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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. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

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