Hilbert v. Com.

• Decision Date: 19 May 2005
• Docket Number: No. 2002-SC-0095-MR.,2002-SC-0095-MR.
• Citation: 162 S.W.3d 921
• Parties: John T. HILBERT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

162 S.W.3d 921

John T. HILBERT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2002-SC-0095-MR.

Supreme Court of Kentucky.

May 19, 2005.

COPYRIGHT MATERIAL OMITTED

Thomas M. Ransdell, Department of Public Advocacy, Frankfort, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Susan Roncarti Lenz, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice GRAVES.

Appellant, John T. Hilbert, stands convicted of two counts of murder for the shooting deaths of Danny Wayne Elmore and Joe Eddie Stump. The jury fixed the sentence for the murder of Elmore at twenty-seven (27) years. After finding aggravating circumstances in the murder of Stump, the jury fixed Appellant's sentence for this separate crime at life without the benefit of probation or parole for twenty-five (25) years. The jury recommended that each sentence run consecutively, but following Appellant's motion that such a sentencing arrangement would exceed the statutory maximum, the trial judge entered an order for the sentences to run concurrently. Appellant now appeals to this Court as a matter of right.

The shootings occurred at the mobile home of Appellant's estranged girlfriend, Karen Poole. Karen shared the trailer with her sister Tammy, and on the evening of the shootings, Karen asked Appellant to be their "designated driver." While out, the sisters met Elmore and Stump, and invited them home. Back at the trailer, Appellant and the two victims danced with Karen and Tammy, and according to statements Appellant and Karen later gave to police, tensions soon rose.

Appellant did not testify at trial, but following his arrest, Appellant claimed that the victims grabbed him, threw him up against the wall, then pushed him out the doorway, hitting his head against the door. Appellant advised police that he "flipped out," pulled a gun from his jacket pocket and shot both men. According to Appellant, the victims kept coming and he did not know what to do. After shooting Elmore, Appellant said that the "big boy" was coming at him and that is when he killed Stump.

Neither Karen nor Tammy was present when the victims allegedly roughed up Appellant and ejected him from the trailer. Karen testified that she left the room after asking Appellant to retrieve something from her car. While in the bathroom, Karen heard what sounded to her like firecrackers going off outside. Upon returning to the living room, Karen observed Appellant enter the house, pull out a gun, and shoot Stump as the victim walked out of the kitchen. Tammy provided similar testimony, stating that after going to the bedroom to change her clothes, she saw Appellant come in through the front door and fire at Stump. Neither witness observed the shooting of Elmore, whose body was later found outside on the front porch, dead from a single gunshot fired at close range.

I. Jury Instructions: Self-Defense

Appellant does not dispute that he killed Elmore and Stump. Instead, Appellant hoped to justify the shootings as a matter of self-defense. In fact, during opening statements, defense counsel asserted that Appellant was "not guilty because this was self-defense." The trial judge, however, found no basis from the evidence introduced at trial to support a self-defense instruction, but did allow the jury to consider whether Appellant acted under the influence of an extreme emotional disturbance.

This issue arose shortly before the close of evidence, in the context of whether or not Appellant's testimony was required in order to submit instructions on self-defense to the jury. In denying the requested instructions, the trial judge reasoned that the self-defense statute, KRS 503.050 "is based on the subjective belief of the defendant and the defendant is the only one who can testify." In chambers, the trial judge further explained:

[I]t says the defendant must believe. I'm not saying there is not evidence from which he could believe that. But he's the only—the jury cannot assume that he believes it because he's the—it's subjective and the case law says that it is subjective. It is what he believes.

Appellant claims the trial judge has misinterpreted the relevant law regarding the availability of self-defense instructions for defendants who choose not to testify.

The Kentucky Penal Code allows a defendant to justify the use of deadly physical force upon another person when the defendant believes that such force is necessary as protection against an imminent threat of death or serious physical injury. Specifically, subsections (1) and (2) of KRS 503.050 provide:

(1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.

(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, or sexual intercourse compelled by force or threat.

(emphasis added).

In evaluating this statute, the trial judge was correct insofar as "the focus of the penal code is on the defendant's actual subjective belief in the need for self-protection and not on the objective reasonableness of that belief." Elliott v. Commonwealth, 976 S.W.2d 416, 419 (Ky.1998). However, the question here is not whether the defense of self-protection is based upon a defendant's subjective state of mind, but whether a defendant must testify in order to establish such a personally held belief.

Kentucky courts have long held that a defendant need not testify in order to receive an instruction on self-defense. See Hasty v. Commonwealth, 272 S.W.2d 325, 326 (Ky.1954); Benson v. Commonwealth, 290 Ky. 713, 162 S.W.2d 538 (1942); Rutherford v. Commonwealth, 76 Ky. (13 Bush) 608 (1878). In Hasty, supra, the predecessor to this Court opined:

Concerning the question of whether or not the appellant was entitled to an instruction on self-defense, we find that in cases of this character the court is required to give such an instruction where the evidence is wholly circumstantial, there is evidence of a struggle, and the accused fails to testify, or, although he does become a witness, he does not testify as to any facts indicating the manner in which the deceased met death.

Among the evidence we find: Appellant's statement to police indicating an altercation between the victims and himself; Appellant's statement that the victims kept coming and he didn't know what to do; a welt on Appellant's head, attributable either to the altercation or to an automobile wreck later that evening; and finally, evidence that in an unrelated incident several years earlier, Appellant had been severely beaten during a mugging, after which he bought a gun and became more reserved.

Admittedly, the evidence supporting Appellant's belief in the need for the use of force was not strong, nor free from contradiction. However, such evidence need only raise the issue, for an instruction on self-defense is necessary once sufficient evidence has been introduced at trial which could justify a reasonable doubt concerning the defendant's guilt. Estep v. Commonwealth, 64 S.W.3d 805, 811 (Ky.2002); Commonwealth v. Day, 983 S.W.2d 505, 508 (Ky.1999); Jewell v. Commonwealth, 549 S.W.2d 807, 812 (Ky.1977), overruled on other grounds, Payne v. Commonwealth, 623 S.W.2d 867 (Ky.1981), cert. denied, 456 U.S. 909, 102 S.Ct. 1758, 72 L.Ed.2d 167 (1982).

In addition, we hardly need to repeat that a criminal defendant is entitled to jury instructions on any defense supported by the evidence. Sanborn v. Commonwealth, 754 S.W.2d 534 (Ky.1988); Curtis v. Commonwealth, 169 Ky. 727, 184 S.W. 1105, 1107 (1916). In this regard, we note that the evidence which tended to show Appellant's belief in the need for self-defense may also be interpreted as evidence of a mistaken belief in that need. Therefore, the full range of self-defense instructions, including the wanton and reckless belief qualifications, as provided by KRS 503.120(1), are appropriate in this matter. See generally Commonwealth v. Hager, 41 S.W.3d 828 (Ky.2001).

Intertwined with Appellant's argument that he was improperly denied instructions on self-defense, Appellant asserts that the trial judge's ruling deprived him of his Fifth Amendment right against self-incrimination. Caught in the proverbial "Catch-22," Appellant claims he was forced to choose between taking the witness stand or forgoing a valid defense.

In general, where circumstantial or indirect evidence fails to raise the issue of self-protection, the fact that a defendant must testify or forgo this defense does not implicate the Fifth Amendment. The defendant's "choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination." United States v. Rylander, 460 U.S. 752, 759, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983), quoting Williams v. Florida, 399 U.S. 78, 84, 90 S.Ct. 1893, 1897-98, 26 L.Ed.2d 446 (1970).

Although we are not prepared to say that the trial court's actions infringed on Appellant's privilege against self-incrimination, particularly since Appellant chose not to testify, we note that at least one jurisdiction has ruled otherwise. In People v. Hoskins, 403 Mich. 95, 267 N.W.2d 417, 419 (1978), the Michigan Supreme Court stated: "A defendant need not take the stand and testify in order to merit an instruction on self-defense.... A ruling to the contrary compromises a defendant's privilege against self-incrimination."

Finally, Appellant contends the trial court erred by denying his requested instruction on the duty to retreat, or more specifically, that Appellant had no duty to retreat. Appellant claims the prosecution raised this...