Indiana Attorney General Files Reply To Shepherd’s Conviction Appeal
Indiana Attorney General Files Reply To Shepherd’s Conviction Appeal
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Amanda Bridgman-abridgman@timesuniononline.com
Indiana Attorney General Files Reply To Shepherd’s Conviction AppealThe Indiana Attorney General’s Office replied to Alyssa Shepherd’s conviction appeal last week with a 53-page brief, leaving Shepherd’s attorney 15 days to file a response before a judge will rule.
Shepherd, 24, was convicted in October by a jury in Fulton Superior Court of three counts of reckless homicide, Level 5 felonies; a Class A misdemeanor for reckless driving for passing a school bus with the arm extended, causing bodily injury; and criminal recklessness, a Level 6 felony.
Shepherd hit four children around 7:15 a.m. Oct. 30, 2018, as the children were crossing Ind. 25 north of Rochester to get on their school bus. She killed 9-year-old Alivia Stahl and Stahl’s 6-year-old twin brothers, Mason and Xzavier Ingle. Eleven-year-old Maverick Lowe was severely injured from the crash. Shepherd has maintained she did not recognize the vehicle as a school bus.
Fulton Superior Court Judge Greg Heller sentenced Shepherd in December to 10 years in the Indiana Department of Corrections, with four of those years to be served in prison, followed by three years on home detention and the remaining three years suspended to probation. The court also imposed a three-year driver’s license suspension on each reckless homicide conviction and a one-year license suspension on the criminal recklessness conviction. Shepherd had faced 21-1/2 years if given the maximum sentence.
Shepherd appealed her conviction on Jan. 16. In her appeal, filed by her attorney Stacy Uliana, Shepherd alleges the State failed to present substantial evidence from which recklessness could be inferred. Namely, that prosecutors failed to prove from which the jury could infer that Shepherd made a conscious choice to pass a stopped school bus and that Shepherd’s response to her observation of a vehicle with bright lights in the oncoming lane does not rise to the level of reckless conduct. Shepherd’s appeal also accuses the trial court of committing reversible error by failing to give a jury instruction proposed by Shepherd’s jury trial counsel that elaborated on the definition between negligence and recklessness. Uliana also contends that Shepherd’s convictions for criminal recklessness and recklessly passing a school bus violate the double jeopardy law and also asked the appeals court to have Shepherd’s driver’s license suspension not run consecutively.
In the State’s response filed June 25 by Indiana Attorney General Curtis Hill and Supervising Deputy Attorney General Ellen Meilaender, it states, “The evidence is sufficient to sustain the jury’s convictions finding (Shepherd) acted recklessly when she disregarded a stopped school bus with flashing warning lights and continued driving nearly 60 miles per hour until she ran over four children crossing the road. ... (Shepherd) saw a vehicle hazard ahead on the road, and, under any of the possible explanations, all of which created the risk there were people present and potentially hazards extending into (Shepherd’s) lane of travel, the only prudent course of action was to slow down. Instead, the evidence showed that (Shepherd) continued to drive toward the vehicle in the dark at nearly 60 miles per hour without even removing her foot from the accelerator. Failing to slow down at all in these circumstances is sufficient to sustain a finding of recklessness.”
In regard to Shepherd’s appeal about the jury instruction to define the difference between negligence and recklessnesss, the State writes: “The trial court properly declined to give (Shepherd’s) proffered jury instruction, drawn from a sufficiency case, providing explanations that would be insufficient to support a reckless homicide conviction. Not all statements of law drawn from court opinions are proper for inclusion in jury instructions. This instruction improperly focused on a sufficiency standard, and its use of the language “error in judgment” was potentially misleading. ...Where the jury has been properly instructed on the ‘recklessly’ element of the offenses, as it was here, no further instruction defining negligence is required.”
The State did agree that Shepherd’s Class A misdemeanor reckless driving conviction and the Level 6 felony criminal recklessness conviction do violate Indiana’s double jeopardy law. The double jeopardy law means that a person cannot be punished for a crime twice that is based on the same act and the same evidence. The State agrees the misdemeanor conviction should be vacated.
When it comes to the license suspension, the State wrote, “(Shepherd) has waived her argument that her license suspensions were improperly run consecutively because she did not raise this objection in the trial court and is raising the issue for the first time on appeal. Regardless, (Shepherd) has not met her burden to show error. ... At most, (Shepherd) would be entitled to remand for the trial court to clarify its order regarding the license suspensions.”
In conclusion, the State’s brief states: “A jury of 12 Fulton County citizens concluded that (Shepherd’s) disregard of the danger posed by the observed hazard constituted a substantial deviation from accepted standards of conduct. That is a question particularly inappropriate for appellate reweighing. It is not a question of law but a question of the community’s standards of conduct. Appellate court judges have no special qualifications or expertise that makes them better suited to make that decision than 12 members of the community. If anything, rural Fulton County jurors, having more occasion to encounter the situation, would be better suited to judge whether it is acceptable not to slow down at all when approaching a large vehicle with red flashing lights that might be an oversized modular home or farm implement traveling on the roadway in the dark. The State presented probative evidence from which a reasonable fact-finder could conclude that (Shepherd’s) conduct was reckless, and the jury’s verdicts to that effect should be affirmed.”
Shepherd is serving her sentence at the Rockville Correctional Facility.
