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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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