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Man convicted of molestation was denied fair trial

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A Greene County man convicted of Class A felony child molesting is entitled to a new trial because extensive hearsay and vouching testimony was admitted in error, the Court of Appeals held Wednesday.

In Jerry L. Kindred v. State of Indiana, 28A01-1202-PC-50, Jerry Kindred appealed the denial of his request for post-conviction relief and reinstated his direct appeal to the felony conviction. Kindred was convicted of molesting his girlfriend’s granddaughter while they slept in the same bed.

Don Fish, a caseworker for Green County Child Protective Services, and Julie Martin, a sex-crimes investigator employed by the Green County Prosecutor’s Office, interviewed A.G. about her allegations that Kindred placed his finger in her vagina on several occasions. At Kindred’s trial, Martin testified about her role in charging decisions and she and Fish testified regarding what A.G. told them during the forensic interviews.

This testimony was not properly offered as course-of-investigation evidence as the state had argued, Judge Nancy Vaidik wrote. The fact that Martin generally requires corroborating evidence before filing charges is irrelevant. The testimony also contained hearsay.

A.G.’s mother, grandmother, and the grandmother’s ex-husband, as well as Martin and Fish, also testified that A.G. said Kindred molested her. A.G. also testified that Kindred molested her. This was drumbeat evidence, the judges held, pointing to the length of the testimony by Martin and Fish. The jury also heard Kindred’s entire 40-minute interview with investigators at which Fish repeatedly suggested Kindred touched A.G. and A.G. was being truthful.

There was also fundamental error when A.G.’s relatives vouched for A.G.’s credibility. The appellate court extended the decision of Hoglund v. State, N.E.2d 1230 (Ind. 2012), in which the Supreme Court expressly eliminated the vouching-testimony exception in child molesting cases, to also include testimony referencing whether a child was coached.

“We read Hoglund to suggest that testimony about whether a child has been coached amounts to the same improper commentary on the child’s truthfulness as testimony about whether a child is prone to exaggerate or fantasize about sexual matters. We hold that general testimony about the signs of coaching, as well as the presence or absence of those signs in the child victim at issue, preserves the ultimate credibility determination for the jury and therefore does not constitute vouching. By contrast, where a witness opines as to whether the child victim was coached — offering an ultimate opinion, as Fish did here — the witness invades the province of the jury and vouches for the child,” Vaidik wrote.

 Kindred may be retried if the state chooses to do so, the judges ruled after reversing his conviction.

 

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  1. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  2. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

  3. I whole-heartedly agree with Doug Church's comment, above. Indiana lawyers were especially fortunate to benefit from Tom Pyrz' leadership and foresight at a time when there has been unprecedented change in the legal profession. Consider how dramatically computer technology and its role in the practice of law have changed over the last 25 years. The impact of the great recession of 2008 dramatically changed the composition and structure of law firms across the country. Economic pressures altered what had long been a routine, robust annual recruitment process for law students and recent law school graduates. That has, in turn, impacted law school enrollment across the country, placing upward pressure on law school tuition. The internet continues to drive significant changes in the provision of legal services in both public and private sectors. The ISBA has worked to make quality legal representation accessible and affordable for all who need it and to raise general public understanding of Indiana laws and procedures. How difficult it would have been to tackle each of these issues without Tom's leadership. Tom has set the tone for positive change at the ISBA to meet the evolving practice needs of lawyers of all backgrounds and ages. He has led the organization with vision, patience, flexibility, commitment, thoughtfulness & even humor. He will, indeed, be a tough act to follow. Thank you, Tom, for all you've done and all the energy you've invested in making the ISBA an excellent, progressive, highly responsive, all-inclusive, respectful & respected professional association during his tenure there.

  4. The is putting restrictions on vaping just because big tobacco companies are losing money. http://vapingisthefuture.com

  5. Oh, and I should add ... the stigma JLAP attaches lasts forever. As my documents show, I had good reason to reject the many conflicted diagnoses for not thinking like the state wanted me to. BUT when I resisted and raised constitutional and even ADA "regarded as" arguments I was then denied licensed in Indiana for LIFE. As in until death does us part. Evidence in comments here: http://www.theindianalawyer.com/scotus-denies-cert-to-kansas-attorney-seeking-to-practice-in-indiana/PARAMS/article/40522 Resistance is futile, comrades.

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