As Victoria Navarrete returned to her duplex apartment, her neighbors in the adjoining unit, Vincent McCurtis and Nicole Stewart, were sitting outside with two people who were later identified as Brandon Jackson and Brian Ward.  Later, as Victoria sat on her front porch, Ward tried to start a conversation, prompting McCurtis to tell Ward to leave Victoria alone because he did not “want anyone talking to her.”  When Ward then tried to leave, McCurtis instructed Jackson to attack him.  Victoria heard, but could not see, Ward being hit and kicked and McCurtis saying things such as, “I want him dead.  I’m going to kill him” and that he wanted to “finish him off.”  Eventually, McCurtis instructed Jackson to carry Ward into the apartment and drown him.  McCurtis and Jackson dropped Ward’s lifeless body at Victoria’s door, Victoria called 911 and, after being rushed to the hospital, Ward was declared dead.

The State charged McCurtis and Jackson with murder.  At a joint trial, both defendants proposed jury instructions on several lesser included offenses, including reckless homicide.  Despite giving Jackson’s proposed reckless homicide instruction, the trial court declined to instruct the jury on reckless homicide as to McCurtis.  The jury found McCurtis guilty of murder and Jackson guilty of reckless homicide.

On appeal, McCurtis challenges the trial court’s refusal to instruct the jury on reckless homicide.  He claims that even though he made several explicit statements expressing an intent to kill Ward, there remains a serious evidentiary dispute as to whether he killed Ward intentionally or recklessly.

The scheduled panelists are Chief Judge Altice, Judge Kenworthy, and Judge DeBoer.