Webb v. State

• Decision Date: 23 March 2012
• Docket Number: No. 71S05–1106–CR–329.,71S05–1106–CR–329.
• Citation: 963 N.E.2d 1103
• Parties: Brice WEBB, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

963 N.E.2d 1103

Brice WEBB, Appellant (Defendant below),

v.STATE of Indiana, Appellee (Plaintiff below).

No. 71S05–1106–CR–329.

Supreme Court of Indiana.

March 23, 2012.

Phillip R. Skodinski, South Bend, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition To Transfer from the Indiana Court of Appeals, No. 71A05–1007–CR–517

RUCKER, Justice.

Charged with murder in the shooting death of his girlfriend, Brice Webb requested a jury instruction on the lesser offense of reckless homicide. The trial court denied the request and Webb was convicted as charged. We granted transfer to address the propriety of the trial court's ruling.

Facts and Procedural History

Webb and his girlfriend, Cherlyn Reyes, shared an apartment. On October 8, 2009, Shane Hillebrand and Ashley Gurrister were visiting the apartment where the four ate dinner, watched movies, and drank alcohol. Gurrister brought a handgun with her that she had recently purchased. The friends posed for photos with the handgun and went outside to shoot the handgun in the air.

During the course of the evening, Reyes and Gurrister left the apartment to visit friends. While they were gone, Webb passed out on the couch while Hillebrand continued watching movies. When Reyes and Gurrister returned later that evening, Reyes began looking through Webb's cell phone call history. Reyes discovered Webb had been making calls to other women, became jealous and upset, and slapped Webb across the face. A verbal and physical fight between Reyes and Webb ensued. Hillebrand described the fight as “an all out rumble between the both of them. It was more physical than I've ever saw [sic] in my life between a male and a female.” Tr. at 354. The fight lasted between forty-five minutes and an hour. At one point, Webb punched Reyes and briefly knocked her unconscious. Hillebrand and Gurrister repeatedly attempted to break up the fight. After the fighting had settled down, Reyes went into the bathroom to call the women she suspected Webb had been calling, and another fight ensued. That fight ended when Gurrister and Hillebrand intervened.

Shortly before midnight, Reyes again went into the bathroom to call her friend Jessica Hoover. Hillebrand testified that while Reyes was on the phone, Webb came into the living room and asked for a cigarette lighter. At that time, Hillebrand believed the “gun was still sitting on the table.” Tr. at 356. Webb lit his cigarette and left the room. Hoover testified regarding her phone conversation with Reyes that she heard Webb come into the bathroom and he “sounded a little irritated.... I could hear him loudly in the phone, and they were arguing.” Tr. at 179. Then Reyes said “Brice, no,” and went quiet. Tr. at 179. The next thing Hoover heard was Webb screaming, “Cherlyn, baby, wake up, wake up.” Tr. at 179.

From the apartment's living room, Hillebrand and Gurrister heard a gunshot and both ran toward the bathroom and met Webb in the hallway. Hillebrand testified Webb said, “I just shot my baby's momma,” Tr. at 357, while Gurrister testified that Webb “said he didn't mean to, that it was an accident.” Tr. at 483. They found Reyes lying on the bathroom floor and “watched her take her last breath.” Tr. at 483.

During the commotion that followed, Hillebrand took the gun from Webb, and Gurrister drove Webb to Hillebrand's house. While there Webb woke up Sasha Alexander. Alexander testified that “[Webb] just kept repeating he shot his baby momma.” Tr. at 415–16. Still at the apartment, Hillebrand called 911 and went outside to wait for police.

Officers of the South Bend Police Department arrived at Hillebrand's home, arrested Webb and transported him to the homicide unit where a videotaped interview was conducted. During the interview, Webb stated he did not shoot Reyes, that he had left the apartment to buy cigarettes at a nearby gas station, and when he returned he found that Reyes had been shot and was lying on the bathroom floor.

The day after the shooting the State charged Webb with murder. And on March 5, 2010, the State filed an information alleging Webb to be an habitual offender—to which Webb objected. A jury trial began on May 17, 2010, at the close of which Webb requested a jury instruction on the lesser offense of reckless homicide. The trial court denied the request and the jury found Webb guilty as charged. The jury also found Webb to be an habitual offender. The trial court sentenced Webb to sixty-five years for murder enhanced by thirty years for the habitual offender adjudication.

Webb appealed raising the following restated issues: (1) Whether the trial court erred in allowing the State to file the habitual offender charge beyond the statutory period allowed for amending charges; (2) Whether the trial court erred in admitting evidence of Webb's videotaped interview; and (3) Whether the trial court erred in refusing to instruct the jury on the lesser offense of reckless homicide. The Court of Appeals rejected each of these claims and affirmed the judgment of the trial court in an unpublished memorandum decision. See Webb v. State, 71A05–1007–CR–517 (Ind. Ct. App. April 12, 2011). Having previously granted transfer thereby vacating the opinion of the Court of Appeals, see Ind. Appellate Rule 58(A), we now reverse the judgment of the trial court with respect to Webb's jury instruction claim. We summarily affirm that portion of the Court of Appeals' opinion concerning Webb's remaining claims. Additional facts are set forth below where necessary.

Discussion

In Wright v. State the Court developed a three-part test that trial courts should perform when called upon by a party to instruct on a lesser included offense to the crime charged. 658 N.E.2d 563 (Ind.1995). First, the trial court must compare the statute defining the crime charged with the statute defining the alleged lesser included offense to determine if the alleged lesser included offense is inherently included in the crime charged. Id. at 566. Second, if a trial court determines that an alleged lesser included offense is not inherently included in the crime charged under step one, then it must determine if the alleged lesser included offense is factually included in the crime charged. Id. at 567. If the alleged lesser included offense is neither inherently nor factually included in the crime charged, the trial court should not give an instruction on the alleged lesser included offense. Id. Third, if a trial court has determined that an alleged lesser included offense is either inherently or factually included in the crime charged, “it must look at the evidence presented in the case by both parties” to 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. Id. “[I]t is reversible error for a trial court not to give an instruction, when requested, on the inherently or factually included lesser offense” if there is such an evidentiary dispute. Id.

Applying the foregoing framework, as to the first two prongs of the Wright test the only element distinguishing murder and reckless homicide is the defendant's state of mind: reckless homicide occurs when the defendant “recklessly” kills another human being, and murder occurs when the killing is done “knowingly” or “intentionally.” Compare Ind.Code § 35–42–1–5, with I.C. § 35–42–1–1(1). Reckless conduct is action taken 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). By contrast, a person engages in conduct “knowingly” if the person is aware of a “high probability” that he or she is doing so. I.C. § 35–41–2–2(b).¹ Thus, reckless homicide is an inherently included lesser offense of murder. See Davenport v. State, 749 N.E.2d 1144, 1150 (Ind.2001). The determinative issue here is whether the evidence produced a serious evidentiary dispute concerning Webb's state of mind that would justify giving the requested instruction.

The trial court refused Webb's request to give a reckless homicide lesser included jury instruction because Webb “denied the act [of murder], period. When he denies the act, he cannot then take advantage of the inherent lesser” included offense. Tr. at 680. The trial court was certainly correct that Webb himself declared not only was he not the shooter but also he was not even present when the shooting took place. But that does not end the analysis. Wright makes clear that in determining whether a serious evidentiary dispute exists the trial court “must look at the evidence presented in the case by both parties.” Wright, 658 N.E.2d at 567 (emphasis added). The Court has been consistent in this regard. See Fisher v. State, 810 N.E.2d 674, 680 (Ind.2004) (“[W]hen addressing the question of whether there is a serious evidentiary dispute, the court must evaluate the evidence presented by both parties.”); Young v. State, 699 N.E.2d 252, 255 (Ind.1998) (“[T]he trial judge must consider whether the evidence provided by both parties creates a serious evidentiary dispute about the element or elements which distinguish the greater from the lesser offense.”); Wilson v. State, 697 N.E.2d 466, 473 (Ind.1998) (“[T]he inquiry hinges on whether a serious evidentiary dispute exists as to which offense was committed by the defendant, given all the evidence presented by both parties.”); Champlain v. State, 681 N.E.2d 696, 699 (Ind.1997) (“[T]he question whether to give the instruction hinges on the evidence presented by both parties.”).

To be sure, if we consider only the evidence presented by Webb, there would be no question that he would not be entitled to an instruction on a lesser...