Shepell Orr v. State of Indiana
2012 Ind. App. LEXIS 287
| Ind. Ct. App. | 2012Background
- Orr was convicted in a jury trial of two counts of murder and sentenced to consecutive terms of fifty-five years each (total 110 years).
- On December 30, 2009, Orr shot at Tolbert, Burnette, Williams, and Haywood during a dispute; Tolbert and Burnette fled, Williams and Haywood were killed with eleven gunshots.
- Burnette testified she did not see a gun or the altercation, contradicting statements she gave to others on the night of the incident.
- The State sought to impeach Burnette with extrinsic evidence of a prior inconsistent statement she allegedly made to Michelle Jones, and an inmate testified that Orr admitted the murders.
- Before the jury heard Jones’s testimony, a hearing addressed hearsay and impeachment; the court allowed Jones to testify about Burnette’s statements.
- Orr did not contemporaneously object to Jones’s testimony; he appeals alleging error in admitting extrinsic evidence under Evid. R. 613(b); the court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of extrinsic evidence of a prior inconsistent statement | Orr argues no contemporaneous objection and no proper opportunity to explain under Rule 613(b). | State contends the court properly exercised discretion under Rule 613(b) and allowed the testimony. | Not reversible error; court properly exercised discretion; conviction affirmed. |
Key Cases Cited
- Hilton v. State, 648 N.E.2d 361 (Ind. 1995) (R 613(b) confrontation not binding; discretion to allow impeachment evidence)
- Clark v. State, 808 N.E.2d 1183 (Ind. 2004) (face-to-face confrontation not required if recall possible)
- Fowler v. State, 829 N.E.2d 459 (Ind. 2005) (confrontation rights and cross-examination context)
- U.S. v. Young, 86 F.3d 944 (9th Cir. 1996) (opportunity to explain or deny may be satisfied at any point)
- U.S. v. Della Rose, 403 F.3d 891 (7th Cir. 2005) (extrinsic impeachment permissible without prior confrontation in some contexts)
- Wammock v. Celotex Corp., 793 F.2d 1518 (11th Cir. 1986) (continued availability to recall for explanation matters for Rule 613(b))