Barbee v. State

995 N.E.2d 16

David BARBEE, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A04–0907–CR–370.

Court of Appeals of Indiana.

Sept. 18, 2013.

Appeal from the Marion Superior Court; The Honorable Sheila A. Carlisle, Judge; Cause No. 49G03–0706–MR–113806.

Patricia Caress McMath, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

MAY, Judge.

David Barbee appeals the denial of his motion to correct error, which challenged his convictions of murder ¹ and Class C felony carrying a handgun without a license.² He presents three issues for review, which we restate as:

1. Whether the trial court should have granted Barbee's second Motion to Correct Error based on newly discovered evidence in the form of a recantation of testimony from one of the State's witnesses;

2. Whether comments in closing argument were fundamental error when the prosecutor implied that a witness testified as she did because she was afraid of Barbee; and

3. Whether the trial court committed fundamental error by instructing the jury on voluntary manslaughter.

We affirm.

FACTS AND PROCEDURAL HISTORY

On June 15, 2007, David Barbee shot and killed David Kimbrough while Kimbrough sat on Letroy Burks' porch. On the porch at the time of the shooting were Burks, Kimbrough's girlfriend Brandi Arnwine, Kimbrough's sister and Burks's girlfriend Lakeisha Kimbrough, Burks' cousin Brandon Tyler, and Anniya Willis and her young daughter.

Barbee lived nearby, and he had driven past Burks' porch three times while Kimbrough and his companions were present. Sometime later, Barbee approached Burks' porch, used vulgarity, and stated “what did I tell you about coming out south,” (Tr. at 110), and “you think I'm playing?” ( Id. at 112.) Barbee's comments appeared to be directed at Tyler. Barbee then pulled out a gun and fired a shot, which killed Kimbrough.

Anthony Hampton, who was walking next to Burks' house at the time of the shooting, testified he saw a man on the porch raise the gun and point it at Barbee, who was standing in the street. The gun appeared to misfire, and then Barbee raised and fired his gun. Barbee walked up the porch ramp and pointed the gun at Arnwine and Burks. Burks told Barbee “Man, you tripping, man. You shot my dude for nothing.” ( Id. at 164.) Barbee looked at Kimbrough lying in the grass, looked back at Burks, and then walked away.

Barbee was charged with and convicted of murder and Class C felony carrying a handgun without a license. Barbee filed a Motion to Correct Error and Set Aside Judgment, which was denied. Barbee filed his second Motion to Correct Error, arguing inter alia he was entitled to a new trial because Arnwine had recanted her earlier testimony that she did not see Tyler with a gun. That motion was also denied.

DISCUSSION AND DECISION

1. Newly Discovered Evidence

Barbee claims the trial court should have granted his motion to correct error based on Arnwine's new testimony that Tyler had a gun and showed it to Barbee. The denial of a motion to correct error based on newly discovered evidence will be reversed only for an abuse of discretion. Martinez v. State, 917 N.E.2d 1242, 1247 (Ind.Ct.App.2009), trans. denied. Thus, we will reverse only if the decision goes against the logic and effect of the facts or the trial court has misinterpreted the law. Id. We give the trial court's decision substantial deference. Id.

A recantation or admission of perjury does not necessarily mandate the grant of a new trial. Instead, there is a nine-part test for determining whether to grant a new trial based on newly discovered evidence[.] A motion to correct error based upon the ground of newly discovered evidence must be supported by one or more affidavits which must contain a statement of the facts showing (1) that the evidence has been discovered since the trial; (2) that it is material and relevant; (3) that it is not cumulative; (4) that it is not merely impeaching; (5) that it is not privileged or incompetent; (6) that due diligence was used to discover it in time for trial; (7) that the evidence is worthy of credit; (8) that it can be produced upon a retrial of the case; and (9) that it will probably produce a different result. In ruling whether a piece of evidence would produce a different result, the judge may properly consider the weight that a reasonable trier of fact would give it and, while so doing, may also evaluate its probable impact on a new trial of the case. On appeal, the denial of a motion predicated on newly discovered evidence is considered a discretionary ruling and is reviewed deferentially. We must analyze these nine factors with care, as the basis for newly discovered evidence should be received with great caution and the alleged new evidence carefully scrutinized. The defendant bears the burden of showing that the newly discovered evidence meets the standard for a new trial.

Id. (citations and quotations omitted).

The trial court's order denying Barbee's motion did not indicate a basis for its decision. However, we may affirm a trial court's ruling if it is sustainable on any legal basis in the record, even though it was not the reason enunciated by the trial court. Scott v. State, 883 N.E.2d 147, 152 (Ind.Ct.App.2008). Barbee's trial court would have been within its discretion in deciding the newly discovered evidence was neither worthy of credit nor likely to produce a different result at a new trial.

In Allen v. State, 716 N.E.2d 449, 451 (Ind.1999), Allen and the victim were being transported by Allen's sister and the victim's girlfriend. Allen was seated behind the victim when he shot him. Id. Allen's sister testified that she “saw ‘something black’ come from the back of the car and go to the [victim's head] ... and then heard a shot and [the victim] fell over into her lap.” Id. at 452. Allen moved to correct error, offering his sister's affidavit stating she “did not tell the whole truth” in her prior statements. Id. at 455. She previously said Allen and the victim had not fought, but in her affidavit she recanted that statement and further stated she saw the victim “reach down as if to grab something immediately before the shooting.” Id. She said she disposed of a box cutter that was near the victim. Id.

Our Supreme Court determined the trial court did not abuse its discretion in denying the motion for a new trial; the new evidence was not worthy of credit, in part, because it conflicted with the witness' pretrial statements and sworn testimony and with other evidence. Id. at 456. The trial court was within its discretion to conclude the “changed testimony was not likely to produce a different result at a new trial because “the State would thoroughly impeach her testimony based on the very different version of events given in her pretrial statements to police and her prior sworn trial testimony” along with the physical evidence that contradicted her new account. Id.

Here, as in Allen, the trial court could have found Arnwine's new testimony not worthy of credit, and we therefore cannot say the trial court abused its discretion. Before trial, Arnwine told police that she did not know if Tyler had a gun. She recanted that testimony and indicated she saw a gun in Tyler's waistband. At trial, Arnwine testified Barbee “pulled out a gun, and it accidentally went off,” (Tr. at 324), and the shot “hit the ground, and ricocheted from the ground, and it hit [Kimbrough] in the side.” ( Id. at 345.) A police officer testified he found no evidence of bullet strikes at the crime scene indicative of a ricochet. Arnwine's testimony was equivocal and varied, is contradicted by other eyewitness accounts, and her version of events was unsupported by physical evidence. As Arnwine's new testimony would be impeached by the State, contradicted by two witnesses, and uncorroborated by physical evidence, the trial court was within its discretion to conclude Arnwine's changed testimony was not likely to produce a different result at a new trial, and we therefore cannot say the trial court abused its discretion in denying Barbee's second Motion to Correct Error based on newly discovered evidence.

2. Prosecutorial Misconduct

Barbee next asserts the prosecutor, in closing argument, improperly suggested Arnwine testified as she did because she was afraid of Barbee:

But the important part of what [Arnwine] said is exactly this, okay: Nobody else on that porch had a gun. Nobody else on that porch had a gun. Okay? [Arnwine] says that. She says that. And you know, the important thing about her is obviously she's scared. It's why she's trying to—not to say—you know, point to him and say that's who did this. Okay? All right?

(Tr. at 520.)

Barbee did not object to the comment, so that allegation of error is waived on appeal unless the error was fundamental. Oldham v. State, 779 N.E.2d 1162, 1175 (Ind.Ct.App.2002), trans. denied. It was not.

On review of a claim of prosecutorial misconduct, we determine “(1) whether the prosecutor engaged in misconduct, and if so, (2) whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she should not have been subjected.” Coleman v. State, 946 N.E.2d 1160, 1166 (Ind.2011). Prosecutorial misconduct is determined by reference to case law and the Rules of Professional Conduct. Cooper v. State, 854 N.E.2d 831, 835 (Ind.2006). The gravity of the peril is assessed by looking to the probable persuasive effect the misconduct had on the jury, not the degree of impropriety of the misconduct. Id.

When, as here, the misconduct is challenged as fundamental error, the defendant must establish both that misconduct occurred and that it was a fundamental error. Coleman, 946 N.E.2d at 1166. Error is fundamental when it so blatantly...