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Case shows challenge of ending res gestae

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The Indiana Court of Appeals affirmed a man's convictions and sentence for the 2007 murder and rape of a 14-year-old girl in Columbus, noting that the evidence the man objected to being admitted showed the challenges presented by eliminating the doctrine of res gestae.

In Demetrick D. Shepherd v. State of Indiana, No. 03A05-0712-CR-720, Demetrick Shepherd challenged his felony murder, felony rape, and felony burglary convictions and 90-year consecutive sentence for the murder of C.P. He raised two issues on appeal: whether the trial court committed reversible error by admitting evidence that he made advances toward C.P. and had taken a car without permission a week before the murder in violation of Ind. Evid. Rule 404(b); and that his sentence is inappropriate in light of his character and the nature of the offenses.

Shepherd believed the trial court erroneously admitted improper evidence of prior conduct and filed a motion in limine to prevent the state from introducing evidence that he had hit on C.P. the week before she was murdered and that same night he took without permission a car that belonged to Michelle Olvey, a family friend of C.P. and whose home C.P. was in when she was murdered. The trial court denied the motion.

"Assuming, without deciding, that the challenged evidence was erroneously admitted under Evidence Rule 404(b), the admission of the evidence of Shepherd's prior flirtations with the victim, no matter how vulgar, along with the evidence that Shepherd previously used Olvey's car without her permission, was clearly harmless beyond a reasonable doubt," wrote Judge James Kirsch.

In light of the conduct Shepherd admitted to, the evidence of his prior flirtation, and evidence he took Olvey's car had limited prejudicial effect.

In a footnote, the judge wrote that prior to the Indiana Supreme Court decision Swanson v. State, 666 N.E.2d 397 (1996), this evidence would have come in under the doctrine of res gestae. Now, it would only come in under the exception to Evid. R. 404(b).

"We believe that evidence such as this illustrates the challenges presented by the elimination of the doctrine of res gestae. In the present case, the story of these crimes could not be properly told without this evidence," he wrote.

The Court of Appeals affirmed Shepherd's sentence, finding the aggravating factors outweighed the mitigating factors and that consecutive sentences weren't inappropriate. In a separate footnote, the appellate court wrote it didn't consider whether to increase Shepherd's sentence and that briefs in the matter were filed prior to the Feb. 10, 2009, Supreme Court decision McCullough v. State. The state didn't present an argument that Shepherd's sentence should be increased.

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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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