Gary L. Jackson, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Gary Jackson Jr. shot Joan Berry eight times in the vehicle he was driving, killing her. Immediately after shooting Berry, Jackson drove to a hospital emergency room entrance and shoved Berry out of the passenger door and onto the pavement. A jury convicted Jackson of murder, and he now appeals, raising one issue for our review: Whether the trial court abused its discretion in refusing to instruct the jury on the lesser-included offense of reckless homicide.

[2] We affirm.

Facts and Procedural History

[3] On April 21, 2021, at approximately 6:50 p.m., Indianapolis Metropolitan Police Department (“IMPD”) officers were dispatched to Riley Hospital (“Riley”) on a report that a person had been shot. When emergency medical personnel arrived and identified Berry as the victim, they pronounced her deceased and observed that she had sustained multiple gunshot wounds. Although Riley's video surveillance footage shows Berry's body being pushed from the passenger-side door of a blue Nissan SUV and onto the pavement, no one inside the vehicle was visible from the video.

[4] Later that evening at approximately 8:30 p.m., IMPD officers were dispatched to the intersection of 10th and Downey Street in Indianapolis on the report of a traffic accident and shots fired. When Officer Brian Silcox arrived at the scene, he observed a blue Nissan SUV in the middle of the road with heavy damage to the front end and a bullet hole in the SUV's front windshield.

[5] Joshua Rice, an individual who lived near the site of the crash, reported to responding law enforcement officers that he saw a black male—subsequently identified as Jackson—running from the crash scene carrying a handgun. Rice stated that he walked outside and saw Jackson “laying down ․ on top of ․ a pile of rocks,” Tr. Vol. II at 183, and holding a gun in his left hand, Jackson “[s]eemed really out of it. ․ Seemed kind of out of it, out of breath,” id. at 184.

[6] When law enforcement officers began searching the area, they saw Jackson lying on top of a bush in a driveway near the crash scene. As Jackson was lifted to his feet, the officers observed a handgun “directly underneath” him. Tr. Vol. II at 175. The gun's slide was locked open as if all rounds had been fired, and the magazine was empty. Jackson “was sweating profusely, frantic, panicked a little bit above the normal stress levels” that are typically seen from somebody in an accident. Id. Jackson was also “staring off, mumbling,” id. at 164, and his breathing was “heavy ․ , quick, labored, ․ panicked.” Id. at 175. Jackson was handcuffed and transported to Eskenazi Hospital. While executing a search warrant for the SUV, law enforcement officers discovered three fired 9mm caliber shell casings on the vehicle's front passenger side floorboard that matched the pistol in Jackson's possession. DNA testing showed that it was at least one trillion times more likely that blood spots and human tissue found in the SUV and on the bullets originated from Berry rather than from an unknown individual. DNA testing on other items found in the SUV also matched Berry's profile.

[7] Jackson's fingerprints were on the SUV's passenger and driver's side door. His cellphone and some medication paperwork were also found in the SUV, and it was determined that the SUV Jackson was driving was owned by a woman who had “children in common” with Jackson, Tr. Vol. III at 125. Cell phone records showed Jackson's phone traveling across Dearborn at approximately 6:20 p.m., and the phone last connected with the cell tower at 6:37 p.m.

[8] Upon learning of the incident, Berry's sister went to the police department and handed Berry's cellphone to one of the detectives, where it was determined that Berry and Jackson had exchanged text messages at approximately 6:15 p.m. on April 21. One of those messages asked Jackson if he was “coming to get” her, and Jackson responded that he was “outside.” Tr. Vol. II at 155. The phone records also showed that there were four calls from Jackson's phone to Berry's phone between 6:02 p.m. and 6:22 p.m. that evening. It was ultimately determined that the SUV involved in the crash was the same vehicle pictured in the surveillance video at Riley.

[9] The State charged Jackson with murder ¹ and unlawful possession of a firearm by a serious violent felon as a Level 4 felony.² The State also alleged that Jackson was a habitual offender.³

[10] On April 15, 2024, Jackson's three-day jury trial commenced. During the trial, Dr. Gregory Schmunk, a forensic pathologist who performed Berry's autopsy, testified that Berry died from multiple gunshot wounds. Dr. Schmunk determined that Berry was shot eight times, and all the bullets passed through her body. Berry was shot in the upper chest, both arms, and right thigh. Dr. Schmunk testified that the shot injuring Berry's chest, ribs, lung, diaphragm, liver, stomach, and kidney was the likely cause of her death.

[11] Jackson did not present any evidence, and following the close of the State's case, he requested the trial court to instruct the jury on the lesser-included offense of reckless homicide. The trial court refused to give the instruction, determining that the evidence was not such that the jury could conclude that the lesser offense was committed but not the greater. In denying Jackson's request, the trial court commented:

While the Court does agree that reckless homicide is a lesser included count or charge associated with the charge of murder, the Court doesn't find that there has been enough, that there have been such inconsistencies in the evidence that has been presented that the jury could conclude that the lesser offense was committed but not the greater. The State's point that there were at least, potentially, three shots fired inside the vehicle, in light of the fact that the victim had eight separate gunshot wounds, I believe, supports the idea that the behavior in question couldn't be considered as reckless, if in fact the jury finds that Mr. Jackson was in fact the individual responsible for the injuries.

[T]he fact that the injuries were so numerous, that being eight, the fact that at least three spent casings were found inside the vehicle along with three spent bullets would fly in the face of an action being reckless in nature.

Tr. Vol. III at 193–94 (emphases added).

[12] The jury found Jackson guilty of murder and unlawful possession of a firearm by a serious violent felon. The State subsequently dismissed the firearm charge and Jackson admitted to being a habitual offender. The trial court sentenced Jackson to a total of 61 years of incarceration. Jackson now appeals.

Discussion and Decision

The Trial Court Did Not Abuse Its Discretion by Refusing to Give a Lesser-Included Offense Instruction

[13] Jackson argues that the trial court abused its discretion in refusing to instruct the jury about reckless homicide because there was a “substantial evidentiary dispute regarding the mens rea element of the crime,” and the trial court failed to consider evidence from which it could be inferred that he acted recklessly. Appellant's Br. at 4. In determining whether the trial court should have given an instruction for a lesser-included offense of the charged offense, the trial court conducts a three-part test. Leonard v. State, 80 N.E.3d 878, 885 (Ind. 2017) (citing Isom v. State, 31 N.E.3d 469, 485 (Ind. 2015), cert. denied, 136 S. Ct. 1161 (2016)). “The first two parts require the trial court to consider whether the lesser included offense is inherently or factually included in the greater offense.” Id. (citing Isom, 31 N.E.3d at 485). “If it is, ‘then the trial court must determine if there is a serious evidentiary dispute regarding the element that distinguishes the lesser offense from the principal charge,’ ” in which case the court must give the instruction. Id. (quoting Isom, 31 N.E.3d at 485).

[14] Indiana Code section 35-42-1-1(1) defines murder as “knowingly or intentionally killing another human being.” A person engages in conduct “knowingly” if the person is aware of a “high probability” that he or she is doing so. Ind. Code § 35-41-2-2(b).⁴ A person commits reckless homicide if he recklessly kills another human being. Id. § 35-42-1-5. 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.” Id. § 35-41-2-2(c).

[15] Reckless homicide is an inherently included lesser offense of murder because the only element distinguishing murder and reckless homicide occurs when the defendant “recklessly” kills another human being, and murder occurs when the killing is done “knowingly” or “intentionally.” Webb v. State, 963 N.E.2d 1103, 1106 (Ind. 2012) (citing Davenport v. State, 749 N.E.2d 1144, 1150 (Ind. 2001)). Thus, the determinative issue here is whether the evidence created a serious evidentiary dispute concerning Jackson's state of mind when he shot Berry that would justify giving the requested reckless homicide instruction. See id. We review the trial court's finding that a serious evidentiary dispute does not exist for an abuse of discretion. Brown v. State, 703 N.E.2d 1010, 1019 (Ind. 1998).

[16] While Jackson maintains that “sweating,” “mumbling,” and “appear[ing] out of it” at the crash scene, Tr. Vol. II at 184, 191, created a serious evidentiary dispute as to his state of mind at the time of the shooting, he has not demonstrated how his demeanor at the crash site two hours later is relevant. Moreover, the trial court observed that there was not enough evidence at trial for the jury to conclude that “the lesser offense was committed but not the greater” that would warrant a reckless homicide instruction in these circumstances. Tr. Vol. III at 193. In denying Jackson's request for the reckless homicide instruction, the trial court considered the number of shots that Jackson fired at Berry, where those shots struck Berry, and the absence of any evidence suggesting that Jackson acted recklessly when he shot Berry. As discussed above, the evidence established that Jackson shot Berry in the SUV at least eight times, and three of those shots struck her in the chest. Therefore, it was reasonable for the trial court to conclude that there was no serious evidentiary dispute as to whether Jackson knowingly killed Berry. See, e.g., Miller v. State, 720 N.E.2d 696, 703 (Ind. 1999) (the trial court did not abuse its discretion in concluding that there was no evidentiary dispute as to whether the defendant knowingly killed the victim when the defendant fired a total of ten shots at the victim, one of which struck the victim in the head); see also Sanders v. State, 704 N.E.2d 119, 122–23 (Ind.1999) (no serious evidentiary dispute as to whether the defendant committed murder or reckless homicide when he shot the victim at close range).

[17] In sum, because there was no serious evidentiary dispute such that the jury could conclude that Jackson committed reckless homicide and not murder, the trial court did not abuse its discretion in refusing to give Jackson's reckless homicide instruction. We therefore affirm the trial court.

[18] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-1-1.

2.   Ind. Code § 35-47-4-5(c).

3.   Ind. Code § 35-50-2-8.

4.   While the crime of murder requires that Jackson “knowingly or intentionally” killed another human pursuant to Indiana Code section 35-42-1-1, the information alleged that Jackson “knowingly” killed Berry, Appellant's App. Vol. II at 38. Thus, our discussion of murder is limited to this level of culpability.

Felix, Judge.

Judges Pyle and Weissmann concur. Pyle, J., and Weissmann, J., concur.