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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. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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