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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

ADVERTISEMENT