Ind. boy acquitted of murdering 6-year-old brother

MARTINSVILLE, Ind.?? A judge on Friday acquitted a 12-year-old Indiana boy of murdering his 6-year-old brother, but he convicted him of a lesser juvenile charge of reckless homicide.

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Morgan Superior Court Judge Christopher Burnham determined that the evidence did not show that the older boy intended to kill his younger brother, Andrew Frye, when he pointed a gun at him and pulled the trigger June 30 at their Martinsville home. The boys had different last names.

The older brother initially told police that his brother had killed himself. But when the autopsy showed that Andrew was too short to have shot himself with the rifle, his brother admitted he had pulled the trigger but said he didn't think it was loaded.

Burnham can choose from a wide range of penalties geared toward rehabilitation when he sentences the boy at an undetermined date, including probation, special programs and juvenile detention. The boy could face detention until age 18 and remain on probation until he is 21.

Until he's sentenced, he'll remain at a juvenile facility, where he will undergo a psychiatric and behavioral evaluation that probation officials will use to help make their sentencing recommendation.

Chief Deputy Prosecutor Bob Cline said after the hearing Friday that he thinks the verdict was just and that the boy needs long-term help and rehabilitation.

"He's 11 years old, 12 years old. You can't lock a person up at 11 or 12 for the rest of their life," he said.

During the two-day fact-finding hearing, which is the juvenile equivalent of a bench trial, Burnham heard recordings of the boy's panicked 911 call and watched videos in which he initially told police his little brother had killed himself.

Police said they became suspicious after autopsy results showed the fatal shot had been fired from at least three feet away. The 6-year-old's arms were too short to allow him to shoot himself with the rifle, witnesses testified.

When confronted with that information, the older boy recanted his story, but insisted he didn't know the gun was loaded. He said he had loaded the gun that day but then used the bolt action to unload it and didn't realize that he had left one round in the firing chamber.

He then took the gun to the room he shared with his brother and confronted the younger boy over a chore, he said in a video.

"I said, 'Clean up your room.' He said, 'No,'" the boy said. He said he then pointed the gun and pulled the trigger and the gun went off, hitting Andrew between the eyes.

The older boy then returned the gun to his parents' bedroom before calling 911.

Prosecutor Steve Sonnega argued that the boy's actions after the shooting implied guilt. He also said the boy had enough hunting experience with his stepfathers to understand how the gun worked.

Sonnega said the boy's sister told police the youth had used a gun before to threaten his siblings into doing their chores. She told investigators the other children had kept kitchen knives in their rooms for self-defense.

But defense attorney John Boren said Andrew's death was clearly unintentional and that anyone, even a trained adult, could make a mistake and believe a gun wasn't loaded. Several witnesses testified that they had known the 12-year-old as a polite child and a good influence on other children, though he occasionally sulked and acted out when he didn't get his own way.

The boys' mother is charged with neglect for leaving the gun where the children had access to it.

Copyright 2011 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Source: http://www.msnbc.msn.com/id/44459457/ns/us_news/

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