Com. v. Hager
| Decision Date | 25 January 2001 |
| Docket Number | No. 1999-SC-1018-CL.,1999-SC-1018-CL. |
| Citation | 41 S.W.3d 828 |
| Parties | COMMONWEALTH of Kentucky, Appellant, v. William Thomas HAGER, Jr., Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Raymond Larson, Commonwealth Attorney, Margaret E. Bruner, Amanda Foley Naish, Assistant Commonwealth Attorneys, Lexington, Counsel for Appellant.
V. Gene Lewter, Herbert T. West, Fayette Co. Legal Aid, Inc., Lexington, Counsel for Appellee.
William Thomas Hager, Jr., killed John Allen Brown by stabbing him in the chest with a knife. Hager admitted the killing and claimed self-defense. He was indicted for murder, but a Fayette Circuit Court jury convicted him of fourth-degree assault, a class A misdemeanor, for which he was sentenced to the maximum penalty of twelve months in jail and a $500 fine. KRS 508.030(2); KRS 532.090(1); KRS 534.040(2)(a). Since the jurors were not instructed on the elements of fourth-degree assault, they presumably did not know that when an assault results in the victim's death, the offense is not an assault, but a homicide. KRS 507.010.
[A]ssault becomes a companion of homicide since both are so-called "result" offenses. Bodily injury is the prohibited result of the former and death is the prohibited result of the latter.
R. Lawson, Criminal Law Revision in Kentucky, Part I — Homicide and Assault, 58 Ky. L.J. 242, 263 (1969-70). Thus, a conviction of fourth-degree assault can only be obtained if the result of the assault is physical injury, not death. KRS 508.030(1).
Hager did not appeal his conviction. However, the Commonwealth requested a certification of the law with respect to the jury instructions that led to this unusual verdict. Ky. Const. § 115; CR 76.37(10). We granted certification primarily to address the issue of how KRS 503.120(1), which defines "imperfect self-defense," i.e., an act in self-protection under a mistaken belief in the need therefor, applies to the offenses of second-degree manslaughter, KRS 507.040, and reckless homicide, KRS 507.050. However, the instructions in this case contain a number of other errors, all of which will be addressed in this opinion.
The jury was instructed on all degrees of homicide and on the defense of self-protection, subject to both the initial aggressor qualification, KRS 503.060(3), and the imperfect self-defense qualification, KRS 503.120(1). As noted above, the jury was not instructed on the elements of fourth-degree assault, the offense of which Hager was ultimately convicted. Instead, the jury was led to its verdict by a series of interrogatories, or mini-verdicts, which required them to find Hager guilty of fourth-degree assault if they believed that he committed either second-degree manslaughter or reckless homicide under a recklessly held belief in the need to act in self-protection. The instructions will be discussed as they were given with the jury's verdict(s) noted as they appear on the instructions.
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The law presumes a defendant to be innocent of a crime, and the indictment shall not be considered as evidence or as having any weight against him. If upon the whole case you have a reasonable doubt that the defendant is guilty, you shall find him not guilty. Any determination made by you must be unanimous and signed by the foreperson.
or
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That portion of Instruction No. 1 describing the presumption of innocence and reasonable doubt completely omitted the second sentence of the specimen instruction set forth in RCr 9.56, viz: "You shall find the defendant not guilty unless you are satisfied from the evidence alone, and beyond a reasonable doubt, that he is guilty." Although RCr 9.56 provides that the jury shall be instructed "substantially" as required by the Rule, an instruction which omits a complete sentence of the specimen instruction is not in substantial compliance with the Rule.
Instruction No. 1 also failed to instruct the jury on reasonable doubt with respect to the issue of extreme emotional disturbance. Although not mentioned in RCr 9.56, that instruction is required when there is evidence authorizing an instruction on extreme emotional disturbance. Holbrook v. Commonwealth, Ky., 813 S.W.2d 811, 815 (1991), overruled on other grounds, Elliott v. Commonwealth, Ky., 976 S.W.2d 416 (1998); Edmonds v. Commonwealth, Ky., 586 S.W.2d 24, 27 (1979), overruled on other grounds, Wellman v. Commonwealth, Ky., 694 S.W.2d 696 (1985).
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INSTRUCTION NO. 1A FAILURE OF DEFENDANT TO TESTIFY
The Defendant is presumed to be innocent of committing any crime, and the Commonwealth must prove him guilty beyond a reasonable doubt.
The Defendant has a right to remain silent and is not compelled to testify. The fact that he does not testify is not an inference of guilt and shall not prejudice him in any way.
"Serious Physical Injury" — Means physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the functions of any bodily organ.
"Intentionally" — A defendant acts intentionally with respect to another's death or to his serious physical injury when it is his conscious objective to cause that death or that injury.
"Wantonly" — A defendant acts wantonly with respect to another's injury when he is aware of and consciously disregards a substantial and unjustifiable risk that injury will occur. In order to be "substantial and unjustifiable," the risk of injury must be of such nature and degree that disregard thereof constitutes a gross departure from the level of conduct that a reasonable person would observe in the situation.
"Recklessly" — A defendant acts recklessly with respect to another's injury when he fails to perceive a substantial and unjustifiable risk that the injury will occur. In order to be "substantial and unjustifiable" that risk of injury must be of such nature and degree that failure to perceive it constitutes a gross departure from the level of care that a reasonable person would observe in the situation.
"Extreme Emotional Disturbance" — Is a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes. It is not a mental disease in itself, and an enraged, inflamed, or disturbed emotional state does not constitute an extreme emotional disturbance unless there is a reasonable explanation or excuse therefor, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under circumstances as the defendant believed them to be.
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Instruction No. 2 attempted to paraphrase the statutory definitions of "intentionally," KRS 501.020(1), "wantonly," KRS 501.020(3), and "recklessly," KRS 501.020(4). Although the paraphrased definition of "intentionally" substantially complied with the definition set forth in KRS 501.020(1), the paraphrased definitions of "wantonly" and "recklessly" purported to apply only to a wanton or reckless injury, whereas the result element in this case was death. These definitions could lead a jury to conclude that the definitions of wantonly and recklessly apply only to assaults and not to homicides. That is of particular significance here, where the instructions on second-degree manslaughter and reckless homicide, infra, did not contain language describing wanton or reckless conduct, but left it to the jury to refer back to the definitions of those terms in Instruction No. 2.
Further, Instruction No. 2 did not include the definitions of "physical force," KRS 503.010(4), and "deadly physical force," KRS 503.010(1), which apply to the defense of self-protection. And if the jury had been instructed on the elements of fourth-degree assault, Instruction No. 2 also should have included the definition of "physical injury," KRS 500.080(13), which is the result element of that offense.
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You will find the Defendant guilty under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about December 24, 1998, the defendant killed John Allen Brown by stabbing him with a knife;
B. That in so doing:
(1) He caused the death of John Allen Brown intentionally and not while acting under the influence of extreme emotional disturbance;
(2) Under circumstances manifesting extreme indifference to human life, he wantonly engaged in conduct which created a grave risk of death to John Allen Brown, which did cause his death;
C. That he was not privileged to act in self-protection.
If you find the Defendant GUILTY under this Instruction, proceed to Instruction No. 5.
If you find the Defendant NOT GUILTY under this Instruction, please proceed to Instruction No. 4.
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Instruction No. 5, to which the jury was directed to proceed upon a finding of guilt under Instruction No. 3, was the initial aggressor qualification of the defense of self-protection set forth in Instruction No. 6. The murder instruction properly included the absence of the privilege to act in self-protection as an element of the offense.1 However, the instruction erroneously required the jury to find the defendant guilty, thus not to have acted in self-protection, before permitting it to first consider the nature of self-protection as a defense.
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If you found the Defendant not guilty under Instruction No. 3, you will find the Defendant guilty under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the...
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