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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. 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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