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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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