Wrong-way driver convicted of murder
Six children and an adult died in head-on crash
prosecutors said was deliberate
July 13, 2001
Judy Kirby was found guilty of murder for
intentionally causing a head-on crash that killed six children and an
adult. The verdict came May 10, 2001 after a 12-day trial in which 114
witnesses were called. On June 13, she was sentenced to 215 years in
Kirby, with four children in her 1989 Pontiac
Firebird, entered Ind. 67 on March 25, 2000, going in the wrong
direction. Witnesses said Kirby appeared to make no attempt to stop or
turn around after she ran southbound motorists off the highway.
Other drivers scattered, but after nearly two miles
Kirby's car ran head-on into a van driven by Thomas Reel of
The impact of the two vehicles on a divided highway
was horrific. Emergency workers said later they had nightmares about
Killed in Kirby's car were three of her children --
Jacob, 5, Joney, 9, Jordan, 12 -- and Kirby's nephew, Jeremy Young,
10. The driver of the van, Thomas Reel, 40, died, as did his son
Bradley, 13, and daughter, Jesica, 14.
On April 14, police arrested Judy Kirby and charged
her with seven counts of murder, four felony counts of child neglect
causing serious bodily injury and one count of aggravated battery.
Family members said Kirby had been suffering from
depression, particularly since the birth of a child five months before
the accident. On March 2, she was admitted to a hospital for
treatment, but Kirby chose to leave before the scheduled three-day
stay was over.
On March 6, 2001, Morgan Superior Court Judge Jane
Spencer Craney ruled that the prosecution would not be allowed to
present evidence that Kirby may have been involved in interstate drug
trafficking. She did however allow the use of information about
Kirby's hospitalization for depression.
The jury selection process for Kirby's murder trial
began March 16 in Dearborn County. The trial began April 23, with
Morgan Superior 3 Judge Jane Spencer Craney presiding. Jurors were
taken to view the site where the crash occurred.
During the trial witnesses described the carnage they
saw at the scene. Even rescue workers were stunned by the extent of
damage to the victims.
Kirby's attorney, Jennifer Auger of Franklin, told
jurors Kirby suffered from an undiagnosed thyroid problem that made
her lose touch with reality.
But Kirby's ex-husband testified that she had told one
of their sons she was going to commit suicide. Prosecutors told the
jury Kirby was suicidal over a failing relationship with her
ex-husband's brother. Other witnesses testified that Kirby feared
being arrested on drug dealing charges. Prosecutors also brought in a
medical expert who testified that Kirby's strange behavior before the
crash would not have been the result of a thyroid disorder.
In his closing argument May 9, defense attorney Tom
Jones described Kirby as a very sick woman who was misdiagnosed and
improperly treated. He argued that Kirby loved her children and would
never have intentionally harmed them.
In his own summation, Prosecutor Terry Iacoli used a
dramatic pause lasting 87 seconds to illustrate how much time Kirby
had to pull over after turning the wrong way. The case went to the
jury, which deliberated ten hours that evening and the next morning
before coming to a verdict of murder on all seven counts.
Events on the day of the crash:
Investigators, through interviews with family members
and others who encountered Judy Kirby on March 25, 2000, pieced
together her activities leading to the wreck on Ind. 67 that killed
11:30 a.m. -- Kirby, accompanied by nephew Jeremy Young,
celebrating his 10th birthday, leaves her Southside Indianapolis home
for her sister's home in Acton to pick up children Joney Kirby, 9,
Jacob Kirby, 5, and Jordan Kirby, 12.
Noon -- Arrives at the home of sister Jeannetta Scott.
Leaves about 2 p.m. with all four children. Scott follows as they
drive to Toys R Us in Greenwood to buy a present for Jeremy's
2:30 p.m. -- Scott loses track of Kirby when Kirby stops in
traffic on Southport Road. Scott turns around to go back, thinking
Kirby has car trouble, but is unable to find her.
3 p.m. to 3:30 p.m. -- A man working in his yard on Ralston
Road, west of Mann Road, sees Kirby when she stops her car in front of
his house. He reports that Kirby stared at him for a few minutes, then
3:30 p.m. to 4 p.m. -- Two women see Kirby's car stop in
traffic at High School and Thompson roads. They approach her, ask if
there is a problem and loan Kirby a cell phone. Kirby drives off and
returns about two minutes later with the phone. She leaves, driving on
High School Road toward Kentucky Avenue.
4 p.m. -- Kirby shows up at a baby shower in the clubhouse
at Valley Brook Mobile Home Park on High School Road just west of
Kentucky Avenue. Kirby and the children enter the clubhouse, where no
one knows her. Witnesses say Kirby stated, "I need help." When asked
what type of help, she replied, "I need a birthday party." People at
the shower think Kirby might be looking for a gathering at the park's
other clubhouse and give directions to that site.
4:10 p.m. to 4:45 p.m. -- No reported sightings as Kirby
drives 21.5 miles to Martinsville.
4:45 p.m. -- Kirby arrives at a Speedway gas station on the
edge of Martinsville. Store security video shows Kirby and four
children enter the station, pay for $3 in gasoline and buy candy bars.
An attendant reports that Kirby, who sits in the car for several
minutes before going inside to pay, is unable to activate the gas
pump, and he assists her.
4:55 p.m. -- Witnesses begin reporting a white car, which
entered southbound lanes of Ind. 67 at the exit ramp on Pumpkinvine
Hill Road, driving the wrong way on the highway. The car is reported
traveling at a high speed, with estimates varying between 55 mph and
100 mph. One witness describes seeing "a small boy in the front seat
who looked to be on his knees, his hands outstretched to the dash as
if he was holding on, and the driver's blond hair was blowing in the
wind." Others report Kirby does not appear to slow or take evasive
action as she meets oncoming vehicles.
4:57 p.m. -- Kirby's car collides head-on with a van driven
by Thomas Reel, 40, of Martinsville. The collision, described by
witnesses as a "horrific, spectacular explosion," kills all four
children riding with Kirby. Also killed are Reel and two of his
children, Bradley Reel, 13, and Jesica Reel, 14. Kirby and another
passenger in the Reel van, Richard Miller, 13, are taken to Methodist
Hospital in Indianapolis.
Lawyers rest cases in Kirby murder trial
Prosecution, defense make final statements; jury to deliberate
By Bryan Harris - Idsnews.com
May 10, 2001
MARTINSVILLE -- Two weeks of arguments in the multiple murder trial
of Indianapolis resident Judy Kirby concluded Wednesday in Morgan
County Superior Court.
Kirby was on trial for an incident occurring March 25 last year
when she drove her white Firebird north on the southbound lane of Ind.
67 in Morgan County. She ran head-on into a van driven by Martinsville
resident Tom Reel, who was travelling with two of his children and
family friend Richard Miller.
Kirby had four of her children in the car. All but Kirby and Miller
were killed in the collision, which completely shattered both
vehicles. The State of Indiana charged Kirby with 7 counts of murder,
4 counts of neglect and 1 count of aggravated battery.
Kirby's defense has not denied that she drove the wrong way on the
highway, but her motivations for the fatal 1.7 mile journey were hotly
contested. The defense, consisting of Johnson county attorney Tom
Jones and his daughter Jennifer Auger, built their case around the
contention that Kirby was psychotic and had no control over her own
Wednesday's final arguments began at 9:15 a.m., with Deputy
Prosecutor Terry Iacoli making a presentation to the jury. Iacoli used
an overhead projector and slide show to summarize his case as he
reiterated the significance of hundreds of pieces of evidence and
"Back on March 25," Iacoli said, "Judy Kirby was in control and
held nine lives in her hands."
Iacoli then restated his case, using testimonies from Kirby's
friends and family to portray her as being suicidal after catching her
husband Tinnie Kirby cheating on her. Iacoli then painted her as a
woman at the end of her rope making a conscious decision to drive her
car into oncoming traffic with both hands on the wheel and screaming
children all around her.
"She had nerves of steel," Iacoli said. "Imagine that for 87
seconds... cars coming at you, swerving, trying to get you to stop.
Nine vehicles. (Kirby) knows they can't all avoid her, so she goes
faster and faster. She nails it."
Iacoli pointed to expert testimony which said Kirby continually
accelerated to a speed of over 99 miles per hour on her way to hitting
Reel's van. Iacoli repeatedly called Kirby's drive a suicide mission
and disputed the defense's claims that Kirby was psychotically
imbalanced from a thyroid disorder.
"We are confident that when you look at the evidence... you will
find that on March 25, 2000 Judy Kirby did exactly what all her
friends and family were afraid she would set out to do: commit
suicide," Iacoli said.
The defense then recapped its case, describing Kirby as a loving
mother who lost control in the throws of psychosis. Jones described
Kirby as being paranoid to the point that she was convinced the Secret
Service was tunneling under her house to spy on her and presented
photos of holes she'd ripped into the walls of her house searching for
surveillance devices. He said the matter was a traffic accident, but
not murder, because Kirby wasn't in control of her faculties.
Jones also presented part of Kirby's emotional, tape-recorded
police statement, given to State Trooper Rick Lane while she was
hospitalized at Methodist Hospital after the crash.
"I want to know why," Kirby told police. "I want to know why. I
love my babies. I wouldn't do nothing to hurt my babies. I swear to
God in Heaven I wouldn't. I wouldn't. I swear to God that is all I
love. I wouldn't do nothing to hurt my babies. None of my babies."
After a short recess, Auger completed the defense's final argument
by presenting the jury with charts describing Kirby's behavior as
being typical of someone with Hyperthyroid disorder and asked the jury
if there was any doubt Kirby was psychotic. Throughout its case, the
defense stressed the prosecution's burden of proof and asked the
jurors to keep an open mind about Kirby's condition.
"If you think at the end of the day (Kirby) was unable to process
information," Auger told the jury. "Justice demands that she is not
guilty of murder, neglect and battery."
The defense ultimately asked the jury to acquit Kirby on all
After both sides finished their arguments, Morgan County Superior
Court Judge Jane Spencer Craney instructed the jury on how it should
deliberate the case.
Craney reiterated Indiana laws which say Kirby must have
voluntarily killed to be guilty of murder and described voluntarily as
"behavior that is an act of choice." She also ordered the jury not to
be swayed by the graphic nature of photos of the young victims taken
after the crash or the fact that Kirby did not testify in her own
defense. Craney also emphasized the defense must prove its case beyond
a reasonable doubt to convict Kirby on any of the charges.
"Prepare yourself for a long, serious deliberation," Craney told
the throng of family members, police and media in the courtroom pews.
"I am prepared to allow several days for deliberation before I take
steps to declare a mistrial."
Before the jury entered deliberations, Tom Reel's widow Louise told
a small pack of reporters outside the courthouse that she and her
remaining daughter share the same sentiments.
"She took my family from me," Reel said. "I hope they're not going
to let her go because she did something horrible."
Court of Appeals of Indiana
KIRBY v. STATE
Judy D. KIRBY, Appellant-Defendant,
STATE of Indiana, Appellee-Plaintiff.
August 29, 2002
Jennifer Jones Auger, Jones Hoffman & Admire, Franklin, IN,
Attorney for Appellant.Steve Carter, Attorney General of Indiana,
James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys
Judy D. Kirby appeals her convictions for seven counts of murder as
four counts of neglect of a dependent resulting in serious bodily
injury as class B felonies,2
and one count of aggravated battery as a class B felony,3
and her sentences for seven counts of murder and one count of
aggravated battery. Kirby raises seven issues, which we consolidate
and restate as:
I. Whether the trial court erred by denying her motion to
dismiss pursuant to Ind. Criminal Rule 4(B) because the State had
failed to bring her to trial within seventy days;
II. Whether the trial court abused its discretion by admitting
evidence of prior bad acts under Ind. Evidence Rule 404(b);
III. Whether the trial court abused its discretion by denying two
motions for mistrial predicated upon prosecutorial misconduct;
IV. Whether the trial court abused its discretion by failing to
give a circumstantial evidence instruction;
V. Whether the trial court abused its discretion by allowing two
officers to remain in the courtroom despite a separation of witnesses
VI. Whether her sentence is manifestly unreasonable in light of
the offenses committed and the character of the offender.
The issue on which this case turned at trial was Kirby's state of
mind on March 25, 2000, as she drove her car toward the collision that
took the lives of seven people. The State's theory was that Kirby
intended to commit suicide because of her tumultuous relationship with
her boyfriend, Tinnie Kirby (“Tinnie”), and her fear of either being
arrested as a result of her involvement with drugs or losing her
children. The defense maintained that Kirby suffered from a medical
condition called hyperthyroidism, which caused her to become psychotic
and paranoid. The defense also contended that Kirby's medical
condition, coupled with a badly designed highway ramp and poor medical
treatment, was the cause of the fatal collision.
The facts most favorable to the convictions follow. For some time
prior to March 25, 2000, Kirby was under stress because of her
relationship with Tinnie and her concern about losing him and her
children. Kirby was also concerned about getting into trouble with
the police because of her involvement with drugs. As a result of
this stress, Kirby exhibited many bizarre behaviors, such as wearing
disguises, placing cameras in trees, reporting that people were
watching and following her, and expressing thoughts of suicide. On
March 2, 2000, Kirby was involuntarily committed to the psychiatric
unit at St. Francis Hospital. There, Kirby was diagnosed with
psychosis and given Risperdol, an anti-psychotic drug. Kirby was
also diagnosed with hyperthyroidism. On March 4, 2000, Kirby's
mental condition had improved to the point where she was no longer
seen as an immediate danger to herself or others and, thus, she was
released from St. Francis Hospital.
On March 25, 2000, Kirby, three of her eight children, and her
nephew, J.Y., (collectively, the “Children”) left the Greenwood
residence of Jeanetta Scott, Kirby's sister, and drove to a car wash
and then to a McDonald's for soft drinks. Scott was worried about
Kirby's condition and followed Kirby in her own car. When Kirby left
McDonald's, she passed Scott's car and then came to a complete stop in
the roadway. Scott went around Kirby's stopped car and turned around
at the first side street available. However, Scott lost sight of
Kirby because Kirby drove away after Scott had passed her.
Subsequently, Kirby stopped her car at a stop sign near Sarah
Mullis's driveway and remained there for approximately two minutes as
other motorists drove around her. Mullis approached Kirby's car and
asked if Kirby needed to use her telephone. After Kirby indicated
that she did need to use the telephone, Mullis went into her house,
got a cordless telephone, and gave it to Kirby. Kirby drove away
with the phone, and Mullis called 9-1-1. However, when Mullis looked
out a window, she saw Kirby's car sitting in front of her garage.
Mullis went outside and retrieved the telephone. Kirby sat in her
car in Mullis's driveway staring straight ahead for approximately five
minutes and then drove off.
Kirby then showed up uninvited at a baby shower at State Road 67
and High School Road. Kirby exclaimed to everyone at the shower that
she was looking for a birthday party because it was her son's
birthday. Kirby and the Children stayed at the baby shower for
approximately fifteen or twenty minutes and then left in Kirby's car.
At approximately 4:44 p.m., Kirby arrived at a gas station on State
Road 67 in Martinsville, Indiana, where she purchased gas and candy.
Shortly before 5:00 p.m., Kirby left the gas station and drove her car
the wrong way, entering an exit ramp from State Road 67. Kirby
accelerated as she drove the wrong way on the exit ramp. Kirby
traveled northbound in the southbound lanes of State Road 67. Nine
motorists had to take evasive action, such as driving away from the
lane in which Kirby was speeding the wrong way, to avoid colliding
with Kirby's car. One motorist had continually blown her horn to
alert Kirby to the danger. Several motorists testified that Kirby
had made no effort to evade oncoming traffic. In addition, Kirby
passed six “wrong way” traffic signs and ten “do not enter” signs,
which were posted along the roadway and visible to motorists. There
was also an emergency lane available to Kirby for getting out of the
way of oncoming traffic. Eventually, Kirby's car clipped the back of
another car and then collided with a van, causing the van to vault
into the air and then land on its side. Kirby's car was traveling
over ninety miles per hour when it struck the van. A later
investigation of Kirby's car indicated that her brake lights were not
“on” at the time of impact.
The van's passengers included Tom Reel, his son, Bradley Reel, and
his daughter, Jessica Reel (collectively, the “Reels”), and Bradley's
friend, Richard Miller. The Children and the Reels all died at the
scene of the collision. Miller was injured and suffered permanent
impairment of his back and right foot. Kirby was thrown from her car
and suffered a closed head injury and various orthopedic injuries.
On April 14, 2000, the State charged Kirby with seven counts of
murder as felonies, four counts of neglect of a dependent resulting in
serious bodily injury as class B felonies, and one count of aggravated
battery as a class B felony. On April 20, 2000, Kirby filed a
request for evidence that the State intended to present under Ind.
Evid. Rule 404(b),4
which the trial court granted. The trial court set a deadline of
March 14, 2001, for the State to disclose to Kirby all new 404(b)
evidence. On January 25, 2001, Kirby filed a motion for speedy trial
pursuant to Ind. Criminal Rule 4(B). In response, the trial court
scheduled Kirby's jury trial for April 3, 2001. Subsequently, on
March 14, 2001, the State filed its updated witness list. Kirby then
filed two requests for a continuance of the trial, the second of which
the trial court granted. However, in granting Kirby's second motion
for continuance, the trial court assigned the delay to both Kirby and
the State. On April 6, 2001, Kirby filed her motion to dismiss
pursuant to Ind. Criminal Rule 4(B), which the trial court denied.
The trial court conducted a jury trial, and the jury found Kirby
guilty as charged. At sentencing, the trial court merged the four
convictions of neglect of a dependent resulting in serious bodily
injury as class B felonies into the murder convictions of the
Children. The trial court then sentenced Kirby to sixty-five years
each for the three murders of the Reels, fifty-five years each for the
four murders of the Children, and twenty years for the aggravated
battery of Miller. Further, the trial court ordered that the
sentences for the murders of the Reels be served consecutively to each
other and to the sentence for the aggravated battery of Miller. The
trial court ordered that the sentences for the murders of the Children
be served concurrently to each other and to all other sentences.
Thus, the trial court sentenced Kirby to an aggregate two hundred and
fifteen year term of incarceration.
The first issue is whether the trial court erred by denying Kirby's
motion to dismiss pursuant to Ind. Criminal Rule 4(B) because the
State had failed to bring her to trial within seventy days. We
review this matter de novo. See Vaughan v. State, 470 N.E.2d 374,
377 (Ind.Ct.App.1984) (implicitly reviewing an Ind. Criminal Rule 4(B)
question about which party was responsible for a delay under a de novo
standard), reh'g denied, trans. denied.
On January 25, 2001, Kirby filed a request for speedy trial under
Ind. Criminal Rule 4(B). By filing her motion for speedy trial, Kirby
invoked the procedures and deadlines of Ind. Criminal Rule 4(B)(1),
which provides in pertinent part:
If any defendant held in jail on an indictment or an affidavit
shall move for an early trial, he shall be discharged if not brought
to trial within seventy (70) calendar days from the date of such
motion, except where a continuance within said period is had on his
motion, or the delay is otherwise caused by his act, or where there
was not sufficient time to try him during such seventy (70) calendar
days because of congestion of the court calendar.
Accordingly, when a defendant files a request for a speedy trial,
the State is obligated to bring him or her to trial within seventy
days of the request unless delay is caused by court congestion or by
the defendant. Id. If the State fails to bring the defendant to
trial within the allotted time frame, including acceptable delays, the
defendant is entitled to discharge. Id. When a delay is chargeable
to the defendant, the period fixed by the rule is extended only by the
period of the delay. Ind. Criminal Rule 4(F).
Kirby argues that, with respect to her motion for speedy trial, the
trial court erred by refusing to discharge her because, while she did
request a continuance of the original trial date of April 3, 2001,
that continuance should have been charged solely against the State.
Specifically, Kirby alleges that the State deliberately withheld
404(b) evidence until the last possible moment, which forced her to
choose either to request a continuance of the trial date or to proceed
to trial unprepared.
Our review of the Record reveals that Kirby made her motion for a
speedy trial on January 25, 2001. In response, the trial court
scheduled Kirby's trial for April 3, 2001. However, prior to moving
for a speedy trial, Kirby had filed, and the trial court had granted,
a request for notice of any evidence of other crimes, wrongs, or acts
that the State intended to introduce at trial pursuant to Ind. Evid.
Rule 404(b). After conducting several 404(b) hearings and in light of
the April 3, 2001 trial date, the trial court established the deadline
of March 15, 2001, for the State to disclose to Kirby any new 404(b)
evidence. Kirby objected to this deadline because she believed it
was too close to the trial date and, as a consequence, if the State
were to present her with new 404(b) evidence on March 15, 2001, she
would not be able to effectively investigate the new evidence in time
Subsequently, on March 14, 2001, the State amended its list of
witnesses to include twenty-two additional 404(b) witnesses. In
response, Kirby immediately filed a motion to continue the April 3rd
trial setting, wherein she alleged that the State's “actions in adding
witnesses, supplying new information, and requesting reconsideration
of the [trial court's] 404(b) ruling, have interfered with,
interrupted and thwarted Defense counsel's trial preparation, by
disclosing witnesses and creating new issues.” Appellant's Appendix
at 650. Kirby further alleged that, if the State had not updated its
witness list, she would have been adequately prepared for the April
3rd trial date. Accordingly, Kirby expressly declined to waive her
speedy trial rights and, instead, requested that the trial court
continue the trial date and charge the delay to the State. Because
Kirby refused to waive her right to a speedy trial, the trial court
denied her request for a continuance. On March 22, 2001, Kirby again
filed a motion to continue the April 3rd trial setting, which unlike
the prior motion, did not contain any language regarding her refusal
to waive her speedy trial rights. Accordingly, the trial court
continued the trial setting to April 17, 2001 and charged the delay to
both Kirby and the State.
Kirby contends that because the State's action of amending its
witness list to include twenty-two new witnesses a mere three weeks
prior to the scheduled trial date forced her to request a continuance
of the April 3rd trial setting, the trial court should not have
charged her with the delay. To support her position, Kirby relies
upon our holdings in Marshall v. State, 759 N.E.2d 665, 668-670
(Ind.Ct.App.2001) (analyzing a defendant's right to a speedy trial
under Ind. Criminal Rule 4(C)), Crosby v. State, 597 N.E.2d 984,
988-989 (Ind.Ct.App.1992); and Biggs v. State, 546 N.E.2d 1271, 1276
(Ind.Ct.App.1989). However, these cases are readily distinguishable
from the present action.
In Marshall, we observed that while, generally, a defendant is
responsible for any delay caused by his or her action including
seeking or acquiescing in any continuance, a defendant cannot be
charged with the delay if he or she made the motion because the State
had failed to comply with a discovery request. Marshall, 759 N.E.2d
at 669. There, the defendant filed a request to continue the trial
because the State failed to provide him with DNA evidence that was
essential to his trial preparation. Id. We held that because the
State's failure to respond to the defendant's discovery request caused
the delay, the defendant was not accountable for the delay of the
trial date. Id.
In Biggs, we encountered a similar situation wherein the defendant
sought a continuance, but argued that the delay should not be
attributed to him because of the State's failure to provide discovery.
Biggs, 546 N.E.2d at 1275. There, the defendants' motion for a
continuance requested only that the trial be delayed until such time
as the defendants' discovery requests were complied with by the State,
so that the defendants would be adequately prepared for trial. Id. We
held that “[t]o put the defendants in a position whereby they must
either go to trial unprepared due to the State's failure to respond to
discovery requests or be prepared to waive their rights to a speedy
trial, is to put the defendants in an untenable situation.” Id.
Accordingly, under the facts and circumstances presented in Biggs, we
refused to charge the defendants with any delay that may have resulted
from their motion for a continuance. Id.
Similarly, in Crosby, we encountered a situation where the
defendant's right to a speedy trial was violated due to the State's
failure to provide the defendant with discovery. Crosby, 597 N.E.2d
at 988. In that case, the trial court initially scheduled the trial
within the seventy-day period. Id. However, the trial date was
continued because of the State's negligence in complying with
discovery and its late addition and amendment of the charges. Id.
Accordingly, we charged the State with the delay. Id.
Unlike the circumstances presented in Marshall, Biggs, and Crosby,
the delay of Kirby's trial did not result from the State's failure to
provide Kirby with discovery. Indeed, the only action on the part of
the State about which Kirby complains is the State's filing of its
amended witness list that included twenty-two additional 404(b)
witnesses. However, the State did not delay in providing its amended
witness list to Kirby. Rather, it timely disclosed the amended
witness list to Kirby in compliance with the trial court's deadline of
March 15, 2001. Moreover, in this case, the trial court specifically
found that, even in the absence of a continuance, Kirby “could have
been prepared for the original trial date of April 3, 2001.”
Appellant's Appendix at 848. Thus, the trial court clearly
considered the impact that the State's amended witness list would have
on Kirby's ability to prepare for trial. As such, we cannot say that
the trial court abused its discretion by finding that Kirby could have
been prepared for trial without the continuance and by attributing the
delay resulting from the continuance to Kirby. See, e.g., Lockhart
v. State, 671 N.E.2d 893, 898 (Ind.Ct.App.1996) (refusing to hold that
the trial court abused its discretion by finding that defense counsel
would be unavailable and by setting the trial date outside of the
seventy day period because of court congestion). Accordingly, the
trial court did not err by denying Kirby's motion to dismiss pursuant
to Ind. Criminal Rule 4(B). See, e.g., Covelli v. State, 579 N.E.2d
466, 470 (Ind.Ct.App.1991), trans. denied.
The second issue is whether the trial court abused its discretion
by admitting evidence of Kirby's prior bad acts under Ind. Evid. Rule
404(b). Kirby argues that the trial court abused its discretion by
allowing the State to introduce evidence that she had engaged in drug
dealing during the year prior to the fatal car collision because such
evidence bore no relevance to any matter in dispute and its probative
value was substantially outweighed by its prejudicial effect. The
State counters that Kirby has waived any claim of error based upon
Ind. Evid. Rule 404(b) because she failed to “contemporaneously object
to the admission of the testimony at trial.” Appellee's Brief at 19.
In her reply brief, Kirby concedes that her “counsel ․ did not make
an objection at trial to the introduction of this evidence, because
defense counsel did not believe that an objection was necessary” given
the lengthy and substantial fact-finding hearings and the trial
court's specific finding that the evidence was admissible.
Appellant's Reply Brief at 4. Because Kirby failed to object to the
admission of evidence regarding her involvement in dealing drugs
during the year immediately preceding the collision, she has waived
appellate review of this issue. See, e.g., McCarthy v. State, 749
N.E.2d 528, 537 (Ind.2001) (finding waiver where defendant filed a
motion in limine seeking to exclude 404(b) evidence, which the trial
court denied, but failed to object to such evidence when it was
introduced at trial).
Waiver notwithstanding, however, we would not reverse Kirby's
convictions based upon the trial court's admission of evidence
pertaining to Kirby's prior drug dealings. The trial court has broad
discretion when ruling on the admissibility of evidence and when
determining its relevancy. Hopkins v. State, 668 N.E.2d 686, 689
(Ind.Ct.App.1996), reh'g denied, trans. denied. We will disturb its
ruling only upon a showing of an abuse of discretion. Kremer v.
State, 514 N.E.2d 1068, 1073 (Ind.1987), reh'g denied. A trial court
abuses its discretion when its evidentiary ruling is clearly against
the logic, facts, and circumstances presented. Burgett v. State, 758
N.E.2d 571, 579 (Ind.Ct.App.2001), trans. denied.
Here, evidence of Kirby's prior drug dealing was highly relevant to
the issue of Kirby's state of mind at the time of the fatal collision.
Indeed, such evidence was offered to prove an element of the State's
theory that Kirby was motivated to commit suicide because she had
engaged in drug dealing and was afraid that she was under
investigation, would be arrested, and would lose her children as a
consequence. Accordingly, the trial court did not abuse its
discretion by permitting the State to introduce evidence of Kirby's
drug dealing activities in the year preceding the collision. See,
e.g., Hopkins, 668 N.E.2d at 689.
The third issue is whether the trial court abused its discretion by
denying Kirby's motions for mistrial predicated upon prosecutorial
misconduct. A mistrial is an extreme remedy warranted only when no
other curative measure will rectify the situation. James v. State,
613 N.E.2d 15, 23 (Ind.1993). The determination of whether to grant
a mistrial is within the trial court's discretion, and we will reverse
only for an abuse of that discretion. Schlomer v. State, 580 N.E.2d
950, 955 (Ind.1991). An abuse of discretion has occurred if the
trial court's decision is clearly against the logic and effect of the
facts and circumstances before the trial court. Gibson v. State, 733
N.E.2d 945, 951 (Ind.Ct.App.2000). We accord great deference to the
trial court's decision, as it is in the best position to gauge the
circumstances and the probable impact on the jury. Schlomer, 580
N.E.2d at 955. When determining whether a mistrial is warranted, we
must consider whether the defendant was placed in a position of grave
peril to which he should not have been subjected. Id. The gravity of
the peril is determined by the probable persuasive effect of the
matter complained of on the jury's decision. Id. Generally, a timely
and accurate admonition is an adequate curative measure for any
prejudice that results from an improper comment made by a prosecutor.
Schlomer, 580 N.E.2d at 956.
First, Kirby asserts that the trial court abused its discretion by
denying her motion for mistrial when the prosecutor allegedly denied
her a fair trial by referencing the fact that she was exercising her
right not to testify under the Fifth Amendment. Second, Kirby
challenges the trial court's denial of her second motion for mistrial
when the prosecutor allegedly placed an evidentiary harpoon in front
of the jury. We address each of these claims separately.
First, Kirby alleges that one of the prosecutor's comments, given
in response to a witness's statement, unfairly emphasized her right
not to testify. At trial, the prosecutor asked Tinnie questions
regarding his relationship with Kirby and his dating activity with
another woman. During this line of questioning, the prosecutor asked
the following question: “Do you ․ have any reason to believe it
bothered [Kirby] though?” Transcript at 1527. Tinnie responded,
“You can ask her.” Id. at 1527. The prosecutor remarked, “Well, I
can't.” Id. Kirby maintains that this last comment warranted a
The Fifth Amendment to the United States Constitution prohibits
compelling a defendant to testify against herself. See U.S. Const.
amend. V. Our supreme court has held that “a Fifth Amendment
violation occurs when a prosecutor makes a statement that is subject
to reasonable interpretation by a jury as an invitation to draw an
adverse inference from a defendant's silence.” Jenkins v. State, 725
N.E.2d 66, 69 (Ind.2000). After reviewing the Record in this case,
we are not convinced that the prosecutor's comment rises to this
level. Rather, the words “I can't” appear to be an inadvertent
comment made by the prosecutor in response to an unexpected statement
by the witness.
Even assuming, however, that the Prosecutor's comment was
tantamount to an impermissible remark on Kirby's right not to testify,
we still find no error. The statement did not place Kirby in a
position of grave peril to which she should have not been subjected.
See Schlomer, 580 N.E.2d at 955. The prosecutor's remark of “I
can't” can more reasonably be taken as an inadvertent comment on his
inability to ask Kirby a question rather than as an attempt to cast a
negative inference upon her silence. See, e.g., Hancock v. State,
737 N.E.2d 791, 798 (Ind.Ct.App.2000) (finding no prosecutorial
misconduct where the prosecutor's statements during closing argument
did not amount to an unconstitutional comment on the defendant's
failure to testify). Accordingly, the prosecutor's inadvertent
comment did not subject Kirby to grave peril and, thus, the trial
court did not abuse its discretion by denying Kirby's motion for
mistrial. See, e.g., Ben-Yisrayl v. State, 690 N.E.2d 1141,1149
(Ind.1997) (finding that the trial court did not abuse its discretion
where defendant was not placed in grave peril by prosecutor's
comments), reh'g denied, cert. denied, 525 U.S. 1108, 119 S.Ct. 877,
142 L.Ed.2d 777 (1999).
Second, Kirby asserts that the trial court abused its discretion by
denying her second motion for mistrial, which she made when the State
allegedly placed an evidentiary harpoon in front of the jury. An
evidentiary harpoon is the placing of inadmissible evidence before the
jury with the deliberate purpose of prejudicing the jurors against the
defendant. Evans v. State, 643 N.E.2d 877, 879 (Ind.1994), reh'g
denied. To prevail on such a claim of error, the defendant must show
that: (1) the prosecution acted deliberately to prejudice the jury;
and (2) the evidence was inadmissible. Id.
In the present case, the alleged evidentiary harpoon of which Kirby
complains occurred during the State's opening statement. While
outlining his case-in-chief for the jury, the prosecutor made the
following statement regarding a particular witness's testimony: “․
[A]nd he will testify that he purchased Dalotta [sic], which is a
prescription form of morphine from [Kirby] for years and the last time
being a few weeks before the crash.” Transcript at 36. Kirby
immediately objected to the prosecutor's characterization of the
evidence, asked to approach the bench, and requested a limiting
instruction and a mistrial. Although the trial court denied Kirby's
motion for mistrial, it gave the following admonishment:
All right. Ladies and Gentlemen, any evidence of wrongdoing by
[Kirby], other than what she is charged with, is being allowed only to
go to show proof of intent, motive, plan, lack of accident, by
[Kirby]. It's very unusual, but I have ruled that it can come in.
However, you are only to consider recent evidence, within one year of
the crash concerning [Kirby.] [The Prosecutor] made a statement
concerning a time period outside of that. The only evidence that is
relevant and will be admissible is within one year of the time of the
crash. So from March 25th 1999 on. All right. You may continue.
Id. at 37.
As previously mentioned, a timely and accurate admonishment is
presumed to cure any error in the admission of evidence. James, 613
N.E.2d at 23. Therefore, assuming arguendo that the prosecutor's
statement was an evidentiary harpoon, the trial court cured any
potential prejudice with its prompt admonishment. See, e.g., id.
(holding that trial court's prompt admonishment was sufficient to cure
any prejudice with regard to the finding of guilt on the felony murder
charge). Accordingly, Kirby was not placed in grave peril, and the
trial court did not abuse its discretion by denying Kirby's motion for
mistrial based upon the prosecutor's opening statement. See, e.g.,
Bradley v. State, 649 N.E.2d 100, 108 (Ind.1995) (holding that a
mistrial was not required where trial court admonished the jury to
limit its consideration of a witness's response), reh'g denied.
The fourth issue is whether the trial court abused its discretion
by failing to give a circumstantial evidence instruction. The giving
of jury instructions is a matter within the sound discretion of the
trial court, and we review the court's refusal to give a tendered
instruction for an abuse of that discretion. Harrison v. State, 699
N.E.2d 645, 649 (Ind.1998). Generally, we will reverse a trial court
for failure to give a tendered instruction if: (1) the instruction is
a correct statement of the law; (2) it is supported by the evidence;
(3) it does not repeat material adequately covered by other
instructions; and (4) the substantial rights of the tendering party
would be prejudiced by failure to give it. Creager v. State, 737
N.E.2d 771, 776 (Ind.Ct.App.2000), trans. denied.
In the present case, Kirby argues that the trial court abused its
discretion by refusing her tendered instruction on circumstantial
evidence. Although the trial court instructed the jury on the
definitions of both direct and circumstantial evidence, it refused to
give the following portion of an instruction tendered by Kirby:
“Where proof of guilt is by circumstantial evidence only, it must be
so conclusive in character and point so surely and unerringly to the
guilt of the accused as to exclude every reasonable theory of
innocence.” Appellant's Appendix at 993. In so doing, the trial
court relied upon the cases of Spears v. State and Bailey v. State for
the proposition that “[w]here evidence of the actus reus is direct, no
circumstantial evidence instruction is necessary regarding a
defendant's mens rea.” Bailey v. State, 438 N.E.2d 22, 25
(Ind.Ct.App.1982) (citing Spears v. State, 272 Ind. 634, 639, 401
N.E.2d 331, 335 (1980), reh'g granted, 272 Ind. 647, 403 N.E.2d 828,
overruled on other grounds by Hicks v. State, 544 N.E.2d 500
Nevertheless, Kirby maintains that because her intent to commit the
charged crimes was the only contested issue at trial, and, further,
because evidence of her intent was circumstantial, the trial court
abused its discretion by not instructing the jury on circumstantial
evidence. In response, the State points out that Kirby's desired
instruction must be given only where the evidence is wholly
circumstantial. Cox v. State, 475 N.E.2d 664, 667-668 (Ind.1985).
Here, there was direct as well as circumstantial evidence linking
Kirby to the crimes for which she was convicted. In particular,
several motorists witnessed Kirby drive her car northbound on the
southbound portion of State Road 67. Those motorists testified that
they had to take evasive action to avoid colliding with Kirby.
However, Kirby did not attempt to stop or otherwise evade oncoming
traffic. Rather, these motorists witnessed Kirby's car accelerating
as she continued to drive in the wrong direction. In addition,
several witnesses saw the collision occur. Thus, there was direct
evidence of the collision and of Kirby's status as the driver of the
car. Because there was direct evidence of the crime, the trial court
did not abuse its discretion in refusing the portion of Kirby's
tendered instruction on circumstantial evidence. See, e.g., id.
The next issue is whether the trial court abused its discretion by
allowing two police officers to remain in the courtroom despite a
separation of witnesses order. Kirby contends that the trial court
erroneously allowed both Detective Rick Lang of the Indiana State
Police and Detective Scott Hamilton of the Morgan County Sheriff's
Department to remain in the courtroom throughout the trial. Kirby
requested, and the trial court ordered, a separation of witnesses
pursuant to Ind. Evidence Rule 615, which provides:
At the request of a party, the court shall order witnesses excluded
so that they cannot hear the testimony of or discuss testimony with
other witnesses, and it may make the order on its own motion. This
rule does not authorize the exclusion of (1) a party who is a natural
person, or (2) an officer or employee of a party that is not a natural
person designated as its representative by its attorney, or (3) a
person whose presence is shown by a party to be essential to the
presentation of the party's cause.
The general premise of Ind. Evid. Rule 615 is that, upon request of
any party, witnesses should be insulated from the testimony of other
witnesses. Long v. State, 743 N.E.2d 253, 256-257 (Ind.2001), reh'g
denied. To serve this objective, the rule's exceptions should be
narrowly construed and cautiously granted. Id. A party seeking to
exempt a witness from exclusion as “essential to the presentation of
the party's cause” under clause (3) must convince the trial court that
the “witness has such specialized expertise or intimate knowledge of
the facts of the case that a party's attorney would not effectively
function without the presence and aid of the witness.” Hernandez v.
State, 716 N.E.2d 948, 950 (Ind.1999) (internal citations omitted),
reh'g denied. An exclusion under clause (3) would thus be
inappropriate in cases where a person excluded under clauses (1) or
(2) can provide the expertise and knowledge adequate to assist
counsel. Long, 743 N.E.2d at 256. Likewise, permitting a party to
retain more than one witness in the courtroom under clause (3) to
assist during trial would be especially questionable. Id. The
determination of whether a witness qualifies for the exemption found
in clause (3) is within the trial court's discretion and is subject to
review for an abuse of that discretion. Id. at 256-257.
Here, after the trial court granted Kirby's motion for separation
of witnesses, the State filed a motion to exclude Detective Lang and
Detective Hamilton from the trial court's separation of witnesses
order. Specifically, the State sought to exclude Detective Hamilton
as an officer or employee of a party that is not a natural person.
See Ind. Evid. Rule 615. The State moved to exclude Detective Lang
from the trial court's separation of witnesses order as an essential
witness, arguing that Detective Lang interviewed many of the 220
potential witnesses and, thus, his “presence at the State's table is
essential in aiding the State to effectively question, cross-examine,
and/or impeach these witnesses with prior inconsistent statements.”
Appellant's Appendix at 850. In response, the trial court found that
Detective Lang should be allowed to assist at the State's table
pursuant to Long, 743 N.E.2d 253 and Vinson v. State, 735 N.E.2d 828
(Ind.Ct.App.2000), trans. denied, disapproved of by Long, 743 N.E.2d
253. The trial court did not expressly find that Detective Lang was
an essential witness. However, such a finding is implicit in the
fact that the trial court relied upon Long, 743 N.E.2d 253.
In Long, the defendant argued that the trial court abused its
discretion by allowing a police agent to remain at the State's table
during trial, despite a separation of witnesses order, because it had
already permitted a state trooper to sit at the State's table and
assist the prosecutor at trial. Id. at 257. The State explained
that both officers were essential witnesses because the two police
officers had divided many of the responsibilities of the
investigation, often working separately, particularly when
interviewing witnesses. Id. Our supreme court noted that forty-five
nonpolice, nonexpert witnesses testified for the State, thirteen
search warrants were issued, sixty-six exhibits were offered into
evidence by the State, and, in preparation for this seven-day trial,
the police conducted over 500 witness interviews and executed thirty
searches during three to four years of police work covering leads in
three separate states. Id. Accordingly, the Long court held that:
Notwithstanding the important purpose of Rule 615 to minimize
prospective witnesses from exposure to the testimony of other
witnesses and our preference that the rule's exceptions be narrowly
construed and cautiously granted, we decline to find that the trial
court abused its discretion in finding [the agent] within the Rule 615
exception for persons essential to the presentation of the
Kirby argues that the trial court abused its discretion by
permitting both detectives to remain at the State's table throughout
trial because one of the detectives would have been sufficient to aid
the State pursuant to Ind. Evid. Rule 615. In requesting Detective
Lang's exception as “essential” under Ind. Evid. Rule 615, the State
explained that Detectives Lang and Hamilton both participated in the
investigation and interviewed separate witnesses. In preparation for
this four to six week trial, the detectives conducted approximately
220 witness interviews. Notwithstanding the important purpose of
Ind. Evid. Rule 615 to minimize prospective witnesses from exposure to
the testimony of other witnesses, we decline to find that the trial
court abused its discretion by permitting both Detectives Lang and
Hamilton to remain at the State's table during trial. See, e.g.,
Long, 743 N.E.2d at 257.
The last issue is whether Kirby's sentence is manifestly
unreasonable in light of the offenses committed and the character of
the offender. We begin our analysis by recognizing that sentencing
decisions are within the sound discretion of the trial court.
O'Connell v. State, 742 N.E.2d 943, 951 (Ind.2001). Accordingly, we
will alter a sentence authorized by statute only if it is manifestly
unreasonable in view of the nature of the offense and the character of
the offender. Ind. Appellate Rule 7(B) (2001) (formerly Ind.
Appellate Rule 17); Tobar v. State, 740 N.E.2d 109, 113 (Ind.2000).
The Record reveals that, at sentencing, the trial court found the
following aggravating circumstances: (1) the “horrific” nature and
circumstances of the crimes; (2) several of the victims were less
than twelve years of age; and (3) Kirby was in a position of trust to
four of the victims. Sentencing Transcript at 43. In addition and
in response to Kirby's request that the trial court consider a minimum
sentence, rather than the presumptive sentence, the trial court found
as an aggravator that the imposition of a reduced sentence would
depreciate the seriousness of the offenses.6
Id. Next, the trial court merged the four convictions of neglect of
a dependent resulting in serious bodily injury as class B felonies
into the murder convictions of the Children. The trial court then
sentenced Kirby to sixty-five years each for the murders of the Reels
and ordered Kirby to serve these sentences consecutive to each other
and to the twenty-year sentence for the aggravated battery of Miller.
The trial court also sentenced Kirby to fifty-five years each for
the murders of the Children and ordered that those sentences be served
concurrent to each other and to the others.
Kirby does not dispute that the aggravators relied upon by the
trial court were valid. Rather, she maintains that the trial court
erred by applying the position of trust and age of the victim
aggravators to enhance her sentences for the murder of the Reels and
the aggravated battery of Miller. Although the position of trust and
age of the victim aggravators apply most directly to the murder of the
Children, they also necessarily relate to the murder of the Reels and
the aggravated battery of Miller because the latter offenses were
somewhat contingent upon the murder of the Children.7
Accordingly, we find no error in applying these two aggravators to
Even assuming that the trial court erroneously applied the position
of trust and age of the victim aggravators to enhance Kirby's sentence
for the murder of the Reels and the aggravated battery of Miller, we
are still not in a position to reverse or revise Kirby's sentences.
As previously mentioned, the trial court relied upon four aggravating
circumstances when it imposed Kirby's sentences. Our supreme court
has held that “[e]ven when a trial court improperly applies an
aggravator, a sentence enhancement may be upheld if other valid
aggravators exist.” Walter v. State, 727 N.E.2d 443, 447-448
(Ind.2000). Indeed, a single aggravating circumstance may be
sufficient to support an enhanced sentence. Id. Accordingly, because
the trial court considered other proper aggravators, namely the
horrific nature and circumstances of the crimes and the fact that a
reduced sentence would depreciate the seriousness of the offenses,
when it sentenced Kirby for the murders of the Reels and the
aggravated battery of Miller, we find no error. See, e.g., id.
Kirby next argues that her sentence was manifestly unreasonable
because “the trial court gave insufficient weight to the mitigating
factors.” Appellant's Brief at 41. The finding of mitigating
circumstances is within the discretion of the trial court. Ellis v.
State, 736 N.E.2d 731, 736 (Ind.2000). An allegation that the trial
court failed to identify or find a mitigating circumstance requires
the defendant to establish that the mitigating evidence is both
significant and clearly supported by the record. Rascoe v. State, 736
N.E.2d 246, 249 (Ind.2000). The trial court is not obligated to
accept the defendant's contentions regarding what constitutes a
mitigating circumstance. Ellis, 736 N.E.2d at 736. Moreover, the
trial court is not required to explain why it did not find a certain
factor to be significantly mitigating. Dunlop v. State, 724 N.E.2d
592, 594 (Ind.2000), reh'g denied. Failure to find a mitigating
circumstance clearly supported by the record, however, gives rise to a
belief that the trial court was not cognizant of the circumstance and
therefore failed to consider it. Georgopulos v. State, 735 N.E.2d
1138, 1145 (Ind.2000).
In the present case, the Record demonstrates that the trial court
considered the following mitigating circumstances: (1) the crimes
were the result of circumstances unlikely to recur; (2) Kirby was
suffering from mental health issues; (3) Kirby acted under the strong
provocation of another; and (4) Kirby's imprisonment will result in
undue hardship to her dependents. After considering these mitigating
circumstances and weighing them against the many aggravators present
in the case, the trial court determined that the aggravating
circumstances outweighed the mitigating circumstances. Kirby has not
shown error sufficient to overcome the trial court's discretion on
this point. See, e.g., Jones v. State, 705 N.E.2d 452, 455
Turning to the nature of the offenses and the character of the
offender, Kirby was sentenced to two hundred and fifteen years of
imprisonment for: (1) seven counts of murder; and (2) one count of
aggravated battery. The Record reveals that Kirby directed these
crimes at her children, her nephew, and the public at large. In
fact, Kirby drove her car in the wrong direction on a busy highway in
total disregard of the safety of her passengers and every motorist who
happened to be driving southbound on State Road 67 that fateful day.
Based upon our review of the Record, we see nothing in the nature of
these offenses or the character of this offender which would suggest
that Kirby's two hundred and fifteen year sentence is unreasonable,
let alone manifestly so. See, e.g., Allen v. State, 722 N.E.2d 1246
For the foregoing reasons, we affirm Kirby's convictions and her
two hundred and fifteen year sentence.
§§ 35-46-1-4(a)(1), -4(b)(2).
Evid. Rule 404(b) governs the admission of prior bad acts into
evidence and provides in relevant part:Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person
in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident, provided that upon request by the accused, the prosecution
in a criminal case shall provide reasonable notice in advance of
trial, or during trial if the court excuses pre-trial notice on good
cause shown, of the general nature of any such evidence it intends to
introduce at trial.We will refer to this evidence as 404(b) evidence
throughout this opinion.
the outset, we observe that Kirby may have waived this part of her
argument on appeal. When facing prosecutorial misconduct, the
defendant is required to object to the misconduct and request an
admonishment. Reid v. State, 719 N.E.2d 451, 458 (Ind.Ct.App.1999),
reh'g denied, cert. denied, 531 U.S. 995, 121 S.Ct. 489, 148 L.Ed.2d
461 (2000). If, after the trial court gives an admonishment, the
defendant is still not satisfied, the proper procedure is to move for
mistrial. Id. Generally, the failure to request an admonishment or
move for a mistrial results in waiver. Id. However, Kirby expressly
declined an admonishment because she believed that such a request
would only emphasize the reference and compound the error. Because
Kirby made a motion seeking a remedy, albeit a drastic one, we decline
to decide this case on the basis of waiver, and turn instead to the
merits. See e.g., Stone v. Stakes, 749 N.E.2d 1277, 1280
(Ind.Ct.App.2001), aff'd on reh'g, 755 N.E.2d 220 (Ind.Ct.App.2001),
trial court's use of this aggravating factor was proper because the
trial court was considering Kirby's request that it impose a minimum,
rather than the presumptive or maximum, sentence. Our supreme court
has held that the “imposition of a reduced sentence would depreciate
the seriousness of the offense” aggravator serves to support a trial
court's refusal to reduce the presumptive sentence. See, e.g.,
Miller v. State, 720 N.E.2d 696, 707 (Ind.1999); and Hollins v.
State, 679 N.E.2d 1305, 1308 (Ind.1997).
evidence presented at trial demonstrates that Kirby did not intend to
crash into the Reels' car resulting in the murder of the Reels and the
aggravated battery of Miller. Rather, she apparently intended to
kill herself, and thus necessarily killing her children in the
process, by driving her car the wrong way on a busy street. Kirby
likely anticipated that she would collide with an oncoming car,
however, the Reels were not specifically intended victims.
FRIEDLANDER, J., and BROOK, C.J., concur.