Subscriber Benefit
As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe Now
The Indiana Supreme Court rejected hearing a case involving an Elkhart man convicted of murdering his roommate in a Monday order.
On Jan. 25, 2023, an Elkhart County jury found Dustin McKee guilty of murder and possessing a handgun.
McKee had gotten into a physical altercation with his roommate, Brandon Lowe, and later admitted to officers that he shot Lowe five times in quick succession.
In bifurcated proceedings, McKee admitted to his status as a serious violent felon and admitted that he had used a handgun in the killing of Lowe.
The Elkhart Circuit Court imposed upon McKee an aggregate sentence of 83 years.
This consisted of a 63-year sentence for murder, enhanced by 10 years for the use of a firearm, and a 10-year sentence for unlawful possession of a firearm by a serious violent felon.
McKee appealed to the Indiana Court of Appeals which affirmed the lower court’s decision and sentence, finding that the evidence was sufficient to rebut McKee’s claim of self-defense and to negate sudden heat and his aggregate sentence was not inappropriate.
The matter came before the Indiana Supreme Court on a petition to transfer jurisdiction, filed pursuant to Indiana Appellate Rules 56(B) and 57, following the issuance of the appellate court’s decision.
Justice Christopher Goff concurred in the denial of Dustin J. McKee v. State Of Indiana, 23A-CR-549.
Chief Justice Loretta Rush concurred with a separate opinion which Justices Mark Massa, Geoffrey Slaughter and Derek Molter joined.
Rush noted in her opinion that there is no evidence McKee’s counsel made an affirmative request for the challenged jury instructions but rather acknowledged three-word answers.
She wrote that the actions amounted to nothing more than “simple neglect or acquiescence.”
“As a result, the Court of Appeals should not have invoked the invited-error doctrine. And applying it here is particularly concerning, as the State did not mention invited error in its appellate brief. Thus, the panel should have addressed the merits of McKee’s fundamental-error claim,” Rush wrote. “That said, after thoroughly reviewing the parties’ arguments and the record, McKee has not established that the alleged instructional errors either ‘made a fair trial impossible’ or clearly violated basic due process principles resulting in an ‘undeniable and substantial potential for harm.'”
Please enable JavaScript to view this content.