Kedrowitz v. State

• Decision Date: 28 November 2022
• Docket Number: Court of Appeals Case No. 22A-CR-457
• Parties: Nickalas James KEDROWITZ, Appellant/Defendant, v. STATE of Indiana, Appellee/Plaintiff.
• Court: Indiana Appellate Court

199 N.E.3d 386

Nickalas James KEDROWITZ, Appellant/Defendant,

v.STATE of Indiana, Appellee/Plaintiff.

Court of Appeals Case No. 22A-CR-457

Court of Appeals of Indiana.

Filed November 28, 2022

Attorney for Appellant: Jennifer A. Joas, Madison, Indiana

Attorneys for Amicus Curiae Indiana Public Defender Council: Bernice Corley, Executive Director, Indianapolis, Indiana, Joel C. Wieneke, Senior Staff Attorney, Brooklyn, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ellen H. Meilaender, Supervising Deputy Attorney General, Indianapolis, Indiana

Attorneys for Amicus Curiae Indiana Prosecuting Attorneys Council: Christopher W. Naylor, Executive Director, Indianapolis, Indiana, Glenn R. Johnson, Director of Research, Indianapolis, Indiana, Tracy A. Fitz, Juvenile Resource Prosecutor, Indianapolis, Indiana

Bradford, Chief Judge.

Case Summary

[1] In the spring and summer of 2017, the then thirteen-year-old Nickalas Kedrowitz killed two of his three younger siblings by smothering them. After the State petitioned to have Kedrowitz found to be a juvenile delinquent due to his committing two counts of what would be murder if committed by an adult, the State petitioned the juvenile court to waive jurisdiction over the case, and Kedrowitz petitioned the juvenile court to be found incompetent to stand trial. When two court-appointed experts found Kedrowitz competent to stand trial, he obtained funds to hire an expert evaluator who found him incompetent. Following a hearing, the juvenile court found Kedrowitz competent to stand trial and, following another hearing, waived jurisdiction over the case.

[2] The State charged Kedrowitz with two counts of murder. Following a jury trial in the Ripley Circuit Court, the jury found Kedrowitz guilty as charged, and the trial court sentenced him to fifty years of incarceration for each murder, both sentences to be served consecutively. As restated, Kedrowitz contends that the juvenile court abused its discretion in finding him competent to stand trial, the juvenile court abused its discretion in waiving his case to adult court, and the Ripley Circuit Court lacked jurisdiction to hear his case. Kedrowitz also contends that the trial court abused its discretion in sentencing him, his sentence is inappropriately harsh, and his sentence violates Article 1, Sections 16 and 18, of the Indiana Constitution. Because we disagree with all of Kedrowitz's contentions, we affirm.

Facts and Procedural History

[3] In the spring of 2017, Kedrowitz was thirteen years old and lived in Ripley County with Christina McCartney (his mother), Stephen Ritz (his mother's boyfriend), D.M. (his two-year-old half-sister), A.M. (his one-year-old half-sister), and N.R. (Ritz's infant son and Kedrowitz's de facto sibling). On May 1, 2017, among Kedrowitz's assigned chores for the day was to give all three of his siblings baths and put on their lotion and pajamas. That evening, when Kedrowitz took D.M. into the bathroom for her bath, he held a towel over her mouth and throat until her lips turned blue and she was unresponsive.

[4] When McCartney arrived home from work, Kedrowitz carried D.M. out to her, telling her that something was wrong with his sister. When first responders arrived, D.M. had no pulse, was not breathing, and had vomited. Although the first responders were able to restore a heartbeat on the way to the hospital, D.M. never began breathing again, and, after several days on life support, she died on May 7, 2017. Prior to her death, D.M. was a normal, healthy child. Kedrowitz told police that D.M. had thrown up a couple times while he was giving her a bath; he had left the bathroom to get her pajamas; and, when he returned, she was floating in the tub, unresponsive. An autopsy did not find any evidence that D.M. had drowned and did not find any damage, infection, or genetic abnormality

in her major organs that could have caused her death. The manner and cause of death, while initially classified as undetermined, were consistent with death by suffocation.

[5] On July 20, 2017, Kedrowitz took N.R., then eleven months old, into the bedroom they shared to put him to bed. He held a blanket over N.R.’s mouth and nose until N.R. was dead, and then took N.R.’s body to McCartney saying that something was wrong with him. When first responders arrived at the house, N.R. was not breathing and had no pulse. Efforts to revive him were unsuccessful.

[6] When interviewed at the Child Advocacy Center ("CAC"), Kedrowitz said that he had put N.R. in his bed and was cleaning his room when he noticed that N.R. had stopped fussing. Kedrowitz claimed that, shortly thereafter, N.R. was cold and had begun "to turn bright white." Tr. Vol. VIII p. 210. When he was asked how things had changed at his home since D.M.’s death, Kedrowitz answered "[l]ess laundry" but said that things were otherwise the same. Tr. Vol. VIII p. 230. While the autopsy uncovered nothing to explain N.R.’s death, its findings were consistent with a suffocation death; it found no problems or infections in his major organs, no genetic disease, and no indications of abuse such as bone fractures, bleeding in the eyes, or a torn frenulum. N.R.’s cause of death, like D.M.’s was initially classified as "undetermined[.]" Tr. Vol. VIII p. 134.

[7] In September or October of 2017, clinical psychologist Dr. Linda McIntire, Psy.D., evaluated Kedrowitz as part of the CHINS case that was opened in response to the two children's deaths. During the evaluation, Kedrowitz said that he had "freed" D.M. and N.R. and that he had "let them free" because they were trapped, statements that were duly reported to law enforcement. Ex. Vol. XII p. 69. Family members also reported to law enforcement that Kedrowitz had tortured and mutilated two kittens at the home of his great-aunt, squeezing one so hard that its internal organs were pushed out of it and making puncture wounds in the heads

of both.

[8] On December 13, 2017, Detectives Brent Miller and Peter Tressler went to the home of Jeff Barker, Kedrowitz's uncle with whom he was now living, to talk to Kedrowitz. Kedrowitz told the detectives that he had had a conversation with God about the deaths of D.M. and N.R. and had "freed" them from "hell" and from the "chains of fire[.]" Tr. Vol. IX p. 21. Kedrowitz then explained that he had put a blanket over N.R.’s head and a towel over D.M.’s head and pressed them down until the children were dead.

[9] One day when Kedrowitz's great-aunt, Candace Barker, was driving him home from school, Kedrowitz became "real serious" and told her, "I've GOT to tell you something." Tr. Vol. VIII pp. 23, 24 (emphasis in transcript). Kedrowitz told Candace that he had killed D.M. and N.R. When asked how he had done this, Kedrowitz said that he had held a towel over D.M.’s head and a blanket over N.R.’s head. Kedrowitz said he had known D.M. was dead when she was limp and her face had turned blue. When asked why he had done this, Kedrowitz said that he had had to "protect" them from Ritz, he had not wanted them "to go through what [he had gone] through[,]" and he had not wanted them "to have to go through the kind of life that [he was] leading." Tr. Vol. VIII pp. 24, 25. Kedrowitz also told his Uncle Jeff and his grandmother, Anita Barker, that he had killed D.M. and N.R.

[10] Around Christmas in December of 2017, Kedrowitz's court-appointed special advocate, Sandra Wakefield ("CASA Wakefield"), visited him at his uncle's home. Kedrowitz told CASA Wakefield that he had killed D.M. and N.R., relating this information matter-of-factly, showing "no emotion" and without crying. Tr. Vol. VIII p. 99. In January of 2018, Kedrowitz told his counselor, Evan Munn, that he had killed his younger siblings, but that Munn should not tell anyone about this. After learning the information about Kedrowitz's statements and determining that they were consistent with the autopsy findings, the cause of death in both cases was amended to asphyxia

by smothering.

[11] In January of 2018, Kedrowitz was admitted to LaRue Carter Hospital pursuant to his CHINS case. On September 6, 2018, the State filed a delinquency petition alleging that Kedrowitz had committed what would be two counts of murder if committed by an adult. The State petitioned to waive jurisdiction to adult court, and Kedrowitz petitioned for a competency evaluation. The two psychologists the trial court appointed to evaluate Kedrowitz, Dr. Ed Connor, Psy.D., and Dr. David L. Winsch, Ph.D., both found him competent to stand trial. Dr. Connor had administered the Kaufman Brief Intelligence Test-2, which had shown Kedrowitz to have a standard composite IQ score of eighty-four. On the Inventory of Legal Knowledge test, Kedrowitz had answered fifty-two of sixty-one questions correctly, which put him in the seventy-second percentile. Dr. Winsch had administered the Wechsler Intelligence Scale for Children–5th edition, which had shown Kedrowitz to have a full-scale IQ of seventy-two, placing him in the category of borderline intellectual disability. Dr. Winsch had also administered the Competency Assessment for Standing Trial for Adults with Mental Retardation ("CAST-MR"), which is a competency test designed for people with intellectual disabilities. Kedrowitz had scored an eighty-nine percent on that test, which was above average for those with intellectual disabilities and showed a strong understanding of legal concepts. Dr. Winsch did not find that Kedrowitz had had problems distinguishing fantasy from reality. Upon receiving their evaluations, Kedrowitz withdrew his challenge to competency, and the juvenile court found him competent to stand trial.

[12] Kedrowitz was subsequently given funds to hire an expert, which he used to hire psychiatrist Dr. George F. Parker, M.D., who evaluated him and opined that he was not competent to stand trial, though he acknowledged that Kedrowitz had exhibited basic knowledge regarding the roles of court personnel....