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. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  2. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  3. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  4. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  5. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.