Fisher v. State

RUCKER, Justice.

The question we address is whether the failure to raise on appeal the trial court's refusal to give a reckless homicide instruction as a lesser-included offense to murder amounts to ineffective assistance of appellate counsel. On the facts of this case, we conclude that it does.

Facts and Procedural History

In August 1998, Darryl Eugene Fisher was charged with murder arising out of a shooting incident at a Gary restaurant. The facts as recounted by the Court of Appeals on direct review are as follows:

[O]n the evening of August 2, 1998, Kizmond Alexander, La'Montrell Thomas, and…