ILNews

Man convicted of molestation was denied fair trial

Back to TopCommentsE-mailPrintBookmark and Share

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.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

ADVERTISEMENT