Court of Appeals of Indiana | Memorandum Decision 45A03-1703-PC-393 | September 1, 2017 Page 1 of 10

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Stephen T. Owens

Public Defender of Indiana

Borahm Kim

Deputy Public Defender 

Indianapolis, IN

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

James B. Martin

Deputy Attorney General 

Indianapolis, IN

I N T H E

COURT OF APPEALS OF INDIANA

Jory D. Peters,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 1, 2017

Court of Appeals Case No.

45A03-1703-PC-393

Appeal from the Lake Superior 

Court, Criminal Division

The Honorable Samuel L. Cappas, 

Judge

The Honorable Natalie Bokota, 

Magistrate

Trial Court Cause No.

45G04-1511-PC-10

Vaidik, Chief Judge.
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Case Summary

[1] Jory D. Peters was convicted of murder. His conviction was affirmed on direct 

appeal. He then sought post-conviction relief, alleging he was entitled to a new 

trial because of newly discovered evidence. The post-conviction court denied 

relief, concluding that Peters failed to prove that the newly discovered evidence 

would probably produce a different result at retrial. We affirm the postconviction court.

Facts and Procedural History

[2] The facts underlying Peters’s murder conviction, taken from this Court’s 

opinion on direct appeal, are as follows:

In July 2011, Crystal Mendez was driving in Gary with her 

mother and her brother, Juan Nieves. They noticed that a white 

Grand Prix was following them. The vehicle pulled beside 

Mendez’s vehicle, and they saw Peters, who was driving the 

vehicle, look directly at them.

On August 7, 2011, Mendez saw Peters again. She was driving 

with Nieves when they saw Peters driving a Chrysler 300 with a 

distinctive green paint pattern. Peters was driving slowly in front 

of them, so Mendez passed Peters and drove toward their home. 

When Mendez pulled into a gas station, Peters stopped in the 

middle of the street. Peters’s passenger got out of the vehicle, 

and Mendez heard gunshots. Nieves told Mendez to go home, 

and he ran into the gas station.

On August 14, 2011, Mendez was with her boyfriend’s sister, 

Tiyona Dennie. Mendez again saw Peters driving the green 
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Chrysler 300. Mendez and Dennie started looking for Nieves to 

warn him that Peters was in the area. They located Nieves, 

warned him, and told him to go home. Mendez and Dennie then 

went to Mendez’s house. As they reached the porch, they heard 

gunshots. Soon a girl rode up on her moped and said that 

Nieves’s truck had crashed nearby. Mendez went to the scene, 

where she found Nieves’s truck crashed into a tree and Nieves 

with several gunshot wounds, which were fatal.

On the same day, Annette Harmon was driving down 25th 

Avenue in Gary headed toward Broadway. In her rearview 

mirror, Harmon noticed a Chrysler 300 with a “funny green 

paint job” approaching at a high rate of speed. The vehicle 

passed Harmon, and she heard gunshots. Harmon “ducked” 

and, when she looked back up, she saw the Chrysler 300 driving 

the wrong way into oncoming traffic. The vehicle ran a red light 

and made a right turn on Broadway. Harmon saw a truck that 

was two cars in front of her turn a corner and drive into some 

bushes. Harmon and her passenger stopped to see if they needed 

help and called 911. The incident was recorded on video 

surveillance cameras of nearby businesses.

Peters v. State, No. 45A03-1305-CR-177 (Ind. Ct. App. May 28, 2014) (citations 

omitted), trans. denied. 

[3] A detective with the Gary Police Department interviewed Peters in February 

2012. During the two-hour interview, which was videotaped, Peters initially 

denied that he was in the area of the shooting on August 14, 2011. But after 

being shown surveillance photos of his car, Peters admitted that he was in the 

area but that he heard shots and “got out of Dodge.” See Trial Tr. p. 485; Trial 

Ex. 83 (videotape). The detective gave Peters multiple opportunities to claim 

that he shot Nieves in self-defense, but Peters did not do so. For example, the 
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detective told Peters that the only thing that made sense to him was that Nieves 

was trying to kill Peters and that Peters shot him because he was trying to

“defend himself.” See Trial Ex. 83 (1:25:10-1:27:55). The detective even told 

Peters about a recent shooting in Gary where a person was not charged with 

any crimes because he acted in self-defense. Still, Peters maintained that he left 

the area when he heard shots. 

[4] Thereafter, the State charged Peters with murder. A jury trial was held.1

During trial, Peters’s videotaped statement was played for the jury. In addition, 

through questioning of witnesses, defense counsel implied that Nieves had a 

gun, which Mendez removed from the truck before police arrived on the scene. 

See Trial Tr. p. 484. Before closing arguments, defense counsel asked the trial 

court to instruct the jury on self-defense. Id. at 483. Defense counsel argued 

that Peters’s statement that he “heard shots” and “got out of Dodge” supported 

the instruction. Id. at 485. The State responded that Peters’s statement was not 

enough because Peters never said “one way or the other[] whether he saw the 

victim with the gun,” whether “the victim shot at him on that day,” and 

whether he “did anything back to the victim on that day.” Id. at 485-86. In 

addition, the State argued that Peters “never assert[ed] that he was afraid” or 

that “he had to do anything to protect himself.” Id. at 486. The trial court 

refused to instruct the jury on self-defense, reasoning as follows:

 

1 The first trial resulted in a hung jury, and a mistrial was declared. 
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[I]f you review the defendant’s statement, he denies ever being 

there. Repeatedly. The detective starts to make progress in his 

discussions with Mr. Peters, ultimately convinces Mr. Peters that 

Mr. Peters has or is found in the area, in his car, on the 14th, 

when he was adamant that he was home watching his children. . 

. . The part of the statement that the defendant talks about, he 

talks about ultimately, when he admits that he was in the area, 

that he heard shots and he got out of there. That was essentially 

it. . . . In light of his statement to the police, there is no 

appreciable evidence of self defense from the statement or the 

other evidence in the case . . . . 

Id. at 500-503. 

[5] The jury found Peters guilty of murder, and we affirmed his conviction on 

direct appeal.2 Peters, No. 45A03-1305-CR-177.

[6] In 2015, Peters filed a pro se petition for post-conviction relief, which was 

amended by counsel in 2016. The amended petition alleged newly discovered 

evidence in that there was a newly discovered witness for the defense, 

Christopher Godines, whom Peters met while incarcerated. According to 

Godines, he saw Mendez take a gun from Nieves right after his truck crashed. 

Appellant’s P-C App. Vol. II p. 52. The post-conviction court held a hearing on 

Peters’s amended petition. The court first took judicial notice of the trial-court 

record. Godines then testified that he saw Mendez open the driver’s door of 

Nieves’s truck, fumble around inside, and return with a gun. P-C Tr. Vol. II p. 

 

2

Peters did not raise as an issue on appeal that the trial court erred in refusing to instruct the jury on selfdefense.
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25. Peters’s trial counsel testified that he did not discover Godines until after 

trial and that he would have presented the testimony of Godines to support his 

theory of self-defense because it showed that the victim was armed. The postconviction court made the following findings: 

2. Prior to the filing of charges, Peters gave a statement to the 

police which was introduced at trial. State’s Exhibit 83. Peters 

initially denied being present at the scene of the shooting that 

resulted in Nieves’s death. Upon being shown still photographs 

of a video that captured his car at the scene, Peters alternatively 

conceded he was there . . . . At one point, Peters agreed with the 

detective that he heard shots and got out of there. 

* * * * *

9. Prior to closing arguments, the defense requested that the jury 

be instructed on self-defense. Counsel for Peters had implied 

through his questioning of witnesses that the victim had a gun 

that was removed prior to the arrival of the police. . . . The State 

argued that self-defense is a question of whether a defendant’s 

actions were reasonable in response to a threat to him; Peters 

denied any action, having asserted that he heard shots and fled. 

There was no evidence that the defendant perceived a threat from 

the victim or was in fear of the victim and responded with some 

reasonable action. The court denied the requested instruction . . . 

.

Appellant’s P-C App. Vol. II pp. 155, 157 (record citations omitted). The court

outlined the nine-part test for newly discovered evidence but concluded that 

Peters failed to prove the final factor, that the newly discovered evidence will 

probably produce a different result at retrial:
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4. Nothing about the testimony Godines offers would change the 

outcome of the case because it does not alter the fact that Peters 

never claimed that he acted in self-defense. Although his 

attorney implied that Peters acted in self-defense and suggested 

that the victim was armed, there was no evidence of this. The 

arguments of counsel are, of course, not evidence. Even with 

Godines’s testimony, there is no evidence of self-defense. Even 

with Godines’s testimony, the court would properly still deny a 

request for a self-defense instruction. 

* * * * *

7. . . . In order to rely on the defense of self-defense, the 

defendant must have “acted without fault, been in a place where 

he had a right to be, and been in reasonable fear or apprehension 

of bodily harm.” In his statement Peters negates self-defense. He 

claims that he heard shots and left the scene. He never claimed 

that Nieves fired a gun at him. He never claimed that he fired 

back to protect himself or anyone else. There is no evidence that 

Peters was in reasonable fear or apprehension of bodily harm 

from Nieves. 

8. Even if the court granted a request to instruct the jury on selfdefense, there is no possibility that the jury would acquit Peters 

on this basis for the same reasons. There is simply no evidence 

that Peters did anything in defense of self. 

Id. at 159, 160 (citation omitted). Accordingly, the post-conviction court denied 

relief. 

[7] Peters now appeals.
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Discussion and Decision

[8] Defendants who have exhausted the direct-appeal process may challenge the 

correctness of their convictions and sentences by filing a post-conviction 

petition. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002), reh’g denied. Postconviction proceedings are not an opportunity for a “super-appeal,” and not all 

issues are available. Timberlake v. State, 753 N.E.2d 591, 597 (Ind. 2001), reh’g 

denied. Rather, subsequent collateral challenges to convictions must be based 

on grounds enumerated in the post-conviction rules. Ind. Post-Conviction Rule 

1(1); Timberlake, 753 N.E.2d at 597. In post-conviction proceedings, complaints 

that something went awry at trial are cognizable only when they show 

deprivation of the right to effective counsel or issues demonstrably unavailable 

at the time of trial or direct appeal. Sanders v. State, 765 N.E.2d 591, 592 (Ind.

2002). 

[9] Post-conviction proceedings are civil proceedings, requiring the petitioner to 

prove his claims by a preponderance of the evidence. Stevens, 770 N.E.2d at 

745. We review the post-conviction court’s legal conclusions de novo but 

accept its factual findings unless they are clearly erroneous. Id. at 746. The 

petitioner must establish that the evidence as a whole leads unerringly and 

unmistakably to a decision opposite that reached by the post-conviction court. 

Smith v. State, 770 N.E.2d 290, 295 (Ind. 2002). 

[10] Peters contends that the post-conviction court erred in denying his request for a 

new trial based on newly discovered evidence. Newly discovered evidence 
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requires a new trial only when the petitioner demonstrates that: (1) the evidence 

has been discovered since 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) it is 

worthy of credit; (8) it can be produced upon a retrial of the case; and (9) it will 

probably produce a different result at retrial. Taylor v. State, 840 N.E.2d 324, 

330 (Ind. 2006). We 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.” Id. (quotation omitted). The 

burden of showing that all nine requirements are met rests with the petitioner 

for post-conviction relief. Id. 

[11] Here, the post-conviction court found that Peters failed to meet his burden of 

proving the final factor, that the newly discovered evidence will probably 

produce a different result at retrial. “A sufficient probability of a different result 

upon retrial is present where the omitted evidence creates a reasonable doubt 

that did not otherwise exist.” Fox v. State, 568 N.E.2d 1006, 1008 (Ind. 1991). 

[12] A valid claim of self-defense is legal justification for an otherwise criminal act. 

Coleman v. State, 946 N.E.2d 1160, 1165 (Ind. 2011). In order to prevail on a 

claim of self-defense, a defendant must show: (1) he was in a place where he 

had a right to be; (2) he acted without fault; and (3) he had a reasonable fear of 

death or great bodily harm. Id.; see also Ind. Code § 35-41-3-2. The evidence 

shows that the detective interviewed Peters for two hours. The videotape was 

admitted into evidence at the jury trial. During the interview, Peters initially 
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denied being in the area of the shooting. But after being shown surveillance 

photos of his car, Peters changed his story. Peters admitted being in the area 

but claimed that he left the area once he heard shots. The detective told Peters

that the only thing that made sense to him was that Peters acted in self-defense. 

Peters, however, maintained that he left the area once he heard shots. Peters

thus claimed the opposite of self-defense, that is, that he did not shoot Nieves. 

According to Godines, he saw Mendez remove a gun from Nieves’s truck after 

it crashed. This testimony does not establish that Nieves pointed the gun in 

Peters’s direction or fired it at him, or that Peters had a reasonable fear of death 

or great bodily harm. We therefore affirm the post-conviction court’s 

conclusion that Peters failed to prove that the newly discovered evidence will 

probably produce a different result at retrial. 

[13] Affirmed.

Mathias, J., and Crone, J., concur.