ILNews

COA split over whether convicted murderer needs new trial

Back to TopCommentsE-mailPrintBookmark and Share

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.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I need an experienced attorney to handle a breach of contract matter. Kindly respond for more details. Graham Young

  2. I thought the slurs were the least grave aspects of her misconduct, since they had nothing to do with her being on the bench. Why then do I suspect they were the focus? I find this a troubling trend. At least she was allowed to keep her law license.

  3. Section 6 of Article I of the Indiana Constitution is pretty clear and unequivocal: "Section 6. No money shall be drawn from the treasury for the benefit of any religious or theological institution."

  4. Video pen? Nice work, "JW"! Let this be a lesson and a caution to all disgruntled ex-spouses (or soon-to-be ex-spouses) . . . you may think that altercation is going to get you some satisfaction . . . it will not.

  5. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

ADVERTISEMENT