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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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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