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COA affirms murder conviction and sentence over self-defense claim

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An Indianapolis man who was convicted and sentenced to 85 years in prison for killing a man who threatened his life and the lives of people inside his home lost his appeal Friday.

Billy Russell claimed in his appeal that Marion Superior Court erred by failing to offer the jury his tendered instruction on a claim of self-defense and that the jury had the option of convicting him of voluntary manslaughter. Russell also claimed the court erred because it didn’t completely bifurcate his murder trial from his trial on a charge of possession of a firearm by a serious violent felon. He was found guilty on all charges and the jury imposed a 55-year murder sentence enhanced by 30 years for a habitual offender finding.

Russell lived in a home he shared with his grandmother, his girlfriend, her child and a female friend who was the ex-girlfriend of Jairme Wilburn. According to court records, Wilburn showed up at Russell’s house after 11 p.m. on Sept. 18, 2010, apparently intoxicated, and Wilburn and his ex-girlfriend argued outside. Wilburn refused to leave after she went back inside the house.

Russell told Wilburn’s ex-girlfriend she needed to handle the situation, and after she went back outside, Wilburn struck her in the face multiple times and threatened to kill her, witnesses said. She went back inside the house but refused to call 911, according to the record.

Some time later, Wilburn entered the house looking for his ex-girlfriend and refused to leave without her. Russell retrieved a handgun from the house and waited outside as Wilburn threatened to return and shoot up the house. He said, “I’ll kill every (expletive) in this house.”

Russell drew his gun while Wilburn was facing away and said, “You’re not going to leave, n-----,” and shot him in the back of the head.

In Billy Russell v. State of Indiana, 49A04-1203-CR-148, a panel of the Court of Appeals found no error or abuse of discretion in the claims Russell raised on appeal. The COA noted the court instruction given to the jury was taken directly from the self-defense statute, repeatedly advising the jury that Russell had to have “reasonably” believed in the danger facing him and in the amount of force used against that danger.

“There’s no indication that Mr. Russell went out from the house just simply to commit a murder,” Judge Michael Barnes wrote for the panel. “However, even if Russell did not premeditate Wilburn’s murder and Wilburn acted provocatively immediately before the shooting, there is considerable evidence of Russell’s poor character.”

The court also cited Hines v. State, 794 N.E.2d 469 (Ind. Ct. App. 2003), in which it found an abuse of discretion for a court to refuse to bifurcate a SVF charge and another felony charge, robbery in the case of Hines.

“We conclude that although the trial court could have completely bifurcated trial of the SVF charge from the murder charge, Hines did not require it so long as no mention was made of Russell’s alleged 'serious violent felon' status or of his criminal history as part of the murder trial,” Judge Michael Barnes wrote for the panel. “The trial court’s partial bifurcation accomplished that goal.”

The court also found that Russell, who was 26 at the time of the murder, had a criminal history beginning with juvenile referrals at age 8 that did not make his sentence inappropriate. “Russell has consistently and for many, many years demonstrated a complete inability to comply with the law, whether he has been free, on probation or community corrections, or even while incarcerated,” Barnes wrote.

 

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