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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. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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