Hannah v. Com., No. 2007-SC-000267-MR.

• Decision Date: 18 March 2010
• Docket Number: No. 2007-SC-000267-MR.
• Citation: 306 SW 3d 509
• Parties: Frederick Rennel HANNAH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

306 S.W.3d 509

Frederick Rennel HANNAH, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.

No. 2007-SC-000267-MR.

Supreme Court of Kentucky.

March 18, 2010.

306 SW 3d 511

Karen Shuff Maurer, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.

Jack Conway, Attorney General of Kentucky, James Coleman Shackelford, Assistant Attorney General, Office of the Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice SCOTT.

Appellant, Frederick Rennel Hannah, appeals as a matter of right from a murder

306 SW 3d 512

conviction in the McCracken Circuit Court for which he was sentenced to life imprisonment without parole. Ky. Const. § 110(2)(b). He now argues that the trial court erred by: (1) depriving him of his right to present his defenses of self-defense and protection of another by declining to give an instruction that in defending himself and his friend, he had "no duty to retreat"; (2) prohibiting him from questioning the jury pool during voir dire on the "no duty to retreat" rule; (3) prohibiting him from arguing he had "no duty to retreat" in closing argument; (4) prohibiting him from introducing the entire video of his police interrogations from which the Commonwealth introduced only selected oral summaries through testimony of the interrogating officer; and (5) allowing the prosecutor to make improper arguments outside the evidence in closing arguments.

For reasons that the trial court erred by prohibiting Appellant from questioning the jury pool as to any prejudices they may have had concerning a duty to retreat during voir dire and by prohibiting him from arguing in his closing argument that he had "no duty to retreat," we reverse on grounds (2) and (3) above. For the benefit of the parties, we will also address such remaining issues as are capable of repetition.

I. Facts

On October 28, 2004, Appellant and his friends, Undra Ingram, Clarence Ballard, and Keosha McGowen, from Decatur, Illinois, came to Paducah, Kentucky. Late the following night, the group went to a location in Paducah called "The Set," where Andre Grady and his friends, Terry Parker and Antonio Sains, also happened to be. Grady and Ballard had a history of problems.

Grady was carrying a concealed weapon, had been smoking marijuana, and, along with Parker and Sains, had been drinking heavily. Parker saw Ballard and pointed him out to Grady. Grady then headed toward him and approached him from behind. Saying that he was "going to get at" Ballard, Grady pulled his gun and confronted Ballard.

Thereafter, the gun was pointed, from time to time, at both Ballard and Hannah. When Ballard and Grady began to fight, Ballard yelled about Grady's gun and asked Hannah and Ingram to take it away from him. Hannah then intervened and he and Ballard wrestled with Grady to get the gun. The gun fell and Hannah picked it up.

Though both Ballard and Hannah told Grady to leave before he was killed, Grady said he "wasn't going out like that" and continued fighting. He was struck and knocked to the ground at various times by both Ballard and Hannah, but got back up each time.

There was conflicting evidence as to whether Grady's acquaintances tried to shoot Hannah during the fray. When Parker was asked if he heard a gun "clicking" before Hannah shot Grady, he said he did hear "something." Grady's cousin, Jeremiah Hughes, told police that he ran up to Hannah, trying to fire his gun but it just went "click, click, click" (misfired). However, at trial, he claimed this was only after Hannah shot Grady. According to Hannah, however, Grady was still attacking as he backed away and shot him.

Once shot, Grady turned to run, collapsed, and died. Ballard, Ingram, and Hannah then retreated behind a nearby dumpster to avoid being shot by Grady's friends. Several bullets hit the dumpster while the three hid behind it. While there may have been more than one person shooting, it is undisputed that Sains was among those who fired shots. Soon thereafter,

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McGowen got their van and he, Ballard, Ingram, and Hannah fled back to Illinois.

While in the van, McGowen noticed that Hannah had two guns: one silver and one black. He had seen Ballard with the silver gun earlier that day. At the time, Hannah was praying and banging his head, saying something to the effect that he had shot the boy, and that he was probably dead. When Hannah was arrested in Illinois on November 9, 2004, two handguns—one silver and one black—were found in the basement under a mattress.

Although Ballard and Ingram did not testify at trial, Hannah did. He told the jury that Grady approached Ballard from behind and hit him with the gun and that Ballard then grabbed Grady, yelled Grady had a gun, and they fell to the ground fighting. Ballard hollered for Hannah to get the (black) gun and he did. As Grady was getting up, Grady reached for something on the ground and Hannah hit him with the gun. Hannah picked up what Grady had been reaching for, and it was a second (silver) gun. Grady again attacked Hannah and Hannah again knocked him to the ground.

At this point, Hannah heard a gun misfire (click) several times and believed this was one of the men with Grady was trying to shoot him in the back. He turned, but was again attacked by Grady, who was holding something "shiny." Hannah testified that he fired the silver gun because he thought Grady was attacking him in order to divert his attention so that one of Grady's friends could shoot him.

At trial, the medical examiner testified that Grady died of a gunshot wound to the chest. The examiner opined that the wound was consistent with Grady having been shot as he was getting up from the ground.

At trial in November 2006,¹ the court denied Appellant's counsel the right to question the jury regarding the "no duty to retreat" rule during voir dire, denied him the right in closing argument to argue that he had "no duty to retreat," and denied his request for an instruction informing the jury that Appellant had "no duty to retreat."

Following closing arguments, the jury was instructed to consider charges against Appellant of murder, manslaughter in the first degree, manslaughter in the second degree, and reckless homicide, along with the usual instructions for self-defense and protection of another—without any guidance to the jury on the duty (or no duty) to retreat. The jury returned guilty verdicts on the charge of murder against Appellant, and second-degree hindering prosecution against Ballard, but acquitted Ingram of "hindering the prosecution." During the penalty phase, evidence was introduced to show that Appellant had a prior murder conviction and he was sentenced to life without parole.

II. Analysis

A. Jury Instructions

For a large part of our history, the law in Kentucky was that a person could stand his ground against an aggressor; quite simply, he was not obliged to retreat, nor was he required to consider whether he could safely do so. Gibson v. Commonwealth, 237 Ky. 33, 34 S.W.2d 936 (1931). Gibson, in fact, quoted from an opinion of the noted Kentucky jurist and United States Supreme Court Justice, John M. Harlan, to wit:

The defendant was where he had the right to be, when the deceased advanced

306 SW 3d 514

upon him in a threatening manner, and with a deadly weapon; and if the accused did not provoke the assault, and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life, or do him great bodily harm, he was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack made upon him with a deadly weapon, in such way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury.

Beard v. United States, 158 U.S. 550, 564, 15 S.Ct. 962, 39 L.Ed. 1086 (1895). "This doctrine of the law permeates the opinions of this court, and an instruction to the contrary has been condemned in several cases; the more recent one being Caudill v. Commonwealth, 234 Ky. 142, 27 S.W.2d 705." Gibson, 34 S.W.2d at 936. Accordingly, at that time, a defendant was not required to choose a safe avenue of retreat before using deadly force to protect himself in Kentucky. Moreover, the enactment of the 1974 Kentucky Penal Code did not abrogate this view. Hilbert v. Commonwealth, 162 S.W.3d 921, 926 (Ky.2005).

In Hilbert, citing to Robert G. Lawson & William H. Fortune, Kentucky Criminal Law § 4-2(d)(2) (1998), we noted that "a proposal by the drafters of the Kentucky Penal Code to change this rule was rejected by the General Assembly and the right of a defender to stand his ground against aggression was left intact." Hilbert, 162 S.W.3d at 926. Notably, "it is a tradition that a Kentuckian never runs. He does not have to." Id. (quoting Gibson, 34 S.W.2d at 936.)

However, "despite the defiant attitude towards retreat exhibited by the Gibson opinion, Kentucky decisions over the intervening years have generally not adhered to such an absolute interpretation of the `no duty to retreat rule,' nor did our more recent predecessor courts require jury instructions describing the same." Hilbert, 162 S.W.3d at 926; see also James M. Roberson, New Kentucky Criminal Law and Procedure § 313 (2d ed. 1927) (stating that "the rule now is that whether the assailant should stand his ground or give back is the question for the jury, and that he may properly follow that course which is apparently necessary to save himself from death or great bodily harm."). Thus, Kentucky, in more recent years, has followed "the principle `that when the trial court adequately instructs on self-defense, it need not also give a no duty to retreat instruction.'" Hilbert, 162...