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Court affirms, denies challenge to DNA evidence, new mid-trial witness

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The Court of Appeals today affirmed a man’s convictions and sentence for felony robbery despite his challenge to whether the trial court properly admitted DNA evidence and allowed the testimony of a witness discovered mid-trial.

In Charles J. Kennedy v. State of Indiana, No. 89A04-0907-CR-380, Charles Kennedy appealed his convictions and 27-year sentence for Class A felony robbery and Class A felony conspiracy to commit robbery. In addition to addressing whether the trial court properly admitted DNA evidence implicating Kennedy and permitting the testimony of a witness not discovered until mid-trial, the court was asked whether Kennedy’s sentence was inappropriate

On April 2, 2007, then-16-year-old Charles Kennedy and Derek Willis were driving around Richmond and discussed beating up and robbing someone. At around 10 p.m., they followed a man walking along the street. Willis first threw a rock at the man’s leg but the man kept walking. Kennedy then approached the man and hit him in the face with a chunk of asphalt. Kennedy took the man’s wallet, and Willis took a backpack that contained a laptop computer. The man, who could not remember anything about the attack, suffered a fractured skull and a collapsed lung.

A few weeks later, Willis confessed to police and told them of Kennedy’s role in the robbery. The state charged Kennedy and Willis with one count of Class A felony robbery. Kennedy and Willis filed what were effectively plea agreements in which both would plead guilty to Class B felony robbery, with Willis receiving a sentence of 15 years with 5 years suspended and Kennedy receiving a sentence of 20 years with 5 years suspended. Willis followed through with his plea and was sentenced accordingly. Kennedy then got new counsel and withdrew his agreement. On Jan.29, 2008, the state amended the information against Kennedy to include the Class A felony conspiracy to commit robbery charge.

Indiana State Police lab DNA analyst Nicole Keeling conducted DNA testing on the piece of asphalt that had been used to bludgeon the victim. She issued during the next few months three separate certificates of analysis that concluded the victim was the source of the major DNA profile found on the asphalt, and that Kennedy “cannot be excluded” as a contributor to DNA on the asphalt. She also concluded that Willis’ DNA was not found on the asphalt.

The jury found Kennedy guilty Oct. 23, 2008, and on May 20, 2009, the trial court sentenced Kennedy to 27 years with 3 years suspended on each Class A felony charge, with the sentences to run concurrently.

Kennedy challenged the admissibility of the DNA on procedural grounds for alleged violation of discovery rules and on substantive grounds for the state’s alleged failure to establish the scientific veracity of the test results. Kennedy’s counsel during trial had brought in Ranajit Chakraborty, a nationally recognized DNA analysis expert, who vigorously challenged the underpinnings of Keeling’s test results, questioning how Keeling conducted the testing.  

“Kennedy is challenging the very highly technical details of how Keeling conducted her testing. We believe this is the very reason the rules of evidence provide for expert witness testimony. The details of how DNA testing is conducted are beyond the ready grasp of laypersons, or judges and lawyers for that matter. Furthermore, DNA testing is not always a black-and-white science. Keeling, whom Kennedy recognizes as a qualified expert in this field, testified that DNA analysts almost always have to exercise some degree of discretion in testing. Chakraborty also agreed that trained and qualified DNA analysts can have reasonable disagreements regarding proper test results. We believe this clearly is a case where the dispute between Keeling and Chakraborty regarding the precise details of her testing methods goes to the weight of her results, not their admissibility. Kennedy was permitted to and in fact did present to the jury a detailed critique of Keeling’s methods. The trial court did not abuse its discretion in admitting the results into evidence,” wrote Judge Michael Barnes.

Regarding witness Megan Felty, she was not discovered as a state’s witness until the middle of Kennedy’s trial. Felty had been Kennedy’s high school classmate and claimed that he’d told her in October 2007 about his participation in the robbery. She had not told anyone until Oct. 8, 2008, when she told her father, who called the prosecutor’s office. Kennedy didn’t seek a continuance with his motion to exclude Felty’s testimony and he even refused the trial court’s offer of a one-day continuance in order to investigate her possible testimony. Kennedy therefore waived any claim of error with respect to the court’s decision to permit Felty to testify. For guidance, the court relied on Wilson v. State, 533 N.E.2d 114 (Ind. 1989), and noted there was no indication the state engaged in any misconduct.

In addressing Kennedy’s argument that his aggregate 27-year sentence, with 3 years suspended, is inappropriate, the court disagreed and affirmed.
 

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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