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COA split over whether convicted murderer needs new trial

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The Indiana Court of Appeals upheld a murder conviction Wednesday after the defendant argued his right to confront witnesses against him was violated. But one judge on the panel agreed with Michael Torres and wrote in his dissent that Torres should have a new trial.

Torres was convicted of carrying a handgun without a license and murder in connection to the shooting death of Darnall Lindsay outside an Indianapolis apartment in 2011. Dr. John Cavanaugh performed the autopsy on Lindsay, but when Torres’ trial was held in July 2013, Cavanaugh had left Marion County. Dr. Joye Carter, the chief forensic pathologist at the Marion County Coroner’s Office, was called by the state as an expert witness. Torres did not object to her testimony and Cavanaugh’s report was admitted into evidence.

Torres claimed the trial court violated his right to confrontation and committed fundamental error when it permitted Carter to testify about the results of the victim’s autopsy when she did not perform the autopsy.

“We do not find fundamental error in the admission of Dr. Carter’s testimony. Dr. Carter was asked whether she had an occasion to ‘look at and examine the autopsy of a Darnell Lindsay, autopsy #12-0024?’ But there is no reference to exactly what was included in that autopsy. Nor was any specific reference made to Dr. Cavanaugh’s report,” Judge Melissa May wrote for the majority in Michael Torres v. State of Indiana, 49A02-1308-CR-727. “When questioned about the number of times the victim had been shot, Dr. Carter referred to ‘the investigation’ and ‘the doctor’s report,’ but it is not apparent from her testimony to which documents she was referring. We therefore cannot conclude that the ‘investigation’ or ‘report’ to which she was referring was Dr. Cavanaugh’s report, or that her testimony otherwise invoked Torres’ right to confront a witness.

The majority, which included Judge L. Mark Bailey, also found any error in admitting Carter’s testimony regarding the number of gunshot wounds the victim sustained and Torres’ claim of self-defense was harmless.

Judge James Kirsch dissented, citing Bullcoming v. New Mexico, __ U.S. __, 131 S. Ct. 2705, 2710 (2011), in which the Supreme Court of the United States has held with respect to autopsy reports that the accused’s right is to be confronted with the analyst who makes the certification and that surrogate testimony does not satisfy the constitutional requirement. He does not believe any error was harmless beyond a reasonable doubt and that there should be a new trial.

 

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  1. OK, now do something about this preverted anacronism

  2. William Hartley prosecutor of Wabash county constantly violates people rights. Withholds statement's, is bias towards certain people. His actions have ruined lives and families. In this county you question him or go out of town for a lawyer,he finds a way to make things worse for you. Unfair,biased and crooked.

  3. why is the State trying to play GOD? Automatic sealing of a record is immoral. People should have the right to decide how to handle a record. the state is playing GOD. I have searched for decades, then you want me to pay someone a huge price to contact my son. THIS is extortion and gestapo control. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW.

  4. I haven't made some of the best choices in the last two years I have been to marion county jail 1 and two on three different occasions each time of release dates I've spent 48 to 72 hours after date of release losing a job being denied my freedom after ordered please help

  5. Out here in Kansas, where I now work as a government attorney, we are nearing the end of a process that could have relevance in this matter: "Senate Bill 45 would allow any adult otherwise able to possess a handgun under state and federal laws to carry that gun concealed as a matter of course without a permit. This move, commonly called constitutional carry, would elevate the state to the same club that Vermont, Arizona, Alaska and Wyoming have joined in the past generation." More reading here: http://www.guns.com/2015/03/18/kansas-house-panel-goes-all-in-on-constitutional-carry-measure/ Time to man up, Hoosiers. (And I do not mean that in a sexist way.)

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