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

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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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  • Law,
    WAKE UP AMERICA All tyranny needs to gain a foothold is for people of good conscience to remain silent. IT'S TIME FOR ALL AMERICANS TO STAND AND SPEAK UP MUST READ ARTICLES The Infallible Prosecutor: Google it 10,000 innocent people convicted each year Scalia's death row lunacy: Google it Most registered sex offenders are innocent www.wikipedia.org Type censorship in the U.S. in the search box IF YOU DON'T KNOW YOUR RIGHTS YOU DON'T HAVE ANY Jury nullification: A fundamental right! Indiana Constitution: Article1: Section 19: In all criminal cases whatever, the jury shall have the right to determine the law and the facts. The 9th and 10th amendments to the constitution of the United States means the same thing. An unjust law is not a law at all and any person charged with violating an unjust law has not violated any law and should be found not guilty simply because the law is unjust! WE MUST PROTECT OUR CONSTITUTIONS

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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