Hall v. Commonwealth of Ky.

• Decision Date: 21 April 2011
• Docket Number: No. 2009–SC–000244–MR.,2009–SC–000244–MR.
• Citation: 337 S.W.3d 595
• Parties: Douglas Wayne HALL, Appellant,v.COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

337 S.W.3d 595

Douglas Wayne HALL, Appellant,

v.COMMONWEALTH of Kentucky, Appellee.

No. 2009–SC–000244–MR.

Supreme Court of Kentucky.

April 21, 2011.

Julia Karol Pearson, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.Jack Conway, Attorney General of Kentucky, Bryan Darwin Morrow, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.Opinion of the Court By Chief Justice MINTON.

Douglas Hall appeals as a matter of right ¹ from a judgment convicting him of second-degree manslaughter, first-degree assault, first-degree burglary, and first-degree robbery and sentencing him to an aggregate term of forty-five years' imprisonment. He raises several issues on appeal.

Rejecting Hall's argument for a strict same-elements test for determining the appropriateness of instructing on lesser-included offenses, we approve the trial court's reliance on Perry v. Commonwealth² as authority for instructing the jury on first-degree assault as a lesser-included offense of attempted murder under the evidence presented in this case. But we reverse Hall's first-degree assault conviction because the trial court failed to instruct the jury on facilitation to assault, which the evidence also warranted. We affirm the remaining convictions and sentences imposed, and we remand for further proceedings in conformity with this opinion.

I. FACTS.

This case arises out of a drug-related home burglary and robbery that ended in the violent death of one victim and the serious injury of another victim. Hall admits that he—along with others—planned the burglary and robbery to obtain money from one of the victims, but he contends that he did not intend for the victims to be killed or injured. Hall admits to being guilty of some involvement in robbing the victims; but he asserts that circumstances spiraled out of his control, resulting in unintended consequences for which he received—in his view—excessive convictions and punishment.³ Contending that various errors occurred from the indictment stage through the penalty phase of trial, Hall argues that his convictions should be reversed and his case remanded for a new trial.

Hall and others—including Tony Hodge ⁴—planned to rob Faye Jackson, knowing that she kept thousands of dollars on hand to pay for illegal drugs. Hall testified at trial to seeing Hodge with a gun before Hodge entered Jackson's home to rob her. At trial, Hall denied he gave Hodge the gun; but others testified Hall furnished the gun.

Hodge entered Jackson's home and immediately opened fire on the victims, Jackson and her boyfriend, Mitchell Turner. Hodge then stabbed both victims and left when he thought both victims were dead. Jackson died. Turner survived.

Hall was not directly involved in the shooting or stabbing. But he drove Hodge to Jackson's home and waited outside while Hodge went inside. According to their plan, Hodge agreed to signal Hall when it was time to enter Jackson's home and take Jackson's money. Hall, unlike Hodge, knew where Jackson kept her money from his previous trips to her house selling drugs.

Although he claimed to be shocked by the sound of gunshots, Hall admitted to entering the home upon Hodge's signal and taking the money from Jackson's purse. Hall claimed he tried to leave after seeing Jackson wounded. According to Hall, he remained in the Jackson home and further participated because Hodge threatened to kill him if he left.

Hall claims he was shaken by the incident; and he confided in his cousin, Travis Dixon, and in an acquaintance, Tim Shelton. Ultimately, it was Shelton who told police, resulting in Hall and others becoming suspects. Dixon and Shelton testified at trial to what Hall allegedly confided to them. There were significant inconsistencies among the various accounts, including a dispute in the testimony about whether Hall provided Hodge with the gun and whether Dixon or Hall threatened Shelton if he told police.

Hall was indicted for the wanton murder of Jackson, the attempted wanton murder of Turner, first-degree burglary, and first-degree robbery. Following the presentation of evidence at trial, the trial court instructed the jury on the charged offenses. Over Hall's objection, the trial court also instructed the jury on first-degree assault as a lesser-included offense of attempted murder and denied Hall's requests for instructions on facilitation to assault, first-degree robbery, and first-degree burglary.

At one point during deliberations, the jury informed the trial court that it was deadlocked. After the trial court gave the jury an Allen charge ⁵ and allowed the jury to review portions of a joint interview of Hall and Dixon by police, the jury eventually reached a verdict. The jury did not find Hall guilty of murder or of attempted murder. But it did find him guilty of second-degree manslaughter of Jackson, first-degree assault of Turner, first-degree robbery, and first-degree burglary.

The jury recommended Hall be sentenced to ten years' imprisonment for second-degree manslaughter, twenty years' imprisonment for first-degree assault, fifteen years' imprisonment for first-degree robbery, and fifteen years' imprisonment for first-degree burglary. The jury further recommended the two fifteen-year sentences for robbery and burglary be served concurrently. Finally, the jury recommended the ten-year and twenty-year sentences for manslaughter and assault be served consecutively. The total sentence was forty-five years' imprisonment. The trial court entered judgment in accordance with the jury's verdict and sentencing recommendation.

II. ANALYSIS.

A. Indictment Charging Attempted Wanton Murder was Harmless Error.

Hall contends he is entitled to relief because he was indicted for a crime that does not exist—attempted wanton murder—even though he was not convicted of that crime. We agree with Hall that a criminal charge requiring proof of attempting to achieve an unintended result is illogical,⁶ but we do not believe he is entitled to relief under the facts of this case. Our belief is fortified by the fact Hall failed to raise this issue in the trial court.⁷

Clearly, a conviction for a non-existent crime cannot stand.⁸ But there appears to be little or no authority concerning whether a defendant who fails to object to an indictment charging an illogical or non-existent crime is entitled to relief when the defendant is not convicted of that charge. Cases from other jurisdictions note that so long as certain indictment defects (such as citations to non-existent statutes or typographical errors), which essentially result in charging a non-existent offense, do not actually mislead or prejudice a defendant, the defendant is not entitled to relief.⁹ In the case before us, even though attempted murder is a recognized offense under Kentucky law, we recognize an indictment charging that a defendant attempted to commit an unintentional murder can be described as illogical at best.

Nonetheless, even though the offense of attempted wanton murder is illogical—if not totally non-existent—we do not see how Hall was misled by the indictment. For example, he was free to argue he could not attempt to reach an unintentional result; and he does not now contend he was misled from being able to do so. And given the fact he was acquitted of this illogical charge and does not specifically allege how he was hampered in trying to defend himself because of this illogical charge, we do not believe he is entitled to reversal of his convictions for other offenses. The error does not arise to the level of palpable error.¹⁰

B. No Error in Trial Court's Denying Request to Play Entire Joint Interview of Hall and Dixon Due to Hearsay Concerns.

Hall contends the trial court erred by not allowing him to play the entire recorded joint interview police conducted of him and his cousin, Travis Dixon.¹¹ Police conducted the joint interview after both Hall and Dixon became suspects and gave inconsistent statements to police.

Dixon's testimony concerned such matters as whether both Dixon and Hall were involved in selling drugs for Hall's Uncle Harold and Dixon's loaning money to Hall, allegedly giving rise to Hall's need to rob Jackson to pay Dixon. Hall apparently confessed his involvement in the robbery to Dixon, and Dixon believed that Hall provided to Hodge the gun used in the robbery. Overall, Dixon's testimony portrayed Hall in an unfavorable light, according to Hall.

The Commonwealth elected to play separate interviews of Hall and Dixon and asserts it declined to play the joint interview because of poor audio quality concerns. And from our examination of the record, the trial court allowed Hall to play portions of the joint interview to the jury and eventually even agreed to allow Hall to play the whole interview with the exception of a portion of the interview in which Hall and Dixon repeated what Hodge said, which is presumably excludable hearsay.¹² Hall does not specify what, if any, hearsay exception ¹³ might apply to the excluded portion of the interview.

Hall argues that he wanted to play the entire joint interview for the jury in order to show that Dixon was the manipulator rather than Hall. But the jury was not directly charged with deciding whether Hall, Dixon, or anyone else was a manipulator. The jury's duty lay in determining whether Hall was or was not guilty of the charged offenses, none of which had as an element that the defendant was manipulative. So the question of who was the manipulator was of limited actual relevance.¹⁴

Given the limited relevance of Hall's asserted reason for playing the entire interview and the fact that Hall was allowed to play all non-hearsay portions of the joint interview and to cross-examine Dixon based on such portions, we find no abuse of discretion ¹⁵ in the trial court's denial of his request to play the entire joint interview.¹⁶ And we do not believe the trial court's adherence to the rules of evidence, which disallowed...