Billy Russell v. State of Indiana

FILED
FOR PUBLICATION Feb 08 2013, 9:21 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
LISA M. JOHNSON GREGORY F. ZOELLER
Brownsburg, Indiana Attorney General of Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BILLY RUSSELL, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1203-CR-148
)
STATE OF INDIANA, )
)
Appellee-Plaintiff )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark Stoner, Judge
Cause No. 49G06-1009-MR-75247
February 8, 2013
OPINION - FOR PUBLICATION
BARNES, Judge
Case Summary
Billy Russell appeals his convictions and sentence for murder and Class B felony
possession of a firearm by a serious violent felon (“SVF”). We affirm.
Issues
The issues before us are:
I. whether the trial court properly refused to completely
bifurcate trial of the SVF charge from the murder
charge;
II. whether the trial court erred by failing to instruct the
jury on voluntary manslaughter as a lesser included
offense of murder;
III. whether the trial court properly refused to give
Russell’s tendered instruction on self-defense and the
perspective of the defendant;
IV. whether the trial court properly instructed the jury
regarding the exception to a claim of self-defense for
committing another crime; and
V. whether Russell’s eighty-five-year sentence is
inappropriate.
Facts
On September 18, 2010, Russell was living at a house on Euclid Avenue in
Indianapolis with his grandmother, his girlfriend Angel Brown, Brown’s child, and
Brown’s friend, Elizabeth Pearson. Pearson was Jairme Wilburn’s long-time girlfriend.
Pearson and Wilburn had an argument over the phone at about noon on September 18.
2
At about 11:00 p.m. on that same day, Wilburn came to the Euclid Avenue house
and asked to see Pearson. Pearson went outside, she and Wilburn argued, and then she
returned to the house. Wilburn, who appeared to be intoxicated, did not leave, however.
Russell went to Pearson’s room and told her “that [she] needed to get the f*** outside
and handle that s***, because it was between [her] and Jairme.” Tr. pp. 43-44. Russell
apparently was concerned that Wilburn was being loud and would wake up Brown’s
child.
Pearson again went outside to argue with Wilburn. During this argument, Wilburn
struck Pearson in the face. A bystander at a neighboring house saw Wilburn strike
Pearson multiple times, and also heard Wilburn threaten to kill Pearson. The bystander
also saw Wilburn throw something against the house. Pearson again retreated into the
house, where the others were congregated, and started yelling that Wilburn had just hit
her. Pearson did not display any signs of injury. Brown offered her phone to Pearson so
she could call 911 if she wanted, but she refused to do so.
After a few minutes, Wilburn entered the house looking for Pearson. Brown and
Russell argued with Wilburn and forced him outside, but Wilburn refused to leave
without Pearson. As Russell and Brown continued arguing with Wilburn outside, Brown
agreed to go inside and try to convince Pearson to speak with Wilburn again. Russell
also went inside and retrieved a handgun, which he held behind his back, and went back
outside. Wilburn was yelling comments such as threatening to “go[] get his boys,” or
saying that if anyone touched him he would get two friends of his and “shoot the house
3
up,” or “I’ll kill every motherf***er in this house.” Id. at 76, 189, 230. Sometime after
Wilburn made these remarks, Russell drew his gun while Wilburn was facing away from
him, said, “You’re not going to leave, n***er,” and shot him in the back of the head
without giving Wilburn a chance to react. Id. at 128. Wilburn died from the gunshot
wound.
The State charged Russell with murder and Class B felony possession of a firearm
by a SVF, based on a prior conviction for conspiracy to commit robbery. The State later
also alleged that Russell was an habitual offender. Russell’s jury trial was held on
February 13-14, 2012. Russell proceeded upon a claim of self-defense; he neither denied
carrying out the shooting nor did he request the jury be instructed on the offense of
voluntary manslaughter. Over Russell’s objection, the trial court did not completely
bifurcate trial of the SVF charge from the murder charge. Instead, along with trial of the
murder charge the trial court instructed the jury to consider whether Russell had
committed the crime of “unlawful possession of a firearm” by knowingly possessing a
firearm. App. p. 150. It also instructed the jury that if it found Russell had killed
Wilburn in self-defense, then Russell also could not be convicted of “unlawful possession
of a firearm” because that would constitute “lawful” use of the gun. Id. at 171.
The jury found Russell guilty of murder and “unlawful possession of a firearm.”
In phase two of the trial, the jury was asked to consider whether Russell was a SVF so as
to support a conviction on the SVF charge. The jury found that Russell was a SVF and
convicted him of the SVF charge and found that he was an habitual offender. The trial
4
court sentenced Russell to a term of fifty-five years for the murder, enhanced by thirty
years for the habitual offender finding. It also sentenced him to fifteen years for the SVF
conviction, to run concurrently with the murder sentence. Russell now appeals.
Analysis
I. Partial Bifurcation
First, we address Russell’s argument that the trial court erred by not completely
bifurcating or severing trial of the SVF charge from trial of the murder charge. As noted,
Russell moved that the two charges be tried completely separately. Instead, the trial
court, in conjunction with the murder trial, instructed the jury to consider whether Russell
had committed the crime of “unlawful possession of a firearm” by knowingly possessing
a firearm. App. p. 150. It also instructed the jury that if it found Russell had killed
Wilburn in self-defense, then Russell also could not be convicted of “unlawful possession
of a firearm” because that would constitute “lawful” use of the gun. Id. at 171. After the
jury found Russell guilty of murder and that he had knowingly possessed a firearm, it
found in a separate trial that he had the necessary prior conviction to support a conviction
on the SVF charge.
We review a trial court’s decision regarding bifurcation of a prosecution for an
abuse of discretion. Dugan v. State, 860 N.E.2d 1288, 1290 (Ind. Ct. App. 2007), trans.
denied. An abuse of discretion occurs if a decision is clearly against the logic and effect
of the facts and circumstances before the court. Id.
5
Several Indiana cases have discussed the problematic nature of trying SVF charges
to a jury, based on the labeling of the defendant as a “serious violent felon” during trial
and the necessity of the State introducing evidence of the defendant’s prior criminal
history supporting that designation. First, in Spearman v. State, 744 N.E.2d 545, 550
(Ind. Ct. App. 2001), trans. denied, we held that a defendant facing a SVF charge (and no
other charge) is not necessarily entitled to a bifurcated trial in which the jury is first asked
to determine whether the defendant possessed a gun, and second whether the defendant
has a prior conviction that qualifies as a “serious violent felony.” Nevertheless, we were
concerned about the possible prejudice that could arise from repeatedly referring to a
defendant as a “serious violent felon” and urged trial courts to avoid using that phrase
during trial. Id.
Next, in Hines v. State, 794 N.E.2d 469 (Ind. Ct. App. 2003), we addressed a
situation similar to the present case where the defendant was facing a SVF charge and
another charge, namely robbery. In such a situation, we held that it was an abuse of
discretion for the trial court to refuse to bifurcate trial of the SVF and robbery charges,
because the unfair prejudice resulting from the prior conviction evidence necessary to
support the SVF charge substantially outweighed any probative value with respect to the
robbery charge; in fact, the prior conviction had no probative value with respect to the
robbery charge. Id. at 472. Our supreme court subsequently adopted our opinion in
Hines. Hines v. State, 801 N.E.2d 634 (Ind. 2004).
6
Finally, in Williams v. State, 834 N.E.2d 225 (Ind. Ct. App. 2005), the defendant
was charged with SVF firearm possession only. The trial court decided to bifurcate trial
of the SVF charge and informed the jury at the outset that the defendant had been charged
with “Illegal Possession of a Firearm.” It also instructed the jury that it would first
decide whether the defendant had knowingly possessed a firearm and instructed the jury
that if it did so find, there would be a second stage of the trial. The jury did find the
defendant had knowingly possessed a firearm, and in the second stage of the trial found
that he was serious violent felon and convicted him of the SVF charge. On appeal, we
rejected the defendant’s argument that the trial court had necessarily implied to the jury
that there would be a second stage of trial. Instead, we applauded the trial court’s
bifurcation of the trial and stated, “Although current precedent does not require trial
courts to bifurcate SVF trials, we believe that the bifurcation procedure serves the ends of
justice in such trials and urge our state’s trial judges to use this procedure in SVF cases.”
Williams, 834 N.E.2d at 228.
This case is not exactly like Spearman, Hines, or Williams. Nor have we found
any case directly on point, where a trial court bifurcated trial of a SVF charge, so that no
evidence of a defendant’s prior criminal history came in during the first part of trial, but
permitted a jury to determine the question of possession of a firearm in conjunction with
trial of another charge. In that sense, this case is a hybrid of Hines and Williams. As the
line of cases beginning with Spearman have made clear, the primary concern with SVF
trials is the labeling of a defendant as a “serious violent felon” and the introduction of
7
evidence of a defendant’s criminal history in order to prove SVF status. See also Imel v.
State, 830 N.E.2d 913, 919-20 (Ind. Ct. App. 2005) (Barnes, J., concurring in result),
trans. denied. None of the cases have expressed concern about proving the fact of a
defendant’s possession of a firearm simultaneously with another crime. In fact, Russell
has cited no case, nor has our research revealed, any case holding that a charge of
carrying a handgun without a license must be bifurcated from a simultaneous offense,
such as murder. Thus, there was no prejudice in asking the jury to decide whether
Russell knowingly possessed a firearm at the same time it was asked to decide whether
he committed murder.
Regardless, Russell contends it was erroneous to instruct the jury on the non-
existent offense of “unlawful possession of a firearm,” especially assuming that most
jurors would know through common knowledge that possession of a firearm, standing
alone, is not a criminal offense. We directly addressed this type of argument in Williams
and rejected it. Specifically, we held that by bifurcating the SVF trial so that the
questions of knowing possession of a firearm and the defendant’s SVF status were tried
separately, “the trial court . . . struck the proper balance between advising the jury that
Williams had indeed been charged with a firearm-related crime and avoiding identifying
Williams as a ‘serious violent felon’ from the outset of trial.” Williams, 834 N.E.2d at
228.
Russell also claims that asking the jury to decide whether he committed “unlawful
possession of a firearm” simultaneously with deciding whether he committed murder
8
undermined his self-defense claim. He notes the general proposition that a defendant
cannot claim self-defense if he or she is committing another crime at the time defensive
action is taken, so long as there is an immediate causal connection between the crime and
the confrontation. Mayes v. State, 744 N.E.2d 390, 394 (Ind. 2001). Additionally, self-
defense may be a valid defense to a SVF charge. See Harmon v. State, 849 N.E.2d 726,
734 (Ind. Ct. App. 2006). Russell asserts that if the jury found he committed “unlawful
possession of a firearm,” a non-existent offense, it would have precluded the jury from
accepting his self-defense claim for Wilburn’s death.
We disagree. The trial court expressly informed the jury in instruction number 10:
As to Count II [“unlawful possession of a firearm”], if the
jury determines that the Defendant lawfully exercised his
right to self defense as to the allegations contained within
Count I [murder], the Defendant may not be convicted of
Unlawful Possession of a Firearm as the jury would have
determined that the Defendant’s usage of the gun was, in fact,
lawful.
However, should the jury conclude that the Defendant is not
guilty of Count I for some reason other than self defense, the
jury may then continue to deliberate on whether the State has
proven the elements of Count II beyond a reasonable doubt.
App. p. 171. Although Russell contends otherwise, we believe this instruction adequately
informed the jury that his mere possession of a firearm would not preclude his claim of
self-defense to murder by effectively telling it that any use of the firearm for self-defense
purposes would be a “lawful,” not “unlawful,” use of the gun. Additionally, under this
instruction a finding of self-defense as to the murder charge also would have precluded
9
his conviction for “unlawful possession of a firearm” and, necessarily, for possession of a
firearm by a SVF.
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. The trial court’s partial bifurcation accomplished that goal and,
therefore, is consistent with Hines, Spearman, and Williams. Moreover, the trial court’s
jury instructions adequately protected Russell’s ability to claim self-defense for both
murder and the SVF charge. There was no abuse of discretion in the trial court’s partial
bifurcation method of trying this case.
II. Voluntary Manslaughter Instruction
We next address Russell’s claim that the trial court committed error by failing to
instruct the jury that it had the option of convicting him of voluntary manslaughter as a
lesser included offense of murder. Russell did not request that the jury be so instructed.
A claim of error based on a trial court’s failure to give a jury instruction is waived if the
defendant failed to tender that instruction. Covey v. State, 929 N.E.2d 813, 819 (Ind. Ct.
App. 2010). In such a case, the defendant must establish that the failure to give an
instruction constituted fundamental error. Id. A fundamental error is one that constitutes
a blatant violation of basic principles, creating or potentially creating substantial harm,
with a resulting denial of fundamental due process to the defendant. Id. We also observe
that the purpose of the contemporaneous objection/waiver rule is to promote a fair trial by
10
preventing a party from sitting idly by and appearing to assent to a trial court’s actions,
only to cry foul when the outcome goes against him or her. Purifoy v. State, 821 N.E.2d
409, 412 (Ind. Ct. App. 2005), trans. denied.
Russell argues there is substantial evidence in the record of provocation by
Wilburn, such that a jury could have found that he was acting under the influence of
“sudden heat” when he shot Wilburn. The existence of “sudden heat” is a mitigating
factor that reduces what would otherwise be murder to voluntary manslaughter.
McWhorter v. State, 970 N.E.2d 770, 775 (Ind. Ct. App. 2012). Even if there was such
evidence of “sudden heat,” Indiana courts have held as a general rule that it is not
fundamental error for a court not to sua sponte give a jury instruction on a lesser included
offense. Sarwacinski v. State, 564 N.E.2d 950, 951 (Ind. Ct. App. 1991) (citing Metcalf
v. State, 451 N.E.2d 321, 326 (Ind. 1983)).
We also cannot ignore the possibility that trial counsel here deliberately did not
request an instruction on voluntary manslaughter as part of an “all-or-nothing” strategy;
i.e., counsel might have felt it best for her client to attempt to obtain an outright acquittal
for murder on a claim of self-defense rather than giving the jury the option of
“compromising” and convicting him of voluntary manslaughter. Such a strategy can be a
reasonable one for an attorney to make. See Watts v. State, 885 N.E.2d 1228, 1233 (Ind.
2008). If trial counsel made such a decision—which we do not know—then it would be
improper to have allowed a gamble on an “all-or-nothing” strategy, with the option of
obtaining a reversal on the murder conviction in the event the gamble failed because of
11
the failure to give a voluntary manslaughter instruction. In sum, we conclude Russell has
failed to demonstrate the existence of fundamental error in the trial court’s failure to sua
sponte give a voluntary manslaughter instruction to the jury.
III. Self-defense Instruction Regarding a Defendant’s Perspective
Next, Russell argues the trial court erred by refusing to give the following
tendered jury instruction:
With regard to the defense of self-defense, the existence of
the danger, the necessity or apparent necessity of using force,
as well as the amount of force required can only be
determined from the standpoint of the accused at the time and
under the then existing circumstances.
A person’s belief of apparent danger does not require the
danger to be actual but only that the belief be in good faith.
App. p. 212. The trial court’s full instruction regarding self-defense was as follows:
a. A person is justified in using reasonable force against
another person to protect himself or a third person from what
he reasonably believes to be the imminent use of unlawful
force. However, a person is justified in using deadly force
and does not have a duty to retreat if the person reasonably
believes that the force is necessary to prevent serious bodily
injury to the person or a third person or the commission of a
forcible felony. No person in this State shall be placed in
legal jeopardy of any kind whatsoever for protecting the
person or a third person by reasonable means necessary.
b. A person is justified in using reasonable force,
including deadly force, against another person; and does not
have a duty to retreat; if the person reasonably believes that
the force is necessary to prevent or terminate the other
person’s unlawful entry of or attack on the person’s dwelling,
curtilage or occupied motor vehicle.
12
Notwithstanding A and B, a person is not justified in using
force if:
1. The person is committing or escaping after the
commission of a crime;
2. the person provokes unlawful action by another
person with intent to cause bodily injury to the other
person;
3. the person has entered into combat with another
person or is the initial aggressor unless the person
withdraws from the encounter and communicates to
the other person the intent to do so and the other
person nevertheless continues or threatens to continue
unlawful action.
The State has the burden of proving beyond a reasonable
doubt that the Defendant did not act in self-defense.
Id. at 168-69. The language of this instruction directly tracks the relevant portions of the
self-defense statute, Indiana Code Section 35-41-3-2.
The manner in which a trial court instructs a jury is largely within the sound
discretion of the trial court, and we review a trial court’s decision regarding instructions
only for an abuse of that discretion. Orta v. State, 940 N.E.2d 370, 376 (Ind. Ct. App.
2011), trans. denied. We must consider the following when reviewing a trial court’s
refusal to give a defendant’s tendered jury instruction: (1) whether the instruction
correctly states the law; (2) whether there is evidence in the record to support the giving
of the instruction; and (3) whether the substance of the tendered instruction is covered by
other instructions that are given. Lewis v. State, 898 N.E.2d 429, 433 (Ind. Ct. App.
2008), trans. denied.
13
Russell asserts that his tendered instruction was necessary to fully inform the jury
of the proper standard for a finding of self-defense, namely, that the perspective of the
defendant in gauging the danger he or she faced at the time force was used is critical.
The primary basis of Russell’s argument is our supreme court’s decision in French v.
State, 273 Ind. 251, 403 N.E.2d 821 (1980). In French, a defendant claimed self-defense
in a murder prosecution. The trial court gave the following instruction regarding the use
of deadly force in self-defense:
A person is justified in using reasonable force against another
person to protect himself or a third person from what he
reasonably believes to be the imminent use of unlawful force.
However a person is justified in using deadly force only if he
reasonably believes that that force is necessary to prevent
serious bodily injury to himself or a third person in the
commission of a forcible felony.
French, 273 Ind. at 255, 403 N.E.2d at 824. Our supreme court held this instruction to be
inadequate and its inadequacy to be reversible error, stating:
At no point in the instructions given was the jury informed
that in the exercise of the right, a defender may repel force by
force reasonably necessary and that he will not be
accountable for an error in judgment as to the amount of force
necessary, provided he acted honestly. Neither did the court’s
instructions apprize the jury that the existence of the danger,
the necessity or apparent necessity, as well as the amount of
force required to resist the attack can only be determined
from the standpoint of the defendant, at the time and under
the then existing circumstances.
Id. at 256, 403 N.E.2d at 825. Our supreme court has never expressly overruled French.
Taken at face value, French might have required more expansive jury instructions than
14
the instruction the trial court here gave, including at least some of the language in the
instruction Russell tendered.
However, in Shaw v. State, 534 N.E.2d 745 (Ind. 1989), our supreme court
addressed a case in which the jury was given self-defense instructions that stated merely
that self-defense had to be based upon the reasonable belief of the defendant of the need
for force and omitted any mention of “the standpoint of the accused” or other language
that French arguably required. Regardless, the Shaw opinion held that the jury
instructions there went beyond those disapproved of in French and were sufficient.
Shaw, 534 N.E.2d at 747. The court stated:
[T]he jury was repeatedly told that the standard to be
considered by the jury was the reasonable belief of the
defendant. . . . We cannot see how such language could be
interpreted by a jury in any manner other than that the
standard to be used was the state of mind of the defendant at
the time of the infliction of the injury.
Id.
Relying upon Shaw’s “clarification” of French, this court subsequently approved
the giving of a pattern jury instruction on self-defense that was highly similar to the
instruction given here. See Davis v. State, 691 N.E.2d 1285, 1289-90 (Ind. Ct. App.
1998). We further note that in Brown v. State, 738 N.E.2d 271, 275 (Ind. 2000), our
supreme court described the language in French as a “suggested” jury instruction, not a
mandated instruction.1 More recently, our supreme court held that “the phrase
1
Russell cites a number of other cases in support of his argument, but those cases either do not address
jury instructions or they address self-defense instructions that were problematic for reasons other than
15
‘reasonably believes,’ as used in the Indiana self-defense statute, requires both subjective
belief that force was necessary . . ., and that such belief was one that a reasonable person
would have under the circumstances.” Littler v. State, 871 N.E.2d 276, 279 (Ind. 2007).
Relying upon Littler, this court held in Huls v. State, 971 N.E.2d 739, 745-46 (Ind. Ct.
App. 2012), trans. denied, that a trial court did not abuse its discretion in refusing to give
the defendant’s tendered self-defense jury instructions that referred to the necessity of
force being determined “only . . . from the standpoint of the accused under all of the
circumstances . . . .” Specifically, we noted that the tendered instructions did not
correctly state the law because they did not inform the jury to equally consider whether
the defendant’s belief in the need for force was objectively reasonable under the
circumstances. Id.2
We conclude that Russell’s tendered jury instruction suffers from the same flaw as
the tendered instructions in Huls: it did not inform the jury that Russell’s perception of
danger had to be an objectively reasonable perception. It focused solely upon Russell’s
subjective state of mind. Although the instruction did require a finding of “good faith”
belief in the danger, that still is a question of subjective state of mind, and not whether an
those mentioned in French. See, e.g., Hirsch v. State, 697 N.E.2d 37, 42 n.10 (Ind. 1998); Harmon v.
State, 849 N.E.2d 726, 731 (Ind. Ct. App. 2006); Carson v. State, 686 N.E.2d 864, 865 (Ind. Ct. App.
1997), trans. denied.
2
We also are aware that our supreme court recently granted transfer in Washington v. State, 973 N.E.2d
91 (Ind. Ct. App. 2012), in which we stated our belief that Shaw “implicitly” disapproved of French.
Regardless, the grant of transfer does not by itself indicate our supreme court’s disagreement with the
ultimate conclusion in that case that the jury had been properly instructed on self-defense, despite the
absence of the French “standpoint of the accused” language. While awaiting our supreme court’s ruling
in Washington, we are obligated to continue deciding cases based on our understanding of the current
state of the law.
16
objectively reasonable person would have found the danger to have required the use of
deadly force. Thus, Russell’s tendered instruction is an incomplete and incorrect
statement of the law. By contrast, the instruction actually given by the trial court, taken
directly from the self-defense statute, repeatedly advised the jury that Russell had to have
“reasonably” believed in the danger facing him and in the amount of force used against
that danger. This was adequate to inform the jury of the proper state of mind to support a
claim of self-defense. See Shaw, 534 N.E.2d at 747. As such, we cannot say the trial
court abused its discretion in refusing to give Russell’s tendered jury instruction.
IV. Self-defense Instruction on Nexus Requirement
Russell contends the trial court committed a second error with respect to its self-
defense instruction. Namely, he argues that the instruction, while noting that self-defense
cannot be claimed if a defendant was committing a crime at the time force was used,
failed to inform the jury that this limitation only applies if there was a causal nexus
between the crime and the use of force. More specifically, a defendant can claim self-
defense, even if he or she is committing another crime at the time defensive action is
taken, if there is not an immediate causal connection, or nexus, between the crime and the
confrontation that led to the use of force. Mayes v. State, 744 N.E.2d 390, 394 (Ind.
2001). If a defendant requests an instruction regarding the nexus requirement and the
evidence supports a defendant’s claim of a lack of immediate causal connection between
his or her crime and the ultimate use of force, then a trial court should give such an
instruction. Smith v. State, 777 N.E.2d 32, 36 (Ind. Ct. App. 2002), trans. denied.
17
Russell, however, did not request such an instruction. Again, a claim of error
based on a trial court’s failure to give a jury instruction is waived if the defendant failed
to tender that instruction. Covey v. State, 929 N.E.2d 813, 819 (Ind. Ct. App. 2010). In
such a case, the defendant must establish that the failure to give an instruction constituted
fundamental error, as described in part II of this opinion. Id.
Smith strongly suggested that it is not fundamental error not to give a nexus
requirement instruction when the defendant does not request one. Smith, 777 N.E.2d at
36 (citing Mayes, 744 N.E.2d at 394-95, and noting Mayes did not find reversible error in
failing to give a nexus requirement instruction where there was no indication such an
instruction explaining that point of law had been requested). Moreover, Russell’s
primary concern with the failure to give a nexus requirement instruction is, again, that the
jury could have rejected his self-defense claim for murder if it had found he committed
the non-existent crime of “unlawful possession of a firearm.” As we discussed in part I
of this opinion, the trial court’s final instruction 10 alleviated that concern by informing
the jury that if Russell had used the gun in self-defense, then his possession of the firearm
would not have been “unlawful.” Although not a verbatim recitation of the nexus
requirement in self-defense claims, instruction 10 sufficiently precluded the possibility
that the jury could reject Russell’s self-defense claim on the basis that he committed the
crime of “unlawful possession of a firearm.” As such, we find no fundamental error in
the trial court’s failure to expressly instruct the jury on the nexus requirement.
V. Sentence
18
Finally, Russell contends that his eighty-five year sentence is inappropriate under
Indiana Appellate Rule 7(B) in light of his character and the nature of the offense. In
actuality, however, it is only the fifty-five year sentence for murder that he challenges,
which is the advisory sentence for that offense. Ind. Code § 35-50-2-3(a). He requests
that we reduce that sentence to the minimum of forty-five years. He does not challenge
the concurrent fifteen-year sentence for possession of a firearm by a SVF, nor does he
challenge the thirty-year habitual offender enhancement to his sentence.3
Although Rule 7(B) does not require us to be “extremely” deferential to a trial
court’s sentencing decision, we still must give due consideration to that decision.
Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We also understand and
recognize the unique perspective a trial court brings to its sentencing decisions. Id.
“Additionally, a defendant bears the burden of persuading the appellate court that his or
her sentence is inappropriate.” Id.
The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,
and identify some guiding principles for trial courts and those charged with improvement
of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—
the aggregate sentence—rather than the trees—consecutive or concurrent, number of
counts, or length of the sentence on any individual count.” Id. Whether a sentence is
inappropriate ultimately turns on the culpability of the defendant, the severity of the
3
Russell cannot challenge the length of that enhancement anyway, as it was a mandatory term upon the
finding that he is an habitual offender. See I.C. § 35-50-2-8(h).
19
crime, the damage done to others, and myriad other factors that come to light in a given
case. Id. at 1224.
Russell focuses primarily upon the nature of the offense as warranting a reduction
of his sentence. He argues that even though the jury rejected his claim of self-defense,
there was considerable evidence that Wilburn provoked him into the shooting. The trial
court did agree that “the victim somewhat contributed to the circumstance. The victim
was out of control. He was being mouthy. He was being disrespectful to people who
actually cared about him . . . . There’s no indication that Mr. Russell went out from the
house just simply to commit a murder.” Tr. p. 337.
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. Russell did express remorse at sentencing, and the trial court
found that expression to be credible. But Russell’s criminal history is extensive, going
well beyond the minimum necessary to classify him as either an habitual offender or
SVF. As a juvenile, Russell was referred to the justice system on ten occasions,
beginning in 1993, with resulting delinquency findings for Class B misdemeanor
disorderly conduct, Class A misdemeanor resisting law enforcement, Class A
misdemeanor battery, and Class C misdemeanor operating a vehicle without a license.
As an adult, Russell has convictions for Class D felony dealing in marijuana or hash,
Class B felony conspiracy to commit robbery, Class A misdemeanor carrying a handgun
without a license, Class C felony battery, Class D felony auto theft, two counts of Class
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A misdemeanor battery by bodily waste, a conviction for Class D felony battery by
bodily waste that was reduced to a Class A misdemeanor, two counts of Class D felony
battery resulting in bodily injury, one of which was reduced to a Class A misdemeanor,
and two counts of Class A misdemeanor battery. While previously incarcerated in the
Department of Correction, Russell amassed 114 conduct reports. Russell was placed on
probation three times and on community corrections twice, and he had his placement on
probation and community corrections revoked on all five occasions. He had been
released from his most recent period of incarceration just four months before killing
Wilburn. He informed the probation officer preparing the presentence report that he
smoked marijuana daily from the age of twelve, up to and including the day of the
murder, that he illegally used prescription medications weekly from the age of sixteen,
and occasionally used cocaine, most recently one week before the murder. Although
Russell had previously been ordered to complete substance abuse treatment while on
probation, he never did so. At the time of the murder, Russell was only twenty-six years
old. Suffice it to say, 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.
Russell asserts that his criminal history should be “offset to some extent” by
evidence of a disadvantaged childhood. Appellant’s Br. p. 45. Generally, however, such
evidence warrants little consideration when evaluating sentences. See Coleman v. State,
21
741 N.E.2d 697, 700 (Ind. 2000), cert. denied.4 He also notes there is evidence in the
presentence report that at some point, he was diagnosed with bipolar disorder and
intermittent explosive disorder and may have been hospitalized for those conditions at
some point. However, Russell told the probation officer preparing the presentence report
that “he is not currently experiencing any mental health concerns.” Presentence Report p.
14. There was no evidence presented to contradict Russell’s self-assessment of his
mental health or to suggest he was having difficulty at the time of the murder. We cannot
conclude that Russell’s childhood and past mental health issues excuse or reduce the
severity of his criminal history and related misconduct.
Russell compares his case to Biehl v. State, 738 N.E.2d 337, 339 (Ind. Ct. App.
2000), trans. denied, and Griffin v. State, 963 N.E.2d 685 (Ind. Ct. App. 2012). In Biehl,
we reduced a then-presumptive thirty-year voluntary manslaughter sentence to twenty
years, and in Griffin we reduced an advisory fifty-five year sentence for murder to forty-
five years. In both cases, there was substantial evidence of provocation by the victims
that led to the killings. However, in direct contrast to the present case, neither of the
defendants in Biehl or Griffin had any adult criminal history whatsoever, which was a
key factor in our decision to reduce the sentences. Here, Russell’s criminal history and
related misconduct more than justify imposition of the advisory fifty-five year term for
4
Coleman did further address that such evidence may be relevant and presented to a jury being asked to
decide whether to recommend imposition of the death penalty, which is a different consideration than
appellate review of non-death penalty sentences.
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murder, despite evidence that Wilburn may have helped provoke the shooting.
Therefore, that sentence is not inappropriate.
Conclusion
The trial court did not abuse its discretion in refusing to completely bifurcate trial
of the SVF charge from the murder charge and in refusing to give Russell’s tendered self-
defense jury instruction. The trial court also did not commit fundamental error by not
giving an instruction on voluntary manslaughter as a lesser included offense of murder, or
by not giving an instruction on the nexus requirement for the committing a crime
exception to a claim of self-defense. Finally, Russell’s sentence is not inappropriate. We
affirm.
Affirmed.
BAKER, J., and RILEY, J., concur.
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