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Hawkins v. Cannon5/2/2005
ate cause. Thus, we conclude that the trial court did not err in denying Hawkins' Motion to Correct Error with respect to final instruction seven.
C. Newly Discovered Evidence
Next, Hawkins argues that the trial court improperly denied his Motion to Correct Error based upon newly discovered evidence. Specifically, Hawkins claims that pursuant to Indiana Trial Rule 59(A)(1), the trial court should have granted him a new trial because newly discovered evidence, i.e., a videotape, reveals significant inconsistencies with Cannon's testimony at trial regarding the extent of her pain and injuries. The grant or denial of a motion to correct error is within the broad discretion of the trial court, and we will reverse only upon an abuse of that discretion, i.e., when the trial court's decision is against the logic and effect of the facts and circumstances before it. Beall v. Mooring Tax Asset Group, 813 N.E.2d 778, 783-84 (Ind. Ct. App. 2004).
Initially we note that " otions for a new trial predicated upon newly discovered evidence are viewed with disfavor." Denney v. State, 695 N.E.2d 90, 93 (Ind. 1998). Our supreme court has held that in order to obtain a new trial based on 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.
Kahlenbeck v. State, 719 N.E.2d 1213, 1218 (Ind. 1999). The defendant has the burden of showing that the newly discovered evidence meets all nine prerequisites for a new trial. Denney, 695 N.E.2d at 93. Additionally, a motion for a new trial based on newly discovered evidence is subject to a hostile inference of want of due diligence in the absence of a clear showing to the contrary. Id. A party may not rest upon its abstract conclusion about or assertion of its exercise of due diligence but must give a particularized showing that all methods of discovery reasonably available to counsel were used and could not uncover the newly found information. Further, Indiana Trial Rule 59(A)(1) requires a motion to correct error to be filed when a party seeks to address "newly discovered material evidence, including alleged juror misconduct, capable of production within thirty (30) days of final judgment which, with reasonable diligence, could not have been discovered and produced at trial. . . ."
In the present case, the record shows that two weeks after the jury trial, Hawkins hired a private investigator to videotape and record Cannon's activities over the course of several days to show that she was exaggerating the extent of her injuries. The videotape shows Cannon arriving and leaving for work, walking her dog, renting movies, and going to the grocery. Hawkins now argues that due diligence was timely used in discovering this information since such documentation could not have been previously acquired because Cannon was unlikely to conduct herself prior to trial in a manner inconsistent with the complained-of injuries. In particular, Hawkins suggests that it would be untenable and impractical if we were to require that surreptitious surveillance evidence be conducted in every personal injury case prior to trial.
Although we clearly do not require surveillance evidence to be conducted prior to trial, we do require Hawkins to show that he used due diligence in discovering evidence of Cannon exaggerating her injuries before trial and that
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