MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 20 2020, 9:54 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Lisa M. Johnson Curtis T. Hill, Jr.
Brownsburg, Indiana Attorney General of Indiana
Megan M. Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeffery R. Buckley, April 20, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1028
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Grant W.
Appellee-Plaintiff Hawkins, Judge
Trial Court Cause No.
49G05-1710-MR-40142
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1028 | April 20, 2020 Page 1 of 13
Case Summary
[1] Following a jury trial, Jeffery Buckley was convicted of murder and sentenced
to sixty years in the Department of Correction (the DOC). On appeal, Buckley
presents two issues for our review, one of which we find dispositive: Did the
trial court abuse its discretion in refusing to give Buckley’s proposed jury
instruction on reckless homicide as a lesser included offense?
[2] We reverse and remand.
Facts & Procedural History
[3] On September 30, 2017, Kirk Shurill attended the funeral, burial, and repass
dinner for a friend. As people were leaving the repass dinner, Shurill was in the
parking lot, behind the wheel of a friend’s car, when he began “[s]pinning the
tires” and “[b]urning rubber,” which created a significant amount of smoke.
Transcript Vol. 2 at 149, 94. At the time, there were several hundred people,
including elders and children, in the parking lot.
[4] Buckley, who was among those leaving the repass dinner, approached the
vehicle, leaned in through the passenger-side window, and told Shurill to “stop
burning the rubber.” Id. at 150. Shurill and Buckley, who did not know each
other, exchanged words, and then Shurill suddenly let off the brake, causing the
car to start moving forward while Buckley was still leaning through the
window. As the car moved through the parking lot, shots were fired inside the
car. Buckley fell from the car’s window just before it collided with another car
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in the parking lot. In the span of a few seconds, between eight and twelve shots
were fired inside the vehicle.
[5] Unknown persons began firing shots at Buckley, who fled from the scene while
returning fire. Shurill was transported to the hospital where he was pronounced
dead. An autopsy revealed that Shurill sustained “24 clinical wounds”1 to his
right side, chest, right shoulder, abdomen, right thigh, right hip, and left thigh.
Id. at 186. There was stippling on the right side of Shurill’s neck, indicating that
one shot was fired from an “intermediate range.” Id. at 190. The shirt Buckley
was wearing at the time of the shooting was found in a wooded area near the
scene of the shooting. Buckley’s shirt had no holes or defects but had a few
small blood stains that were matched to Buckley.
[6] The State charged Buckley with murder. A jury trial was held February 11-13,
2019. At trial, Buckley argued that he acted in self-defense. Buckley testified
and explained the circumstances from his perspective. As he was leaving the
repass dinner, he saw that someone was “burning rubber” in the parking lot.
Transcript Vol. 4 at 47. He assessed the situation, noting that there were a lot of
people, including some of his immediate relatives, children, and elders, in the
area. Buckley approached the car, leaned through the passenger window, and
asked Shurill to stop, expressing concern that someone could be hurt. As
Shurill laughed and looked to his left, Buckley stood up from the window and
1
This includes both entrance and exit wounds and graze wounds.
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saw a group of men near the edge of the parking lot. According to Buckley, he
then leaned into the car a second time and found himself “face-to-face” with a
gun. Id. at 49. Buckley testified that he leaned farther into the vehicle and,
using both of his hands, tried to get control of the gun. Buckley described what
happened next:
[Shurill] fired off, I think, probably three to four shots. At that
point, I positioned the gun, moved the gun down and as I moved
the gun down, a bullet grazed me from my arm and my side.
And at that point, I – his hand was pointing the gun like this
(gesturing). I shifted it this way and I was pulling the gun back
and he’s leaning toward me. I fired a shot. And then he started
to straighten up like and he hits the gas. I fire another shot.
When he hits the gas, I’m trying to get out of the car. I’m losing
my -- my – my footing ‘cause my feet were still on the – the
ground. And as he took off, I remember the part of the window
hitting me and making me fall more into the vehicle. And as I
fell more into the vehicle, I started firing more shots.
***
And then the vehicle, it seems as though it propelled. It became
faster. I – I – I feared for my life and I fired more shots trying to
stop him from running me into the vehicle and in front of him or
the vehicle on the side. I felt at that point that this guy was
gonna try to kill me. And I fired more shots trying [to] stop the
threat, and it didn’t work. I tried to get myself out of the vehicle.
And finally I was able to get myself off of the vehicle.
Id. at 50-51. Buckley testified that he did not pay attention to where he was
firing, only that he continued to fire the gun to try to get out of the situation.
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[7] At the close of evidence, Buckley requested that the jury be instructed regarding
reckless homicide and submitted the following proposed instruction:
You are hereby instructed that the crime of reckless
homicide is a lesser included offense of the crime of murder.
If you find the defendant Jeffery Buckley not guilty of
murder, you may then consider whether Jeffery Buckley is guilty
of reckless homicide.
The crime of reckless homicide is defined as follows:
A person who recklessly kills another human being,
commits reckless homicide, a Level 5 felony. A person engages
in conduct recklessly when he engages in such conduct in plain,
conscious, and unjustifiable disregard of the harm that might
result, and that such disregard involved a substantial deviation
from acceptable standards of conduct.
To convict the defendant, Jeffery Buckley, of reckless
homicide, a Level 5 felony the State must prove each of the
following elements:
The defendant, Jeffery Buckley:
1. Recklessly,
2. Killed,
3. A human being, to wit: Kirk Shurill,
4. And did not act in self-defense.
If the State fails to prove each of these elements beyond a
reasonable doubt, you must find the defendant not guilty of
reckless homicide, a Level 5 felony.
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If the State does prove each of these elements beyond a
reasonable doubt, you may find the defendant guilty of reckless
homicide, a Level 5 felony.
Appellant’s Appendix Vol. 2 at 178.
[8] A discussion regarding the merits of Buckley’s proposed instruction was held
off the record in chambers. Thereafter, the trial court stated on the record that
it was refusing Buckley’s proposed instruction because “I don’t think it’s [a]
correct statement of the law.” Transcript Vol. 4 at 88. Buckley’s attorney
objected to the court’s ruling and made the following record:
And from discussions in chambers, I wanna state for the record,
it would appear not only will the Court not give the one I
submitted, which may have some defects to it, but will not give
any instruction even one the Court might possibly use in a
different case for reckless homicide because the Court did not feel
that that was justified based on the evidence here. We take
exception of that and wants [sic] the record to note that we think
the Court should give the lesser of reckless homicide based on the
fact that there is – was evidence submitted by the defendant
during his testimony that he may have acted recklessly in several
different ways by grabbing the gun versus grabbing the gearshift
to stop the progress of the Oldsmobile vehicle, by continuing to
shoot in the fashion he did in order to protect himself and – and
continuing to – or acting as he did in order to protect other
persons. And also, by acting to protect himself in the
commission of a forcible felony. He may have acted recklessly in
that fashion and we feel that’s an instruction that the jury
deserves to hear.
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Id. at 88-89. The State stated its position, asserting that the reckless homicide
instruction was not warranted because “[i]t’s a straight self-defense case.” Id. at
89.
[9] After the case was submitted to the jury, the jury requested a definition and
example of “unlawful entry into a car.” Transcript Vol. 4 at 117; Appellant’s
Appendix Vol. II at 190. The trial court felt obliged to answer the jury’s question,
but because the parties could not agree on a response, the trial court instructed
the jury that the question could not be answered. The jury found Buckley guilty
of murder. At an April 4, 2019 sentencing hearing, the trial court sentenced
Buckley to sixty years in the DOC. Buckley now appeals. Additional facts will
be provided as necessary.
Discussion & Decision
[10] Buckley argues that the trial court erred in refusing to instruct the jury on
reckless homicide as a lesser-included offense of murder. 2 When determining
whether to instruct a jury on a lesser included offense, the trial court must
perform a three-step analysis: (1) compare the statute defining the crime
charged with the statute defining the alleged lesser included offense to
determine if the latter is inherently included in the former; if not, (2) determine
if the alleged lesser included offense is factually included in the crime charged
2
Buckley also argues on appeal that the trial court erred by not responding to the jury’s question. Given our
resolution of the jury instruction matter, we need not address this issue.
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by comparing the statute defining the alleged lesser included offense to the
charging instrument in the case; and, if either, (3) determine if there is a serious
evidentiary dispute about the element or elements distinguishing the greater
from the lesser offense and if, in view of this dispute, a jury could conclude that
the lesser offense was committed but not the greater. Wright v. State, 658
N.E.2d 563, 566-67 (Ind. 1995). In deciding if there is a serious evidentiary
dispute, the court must look at the evidence presented in the case by both
parties. Id. at 567. If the third step is reached and answered in the affirmative,
the trial court will be found to have committed reversible error by not giving the
requested instruction. Id. Our Supreme Court has cautioned: “when the
question to instruct on a lesser included offense is a close one, it is prudent for
the trial court to give the instruction and avoid the risk of the expense and delay
involved in a retrial.” Champlain v. State, 681 N.E.2d 696, 701 (Ind. 1997).
[11] When the trial court has made a finding on the existence or lack of a serious
evidentiary dispute, our standard of review is abuse of discretion. Miller v. State,
720 N.E.3d 696, 702 (Ind. 1999) (citing Brown v. State, 703 N.E.2d 1010, 1019
(Ind. 1998). Where there is no such finding, the reviewing court makes the
required determination de novo based on its own review of the evidence. Id.
Here, although the trial court made no determination on the record as to the
existence or lack of a serious evidentiary dispute, Buckley’s counsel noted on
the record that discussions off the record concerned whether there was a serious
evidentiary dispute, and then counsel proceeded to outline the evidence from
which a jury might conclude that Buckley acted recklessly. We will therefore
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review the trial court’s decision for an abuse of discretion. See Brown, 703
N.E.2d at 1020.
[12] The only distinguishing feature in the elements of murder and reckless
homicide is the mens rea required for each offense. Compare Ind. Code § 35-42-
1-1 (murder is the knowing or intentional killing of a human being) and I.C. §
35-42-1-5 (reckless homicide is the reckless killing of a human being). Reckless
homicide is therefore an inherently lesser included offense of murder. McDowell
v. State, 102 N.E.3d 924, 931 (Ind. Ct. App. 2018) (citing Evans v. State, 727
N.E.2d 1072, 1082 (Ind. 2000)), trans. denied. A defendant commits a knowing
killing when he is aware of a high probability that his actions will result in the
death of a human being. Ind. Code § 35-41-2-2(b). A defendant commits a
reckless killing when he acts “in plain, conscious, and unjustifiable disregard of
harm that might result and the disregard involves a substantial deviation from
acceptable standards of conduct. I.C. § 35-41-2-2(c). A defendant charged with
murder is entitled to an instruction on reckless homicide if there is a serious
evidentiary dispute regarding the defendant’s mens rea. See Wright, 658 N.E.2d
at 567.
[13] Buckley argues that there is a serious evidentiary dispute regarding his mens rea.
He points to his testimony that after Shurill fired several shots during the
struggle over the gun, Buckley gained control and started firing. He testified
that he did not aim at anything in particular, but rather, kept firing the gun
trying to get himself out of the situation. In response, the State argues that
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there is no serious evidentiary dispute because the number of shots fired and the
number of wounds Shurill received establishes a knowing killing.
[14] Having reviewed the record, we agree with Buckley. In Webb v. State, 963
N.E.2d 1103 (Ind. 2012), our Supreme Court reversed Webb’s murder
conviction, determining that the trial court erroneously rejected his proposed
jury instruction on reckless homicide as a lesser included offense. Webb shot
his victim during an argument in a bathroom. Webb’s defense was that he was
not present at the time of the shooting. Id. at 1106-07. The Court noted that
Webb’s evidence by itself did not warrant giving a lesser included offense
instruction. The Court, however, reiterated that whether a lesser included
offense instruction should be given is based on the evidence presented by both
parties. The Court looked to the State’s evidence and noted that based on
discrepancies in the evidence, it was unclear whether Webb knew the gun had a
round in it when he shot his victim. The Court also noted testimony from a
State’s witness who heard Webb say immediately after the shooting occurred
that “he didn’t mean to [shoot Reyes], that it was an accident.” Id. at 1108
(quoting the trial transcript). From this, the Court found that “the State’s
evidence concerning Webb’s state of mind is at best ambiguous.” Id. Although
acknowledging that there was evidence to support the jury’s guilty verdict of
murder, the Court determined that there was also evidence that created a
serious evidentiary dispute as to whether Webb acted knowingly or recklessly.
Id.
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[15] In Brown v. State, 659 N.E.2d 652 (Ind. Ct. App. 1995), trans. denied, this court
reversed a voluntary manslaughter conviction upon finding that the trial court
abused its discretion in refusing to give Brown’s proposed jury instructions on
reckless homicide and involuntary manslaughter. The Brown court noted that
shortly after an argument and a fight, the victim was shot just below her left
eye. Immediately thereafter, Brown ran into the victim’s mother’s home
screaming he had shot the victim. The Brown court held that “[t]his evidence
does not preclude any reasonable possibility that Brown’s conduct involved
unjustifiable disregard of possible harm,” and therefore, a reckless homicide
instruction was warranted. Id. at 656. See also Young v. State, 699 N.E.2d 252
(Ind. 1998) (finding that there was a serious evidentiary dispute regarding
whether defendant committed murder or reckless homicide when evidence
suggested defendant shot into a crowd of people and did not specifically aim at
victim); Cf. Miller v. State, 720 N.E.2d 696, 703 (Ind. 1999) (concluding that no
serious evidentiary dispute existed where defendant fired ten shots because
there was a high probability that firing a gun repeatedly while advancing toward
victim sitting in a car would result in death); Johnson v. State, 986 N.E.2d 852
(Ind. Ct. App. 2013) (concluding there was no serious evidentiary dispute as to
defendant’s state of mind where defendant and victim went outside and
moments later defendant shot victim a total of eleven times, two times at close
range).
[16] In this case, although Buckley fired the gun and hit Shurill multiple times, we
find that the evidence could have supported a finding that Buckley acted
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recklessly in doing so. Buckley confronted an individual whom he believed was
acting recklessly by “burning rubber” in a parking lot where a lot of people were
gathered. Transcript Vol. 4 at 47. According to Buckley, the situation escalated
when Shurill pointed a gun at him and Buckley reacted by leaning into the car
and reaching for Shurill’s hand to protect himself. In a matter of seconds,
Buckley found himself struggling for the gun and while hanging halfway inside
the car and being dragged across the parking lot. In these few seconds, Buckley
claims he was fired at and that he ultimately managed to gain control of the gun
and fired multiple times in Shurill’s direction. He testified that he did not aim
at anything specific and that he kept firing the gun to try to get out of the
situation. Witness accounts of what transpired were, in relevant part, consistent
with Buckley’s testimony. Several witnesses described how, in a short time
frame, Buckley approached the car, leaned in, and was then dragged across the
parking lot as half of his body was outside the car all the while shots were being
fired. Buckley and Shurill did not know each other. There was conflicting
evidence as to the ownership of the gun. While Shurill was shot numerous
times, his wounds were to his side, arm, and legs. The shooting occurred
during a very intense and volatile situation and there was no evidence of
premeditation or deliberation.
[17] We conclude that there is a serious evidentiary dispute as to Buckley’s mens rea.
From the evidence, the jury could have concluded that Buckley acted “in plain,
conscious, and unjustifiable disregard of harm that might result and the
disregard involve[d] a substantial deviation from acceptable standards of
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conduct” when, after he gained control of gun and while leaning through the
window of a moving car, he fired the gun, hitting Shurill numerous times. See
I.C. § 35-41-2-2(c). The trial court abused its discretion in refusing to instruct
the jury on reckless homicide. We therefore reverse Buckley’s murder
conviction and remand for a new trial.
[18] Judgment reversed and remanded.
Robb, J. and Tavitas, J., concur.
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