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Court upholds convictions, sentence of a man who shot Indy officer

January 12, 2011

The Indiana Court of Appeals affirmed a defendant’s convictions and sentence related to the shooting of an Indianapolis Metropolitan Police Department officer in the summer of 2008.

Brian K. Reese appealed his convictions of Class A felony attempted murder, Class A misdemeanor resisting law enforcement, and Class C felony carrying a handgun, which was elevated due to a prior offense. He also challenged his 59-year sentence. Police went to Reese’s girlfriend’s home to speak to him about a murder investigation. He fled from police and shot Officer Jason Fishburn in the head and chest as he pursued Reese.   

Reese raised four issues on appeal – that the trial court abused its discretion by admitting evidence of uncharged bad acts in violation of Indiana Evidence Rule 404(b); the trial court abused its discretion in instructing the jury; whether there is sufficient evidence to support his attempted murder conviction; and whether he was properly sentenced.

Reese was granted a motion in limine to exclude any direct reference to his status as a homicide suspect at the time the officers came to his girlfriend’s home. He testified at trial that the police came to his home because they had a warrant out for him on a theft charge, not because he was a murder suspect. He also testified that he believed the police were chasing him because he was running around with a gun in his hand. After this testimony, the state was allowed to elicit testimony from his girlfriend that Reese knew he was a murder suspect.

“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,” wrote Judge L. Mark Bailey in Brian Reese v. State of Indiana, No. 64A03-1001-CR-18. “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.”

The judges did believe Final Instruction 26, which said, “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,” could have been better written. But they found the use of “attack” to be at most a harmless error in light of Reese’s testimony that he deliberately fired multiple shots, two of which hit Fishburn.

There was also sufficient evidence to support his attempted murder conviction and his sentence. The trial court didn’t abuse its discretion by failing to identify undue financial hardship to Reese’s children as a significant mitigating factor because he, at best, sporadically provided temporary housing and entertainment for his kids, wrote the judge. There is also nothing in the nature of the offenses or the character of Reese that persuaded the appellate court that the maximum sentence given to Reese is inappropriate.
 

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