ALBERT DURHAM v. COMMONWEALTH OF KENTUCKY
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RENDERED: June 11, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001249-MR
ALBERT DURHAM
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE FARMER HELTON, JUDGE
ACTION NO. 97-CR-00076
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, COMBS, McANULTY, Judges
COMBS, JUDGE:
The appellant, Albert Durham, Jr., appeals from
the judgment of the Bell Circuit Court convicting him of
manslaughter in the first degree and sentencing him to twelve
years’ imprisonment.
The appellant raises issues concerning the
adequacy of the jury instructions, and he alleges that the court
erred in failing to consider the feasibility of probation or
other sentencing alternatives.
Having carefully reviewed the
record, we agree that the circuit court erroneously failed to
instruct the jury properly as to the legal definition of selfprotection.
Therefore, we reverse and remand.
On August 6, 1997, Durham was indicted by the Bell
County Grand Jury on the charges of murder and fourth-degree
assault.
The charges were based upon the events that took place
on the night of July 20, 1997.
On that night, the appellant, his
uncle, Winsel Durham, and his brother, Virgil Durham (commonly
known as “Woozie” or “ Oozie”), had been drinking beer at the
appellant’s house when the three men began to argue.
The
argument escalated into a physical alteration among the
appellant, Winsel, and Virgil.
The appellant claimed that Winsel
held him from behind while Virgil hit him and broke a glass over
his head.
The appellant’s wife, Denise Durham, unsuccessfully
attempted to break up the fight but was pushed aside.
Eventually, the appellant managed to break free from
the two men and fled from the house.
baseball bat.
He returned shortly with a
Upon his return, the appellant claimed he was
confronted by Winsel at the door, who refused to allow him to
enter the house.
The appellant alleged that, in an attempt to
gain access to the house, he hit Winsel in the leg with the bat.
When Winsel did not move, the appellant hit him again with the
bat.
The bat struck Winsel in the head, and he fell to the
ground.
Winsel died as a result of this fatal blow.
The
appellant maintained that he intended to hit Winsel in the
shoulder, but Winsel had moved — and the blow struck him in the
head.
The appellant and Denise left the house and drove away.
The couple drove to Tennessee where they spent the night sleeping
in their truck.
The appellant returned to Kentucky the next
morning and turned himself in to the police.
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On April 29, 1998, Albert was tried before a jury on
the charge of murder; prior to the trial, the court dismissed the
assault charge upon motion of the Commonwealth.
The jury found
the appellant guilty of manslaughter in the first degree and
sentenced him to twelve years’ imprisonment.
On May 6, 1998,
Albert filed a motion for a new trial or judgment notwithstanding
the verdict (JNOV), alleging errors regarding the jury
instructions.
On May 11, 1998, the court’s final judgment and
sentence were entered in the record in accordance with the jury’s
verdict and sentence.
On the same date, the court held a hearing
on the appellant’s post-trial motion — which it denied.
This
appeal followed.
The appellant first argues on appeal that the court
erroneously omitted the legal definition of “self-protection”
from the instructions and that it should have also qualified the
instructions on murder and manslaughter with the defenses of
protection of property and protection of others.
Before
addressing the substantive merits of this appeal, we will at the
threshold address the preservation problem raised by the
Commonwealth of whether the appellant has properly preserved the
issues regarding the jury instructions for appellant review.
The appellant argues that this issue was properly
preserved by his tender of jury instructions to the court.
The
record indicates that at the close of the evidence, the court
temporarily recessed to prepare jury instructions.
Upon re-
convening, the court read the instructions to the jury.
Commonwealth and the defense then presented their closing
The
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arguments.
The record itself does not show that the appellant
objected at anytime to the instructions given to the jury by the
court.
However, at the hearing on the appellant's post-trial
motion, the court acknowledged that the appellant "did propose an
instruction on self-defense . . . which did not get in the file
but it was filed in my office at that hearing in there on my
desk. . . "
Apparently, the instructions had indeed been
tendered by the appellant but due to omission were never entered
into the record.
RCr 9.54(2) provides:
No party may assign as error the giving or
the failure to give an instruction unless the
party's position has been fairly and
adequately presented to the trial judge by an
offered instruction or by motion, or unless
the party makes objection before the court
instructs the jury, stating specifically the
matter to which the party objects and the
ground or grounds of the objection.
At the post-trial hearing, the court admitted that the appellant
had adequately tendered instructions on self-protection which
were mis-filed and were thus omitted from the record.
We find
that this acknowledgment by the trial court is sufficient to
establish that the appellant did in fact preserve his objections
to the jury instructions in compliance with RCr 9.54(2).
The
court clearly indicated that it was given fair and adequate
notice of the appellant’s position with regard to the jury
instructions.
Under the circumstances of this case, we hold that
the appellant properly preserved his objections to the jury
instructions by tendering his own instructions to the court.
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We next consider the substantive issue of whether the
instructions given to the jury by court were deficient.
At
trial, the court instructed the jury on four degrees of homicide:
(1) Murder, (2) Manslaughter in the First Degree, (3)
Manslaughter in the Second Degree, and (4) Reckless Homicide.
The murder and first-degree manslaughter instructions were
qualified by the self-protection defense.
The court stated that
the jury was to find the appellant guilty if the elements of
murder or first-degree manslaughter were met and if the jury
found that “he was not privileged to act in self-protection.”
However, the court failed
to include the legal definition of
self-protection at this juncture.
Additionally, in Instructions No. 6 and No.7, the court
instructed the jury on the defenses of protection of another and
protection of property as they applied to the offenses of murder
and first-degree manslaughter.
The appellant contends that these
defenses should have been incorporated into the instructions on
murder and manslaughter and not set out in separate instructions.
The defense of self-protection is set forth in KRS
503.050 which provides:
(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.
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(3) Any evidence presented by the defendant
to establish the existence of a prior act or
acts of domestic violence and abuse as
defined in KRS 403.720 by the person against
whom the defendant is charged with employing
physical force shall be admissible under this
section.
The defense of self-protection is a statutory defense with
specific criteria which must be shown to justify its use.
In the case before us, in order to convict the
appellant of murder or first-degree manslaughter, the court
required the jury to find that “[the appellant] was not
privileged to act in self-protection.”
Aside from this
statement, the instructions were silent as to the justified use
of self-protection as set out in KRS 503.050.
The jury was instructed to consider the defense of
self-protection with regard to murder (instruction No. 2) and
first-degree manslaughter (instruction No. 3) but was not given
any explanation as to the justification for self-protection.
In
effect, the jury was left to create its own criteria for selfprotection in disregard of KRS 503.050.
“In a criminal case, it
is the duty of the court to prepare and give instructions on the
whole law.”
Rice v. Commonwealth Ky., 472 S.W.2d 512 (1971),
quoting Lee v. Commonwealth, Ky., 329 S.W.2d 57, 60 (1959).
(Emphasis added).
The court’s omission of the definition of selfprotection from the jury instructions constituted reversible
error.
As to the defenses of protection of others and protection
of property, we believe that the court’s instructions on these
defenses were sufficient and that it was not error for the court
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to set these defenses out in separate instructions.
The court
provided the jury with the criteria for these defenses, and it
clearly stated that the jury was to consider these defenses in
connection with the instructions concerning murder and firstdegree manslaughter.
The Commonwealth argues that even if the court’s
instructions as to the defenses of self-protection, protection of
another, and protection of property were erroneous, such errors
were harmless.
It contends that the appellant was not entitled
to instructions on the defenses of self-protection, protection of
another, and protection of property as the evidence did not
warrant nor support such instructions.
We find this contention
to be without merit.
“Our law requires the court to give instructions
‘applicable to every state of case covered by the indictment and
deducible from or supported to any extent by the testimony.’”
Reed v. Commonwealth, Ky., 738 S.W.2d 818, 822 (1987), quoting
Lee v. Commonwealth, Ky., 329 S.W.2d 57, 60 (1959).
“It is also
the duty of the trial court by instructions to give the accused
the opportunity for the jury to determine the merits of any
lawful defense which he or she has.”
App., 904 S.W.2d 239, 242 (1994).
Cheser v. Commonwealth, Ky.
The court must determine the
issues to be submitted to the jury based upon the totality of the
evidence.
Reed at 822.
In this case, the court chose to instruct the jury on
the defenses of self-protection, protection of others, and
protection of property.
At trial, the appellant testified that
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upon realizing that his wife was still in the house with the
other two drunken men, he returned with a baseball bat for
protection as he was afraid that they would harm her.
Upon
returning to the house, he claimed that Winsel met him at the
door and started pushing and hitting him as he tried to enter the
house.
Denise testified that she was indeed frightened that
Winsel and Virgil would harm her. Additionally, photographs
entered into evidence showed that extensive damage had been done
to the Durham’s home; furniture had been overturned, windows were
broken, gashes were evident in the walls, and cabinets were torn
down.
There was more than ample evidence to support the court’s
instruction on the defenses of self-protection, protection of
others, and protection or property.
Having found that the appellant is entitled to a new
trial, we shall refrain from addressing the court’s failure to
consider probation or other alternatives at this juncture.
will have the opportunity to remedy this error —
new trial.
It
if any — at the
In summary, we find that the court’s instructions to
the jury were inadequate as they failed to set forth criteria for
self-protection.
For the foregoing reasons, we reverse the judgment of
the circuit court and remand this case for a new trial.
McANULTY, JUDGE, CONCURS.
BUCKINGHAM, JUDGE, DISSENTS BY SEPARATE OPINION.
BUCKINGHAM, JUDGE, DISSENTING: I respectfully dissent
from the majority opinion which reverses the appellant’s
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conviction because the trial court did not give a complete selfdefense instruction as was mandated in Pace v. Commonwealth, Ky.,
561 S.W.2d 664, 668 (1978), overruled on other grounds by Grimes
v. McAnulty, Ky., 957 S.W.2d 223, 227 (1997).
In my opinion, the
appellant was not entitled to a self-defense instruction.
He had
left his residence and returned only for the protection of
another (his wife) and his property, and the victim was unarmed
and merely standing in the doorway at the time of the attack.
The failure of the trial court to properly give an instruction to
which the appellant was not entitled can only amount to harmless
error, RCr 9.54, as the error does not affect the appellant’s
substantial rights.
RCr 9.24.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Irvin J. Halbleib
Louisville, KY
Albert B. Chandler III
Attorney General of Kentucky
William L. Daniel II
Assistant Attorney General
Frankfort, KY
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