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



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1028 | April 20, 2020   Page 2 of 13
      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.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1028 | April 20, 2020   Page 3 of 13
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.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-1028 | April 20, 2020   Page 4 of 13
[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.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1028 | April 20, 2020   Page 5 of 13
                    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.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1028 | April 20, 2020   Page 6 of 13
       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.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1028 | April 20, 2020                    Page 7 of 13
       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


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1028 | April 20, 2020   Page 8 of 13
       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



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1028 | April 20, 2020   Page 9 of 13
       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.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1028 | April 20, 2020     Page 10 of 13
[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


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1028 | April 20, 2020   Page 11 of 13
       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


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1028 | April 20, 2020   Page 12 of 13
       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.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1028 | April 20, 2020   Page 13 of 13
