HATCHER (ALLEN W.) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: MARCH 12, 2010; 10:00 A.M.
TO BE PUBLISHED
MODIFIED: APRIL 23, 2010; 10:00 A.M.
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001569-MR
ALLEN W. HATCHER
v.
APPELLANT
APPEAL FROM EDMONSON CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NOS. 03-CR-00118 & 05-CR-00024
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION REVERSING
AND REMANDING
** ** ** ** **
BEFORE: KELLER AND WINE, JUDGES; LAMBERT, SENIOR JUDGE.
WINE, JUDGE: Allen Hatcher, pro se, appeals from the denial of a Kentucky
Rules of Criminal Procedure (“RCr”) 11.42 motion. Hatcher argues on appeal that
he received ineffective assistance of counsel because of trial counsel’s alleged
failure to challenge the jury instructions, to object to amendment of the charges, to
adequately investigate the prosecution’s witnesses, and to raise double jeopardy as
an issue. Upon careful review of the record, we reverse the trial court’s order of
July 16, 2008, denying Hatcher RCr 11.42 post-conviction relief; vacate Hatcher’s
conviction and sentence for murder; and remand for a new trial on the charge of
murder.
Background
On the evening of November 6, 2003, Edward Tankersley and Chris
Sexton met at a bar where they drank several beers. The pair also smoked
marijuana and used cocaine. While at the bar, Tankersley suggested to Sexton that
they go to meet a girl he knew. Once the bar closed, the pair traveled to the home
of Hatcher in the early hours of the morning of November 7, 2003. Before
entering the residence, the pair allegedly “did a line” of cocaine together. Further,
Tankersley allegedly asked Sexton, “Have you got my back?” before they entered
the residence. As Tankersley knocked on the door of Hatcher’s home, Sexton went
back to the car to get a beer. Tankersley entered the residence and allegedly began
speaking with Paula Beckner –the young lady they had driven to see.
Sexton testified at trial that, upon entering the residence, he observed
Tankersley speaking to Beckner. Sexton testified that the pair sat next to a tray
containing a large quantity of marijuana. Sexton further testified that he observed
Hatcher suddenly appear and yell at Tankersley, “I told you to get out of my
house.” He testified that Hatcher went to the back room of the residence and reemerged with a gun. Hatcher allegedly shouted at Tankersley, “I told you to get
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the f___ out of my house” before shooting him in the leg. Sexton ran out of the
house in fear after seeing Hatcher shoot Tankersley. However, fearing for
Tankersley, Sexton allegedly ran back to retrieve him. As Sexton was attempting
to drag Tankersley from the doorway of the home, he claims that Hatcher walked
up and shot Tankersley in the head.
Sexton testified that as he began dragging Tankersley to his vehicle,
James Rodney Gross approached and helped him carry Tankersley to the vehicle.
He testified that Gross also attempted to give him directions to the hospital.
Thereafter, Sexton drove Tankersley to the nearest trailer to get help. The
occupants of the trailer called 911, and police were called to the scene. Tankersley
died shortly thereafter. Police searched Hatcher’s residence within hours of the
shooting. They found evidence of the shooting as well as evidence that someone
had attempted to clean up the area where Tankersley had been shot. In addition,
methamphetamine and over eight ounces of marijuana were found, as well as
numerous other items of drug paraphernalia and a methamphetamine precursor.
On December 15, 2003, an Edmonson County Grand Jury indicted
Hatcher, Beckner, and Gross for Tankersley’s murder as well as for several other
drug-related charges. All of the indicted offenses stemmed from the events
occurring in the early morning hours of November 7, 2003.
At trial, Hatcher, Beckner, and Gross all testified to the events of the
evening of November 6, 2003. Their testimony differed in important respects from
Sexton’s testimony. They testified that Tankersley pushed his way into the house
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when Gross answered the door, knocking Gross backwards. Gross testified that he
had never seen Tankersley before. Hatcher testified that he had not seen
Tankersley for about a year and a half since Tankersley allegedly stole some tools
from Hatcher’s wood shop. Hatcher further testified that he asked Tankersley to
leave, but Tankersley said, “I’ll go when I’m f____ing ready.” Gross testified that
Tankersley stated, “You can’t make me leave.” Hatcher testified that he went to
the bedroom to get his gun, returned with the gun, and again told Tankersley to
leave. He testified that the first shot he fired from the gun (which hit Tankersley in
the leg) was not meant to hit Tankersley –only to scare him into leaving. Both
Hatcher and Gross testified that Tankersley was apparently unphased by being shot
in the leg.
Hatcher testified that Sexton ran up to the door behind Tankersley and
noticed that Tankersley had been shot in the leg. Gross testified that Sexton ran
back off the porch after exclaiming that he had firearms in his vehicle and would
kill them all and “cut the house in half.” Gross and Hatcher both testified that
Sexton appeared moments later, running onto the porch again. Hatcher testified he
believed that Sexton handed Tankersley a gun at this point and that he then shot
Tankersley in self defense.
Gross testified that after initially fleeing the house in fear, he observed
Hatcher’s dogs behaving as if they were going to attack Sexton and Tankersley
while Sexton was attempting to drag Tankersley to the car. Gross helped Sexton
carry Tankersley to the car. He further testified that Beckner gave him towels to
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use in aiding Tankersley and he wrapped Tankersley’s head in towels to slow the
bleeding. Gross further testified that Beckner gave him a phone to give to Sexton
so that he could call 911. Gross testified that he thought 911 had been called and
therefore directed Sexton to begin driving in the direction of the hospital so that he
could meet the ambulances on the roadway.
Another witness at trial, Kenneth Bell --a jailhouse informant for the
Commonwealth-- also testified to the events of that evening. He testified that he
became acquainted with Hatcher in jail and that Hatcher told him that he shot
Tankersley because of a dispute over money, claiming Tankersley owed him
money from a prior drug transaction. Bell testified that Hatcher never mentioned
he was acting in self-protection or that he believed Tankersley had a gun.
The jury convicted Hatcher of murder, trafficking in marijuana (more
than eight ounces), possession of drug paraphernalia while in possession of a
firearm, possession of a methamphetamine precursor while in possession of a
firearm, tampering with physical evidence, and trafficking in a controlled
substance while in possession of a firearm. The jury recommended a total sentence
of thirty years’ imprisonment, which was imposed by the Edmonson Circuit Court.
Hatcher appealed as a matter of right to the Kentucky Supreme Court,
and the judgment was affirmed on August 24, 2006. Hatcher then initiated federal
habeas proceedings in the Western District of Kentucky. The District Court found
that Hatcher had failed to exhaust his state court remedies and is currently holding
the matter in abeyance for Hatcher to pursue post-conviction relief in state court
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(prompting the action herein). On May 8, 2008, Hatcher filed an RCr 11.42
motion with the trial court. The motion was denied by the trial court on July 16,
2008. Hatcher now appeals from the denial of his RCr 11.42 motion.
Analysis
On appeal Hatcher argues that his trial counsel’s performance was
deficient because of counsel’s alleged failure (1) to challenge the indictment; (2) to
adequately investigate the prosecution’s witnesses; (3) to raise a double jeopardy
challenge; and finally, (4) to object to the jury instructions.
In order to prevail on a claim of ineffective assistance of counsel, a
defendant must show that his trial counsel’s performance was deficient and that
such deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as adopted by Gall v. Commonwealth, 702
S.W.2d 37 (Ky. 1985). Thus, under Strickland, the petitioner must show both
incompetence and prejudice. The standard for counsel’s competence is whether
“counsel’s representation fell below an objective standard of reasonableness.”
Strickland, 466 U.S. at 688. The standard for prejudice is whether “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.
Fatal Variance from the Indictment
First, Hatcher challenges two variances between the indictment and
the instructions given to the jury. He contends that there was a “fatal variance”
between the murder instruction given to the jury and the murder charge contained
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in the indictment and that the jury instruction constructively amended the
indictment. While the caption on the indictment stated “Murder,” citing KRS
507.020, the language in the charging instrument stated as follows:
COUNT ONE: That on or about November 6, 2003 in
Edmonson County, Kentucky, the above-named
defendant, Allen Hatcher, alone or in complicity with
Paula Beckner and James Gross, committed the offense
of Murder, when he intentionally caused the death of
Edward Tankersley, Jr.
(Emphasis added.)
Hatcher contends that he should not have been tried for wanton
murder when the indictment stated that he “intentionally” killed Edward
Tankersley. His argument is not well-taken. The language in the indictment put
him on notice that he was charged with murder under KRS 507.020. See e.g.,
Thomas v. Commonwealth, 931 S.W.2d 446, 449 (Ky. 1996) (“An indictment is
sufficient if it fairly informs the accused of the nature of the charged crime...”).
Intentional murder and wanton murder are the same offense under Kentucky law.
KRS 507.020. See also, Schambon v. Commonwealth, 821 S.W.2d 804, 810 (Ky.
1991); and Evans v. Commonwealth, 45 S.W.3d 445 (Ky. 2001). In addition,
pursuant to RCr 6.16, a court may permit an indictment “to be amended any time
before verdict or finding if no additional or different offense is charged and if
substantial rights of the defendant are not prejudiced.” (Emphasis added.) No new
evidence was required to prove wanton murder. As such, counsel was not
ineffective for failing to object to this constructive amendment of the indictment.
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Furthermore, as we are remanding for a new trial on the murder charge for the
reasons set out below, Hatcher can suffer no prejudice from the variance.
Hatcher’s second argument alleges that counsel was ineffective for
failing to challenge the indictment on the grounds that he was convicted of
trafficking in marijuana when he was only indicted for possession of marijuana.
The caption of the indictment stated that Hatcher was being charged with
trafficking in marijuana under KRS 218A.1421(3), yet the count in the indictment
described the offense as possession rather than trafficking. Although the variance
between the offense as charged and the offense presented to the jury is significant,
we find that Hatcher was not unfairly prejudiced. To begin, had trial counsel
objected to the constructive amendment of the indictment, the Commonwealth
could have moved to amend the indictment under RCr 6.16. Indeed, there is no
evidence that Hatcher’s substantial rights would have been prejudiced by such an
amendment as the trafficking charge stemmed from possession of a large enough
quantity of marijuana that trafficking was presumed. As such, the facts to prove
both were the same. Given the overwhelming evidence concerning drugs in this
case, and the fact that the caption in the indictment notified the defendant of the
charge, there is no reasonable probability, under the second prong of Strickland,
supra, that the outcome would have been different.
Denial of Adequate Investigation
Hatcher further argues that he was denied the opportunity to
adequately investigate the prosecution’s witness when the trial court refused to
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continue the trial when the Commonwealth waited to disclose a jailhouse
informant until roughly one week before trial. However, we fail to see how
Hatcher’s trial counsel was deficient for the trial court’s refusal to continue the
case. Hatcher concedes in his brief that trial counsel objected to any testimony by
Bell, the jail inmate, because the information had been divulged just one week
prior to trial. “The granting of a continuance is in the sound discretion of a trial
judge, and unless from a review of the whole record it appears that the trial judge
has abused that discretion, this court will not disturb the findings of the [trial]
court.” Williams v. Commonwealth, 644 S.W.2d 335, 336-337 (Ky. 1982).
This is an issue which Hatcher should have raised on direct appeal,
and as such, we do not need to reach this issue herein. Brown v. Commonwealth,
788 S.W.2d 500, 501 (Ky. 1990); and Thacker v. Commonwealth, 476 S.W.2d 838,
839 (Ky. 1972).
Double Jeopardy
Next, Hatcher claims that he received ineffective assistance of counsel
because his trial counsel failed to raise double jeopardy. Hatcher claims that
counsel should have realized that the charges for trafficking in marijuana,
trafficking in methamphetamine, and possession of a methamphetamine precursor
all arose from the same conduct, thus implicating double-jeopardy.
Hatcher’s reliance on Commonwealth v. Grubb, 862 S.W.2d 883 (Ky.
1993) is misplaced. Grubb was convicted of multiple counts of drug trafficking for
two drugs of the same schedule where all counts arose from the same transaction.
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Further, Grubb relies on the “single impulse” / “single conduct” test for double
jeopardy adopted in Ingram v. Commonwealth, 801 S.W.2d 321 (Ky. 1990). The
Kentucky Supreme Court has overruled Ingram and adopted the “distinct element”
test of Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See
also Commonwealth v. Burge, 947 S.W.2d 805 (Ky. 1997). Hatcher was convicted
of trafficking in marijuana, more than eight ounces but less than five pounds
(firearm enhanced)(KRS 218A.1421(3)); first-degree trafficking in a controlled
substance (firearm enhanced)(KRS 218A.1412); and possession of a
methamphetamine precursor (firearm enhanced)(KRS 218A.1437), each requiring
proof of different elements and each stemming from the possession of a different
substance or precursor (marijuana, methamphetamine, and a methamphetamine
precursor), and each involving a different subsection of KRS 218A. Thus, those
convictions could not have violated the double jeopardy clause of the Fifth
Amendment. Trial counsel was not ineffective for failing to raise a double
jeopardy challenge.
Failure to Challenge Jury Instructions
Hatcher’s final argument for ineffective assistance of counsel is that
trial counsel failed to object to the combination instruction for murder which
allegedly contained “mandatory inferred conclusory presumptions,” rather than
“permissive inferences.”
Jury Instruction No. 5, the instruction for murder, read as follows:
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beyond a
Edward
You will find the Defendant, Allen Hatcher, guilty of Murder under
this instruction, if and only if, you believe from the evidence
reasonable doubt all of the following:
A. That in this county on or about November 6, 2003, and
before the finding of the Indictment herein, he killed
Tankersley by shooting him;
AND
B. That in so doing;
(1) He caused the death of Edward Tankersly [sic]
intentionally and not while acting under the
extreme emotional disturbance;
influence of
OR
(2) He was wantonly engaging in conduct which created
a grave risk of Death to Edward Tankersly [sic]
circumstances manifesting an extreme indifference
human life.
under
to
AND
C. That in so doing he was not privileged to act in selfprotection.
The term “wantonly” was separately defined for the jury. However, the phrases
“under circumstances manifesting an extreme indifference to human life” and
“extreme emotional disturbance” were not defined for the jury. There was no
separate instruction or definition for self-protection.
Hatcher argues that the instruction improperly required the jury to
infer a presumed fact based upon proof of a predicate fact. He argues that the
predicate fact is “wantonness” and that the presumed fact is “under circumstances
manifesting extreme indifference.” Hatcher alleges that this presumption
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effectively allowed the jury to evaluate the case under the standard for second
degree manslaughter (wantonness), yet convict for wanton murder (wantonness
plus extreme indifference).
Hatcher’s argument is without merit. We begin by noting that this
instruction is the exact model instruction from Cooper’s Kentucky Instructions to
Juries.1 While not binding on our Courts, we have often found this instruction to
be persuasive. 1 Cooper, Kentucky Instructions to Juries (Criminal) §3.24.
Further, our Courts have approved of the use of this same instruction in numerous
circumstances, provided there is evidence for both intentional murder and wanton
murder. See, e.g., Parker v. Commonwealth, 241 S.W.3d 805, 810 (Ky. 2007) and
Hudson v. Commonwealth, 979 S.W.2d 106 (Ky. 1998). Moreover, we note that
the Kentucky Supreme Court has previously held that it is not error to provide the
jury with alternate instructions for both wanton and intentional murder when the
defendant is claiming self-protection. Allen v. Commonwealth, 5 S.W.3d 137 (Ky.
1999). Accordingly, while we find no fault with trial counsel’s failure to object to
the combination instruction, we reiterate a point which the Kentucky Supreme
Court has strongly emphasized –that the preferred practice is for the trial court to
include a form verdict that allows the jury to state whether they are finding the
defendant guilty of intentional murder or wanton murder.2 Benjamin v.
1
The instruction is verbatim except for prong “C,” which is not explicitly called for in Cooper’s,
but is, nonetheless, proper under Allen v. Commonwealth, 5 S.W.3d 137 (Ky. 1999), and Wallen
v. Commonwealth, 657 S.W.2d 232 (Ky. 1983).
2
However, although this issue was not raised by Hatcher in this action, the Kentucky Supreme
Court has directed that when wanton murder is instructed upon, there must also be an instruction
on second-degree manslaughter as a lesser included offense. Parker, supra. It does appear that
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Commonwealth, 266 S.W.3d 775, 785 (Ky. 2008). See also, Hudson v.
Commonwealth, supra. Such separate verdict forms are especially appropriate
when, as in this case, the evidence arguably may not support either intentional or
wanton conduct.
We now turn to Hatcher’s next argument, that counsel failed to object
to the jury instructions on the grounds that they did not include a definition or
separate instruction for extreme emotional disturbance (“EED”) or self-protection.
We agree that when a murder instruction includes a reference to EED, the jury
must be given a definition of extreme emotional disturbance to accompany that
instruction. See, e.g., 1 Cooper, Kentucky Instructions to Juries (Criminal) §3.21
(Comment Section). Otherwise (as occurred in the present case), the jury is left to
determine whether a defendant did or did not act under such disturbance without
any legal ground upon which to base such determination. As such, counsel should
have objected to the murder instruction because it stated the defendant could not be
found guilty of murder if he were operating under EED but then failed to define the
term for the jury.3 Further, we agree that self-protection should have been defined
by a separate instruction, as the jury was left to determine whether Hatcher acted in
self protection with no legal basis upon which to decide the question.4
counsel should have objected to the failure to instruct upon second-degree manslaughter.
3
Moreover, as a combination instruction was used for intentional and wanton murder, the jury
should have been instructed that EED is not applicable to wanton murder, but only to intentional
murder, as EED is not a mitigating element to crimes having a mens rea of wantonness. See,
e.g., Todd v. Commonwealth, 716 S.W.2d 242, 246 (Ky. 1986).
4
Importantly, as the jury was never advised that self-protection is to be analyzed from a
defendant’s subjective perspective, the jury may well have determined that Hatcher did not act in
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Further, Hatcher argues that his counsel was deficient for failing to
request an instruction on imperfect self-protection. This argument concerns the
“wanton or reckless belief qualification” to a defendant’s subjective belief in the
need for self-protection as described in Commonwealth v. Hager, 41 S.W.3d 828,
841 (Ky. 2001). Namely, Hatcher contends that counsel was deficient for failing
to demand an instruction on both perfect and imperfect self-protection.
It is a bedrock principle of law in this Commonwealth that the trial
court must instruct the jury on “the [whole] law of the case,” including every
theory of the case deducible therefrom. RCr 9.54(1). See also, Lee v.
Commonwealth, 329 S.W.2d 57, 60 (Ky. 1959) and Manning v. Commonwealth,
23 S.W.3d 610, 614 (Ky. 2000). Indeed, a criminal defendant is entitled to have
the jury instructed on self-protection if it is “supported to any extent by the
testimony.” Thomas v. Commonwealth, 170 S.W.3d 343, 349 (Ky. 2005)
(Emphasis added). Additionally, we reiterate the long-standing principle that the
doctrine of self-protection turns upon a defendant’s subjective belief of the need to
use force, rather than the trial court’s interpretation of whether such a belief was
objectively reasonable. See, e.g., Hayes v. Commonwealth, 870 S.W.2d 786, 78788 (Ky. 1994), and Commonwealth v. Hager, 41 S.W.3d at 842. See also
Kentucky Revised Statute (“KRS”) 503.050. As such, the argument advanced by
the Commonwealth that Hatcher was not entitled to a separate self-protection
self-protection based upon their own interpretation of whether the belief was objectively
reasonable. This is but one of many mistakes the jury could have made in determining whether
Hatcher acted in self-protection, given that they were provided absolutely no guidance as to how
to analyze whether Hatcher acted in self-protection.
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instruction because there was “little evidence” of self-protection, or that the only
evidence of self-protection was the testimony of Hatcher and his two codefendants, is unpersuasive.
Further, we note that although self-protection turns on the defendant’s
subjective belief in the need to use force, a defendant may be mistaken in his belief
that force is required. Hager, supra. Indeed, a defendant may be so sorely
mistaken in his belief in the need to use force that his mistaken belief itself may
“constitute wantonness or recklessness with respect to the circumstance then being
encountered.” Id. at 842. This is precisely the “wanton or reckless belief”
qualification to a defendant’s belief in the need for self-protection that is discussed
in Hager. In situations where such a belief is wantonly or recklessly held, selfprotection is unavailable as a defense to all offenses having a mens rea of
wantonness or recklessness. KRS 503.120(1). See also, Elliott v. Commonwealth,
976 S.W.2d 416, 422 (Ky. 1998), and Hager, supra. In these situations, however,
self-protection can still be used to negate an intentional mental state, such as that
required for intentional murder. Id. See also, Abramson, Kentucky Practice, Vol.
10, Substantive Criminal Law, 2d Ed., 2000 (Pocket Part §5.31). Indeed,
[A]ll KRS 503 justifications, including self-protection, are
premised upon a defendant’s actual subjective belief in the
need for the conduct constituting the justification and not
on the objective reasonableness of that belief. . . .
[However], the statute recognizes that a defendant may be
mistaken in his belief and that the mistaken belief, itself,
may be so unreasonably held as to constitute wantonness
or recklessness with respect to the circumstance then
being encountered. If so, the statute provides that the
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justification, e.g., self-protection, is unavailable as a
defense to an offense having the mens rea element of
wantonness, e.g. second-degree manslaughter, or
recklessness, e.g., reckless homicide, “as the case may
be.”
Thus, while a wantonly held belief in the need to act in
self-protection is a defense to an offense having the mens
rea element of intent, it supplies the element of
wantonness necessary to convict of second-degree
manslaughter; and while a recklessly held belief in the
need to act in self-protection is defense to an offense
requiring either intent or wantonness, it supplies the
element of recklessness necessary to convict of reckless
homicide.
Id. at 842 (internal citations omitted).
Hager outlines the effect that a wanton or recklessly-held belief in the
need for self-protection has on the various degrees of homicide, as follows:
1. Intentional murder or first-degree manslaughter
a. Actual belief not wantonly or recklessly held =
acquittal.
b. Wanton belief = second-degree manslaughter,
because it constitutes a defense to intentional
conduct, the mens rea element of both intentional
murder and first-degree manslaughter, but it is
unavailable as a defense to wantonness, the
mens rea element of second-degree manslaughter.
c. Reckless belief = reckless homicide, because it
constitutes a defense to intentional conduct, the
mens rea element of both intentional murder and
first-degree manslaughter, and to wantonness, the
mens rea element of second-degree manslaughter,
but is unavailable as a defense to recklessness,
the mens rea element of reckless homicide.
2. Wanton Murder
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a. Actual belief not wantonly or recklessly held =
acquittal.
b. Wanton belief = second-degree manslaughter,
because it negates the aggravating element
of
“extreme indifference to the value of human life”
necessary to convict of wanton murder, but is
unavailable as a defense to wantonness, the mens
rea element of second-degree manslaughter.
c. Reckless belief = reckless homicide, because it
negates the element of “extreme indifference
to the value of human life” necessary to convict of
wanton murder, and constitutes a defense to
wantonness, the mens rea element of seconddegree manslaughter, but is unavailable as a
defense to recklessness, the mens rea element of
reckless homicide.
Id. at 843 (Other degrees of homicide omitted). Thus, if the jury had been properly
instructed on both perfect self-protection (an actual belief in the need for selfprotection) and imperfect self-protection (a wanton or reckless belief in the need
for self-protection), it is possible that the jury could have believed that Hatcher
held either an actual or wanton belief in the need for self-protection, thus resulting
in either an acquittal or the result that intentional or wanton murder would have
been reduced to a lesser degree of homicide. Regardless, it is clear that the failure
to instruct the jury on perfect and imperfect self-protection was prejudicial.
However, this action is before us on the denial of an RCr 11.42
motion. Although we are persuaded that Hatcher did not receive a fair trial
because of the failure to instruct the jury on the whole law of the case, the question
is whether counsel’s representation fell below an objective standard of
reasonableness and whether such failure prejudiced Hatcher’s case. We can most
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certainly say that the second prong of Strickland is met as there is a reasonable
probability that the result would have been different but for these errors. The only
question left is whether the actions taken by counsel were deficient, falling below
an objective standard of reasonableness.
We note that Hatcher’s counsel did request that the jury be instructed
on self-protection before the instructions were drafted. However, he made no
objection to the instructions once written, despite the fact that the instructions only
fleetingly referenced self-protection in the murder instruction and no separate selfprotection instruction was included. Further, counsel did not request an instruction
on imperfect self-protection. In all fairness to defense counsel, he had already
been in court for nearly 13 hours by the time the court asked him to state his
objections to the instructions.5 Nevertheless, the assistance he provided fell below
an objective standard of reasonableness.
Hatcher was provided ineffective assistance of counsel because
counsel failed to object that there was no separate self-protection instruction, failed
to object that self-protection was not even defined for the jury despite the lack of
instruction (the jury being left with no legal basis upon which to decide whether
Hatcher acted in self-protection), failed to request an imperfect self-protection
5
On Thursday, July 7, 2005, before adjourning for the day, the trial judge made known his
intention that the trial would be completed the next day. On the morning of July 8, 2005, court
reconvened at 8:52 a.m. By the time the trial court asked defense counsel whether he had any
objections to the instructions, it was 9:35 p.m. at night (some twelve hours and forty-three
minutes since court had reconvened that morning). Tellingly, one attorney could be heard to
exclaim only minutes later: “I wish we could come back tomorrow.” (What is more remarkable
–although not relevant to the issues raised in the present appeal- is that the jury was not excused
until 5:36 a.m. on Saturday morning, some twenty-one hours after they arrived in court).
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instruction, and failed to request that EED be defined for the jury. Moreover,
although not raised by Hatcher in this action, defense counsel also failed to object
to the instructions on the grounds that there should have been an instruction on
second-degree manslaughter as a lesser-included offense to wanton murder.
Parker, supra. Finally, although not necessarily objectionable, it would have been
preferable for counsel to request that form instructions be used for the combination
instruction on intentional and wanton murder so as to distinguish between whether
the jury was finding Hatcher guilty of intentional murder or wanton murder.
Benjamin v. Commonwealth, supra.
Thus, under the atypical circumstances presented to us in this case, we
hold that the record establishes that both prongs of Strickland, supra have been met
and an evidentiary hearing is not required.6
Conclusion
For the foregoing reasons, we reverse the trial court’s order of July 16,
2008, denying Hatcher post-conviction relief under RCr 11.42, vacate Hatcher’s
conviction and sentence for murder, and remand for a new trial solely on the
charge of murder and its lesser included offenses. Each of Hatcher’s other
convictions is unaffected.
6
Under Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001), an evidentiary hearing is not
required unless there is a “material issue of fact that cannot be conclusively resolved, i.e.,
conclusively proved or disproved, by an examination of the record.” Id. at 452. In the present
case, it is apparent on the face of the record that counsel did not object to the jury instructions on
any of the grounds noted herein, nor did he tender his own instructions or request an instruction
for imperfect self-protection, thus depriving the jury of the ability to decide by the appropriate
legal standards whether Hatcher acted under EED, in perfect self-protection, or in imperfect selfprotection.
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On retrial, form instructions should be used to distinguish between
intentional and wanton murder. Moreover, second-degree manslaughter must be
instructed upon as a lesser included offense of wanton murder. Further, EED must
be defined for the jury, and the jury must be instructed that it is not applicable to
wanton murder. Finally, separate instructions on both perfect and imperfect selfprotection and their effects on the various degrees of homicide are required and
should model the instructions offered by the Kentucky Supreme Court in Hager,
supra.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Allen W. Hatcher, pro se
West Liberty, Kentucky
Jack Conway
Attorney General of Kentucky
Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky
-20-
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