State v. Burley

627 A.2d 98 (1993)

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Nature of the Case

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Facts

D was at home with his ex-wife, Debbie Glines, with whom he had reconciled. He drank at least six beers between noon and 6:00 p.m. At approximately 6:30 p.m., he telephoned 911 requesting an ambulance for a gunshot wound. The police and ambulance crews arrived to find Ms. Glines lying on the kitchen floor with a gunshot wound on the right side of her head, from which she eventually died. D said he had been cleaning a .22 caliber semi-automatic handgun when it accidentally discharged. D admitted that he had loaded the gun, knowing he had made it ready to fire, before getting a beer. He stated that after watching television for twenty minutes, he picked up the gun and went to sit on the living room floor at the entryway to the kitchen. He knew that his ex-wife was in the kitchen. The gun went off, he stated, as he was cleaning excess oil from it, with the gun in his left hand and a finger in the trigger housing. He acknowledged familiarity with the operation of a .45 caliber semi-automatic, which is functionally similar to a .22. Two spent bullet casings were in a garbage bag. No cotton swabs were found in the living room or kitchen. D admitted that he had occasionally 'dry-fired' the gun by aiming the unloaded weapon at articles around the room. D eventually admitted, after being told of a bullet found lodged in his wall, that the second shell found in the trash came from his having fired the rifle in the apartment two days before shooting his ex-wife. He had been 'joking around with it, and it discharged.' D eventually admitted that he 'was fooling around with it on the floor and it went off.' In all, he gave the police three different versions of how he had been holding the gun that night. D tried for second-degree murder and was granted a lesser included offense instruction for manslaughter and negligent homicide. D was convicted and appealed. D argues in part that the evidence was insufficient to prove the element of extreme indifference.