A man convicted of murdering the person he believed was responsible for killing his sister failed to convince a panel of the Indiana Court of Appeals that his conviction was in any way flawed.
The COA affirmed the murder conviction Thursday in Keith B. Ivory, Jr. v. State of Indiana, 18A-CR-2575.
“Ivory had a grudge against Bethel Smallwood, believing that Smallwood had been at least partially responsible for the death of his sister in 2012 or 2013,” Senior Judge John Sharpnack wrote. “He later told a friend, Ronald Nichols, that he had been waiting for ‘the opportunity’ to get revenge.”
Authorities say the opportunity came when Keith Ivory encountered Smallwood parked in a car near the Po Boys barbecue restaurant in South Bend on June 24, 2016. Multiple witnesses heard shots fired and saw a man fleeing before Smallwood was found fatally shot in his car.
After a mistrial in 2017, a St. Joseph Superior jury convicted Ivory the next year of Smallwood’s murder.
On appeal, Ivory claimed insufficient evidence and also questioned whether DNA evidence presented at trial confused the jury to a greater degree than its probative value.
Regarding the latter, Indiana State Police crime lab’s “probabilistic genotyping software” called “STRmix” was used to test genetic material on a shirt Ivory was believed to have been wearing that investigating police recovered from a trash bin near the scene.
A forensic lab analyst told jurors it was “at least a trillion times more likely” the DNA was that of Keith Ivory and three unknown individuals than four unknown individuals. The evidence also ruled out three other potential suspects.
“There is ample evidence to support a conclusion that the probative value of DNA evidence outweighed any confusion or undue prejudice,” Sharpnack wrote. Even if evidence should not have been admitted, the error would have been at worst harmless rather than fundamental.
The panel also noted the state produced four witnesses who testified that Ivory said he had shot a man outside Po Boys and had stated during a phone call from jail “guess you can’t get away with everything.”
“Ivory points to other evidence to argue: (1) he had stopped believing Smallwood was responsible for his sister’s death prior to the murder; (2) none of the witnesses in the neighborhood identified him as the shooter; (3) all of the witnesses who said he confessed to them had credibility problems; (4) the STRmix DNA testing program is unreliable; and (5) another person was the shooter. These arguments are requests to reweigh the evidence, which our standard of review forbids. The State presented sufficient evidence to sustain Ivory’s murder conviction,” Sharpnack wrote.
The panel lastly rejected Ivory’s challenge of several jury instructions, none of which met his required burden of fundamental error.
The panel noted that while the instructions on direct evidence and circumstantial evidence deviated from the preferred Pattern Jury Instructions, they did not misstate the law. Likewise, the court was not obligated to instruct the jury on the reasonable theory of evidence because not all the evidence against Ivory was circumstantial.