141 N.E.3d 1273
Ind. Ct. App.2020Background
- On June 24, 2016, Bethel Smallwood was shot and killed while sitting in a parked car outside Po Boys; ShotSpotter and witnesses placed the shooting at ~3:07 p.m.
- Security video and neighborhood witnesses placed Keith B. Ivory, Jr. in the immediate area just before and immediately after the shooting; a shirt he discarded was recovered from a neighbor’s recycling bin.
- A Taurus semi-automatic handgun used in the killing was recovered from a nearby gutter; the gun was registered in Ivory’s wife’s name.
- The Indiana State Police lab used STRmix probabilistic genotyping to analyze mixed-DNA samples from the recovered shirt and the gun; STRmix results supported that Ivory was a contributor (very strong support for the shirt; moderate support for trigger/grip swabs).
- Multiple jailhouse witnesses and recorded calls produced statements in which Ivory admitted killing Smallwood and discussed disposing of the gun and shirt; cellphone location records also placed Ivory in the area.
- Ivory was tried twice (first trial mistrial); following a second jury trial he was convicted of murder and appealed, raising issues about sufficiency of the evidence, admission of DNA/STRmix results, and jury instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence to prove Ivory was the shooter | State: circumstantial evidence (video, phone data, gun location), STRmix results, and jailhouse confessions sufficiently prove identity and intent | Ivory: evidence insufficient — witnesses didn’t ID him as shooter; confessions unreliable; STRmix unreliable; another person could be shooter | Affirmed. Court applied standard of review and found ample probative evidence (confessions, video, gun registered to wife, STRmix, phone data) to support conviction |
| Admissibility of STRmix DNA evidence (Ind. Evid. R. 403) | State: STRmix is a validated probabilistic genotyping tool; analyst explained method and lab training; probative value outweighs any risk of confusion | Ivory: STRmix is new and results were confusing/low statistical value such that admission violated Rule 403 | No reversible error. Defendant waived contemporaneous objection; court found no fundamental error and, even if erroneous, admission would be harmless given substantial independent evidence |
| Jury instructions (incl. failure to give "reasonable theory of innocence") | State: instructions given were legally adequate; pattern instruction need not be followed rigidly | Ivory: court erred in instruction wording and failed to give instruction requiring exclusion of every reasonable theory of innocence where evidence was circumstantial | No fundamental error. Pattern instruction deviation did not misstate law; instruction on reasonable theory not required because the State presented direct evidence (confessions) so case was not purely circumstantial |
Key Cases Cited
- Bruno v. State, 774 N.E.2d 880 (Ind. 2002) (standard for appellate review of sufficiency of the evidence)
- Ferrell v. State, 746 N.E.2d 48 (Ind. 2001) (affirming that appellate court does not reweigh evidence or judge witness credibility)
- Delarosa v. State, 938 N.E.2d 690 (Ind. 2010) (failure to make contemporaneous objection waives evidentiary challenge on appeal)
- Benson v. State, 762 N.E.2d 748 (Ind. 2002) (narrow scope of fundamental error doctrine)
- Knapp v. State, 9 N.E.3d 1274 (Ind. 2014) (fundamental error must be so blatant the trial judge should act sua sponte)
- Brown v. State, 799 N.E.2d 1064 (Ind. 2003) (doctrine of fundamental error applies only in egregious circumstances)
- Alcantar v. State, 70 N.E.3d 353 (Ind. Ct. App. 2016) (age of analytical method is not alone a basis to exclude DNA evidence)
- Gravens v. State, 836 N.E.2d 490 (Ind. Ct. App. 2005) (pattern jury instructions are preferred but not always mandatory)
- Boney v. State, 880 N.E.2d 279 (Ind. Ct. App. 2008) (pattern instructions may still be incorrect statements of law)
- Hampton v. State, 961 N.E.2d 480 (Ind. 2012) (instruction on reasonable theory of innocence required when the element-identity is established exclusively by circumstantial evidence)
- Carr v. State, 728 N.E.2d 125 (Ind. 2000) (a defendant’s confession to another is direct evidence)
- Bonner v. State, 650 N.E.2d 1139 (Ind. 1995) (improper admission of evidence is harmless if conviction is supported by substantial independent evidence)
- Ford v. State, 704 N.E.2d 457 (Ind. 1998) (instruction objection preservation rule and fundamental error standard)