovered that would prove
his innocence. See Ind. Crim. Rules 16 & 17; Ind. Trial Rule 59.See footnote 2
In order to obtain relief
because of newly discovered evidence, the defendant must show that (1) the evidence has
been discovered since the trial; (2) it is material and relevant; (3) it is not cumulative; (4) it
is not merely impeaching; (5) it is not privileged or incompetent; (6) due diligence was used
to discover it in time for trial; (7) the evidence is worthy of credit; (8) it can be produced on
a retrial of the case; and (9) it will probably produce a different result. Bradford v. State, 675
N.E.2d 296, 302 (Ind. 1996). The movant has the burden of showing that the newly
discovered evidence meets all nine prerequisites for a new trial. Id. We will reverse the
denial of a motion to correct error based on newly discovered evidence only for an abuse of
discretion. Id. Although determining the credibility of witnesses is normally the function
of the jury, when ruling on a motion for new trial based on newly discovered evidence the
trial court must assess the credibility of any proferred new evidence. Schuster v. State, 406
N.E.2d 288, 290 (Ind. Ct. App. 1980); accord United States v. Grey Bear, 116 F.3d 349, 350
(8th Cir. 1997) (in a motion for new trial based on newly discovered evidence it is for the
trial court to decide whether the new evidence is credible).
The trial court held two hearings on the motion. At the hearings and in the affidavits,
relatives of one Mark Burroughs stated that Burroughs, since deceased, had fired the shots
at the turquoise car. Burroughs' uncle Lorenzo Campbell testified that as he and his mother
Lenora Campbell (Burroughs' grandmother) were sitting on their porch he saw Burroughs
fire the weapon. Lenora said that she heard the gunshots, looked, and saw Burroughs fleeing
the scene. They both stated that they did not tell their story earlier because they believed
Webster would not be convicted and did not want to get involved.
Although the basis for the trial court's decision does not appear in the record, we
conclude for a number of reasons that the trial court would have been within its discretion
in deciding that this newly discovered evidence was not worthy of credit. First, the
Campbells are not entirely disinterested witnesses: Webster dated Lorenzo's niece (and
Lenora's granddaughter). Although Lenora testified that she did not really know Webster
and did not know his nickname, she later contradicted herself stating that we all called
[Webster] K. Webb, which was Webster's nickname. This contradiction gives rise to the
inference that Lenora was more familiar with Webster than she claimed. Further, Lenora's
credibility was directly challenged. Lenora stated in her affidavit and testified at the hearing
that if the police had asked her about the shooting she would have told them her story.
However, Detective Anthony Finnell, whom Lenora denied ever having met, testified that
he talked to Lenora the day after the shooting and that Lenora said that she did not know
anything about it. See Nunn v. State, 601 N.E.2d 334, 337 (Ind. 1992) (witness's testimony
lacked credibility where on the day of the incident witness had told police she knew
In addition, the Campbells' stated concern for protecting an innocent man would have
had more force if they had not waited until after Webster's conviction to come forward.
Burroughs died in early June and Webster's trial did not begin until August. They had ample
time to present the authorities with their story before Webster's conviction. Their failure to
do so supports the implication that their story was concocted after Burroughs' death and
undermines their credibility. Finally, Lorenzo initially testified that about a week after the
shooting he told his brother, David Campbell, that Burroughs had been the shooter. He
immediately recanted this, however, stating that he never specifically told David that
Burroughs had been the shooter. David had testified at trial as an alibi witness for Webster
and said nothing about Burroughs' involvement. The trial court could have concluded that
Lorenzo's sudden turnabout occurred because Lorenzo remembered that David had testified.
In sum, the record supports a determination by the trial court that the newly discovered
evidence was not worthy of credit. Accordingly, the trial court was within its discretion in
denying the motion to correct error.
We affirm the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.
1 A person convicted of carrying a handgun without a license under Indiana Code § 35-47-2-1
commits a class A misdemeanor. However, if the person has been convicted of a felony within fifteen years
before the date of this offense, the offense is a Class C felony. Ind. Code § 35-47-2-23 (1998).
2 Webster submitted two reply affidavits a month after filing the motion to correct error. However,
we do not consider these affidavits because [n]o reply affidavits . . . from the party first moving to correct
errors are contemplated in a motion to correct error based on evidence outside the record. T. R. 59(H)(4).
Trial Rule 59 applies in criminal proceedings insofar as applicable and when not in conflict with the criminal
rules. Crim. R. 16(B).
Converted by Andrew Scriven