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Court reverses feticide convictions on double jeopardy grounds

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The man who shot a pregnant teller during a bank robbery, which led to the death of her twins, had his two felony feticide convictions vacated by the Indiana Court of Appeals because of double jeopardy violations.

Brian Kendrick, who was convicted of Class A felony attempted murder, Class B felony robbery, two counts of Class C felony feticide, and Class A misdemeanor carrying a handgun without a license, argued that his violations for attempted murder and feticide violated the Indiana Constitution’s double jeopardy clause. During a robbery of a bank in Indianapolis in 2008, Kendrick jumped over the counter and shot teller Katherine Shuffield in the abdomen. She was pregnant and as a result of her injuries, the babies had to be delivered at 22 weeks gestation. One was stillborn and the other survived only a few hours after delivery.

The Court of Appeals determined in Brian Kendrick v. State of Indiana, No. 49A02-1003-CR-300, that the evidentiary facts used to establish the feticide convictions established all of the elements of the attempted murder conviction. The convictions resulted from one act – the shooting of Shuffield in the stomach. The state presented additional evidence regarding her pregnancy and resulting termination to establish the feticide convictions, but didn’t present any additional evidence to establish attempted murder, wrote Judge Ezra Friedlander.

The judges remanded for re-sentencing, noting the trial court may now consider Shuffield’s pregnancy and termination of it in crafting Kendrick’s sentence for attempted murder. But, the court can’t impose an aggregate sentence in excess of 53 years, his original aggregate sentence, wrote Judge Friedlander.

The appellate court also found the trial court did not abuse its discretion in finding witness Gilberto Mendez unavailable for trial, as the state made a good faith effort to obtain his presence at trial. Mendez believed he was supposed to testify at 1 p.m. on a Wednesday, but the prosecution told him that wasn’t the case. Actually, it was the defense that had him scheduled to testify. The prosecution told Mendez to be prepared to testify the next day, but instead he left to work in Kentucky.

The judges also concluded that Kendrick’s challenge to three statements made by prosecutors during his trial did not amount to prosecutorial misconduct entitling him to a new trial.

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