Kenneth W. Kee v. State of Indiana (mem. dec.)
22A05-1512-CR-2151
| Ind. Ct. App. | Nov 17, 2016Background
- In Feb 2015, confidential informant Devan Philpott arranged two controlled buys from Kenneth Kee; buys yielded three baggies (1.94 g) and three baggies (1.59 g) of methamphetamine.
- Philpott was searched and wired; buys occurred at a Meijer store and at Kee’s residence/driveway.
- Kee was charged with two counts of Level 4 felony dealing in methamphetamine (1–5 grams) and alleged as a habitual offender.
- Kee filed a speedy-trial motion; trial set for May 26, 2015; State moved for continuance under Crim. R. 4(D) to obtain additional DNA analysis from the State Police Lab; trial continued to August 25, 2015.
- At trial, a detective testified he was familiar with Kee from prior narcotics officers’ dealings; Kee elicited this testimony, then moved for mistrial.
- Kee was convicted on both dealing counts; jury found habitual offender; aggregate 20-year sentence imposed. Kee appealed raising speedy-trial, character evidence, and sufficiency/weight issues.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Kee) | Held |
|---|---|---|---|
| 1. Speedy trial — continuance under Crim. R. 4(D) | State: Needed additional DNA samples and lab time; made reasonable efforts; evidence unavailable within 70 days | Kee: Continuance violated Crim. R. 4(B); entitled to discharge | Court: Affirmed continuance under 4(D); no abuse of discretion |
| 2. Character testimony — detective knew Kee prior to arrests | State: Testimony was either invited by Kee or harmless; court admonished and struck testimony | Kee: Detective’s statement that he knew Kee prejudiced his right to fair trial; merits mistrial | Court: Kee invited error by eliciting testimony; denial of mistrial proper; admonition cured any error |
| 3. Sufficiency — proof of drug weight (scale calibration) | State: Certificate of analysis and forensic testimony established weights (1.94 g and 1.59 g); foundational challenge not preserved | Kee: State failed to prove scale accuracy; weight element unproven | Court: Defense failed to object to foundation at trial; evidence admissible; substantial evidence supports weights |
Key Cases Cited
- Chambers v. State, 848 N.E.2d 298 (Ind. Ct. App. 2006) (standards for granting continuance under Crim. R. 4(D))
- Wilhelmus v. State, 824 N.E.2d 405 (Ind. Ct. App. 2005) (Rule 4(D) does not require evidence be unique, only unavailable)
- Smith v. State, 502 N.E.2d 485 (Ind. 1987) (Rule 4(D) analysis principles)
- Jackson v. State, 728 N.E.2d 147 (Ind. 2000) (doctrine of invited error / opening the door to evidence)
- Banks v. State, 761 N.E.2d 403 (Ind. 2002) (admonition presumed to cure evidentiary error)
- Turner v. State, 878 N.E.2d 286 (Ind. Ct. App. 2007) (scale accuracy is foundational; defense must object to preserve challenge)
- Guadian v. State, 743 N.E.2d 1251 (Ind. Ct. App. 2001) (defendant must object to lack of foundation rather than await appellate review)
- Delarosa v. State, 938 N.E.2d 690 (Ind. 2010) (fundamental error standard for reviewing waived claims)