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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. by the time anybody gets to such files they will probably have been totally vacuumed anyways. they're pros at this at universities. anything to protect their incomes. Still, a laudable attempt. Let's go for throat though: how about the idea of unionizing football college football players so they can get a fair shake for their work? then if one of the players is a pain in the neck cut them loose instead of protecting them. if that kills the big programs, great, what do they have to do with learning anyways? nada. just another way for universities to rake in the billions even as they skate from paying taxes with their bogus "nonprofit" status.

  2. Um the affidavit from the lawyer is admissible, competent evidence of reasonableness itself. And anybody who had done law work in small claims court would not have blinked at that modest fee. Where do judges come up with this stuff? Somebody is showing a lack of experience and it wasn't the lawyers

  3. My children were taken away a year ago due to drugs, and u struggled to get things on track, and now that I have been passing drug screens for almost 6 months now and not missing visits they have already filed to take my rights away. I need help.....I can't loose my babies. Plz feel free to call if u can help. Sarah at 765-865-7589

  4. Females now rule over every appellate court in Indiana, and from the federal southern district, as well as at the head of many judicial agencies. Give me a break, ladies! Can we men organize guy-only clubs to tell our sob stories about being too sexy for our shirts and not being picked for appellate court openings? Nope, that would be sexist! Ah modernity, such a ball of confusion. https://www.youtube.com/watch?v=QmRsWdK0PRI

  5. LOL thanks Jennifer, thanks to me for reading, but not reading closely enough! I thought about it after posting and realized such is just what was reported. My bad. NOW ... how about reporting who the attorneys were raking in the Purdue alum dollars?

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