Reese v. State

• Citation: 939 N.E.2d 695
• Decision Date: 24 February 2011
• Docket Number: No. 64A03–1001–CR–18.,64A03–1001–CR–18.
• Parties: Brian REESE, Appellant–Defendant,v.STATE of Indiana, Appellee–Plaintiff.
• Court: Court of Appeals of Indiana

939 N.E.2d 695

Brian REESE, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 64A03–1001–CR–18.

Court of Appeals of Indiana.

Jan. 12, 2011.Transfer Denied Feb. 24, 2011.

Michael R. Fisher, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAILEY, Judge.

Case Summary

Brian Reese (“Reese”) appeals his convictions for Attempted Murder, a Class A felony,¹ Resisting Law Enforcement, as a Class A misdemeanor, ² and Carrying a Handgun Without a License, elevated to a Class C felony due to a prior offense.³ We affirm.

Issues

Reese presents four issues for review:

I. Whether the trial court abused its discretion by admitting evidence of uncharged bad acts in violation of Indiana Evidence Rule 404(b);

II. Whether the trial court abused its discretion in instructing the jury;

III. Whether there is sufficient evidence to support the conviction for Attempted Murder; and

IV. Whether Reese was properly sentenced.

Facts and Procedural History

During the afternoon of July 10, 2008, several Indianapolis Metropolitan Police Department (“IMPD”) officers were dispatched to the residence of Lona Bishop (“Bishop”) in connection with a murder investigation. Reese, who was Bishop's boyfriend and frequent house guest, answered an officer's knock at the door and stated that he needed to put up his dog. He then abruptly shut the door and locked it. Detectives Chad Osborne and Aaron Tevebaugh, who had been stationed at the back of the residence, observed Reese jump out a window and flee, armed with a handgun. The officers gave chase but Reese was able to elude capture.

IMPD officers gathered information as to Reese's identity and usual whereabouts. Based upon this information, several officers began surveillance of Reese's mother, Barbara Reese (“Barbara”). In the early evening hours, Barbara was observed driving a white van to an Indianapolis eastside church where she picked up a person matching Reese's description. IMPD officers followed Barbara's white van and signaled for her to stop. Barbara continued driving for a while, but eventually came to a stop at a Kroger parking lot. Reese jumped out of Barbara's van and fled.

Several officers gave chase, including Officers Jerry Piland, Jeff Wood, John Howard, Steven Scott, and Jim Dora. Officer Jason Fishburn was in the lead. When Officer Fishburn drew near Reese, he deployed his Taser. However, Reese was not hit by the Taser and continued to run, in defiance of the commands of Officer Fishburn and other officers to stop. Reese jumped a guardrail and ran between two houses on Euclid Avenue, with Officer Fishburn still in pursuit. The other officers temporarily lost sight of Reese and Officer Fishburn, just before hearing multiple gunshots. Reese came into view again and raised his weapon. Officers Wood and Scott fired their weapons at Reese, who was struck in the shoulder.

After Reese was subdued, Detective Timothy Day located Officer Fishburn lying between the houses. Officer Fishburn had been shot in the head, and his bullet proof vest had been struck in the chest area. He was transported to Wishard Memorial Hospital in critical condition. Despite an early prognosis of near-certain death, Officer Fishburn survived.

Reese was charged with Attempted Murder, Resisting Law Enforcement, and Carrying a Handgun Without a License. At the conclusion of a jury trial, he was convicted as charged. On January 7, 2010, the trial court sentenced Reese to fifty years imprisonment for Attempted Murder, one year for Resisting Law Enforcement, and eight years for Carrying a Handgun Without a License. The sentences are to be served consecutively, providing for an aggregate sentence of fifty-nine years. Reese appeals.

Discussion and Decision

I. Evidence Rule 404(b)

Prior to trial, Reese was granted a motion in limine to exclude any direct reference to his status as a homicide suspect at the time that IMPD officers were dispatched to Bishop's residence. However, the trial court refused to prohibit Detective Randall Cook from identifying himself as a homicide investigator. Also, the State was not required to redact a portion of a police radio transmission wherein Detective Chris Smith indicated that he and other officers were “out here for homicide.” (State's Ex. 2A) Reese contends that the references to “homicide” were admitted solely to “taint” him in the view of the jury. Appellant's Brief at 11.

Reese also challenges the admission of certain rebuttal evidence. After Reese testified that he knew he was wanted for failure to appear on a theft charge, the State was permitted to elicit testimony from Bishop that Reese knew he was a murder suspect. According to Reese, the cumulative effect of such evidence denied him a fair trial.

We review a trial court's determination of admissibility of evidence for an abuse of discretion and will reverse only where the decision is clearly against the logic and effect of the facts and circumstances present. Smith v. State, 754 N.E.2d 502, 504 (Ind.2001). The admission of evidence of uncharged bad conduct is constrained by Indiana Evidence Rule 404(b), which provides that:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

The rule is “designed to prevent the jury from assessing a defendant's present guilt on the basis of his past propensities.” Hicks v. State, 690 N.E.2d 215, 218 (Ind.1997). In determining whether to admit evidence of specific acts under the rule, the trial court is to: (1) determine whether the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act; (2) determine that the proponent has sufficient proof that the person who allegedly committed the act did, in fact, commit the act; and (3) balance the probative value of the evidence against its prejudicial effect pursuant to Indiana Evidence Rule 403. Camm v. State, 908 N.E.2d 215, 223 (Ind.2009).

Additionally, otherwise inadmissible evidence may become admissible where the defendant “opens the door” to questioning on that evidence. Jackson v. State, 728 N.E.2d 147, 152 (Ind.2000). However, “the evidence relied upon to ‘open the door’ must leave the trier of fact with a false or misleading impression of the facts related.” Id.

Here, Detective Cook's identification of himself as a homicide investigator and Detective Smith's reference to his dispatch at the request of the homicide division of IMPD did not refer to Reese or to an extrinsic bad act on his part. Thus, the 404(b) concern that Reese might be judged upon past propensities was not implicated by testimony from Detectives Cook or Smith.

On the other hand, Bishop directly testified that Reese knew himself to be a murder suspect when he fled. This suggested that Reese may have committed a prior murder. Bishop's testimony was preceded by Reese's testimony:

Reese: First [two officers] asked me to step outside to talk. I told them no, I had to put my dog up and they said, “Just step out real quick,” and I shut the door and locked it.

Defense Counsel: Didn't want to talk to the police.

Reese: No.

Defense Counsel: Did you have a warrant out for you?

Reese: Yes.

Defense Counsel: And what was that warrant for?

Reese: I didn't show up for court over a theft charge.

(Tr. 1212–13.) Reese further testified that he believed police were chasing him “cause I was running around with a gun in my hand.” (Tr. 1220.) Accordingly, Reese's testimony ignored the gravity of his legal peril and suggested that he faced only a relatively minor charge that would not motivate him to employ violence to escape. The trial court did not abuse its discretion by finding that Reese offered misleading testimony that “opened the door” to testimony that Reese was aware of his status as a murder suspect.

II. Jury Instruction

Reese contends that the trial court abused its discretion by giving Final Instruction 26, which provides:

The intent to kill may be inferred from the nature of the attack and the circumstances surrounding the crime.

The intent to kill may be inferred from the deliberate use of a deadly weapon in a manner likely to cause death or serious bodily injury. (App.350.) Reese maintains that the instruction “unduly highlighted one piece of evidence,” Appellant's Brief at 15, and that such emphasis on particular evidence is erroneous according to Ham v. State, 826 N.E.2d 640 (Ind.2005) and Ludy v. State, 784 N.E.2d 459 (Ind.2003).

“The purpose of a jury instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict.” Dill v. State, 741 N.E.2d 1230, 1232 (Ind.2001). Jury instruction is a matter assigned to trial court discretion, and an abuse of that discretion occurs when instructions, taken as a whole, mislead the jury as to the applicable law. Ham, 826 N.E.2d at 641. The courts of this State have “long disapproved” instructions that unduly “emphasize one particular evidentiary fact, witness, or phase of the case.” Id. at 641–42. “An instruction as to what evidence warrants an inference of guilt clearly invades the jury's province.” Crawford v. State, 550 N.E.2d 759, 761 (Ind.1990).

In Dill, the Court held that is was error to instruct the...