Jerry T. Drook
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Kenneth D. Kauffman
Attorney General of Indiana
Deputy Attorney General
Jerry T. Drook
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
BRIAN L. DENNEY, )
Appellant (Defendant below), ) Supreme Court
) Cause No. 27S00-9701-CR-47
STATE OF INDIANA, )
Appellee (Plaintiff below). )
sixty-five years. In this direct appeal, Denney presents two issues for our review that we
restate as follows:
I. Did the trial court err in denying Denney's motion for a new trial based on blood test results first available after trial indicating that LSD was "present" in Denney's blood sixteen days after the crime?
II. Were Denney's due process rights violated when the State failed to report, in
response to a general discovery request, that the blood sample had been taken?
prevented Beekman from leaving the apartment. Ultimately, after telling Coolman to mind
his own business and threatening to kill Coolman, Denney fatally shot Coolman in the head
at close range. Denney and Beekman fled the apartment. Denney was arrested the next
On November 30, 1995, sixteen days after the shooting, a blood sample was taken from Denney pursuant to a court order. The results of the test, which showed that LSD was "present" in Denney's blood without further explanation, were not returned to the State until after the trial, which occurred in September 1996. After conviction, the trial court denied Denney's motion for a new trial based on the blood test results. We have jurisdiction of Denney's appeal under Indiana Appellate Rule 4(A)(7).
Helton v. State, 273 Ind. 211, 216,
402 N.E.2d 1263, 1267 (1980)
The movant has the
burden of showing that the newly discovered evidence meets all nine prerequisites for a new
Bradford v. State, 675 N.E.2d 296, 302 (Ind. 1996).
Denney's argument for a new trial
based on the blood test results fails to satisfy
at least two of these requirements.
Denney has failed to carry his burden that the newly discovered evidence would probably
change the trial outcome. He has also failed to show that due diligence was exercised in
A. Probability of changing the outcome
In order for newly discovered evidence to warrant a new trial, it must raise a strong presumption that, in all probability, it would produce a different result upon a new trial. Nunn v. State, 601 N.E.2d 334, 337 (Ind. 1992) . In this case, the blood sample, upon which the laboratory report is based, was taken from Denney sixteen days after the murder was committed. Although the test results indicated that LSD was "present" in his blood at that point, there was ample opportunity for Denney to use LSD after the shooting and before the blood sample was taken. Aside from the possibility of ingestion while in custody, he was first arrested more than twenty-four hours after the shooting. Further, Denney does not attempt to establish what the test showed as to his level of intoxication even if it is assumed that the test sixteen days later was the result of a substance taken before the crime. For both reasons, Denney fails to establish that the laboratory report would probably have changed
the trial outcome.See footnote
B. Due diligence
Denney's claim fails for a second reason: he failed to exercise due diligence to discover the evidence. "Motions for a new trial based on newly discovered evidence are subject to a hostile inference of want of due diligence in the absence of a clear showing to the contrary." Tyson v. State, 626 N.E.2d 482, 485 (Ind. Ct. App. 1993) (citation and internal quotation marks and brackets omitted). "A finding of due diligence does not rest upon abstract conclusions about, or assertions of, its exercise but upon a particularized showing that all the methods of discovery reasonably available to counsel were used and could not uncover the newly-found information." Id. (citations and internal quotation marks omitted). Moreover, a defendant in possession of evidence who fails to present it at trial cannot use the evidence as a basis for a new trial following an unfavorable verdict. Dean v. State, 433 N.E.2d 1172, 1181 (Ind. 1982), supplemented, 441 N.E.2d 457. Denney falls woefully short of this high standard.
Denney argues that his pretrial request for discovery constituted due diligence. His discovery motion requested "[t]rue, accurate and complete copies of any scientific . . . blood
. . . or other laboratory reports . . . notes, memorandum or other tangible documents which
are known to exist, regardless of whether they are in the custody of the State of Indiana . .
. ." This paragraph requests information related to the investigation and prosecution of the
case against Denney. However, at no time prior to or during trial did the State have the
results of the blood analysis to disclose. Not until four days after the trial concluded was the
State aware of the results of the tests. At that time, the State forwarded the results to
We do not suggest that the State may fail to advise a defendant of the existence of laboratory tests and similar information properly requested through discovery simply because the results have not been received from the laboratory. But knowledge of the existence of the blood test is not at issue here. On November 28, 1995, the trial court, on motion of the State, ordered the taking of a blood sample from Denney. On November 30, 1995, when the blood sample was taken, Denney, of course, knew this was occurring. If Denney wished to use the blood test offensively, as opposed to simply being aware of it for whatever use the State might choose to make of it, it was up to Denney to pursue the laboratory results. Even though he knew he did not have the results, Denney did not initiate his own blood analysis or request the State to expedite its test results or cite their absence as a ground for continuance. Denney offers nothing to rebut the obvious inference that he had reasonable means available to obtain results of the sample which was known to have been taken, but failed to exercise due diligence.
suppressed the fact that the testing was being done and that a report was forthcoming. A
Brady violation does not arise if the defendant, using reasonable diligence, could have
obtained the information. Johnson v. State, 1998 WL 100378, at *3 (Ind. Mar. 9, 1998)
(citing United States v. White, 970 F.2d 328, 337 (7th Cir. 1992)), petition for reh'g filed.
The State does not have a duty to disclose evidence that the defendant knew or should have
known existed. Martinez v. State, 549 N.E.2d 1026, 1028 (Ind. 1990). In this case, Denney
had actual knowledge that blood was taken from him. Because the test was court ordered,
it was a matter of record. Under these circumstances, there is no obligation on the State to
do anything other than turn the report over to Denney when it became available. Cf. Turner
v. State, 684 N.E.2d 564 (Ind. Ct. App. 1997) (no Brady violation where defendant knew that
blood-alcohol test had been taken but failed to exercise due diligence or demonstrate how
the results would have changed the trial outcome), trans. denied, 690 N.E.2d 1187 (Ind.
SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.
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