ATTORNEY FOR APPELLANT

Lisa M. Johnson

Brownsburg, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

James B. Martin

Deputy Attorney General

Indianapolis, Indiana

In the

Indiana Supreme Court 

No. 49S04-1311-CR-741

BILLY RUSSELL,

Appellant (Defendant below),

v.

STATE OF INDIANA,

Appellee (Plaintiff below).

Appeal from the Marion Superior Court, No. 49G06-1009-MR-75247

The Honorable Mark Stoner, Judge

On Petition to Transfer from the Indiana Court of Appeals, No. 49A04-1203-CR-148

November 12, 2013

David, Justice.

In this case, the defendant claims that the trial court should have given his tendered jury 

instruction on self-defense; however, his tendered instruction would have incorrectly limited the 

jury’s consideration to his subjective belief without assessing its reasonableness. Further, the 

defendant alleges that the trial court erred by not completely bifurcating the trial on his Serious 

Violent Felon (“SVF”) charge from the trial on his murder charge. Finding that the trial court 
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did not err in utilizing the existing Indiana Pattern Jury Instruction on self-defense and in 

partially bifurcating the trial, we affirm the defendant’s convictions for murder and class B 

felony possession of a firearm by a SVF. 

Facts and Procedural History

On September 18, 2010, Billy Russell argued with Jairme Wilburn outside the home 

Russell shared with his grandmother, girlfriend Angel Brown, Brown’s child, and Brown’s 

friend, Elizabeth Pearson. Wilburn was Pearson’s long-time boyfriend. Russell went inside, 

retrieved a handgun, and returned outside, where Wilburn was yelling threatening comments. 

When Wilburn turned away, Russell shot him in the head. 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. Prior to trial, Russell filed a 

motion requesting that the SVF charge be bifurcated from the murder charge. Instead of 

completely bifurcating the trial on the SVF charge from the trial on the murder charge, the trial 

court instructed the jury to consider, along with the murder charge, whether Russell had 

committed the non-existent offense of “unlawful possession of a firearm” by knowingly 

possessing a firearm. 

At trial, Russell claimed self-defense. He tendered the following jury instruction, which 

was refused by the trial court:

Defendant’s Proposed Final Jury Instruction No. 1:

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. 
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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. at 212.) Russell cited French v. State, 273 Ind. 251, 254–55, 403 N.E.2d 821, 824–25

(1980), Franklin v. State, 266 Ind. 540, 544, 364 N.E.2d 1019, 1021 (1977), and Shepard v. 

State, 451 N.E.2d 1118, 1120–21 (Ind. Ct. App. 1983) as his basis for this instruction. The trial 

court refused to give his instruction and instead gave the Indiana Pattern Jury Instruction. 

 In the first phase of trial, the jury convicted Russell on both charges. In the second 

phase of trial, the trial court instructed the jury to consider whether Russell was a SVF. The jury 

convicted him of the SVF charge and found that he was a habitual offender. Russell was 

sentenced to a term of fifty-five years for the murder, enhanced by thirty years for the habitual 

offender finding. The trial court also sentenced Russell to fifteen years for the SVF conviction, 

to run concurrently with the murder sentence. Russell appealed. 

On appeal, Russell argued that reversible error occurred when the trial court refused to 

give his tendered jury instruction assessing his self-defense claim from his standpoint at the time 

of the shooting. He also argued that reversible error occurred when the trial court partially 

bifurcated the trial. The Court of Appeals concluded that the trial court did not abuse its 

discretion in refusing to give Russell’s tendered jury instruction, Russell v. State, 981 N.E.2d 

1280, 1289–90 (Ind. Ct. App. 2013), or in partially bifurcating the case in such a way, id. at 

1286.

Three additional issues—whether the trial court erred in failing to instruct the jury on 

voluntary manslaughter as a lesser-included offense of murder, whether the trial court properly 

instructed the jury regarding the exception to a claim of self-defense for committing another 

crime, and whether Russell’s eighty-five-year sentence is appropriate—were raised by Russell. 

We summarily affirm the Court of Appeals on these three issues and grant transfer only to 

address Russell’s tendered jury instruction on self-defense and the trial court’s partial bifurcation 

of his prosecution. Ind. Appellate Rule 58(A). 
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I. Tendered Instruction on Self-Defense

Today we hand down Washington v. State, in which we answer Russell’s question of 

whether a tendered jury instruction assessing a self-defense claim from the standpoint of the 

accused at the time of the incident is a correct statement of the law. In Washington, we hold that 

a claim of self-defense must be evaluated by the jury by considering the objective reasonableness 

of the defendant’s belief that he was in imminent harm.

Russell’s tendered instruction stated that, in evaluating a self-defense claim, “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.” (App. at 212) (emphasis added). Because Russell’s 

tendered instruction focused solely on the subjective belief of the defendant and ignored the 

objective reasonableness of the defendant’s belief, his instruction was incomplete and incorrect 

under French. Thus, the trial court did not err in refusing to give Russell’s tendered jury 

instruction.

II. Partial Bifurcation

Before trial, Russell filed a motion requesting that the trial court completely bifurcate the 

trial on his SVF charge from the trial on his murder charge. Instead, over Russell’s objection, 

the trial court split Russell’s prosecution into two phases: phase one, where the jury determined 

whether Russell committed murder and whether he “unlawfully” possessed a firearm; and phase

two, where the jury determined whether Russell committed felony possession of a firearm by a 

SVF and whether he was a habitual offender. Had the trial court fully bifurcated the trial on the 

SVF charge from the trial on the murder charge, the trial court would have avoided instructing 

the jury on the non-existing offense of “unlawfully” possessing a firearm.
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As Russell argues, “unlawful possession of a firearm” is not a crime under the Indiana 

Code. Rather, the three elements given in the jury instruction said to comprise the “offense”—

(1) the defendant did; (2) knowingly or intentionally; (3) possess a firearm—are three elements

of the statutory offense of possession of a firearm by a SVF.1 Ind. Code § 35-47-4-5(c) (Supp. 

2012). 

One of the purposes of bifurcation is to keep prior convictions away from the jury in their 

initial determination of guilt for the substantive crime charged. Hines v. State, 794 N.E.2d 469, 

472 (Ind. Ct. App. 2003), adopted and incorporated by Hines v. State, 801 N.E.2d 634 (Ind. 

2004). Here, the Court of Appeals recognized this purpose of bifurcation.

[T]he primary concern with SVF trials is the labeling of a 

defendant as a “serious violent felon” and the introduction of 

evidence of a defendant’s criminal history in order to prove SVF 

status. 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. 

Russell, 981 N.E.2d at 1285 (internal citation omitted). “A trial court’s decision whether to 

bifurcate is subject to an abuse of discretion standard.” Shafer & Freeman Lakes Environmental 

Conservation Corp. v. Stichnoth, 877 N.E.2d 475, 481 (Ind. Ct. App. 2007). Because the jury 

was not informed of Russell’s prior convictions during the first phase of his trial, this purpose of 

bifurcation has been met and Russell has not been prejudiced.

Russell also argues that instructing the jury on the non-existent offense of “unlawful 

possession of a firearm” was prejudicial because most jurors would know that possession of a 

firearm, by itself, is not a criminal offense. He reasons jurors would infer a second phase of trial. 

 

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SVF status is the final element: “A serious violent felon who knowingly or intentionally 

possesses a firearm commits unlawful possession of a firearm by a serious violent felon.”
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However, this argument was rejected in Williams v. State, where the Court of Appeals held that 

by bifurcating the defendant’s SVF trial so that the jury would consider knowing possession of a 

firearm and the defendant’s SVF status separately, the trial court “avoid[ed] identifying [the 

defendant] as a ‘serious violent felon’ from the outset of trial.” 834 N.E.2d 225, 228 (Ind. Ct. 

App. 2005). Because the trial court instructed the jury to consider whether Russell had 

“unlawfully” possessed a firearm and whether Russell was a SVF in two separate phases of trial, 

this argument fails.

Further, Russell claims that asking the jury to simultaneously determine whether he 

committed the non-existent offense of “unlawfully” possessing a firearm and whether he 

committed murder undermined his self-defense claim. If the defendant is committing another 

crime, immediately and causally connected to the defensive action, then the defendant cannot 

claim self-defense. Mayes v. State, 744 N.E.2d 390, 394 (Ind. 2001). However, as the Court of 

Appeals observed,

[t]he 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.

Russell, 981 N.E.2d at 1286. Because this instruction informed the jury that Russell could not be 

“convicted” of “unlawful” possession of a firearm if they determined that he had lawfully 

exercised his right to self-defense, Russell’s self-defense claim was not undermined by the jury’s 

simultaneous consideration of both charges. 
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We affirm the trial court’s partial bifurcation in this instance. However, as the trial judge 

did here, we urge trial judges to exercise caution to ensure there is no prejudice to the defendant.

Conclusion

The trial court did not abuse its discretion by refusing to give Russell’s tendered jury 

instruction or by partially bifurcating Russell’s trial. Accordingly, we grant transfer and affirm 

Russell’s convictions.

Dickson, C.J., Rucker, Massa, and Rush, J.J., concur.