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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. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

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