Commonwealth v. Hasch

• Decision Date: 20 March 2014
• Docket Number: Nos. 2010–SC–000494–DG, 2011–SC–000232–DG.,s. 2010–SC–000494–DG, 2011–SC–000232–DG.
• Citation: 421 S.W.3d 349
• Parties: COMMONWEALTH of Kentucky, Appellant/Cross–Appellee v. Janice HASCH, Appellee/Cross–Appellant.
• Court: United States State Supreme Court — District of Kentucky

421 S.W.3d 349

COMMONWEALTH of Kentucky, Appellant/Cross–Appellee

v.Janice HASCH, Appellee/Cross–Appellant.

Nos. 2010–SC–000494–DG, 2011–SC–000232–DG.

Supreme Court of Kentucky.

Sept. 26, 2013.

Rehearing Denied March 20, 2014.

Jack Conway, Attorney General of Kentucky, James Coleman Shackelford, Assistant Attorney General, Counsel for Appellant/Cross–Appellee.

Sarah Bash Brian, G. Murray Turner, Turner, Coombs & Malone, PLLC, Counsel for Appellee/Cross–Appellant.

Opinion of the Court by Justice VENTERS.

Appellee/Cross–Appellant, Janice R. Hasch (Appellee) was indicted for murder and tried in the Bullitt Circuit Court for the shooting death of her husband, Jerald Hasch, in April 2008. Appellee admitted that she killed her husband but claimed that she was acting in self-defense. The jury acquitted her of the murder charge but found her guilty of the lesser offense of reckless homicide and sentenced her to two years' imprisonment. She appealed. The Court of Appeals concluded that the evidence was not sufficient to sustain a reckless homicide conviction. It concluded that the trial court had erred by instructing the jury on that offense, and accordingly it reversed the conviction.

We granted the Commonwealth's motion for discretionary review to consider, inter alia, whether the reckless homicide instruction was properly given in this case, in light of the 2006 revisions of KRS Chapter 503 codifying a form of the common law “no duty to retreat” rule, and whether evidence that Appellee could have retreated or escaped from the incident without resorting to deadly force was properly admitted into evidence as a factor for the jury to consider in determining the reasonableness of her belief. For the reasons set forth below, we reverse the Court of Appeals and reinstate the judgment of the Bullitt Circuit Court. We also review issues raised by Appellee on cross-appeal, which because of its disposition of the case, the Court of Appeals declined to address.

I. FACTUAL AND PROCEDURAL BACKGROUND

The central issue before this Court arises out of the Commonwealth's contentions that Appellee's reckless homicide conviction was supported by the evidence and that the Court of Appeals erred by concluding otherwise. Appellee argued at trial and on appeal that the only verdicts that could be sustained by the evidence were guilty of murder or an acquittal based upon the theory that she acted in self-defense.

Appellee and her husband, Jerald Hasch, had endured several incidents of marital discord, including at least two calls to law enforcement officials for emergency assistance. Appellee claimed that on a number of occasions Jerald had hit her and inflicted physical injury upon her. The final altercation occurred on April 14, 2008, when Appellee reported to the 911 operator that she had shot her husband and needed advice on what to do to keep him alive until emergency medical personnel arrived. Whatever effort she rendered to save him proved to be ineffective. Jerald died from the gunshot that struck him between his eyes.

As a result of the shooting, Appellee was charged with murder. The only direct evidence of the events leading up to the shooting came from Appellee's trial testimony and from earlier statements that she made to police during their investigation of the shooting. According to that evidence, Appellee was cleaning and organizing a bedroom closet when she found a small caliber handgun that Jerald had misplaced. She took the gun, still in its case, into the living room to show Jerald that she had found it. Appellee testified that Jerald suddenly became angry and demanded to have possession of the gun. Appellee refused, fearing that if he got the gun he would use it to harm her. Jerald lunged toward her aggressively and pushed her down as he tried to grab the gun from her hand. They struggled about the house, from the living room and into the kitchen, until Appellee backed herself into the bedroom and shut the door. Jerald, who was still unarmed, forced the bedroom door open and continued his effort to get the gun. Appellee continued to resist his demand. According to Appellee, Jerald finally taunted her by saying that if she intended to use the gun against him, “you better put it between my eyes and shoot me.” He moved toward her in a threatening manner, causing her to believe that he intended to kill her. She backed away from him and removed the gun from its case. She inserted the magazine and pointed the weapon toward Jerald. She then closed her eyes because “she could not bear to think of what was about to happen,” and she fired the gun.

The bullet struck Jerald's face between the eyes from a distance of less than twenty-four inches. Appellee is an experienced marksman. She and the Commonwealth both agree, and the evidence is undisputed, that she intended to shoot Jerald when she pulled the trigger. Appellee claims, however, that she acted in self-defense but without a specific intention to kill him.

The police looking about the house saw no evidence of the kind of struggle that Appellee described, casting doubt upon her story. At trial, the Commonwealth's theory was that no physical struggle had occurred, that Appellee did not believe she was in danger of physical harm from Jerald, and that she intentionally killed Jerald by shooting him in the face at close range.

Shortly after the shooting, and in response to intense questioning by a police detective, Appellee acknowledged that instead of shooting Jerald, she “could have gone out the door,” and that she “could have left [the house]” as she had done during previous altercations. These statements were admitted at trial over her objection. In her trial testimony, Appellee attempted to clarify the statement by saying that she meant that she could have left the house before Jerald became angry, but not immediately before the shooting. She testified that by the time the fray reached the point at which she believed she was in imminent danger, she had backed into the bedroom and Jerald was blocking her path to the door. She testified that “he would never let me leave again.” The Commonwealth argued at trial that this evidence was relevant because Appellee's conscious decision to bypass a route of escape and stay in her home indicated that she knew at the time of the shooting that deadly force was not necessary.

At the close of all the evidence, and after the trial court denied her motion for a directed verdict of acquittal, Appellee argued to the trial court that the evidence did not support an instruction on any of the lesser homicide offenses. She insisted the only verdicts that could be sustained under the evidence were guilty of murder or not guilty by reason of self-protection. Nevertheless, the trial court instructed upon the full range of homicide offenses: specifically, intentional and wanton murder (KRS 507.020) with the self-protection defense and the wanton/reckless belief (imperfect self-defense) qualification; first-degree manslaughter (KRS 507.030); second-degree manslaughter (KRS 507.040); and reckless homicide (KRS 507.050). Within the self-protection instruction, the trial court provided the jury with the following “no duty to retreat” instruction, based upon KRS 503.055(3):

You are further instructed that if Janice Hasch was not engaged in unlawful activity and was in a place where she had a right to be, then she had no duty to retreat from Jerry Hasch and had the right to stand her ground and meet force with force, including deadly physical force if she reasonably believed it was necessary to prevent death or serious bodily harm to herself.

As indicated by the signature of the jury's foreperson on each individual verdict form, the jury expressly acquitted Appellee of murder, first-degree manslaughter, and second-degree manslaughter. The jury found her guilty of reckless homicide and her sentence was fixed at two years' imprisonment. On appeal, the Court of Appeals concluded that the evidence did not support the lesser offense of reckless homicide and so it reversed the conviction. We reverse the Court of Appeals and reinstate the trial court's judgment convicting Appellee of reckless homicide and imposing a two-year term of imprisonment.

We begin our review with the Commonwealth's contention that the Court of Appeals erred in its conclusion that the evidence failed to support the charge of reckless homicide.

II. THE EVIDENCE SUPPORTED APPELLEE'S CONVICTION FOR RECKLESS HOMICIDE UNDER THE IMPERFECT SELF–DEFENSE THEORY

A. The Alternate Theories of Reckless Homicide

Because the jury acquitted Appellee of murder, first-degree manslaughter, and second-degree manslaughter, the only remaining issue about the instructions is whether the reckless homicide instruction was authorized by the evidence. KRS 507.050(1) provides that “[a] person is guilty of reckless homicide when, with recklessness he causes the death of another person.” As this Court explained fully in Saylor v. Commonwealth, 144 S.W.3d 812, 819 (Ky.2004), there are two theories under which a defendant may be convicted of reckless homicide:

1) The so-called “straight” reckless homicide theory, where the defendant acts without the specific intent to kill and in doing so, fails to perceive a substantial and unjustifiable risk that his actions could cause the victim's death, seeKRS 507.050(1) and KRS 501.020(4); and 2) The “imperfect self-defense” theory, where the defendant, with or without the specific intent to kill, acts under an actual but mistaken belief that he must use physical force or deadly physical force against another person in order to protect himself from imminent death or injury about to be inflicted by that person, and in so acting he failed to perceive a substantial and unjustifiable risk that he was mistaken in his belief that force is necessary. SeeKRS 501.020(4) and KRS 503.120(1).¹

Under both theories of reckless homicide, the element of recklessness requires the...