COMMONWEALTH OF KENTUCKY V. WILLIAM THOMAS HAGER, JR.
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RENDERED: JANUARY 25,200l
1999-SC-1018-CL
COMMONWEALTH OF KENTUCKY
V.
CERTIFICATION OF THE LAW FROM
FAYETTE CIRCUIT COURT
99-CR-267
WILLIAM THOMAS HAGER, JR.
APPELLEE
OPINION OF THE COURT BY JUSTICE COOPER
CERTIFYING THE LAW
William Thomas Hager, Jr., killed John Allen Brown by stabbing him in the chest
with a knife. Hager admitted the killing and claimed self-defense. He was indicted for
murder, but a Fayette Circuit Court jury convicted him of fourth-degree assault, a class
A misdemeanor, for which he was sentenced to the maximum penalty of twelve months
in jail and a $500 fine. KRS 508.030(2); KRS 532.090(l); KRS 534.040(2)(a). Since
the jurors were not instructed on the elements of fourth-degree assault, they
presumably did not know that when an assault results in the victim’s death, the offense
is not an assault, but a homicide. KRS 507.010.
[Alssault becomes a companion of homicide since both are so-called
“result” offenses. Bodily injury is the prohibited result of the former and
death is the prohibited result of the latter.
I
R. Lawson, Criminal Law Revision in Kentuckv. Part I -- Homicide and Assault, 58 Ky.
L.J. 242, 263 (1969-70). Thus, a conviction of fourth-degree assault can only be
obtained if the result of the assault is physical injury, not death. KRS 508.030(l).
Hager did not appeal his conviction. However, the Commonwealth requested a
certification of the law with respect to the jury instructions that led to this unusual
verdict. Ky. Const. § 115; CR 76.37(10). We granted certification primarily to address
the issue of how KRS 503.120(l), which defines “imperfect self-defense,” i.e., an act in
self-protection under a mistaken belief in the need therefor, applies to the offenses of
second-degree manslaughter, KRS 507.040, and reckless homicide, KRS 507.050.
However, the instructions in this case contain a number of other errors, all of which will
be addressed in this opinion.
I. THE TRIAL INSTRUCTIONS.
The jury was instructed on all degrees of homicide and on the defense of selfprotection, subject to both the initial aggressor qualification, KRS 503.060(3), and the
imperfect self-defense qualification, KRS 503.120(l). As noted above, the jury was not
instructed on the elements of fourth-degree assault, the offense of which Hager was
ultimately convicted. Instead, the jury was led to its verdict by a series of
interrogatories, or mini-verdicts, which required them to find Hager guilty of fourthdegree assault if they believed that he committed either second-degree manslaughter or
reckless homicide under a recklessly held belief in the need to act in self-protection.
The instructions will be discussed as they were given with the jury’s verdict(s) noted as
they appear on the instructions.
***
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INSTRUCTION NO. 1
The law presumes a defendant to be innocent of a crime, and the
indictment shall not be considered as evidence or as having any weight
against him. If upon the whole case you have a reasonable doubt that the
defendant is guilty, you shall find him not guilty. Any determination made
by you must be unanimous and signed by the foreperson.
AUTHORIZED VERDICTS
(A) NOT GUILTY.
or
(B)
GUILTY, Murder, OR Manslaughter 1st Degree, OR Manslaughter
2nd Degree OR Reckless Homicide OR Assault 4th Degree.
***
That portion of Instruction No. 1 describing the presumption of innocence and
reasonable doubt completely omitted the second sentence of the specimen instruction
set forth in RCr 9.56, a: “You shall find the defendant not guilty unless you are
satisfied from the evidence alone, and beyond a reasonable doubt, that he is guilty.”
Although RCr 9.56 provides that the jury shall be instructed “substantially” as required
by the Rule, an instruction which omits a complete sentence of the specimen instruction
is not in substantial compliance with the Rule.
Instruction No. 1 also failed to instruct the jury on reasonable doubt with respect
to the issue of extreme emotional disturbance. Although not mentioned in RCr 9.56,
that instruction is required when there is evidence authorizing an instruction on extreme
emotional disturbance. Holbrook v. Commonwealth, Ky., 813 S.W.2d 811, 815 (1991)
overruled on other arounds, Elliott v. Commonwealth, Ky., 976 S.W.2d 416 (1998);
Edmonds v. Commonwealth, KY., 586 S.W.2d 24, 27 (1979) overruled on other
arounds, Wellman v. Commonwealth, KY., 694 S.W.2d 696 (1985).
***
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INSTRUCTION NO. IA
FAILURE OF DEFENDANT TO TESTIFY
The Defendant is presumed to be innocent of committing any
crime, and the Commonwealth must prove him guilty beyond a reasonable
doubt.
The Defendant has a right to remain silent and is not compelled to
testify. The fact that he does not testify is not an inference of guilt and
shall not prejudice him in any way.
INSTRUCTION NO. 2
DEFINITIONS
“Serious Physical Injury” -- Means physical injury which creates a
substantial risk of death, or which causes serious and prolonged
disfigurement, prolonged impairment of health, or prolonged loss or
impairment of the functions of any bodily organ.
“Intentionally” -- A defendant acts intentionally with respect to
another’s death or to his serious physical injury when it is his conscious
objective to cause that death or that injury.
“Wantonly” -- A defendant acts wantonly with respect to another’s
injury when he is aware of and consciously disregards a substantial and
unjustifiable risk that injury will occur. In order to be “substantial and
unjustifiable,” the risk of injury must be of such nature and degree that
disregard thereof constitutes a gross departure from the level of conduct
that a reasonable person would observe in the situation.
“Recklessly” -- A defendant acts recklessly with respect to another’s
injury when he fails to perceive a substantial and unjustifiable risk that the
injury will occur. In order to be “substantial and unjustifiable” that risk of
injury must be of such nature and degree that failure to perceive it
constitutes a gross departure from the level of care that a reasonable
person would observe in the situation.
“Extreme Emotional Disturbance” -- Is a temporary state of mind so
enraged, inflamed, or disturbed as to overcome one’s judgment, and to
cause one to act uncontrollably from the impelling force of the extreme
emotional disturbance rather than from evil or malicious purposes. It is
not a mental disease in itself, and an enraged, inflamed, or disturbed
emotional state does not constitute an extreme emotional disturbance
unless there is a reasonable explanation or excuse therefor, the
reasonableness of which is to be determined from the viewpoint of a
person in the defendants situation under circumstances as the defendant
believed them to be.
***
instruction No. 2 attempted to paraphrase the statutory definitions of
“intentionally,” KRS 501.020(l), “wantonly,” KRS 501.020(3), and “recklessly,” KRS
501.020(4). Although the paraphrased definition of “intentionally” substantially complied
with the definition set forth in KRS 501.020(l), the paraphrased definitions of “wantonly”
and “recklessly” purported to apply only to a wanton or reckless injury, whereas the
result element in this case was These definitions could lead a jury to conclude
death.
that the definitions of wantonly and recklessly apply only to assaults and not to
homicides. That is of particular significance here, where the instructions on seconddegree manslaughter and reckless homicide, infra, did not contain language describing
wanton or reckless conduct, but left it to the jury to refer back to the definitions of those
terms in Instruction No. 2.
Further, Instruction No. 2 did not include the definitions of “physical force,” KRS
503.01 O(4), and “deadly physical force,” KRS 503.010(l), which apply to the defense of
self-protection. And if the jury had been instructed on the elements of fourth-degree
assault, Instruction No. 2 also should have included the definition of “physical injury,”
KRS 500.080(13), which is the result element of that offense.
***
INSTRUCTION NO. 3
MURDER
You will find the Defendant guilty under this Instruction if, and only
if, you believe from the evidence beyond a reasonable doubt all of the
following:
A. That in this county on or about December 24, 1998, the
defendant killed John Allen Brown by stabbing him with a knife;
AND
B.
That in so doing:
He caused the death of John Allen Brown intentionally
(1)
and not while acting under the influence of extreme
emotional disturbance;
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Under circumstances manifesting extreme
indifference to human life, he wantonly engaged in
conduct which created a grave risk of death to John
Allen Brown, which did cause his death;
AND
C.
That he was not privileged to act in self-protection.
If you find the Defendant GUILTY under this Instruction, proceed to
Instruction No. 5.
If you find the Defendant NOT GUILTY under this Instruction,
please proceed to Instruction No. 4.
***
Instruction No. 5, to which the jury was directed to proceed upon a finding of guilt
under Instruction No. 3, was the initial aggressor qualification of the defense of selfprotection set forth in Instruction No. 6. The murder instruction properly included the
absence of the privilege to act in self-protection as an element of the offense.’
However, the instruction erroneously required the jury to find the defendant guilty, thus
not to have acted in self-protection, before permitting it to first consider the nature of
self-protection as a defense.
***
INSTRUCTION NO. 4
MANSLAUGHTER IST DEGREE
If you found the Defendant not guilty under Instruction No. 3, you
will find the Defendant guilty under this Instruction if, and only if, you
believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about December 24, 1998, the
Defendant killed John Allen Brown by stabbing him with a knife;
’ Once evidence is introduced which justifies an instruction on self-protection or
any other justification defined in KRS chapter 503, the Commonwealth has the burden
to disprove it beyond a reasonable doubt, and its absence becomes an element of the
offense. KRS 500.070(l), (3) and 1974 Commentary thereto; Brown v.
Commonwealth, Ky., 555 S.W.2d 252, 257 (1977). The burden of proof is assigned by
including as an element of the instruction on the offense “that he was not privileged to
act in self-protection.” E.a., 1 Cooper, Kentuckv Instructions to Juries (Criminal), § 3.21
(4th ed. Anderson 1993).
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I
!
AND
B.
That in so doing:
(1) He intended to cause John Allen Brown’s death;
OR
(2) He was acting with the intention of causing serious
physical injury to John Allen Brown;
AND
C.
That in so doing the Defendant was not privileged to act in
self-protection.
If you find the Defendant GUILTY under this Instruction, proceed to
Instruction No. 5.
If you find the Defendant NOT GUILTY under this Instruction,
please proceed to Instruction No. 7.
Like Instruction No. 3 (Murder), Instruction No. 4 required the jury to find the
defendant guilty, thus not to have acted in self-protection, before permitting it to first
consider the nature of self-protection as a defense.
***
INSTRUCTION NO. 5
INITIAL AGGRESSOR
The defense of self-protection is not available to the Defendant if
you believe based on the evidence beyond a reasonable doubt that he
was the initial aggressor in the use of physical force between him and
John Allen Brown. Unless his initial aggression was not intended to and
did not create a substantial risk of death or serious physical injury to the
victim, and the force returned or threatened by the victim was such as to
cause the defendant to believe himself to be in imminent danger of death
or serious physical injury.
INTERROGATORY NO. 1
Do you believe based on the evidence beyond a reasonable doubt
that the Defendant was the initial aggressor?
YES
NO
FOREPERSON
If you answered “NO,” proceed to Instruction No. 6.
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I
’
If you answered “YES” and have found the Defendant guilty of
Murder or Manslaughter 1st Degree, enter that verdict on the verdict form
and return to the Courtroom.
***
The second sentence of Instruction No. 5 was an incomplete sentence that, in
fact, should have been a clause modifying the first sentence. See KRS 503.060(3)(a);
Cooper, supra note 1, at 3 11.11. Furthermore, the initial aggressor qualification
qualifies the defense of self-protection. The instruction and interrogatory required the
jury to decide the qualification before deciding whether Hager was privileged to act in
self-protection in the first place. Also, the wording of the directions to the jury upon an
answer of “YES” to Interrogatory No. 1 indicated that the jury must already have found
Hager guilty of murder or first-degree manslaughter before considering the defense of
self-protection; yet, if Hager acted in self-protection, he could not be guilty of either
murder or first-degree manslaughter per Instruction Nos. 3 and 4, each of which
included the absence of the privilege to act in self-protection as an element of the
offense.
INSTRUCTION NO. 6
SELF PROTECTION
Even though the Defendant might otherwise be guilty of Murder
under Instruction No. 3, or Manslaughter First Degree under Instruction
No. 4, if at the time the Defendant killed John Allen Brown, he believed
that Brown was then and there about to use physical force upon him, he
was entitled to use such physical force against Brown as he believed
necessary in order to protect himself, except that he was entitled to use
deadly physical force only if he believed it was necessary in order to
protect himself from death or serious physical injury.
However, if you further believe from the evidence beyond a
reasonable doubt that the Defendant was mistaken in his belief that it was
necessary to use physical force against John Allen Brown in self-
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protection, or in his belief in the degree of force necessary to protect
himself,
AND
A. that he knew and disregarded a substantial and unjustifiable risk
that he was mistaken in that belief, and that this was a gross departure
from the level of care that a reasonable person would have observed in
the same situation;
OR
B. that he failed to perceive a substantial and unjustifiable risk that
he was mistaken in that belief, and that this was a gross departure from
the level of care that a reasonable person would have observed in the
same situation, then you shall find him guilty of a lesser offense as
instructed after the following interrogatories:
***
The wording of subparagraph A of Instruction No. 6 with respect to a wantonly
held belief and of subparagraph B with respect to a recklessly held belief deviated in
several respects from the language contained in the statutory definitions of wantonly
and recklessly. KRS 501.020(3)
and (4). See also the discussion regarding Instruction
No. 2, While such deviations from the statutory language might not warrant
supra.
reversal in a particular case, we reiterate what we said in McGuire v. Commonwealth,
KY., 885 S.W.2d 931, 936 (1994) that “[a]11 substantive law related to criminal
responsibility, including general principles of liability, accountability, justification and
responsibility . . . is now statutory, and instructions should be stated within the context of
the statutory framework.”
***
INTERROGATORY NO. 2
Do you believe based on the evidence that the defendant was
acting as he believed necessary to protect himself?
YES
NO
FOREPERSON
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I
’
If you answered “NO” to Interrogatory No. 2, then you shall find the
defendant guilty of Murder under Instruction No. 3 or Manslaughter 1st
Degree under Instruction No. 4, so indicate on the verdict form, and return
to the Courtroom.
If you answered “Yes,” proceed to Interrogatory No. 3.
INTERROGATORY NO. 3
Do you believe based on the evidence that the Defendant was
mistaken in his belief that it was necessary to use deadly physical force in
order to protect himself from death or serious physical injury or in the
degree of force necessary to protect himself from death or serious
physical injury?
YES
NO
FOREPERSON
If “YES” proceed to Interrogatory No. 4.
If “NO” you shall find the Defendant NOT GUILTY and enter your
verdict on the verdict form, Instruction No. 11.
***
While Interrogatory No. 2 tracked the wording of the first paragraph of the selfprotection instruction (Instruction No. 6) Interrogatory No. 3 deviated substantially from
the wording of the second paragraph of that instruction, a: that the Defendant “was
mistaken in his belief that it was necessary to use physical force against John Allen
Brown in self-protection, or in his belief in the degree of force necessary to protect
himself.” If interrogatories are used in criminal instructions,* the wording of each
interrogatory must track the wording of the instruction to which it pertains. Otherwise, it
* While we have not condemned the use of interrogatory instructions in criminal
cases per se, we discourage their use for reasons particularly exemplified by this case.
Interrogatory instructions require the jury to reach a series of mini-verdicts, instead of
one unanimous verdict with respect to the ultimate issue of guilt or innocence.
Requiring, as here, multiple mini-verdicts on interrogatory instructions simply increases
the likelihood of instructional error.
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can only be inferred that the jury’s answer to a particular interrogatory represents its
unanimous verdict on the issue framed by the instruction to which the interrogatory
pertained.
***
INTERROGATORY NO. 4
Do you believe based on the evidence that the Defendant knew
and disregarded a substantial and unjustifiable risk that he was mistaken
in his need to protect himself in (sic) the degree of force necessary to do
so, to such a degree that this was a gross departure from the level of care
that a reasonable person would have observed in the same situation?
YES
NO
FOREPERSON
If “YES” you shall find the Defendant guilty of 2nd Degree
Manslaughter under Instruction No. 7, enter your verdict on the verdict
form and return to the Courtroom.
If “NO,” proceed to Interrogatory No. 5.
***
Interrogatory No. 4 seriously misstated the substantive law of self-protection. By
allowing the jury to consider whether the defendant was “mistaken in his need” for selfprotection, instead of “mistaken in his belief’ in the need for self-protection, the
interrogatory not only did not track the wording of either KRS 503.120(l) or the
instruction on self-protection (Instruction No. 6A), but also directed the jury to evaluate
the defendants need rather than his belief, and thus substituted an objective test for the
subjective one embodied in the statutory scheme. KRS 503.050(l), (2); KRS
503.120(l). “[T]he initial 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, supra, at 419.
-ll-
***
INTERROGATORY NO. 5
Do you believe based on the evidence that the Defendant failed to
perceive a substantial and unjustifiable risk that he was mistaken in his
need to protect himself or in the degree of force necessary to do so to
such a degree that this was a gross departure from the level of care that a
reasonable person would have observed in the same situation?
YES
NO
FOREPERSON
If “YES” you shall find the Defendant GUILTY of Reckless Homicide
under Instruction No. 8, enter your verdict on the Verdict Form and return
to the Courtroom.
If “NO,” you shall find the Defendant NOT GUILTY and enter your
verdict on the Verdict Form and return to the Courtroom.
***
Like Interrogatory No. 4, Interrogatory No. 5 allowed the jury to consider whether
the defendant was “mistaken in his need” for self-protection instead of “mistaken in his
belief’ in the need for self-protection, thus did not track the wording of Instruction No. 6B
to which it pertained, substantially deviated from the language of the statutes, and
substituted an objective test for the subjective one embodied in the statutory scheme.
INSTRUCTION NO. 7
MANSLAUGHTER 2ND DEGREE
If you found the Defendant not guilty under Instruction No. 3 or 4,
you will find the Defendant guilty under this Instruction if, and only if, you
believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about December 24, 1998, the
defendant killed John Allen Brown by stabbing him with a knife;
AND
B. That in so doing, the Defendant was acting wantonly.
If you find the Defendant GUILTY under this Instruction, proceed to
Instruction No. 9.
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I
’
If you find the Defendant NOT GUILTY under this Instruction,
proceed to Instruction No. 8.
***
Instruction No. 7 erroneously permitted the jury to find the defendant guilty of
second-degree manslaughter if it had “found the Defendant not auiltv under Instruction
No. 3 or 4” (emphasis added), implying that he would be eligible for conviction of
second-degree manslaughter if not guilty of one of the two previously described
offenses, but guilty of the other. Obviously, Hager was eligible for conviction of seconddegree manslaughter only if the jury had found him not guilty under both Instruction No.
3 and 4. Compare the language of this instruction with that of Instruction No. 5 of the
specimen recommended instructions set forth infra in this opinion which provides: “If
you do not find the Defendant auilty under either Instruction No. 3 or Instruction
No. 4 . . . .‘I (Emphasis added.)
A more serious error was the failure of Instruction No. 7 to include the absence of
the privilege to act in self-protection as an element of the offense.3
This element was
included in the instructions on murder and first-degree manslaughter; and if Hager was
entitled to the defense of self-protection with respect to those offenses, he was entitled
to the same defense with respect to second-degree manslaughter (and reckless
homicide, infra). Elliott v. Commonwealth, supra. In fact, Instruction No. IO, infra,
purported to describe the defense of self-protection as it applies to second-degree
manslaughter and reckless homicide. Hager was entitled to an instruction on selfprotection with respect to both of those offenses;4
thus, the substantive instruction on
3 See discussion at note 1, supra.
4 Elliott was decided more than a year prior to Hager’s trial.
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I
.
each offense should have included the absence of the privilege to act in self-protection
as an element of the offense.
Finally, like Instruction Nos. 3 and 4 (murder and first-degree manslaughter),
Instruction No. 7 permitted the jury to consider the defense of self-protection only if it
had already found Hager guilty of the offense to which the defense pertained.
***
INSTRUCTION NO. 8
RECKLESS HOMICIDE
If you found the Defendant not guilty under Instruction No. 3, 4, or
7, you will find the Defendant guilty under this Instruction if, and only if,
you believe from the evidence beyond a reasonable doubt all of the
following:
A. That in this county on or about December 24, 1998, the
defendant killed John Allen Brown by stabbing him with a knife;
AND
B. That in so doing, he was acting recklessly.
If you find the Defendant GUILTY under this Instruction, proceed to
Instruction No. 9.
If you find the,Defendant NOT GUILTY under this Instruction,
please proceed to the Verdict Form and indicate your verdict under NOT
GUILTY.
***
Instruction No. 8 contained the same errors as Instruction No. 7, i.e., (1) it
permitted the jury to find Hager guilty of reckless homicide if he had been found not
guilty of one or more of the previously defined offenses, but guilty of another; (2) it
omitted the absence of the privilege to act in self-protection from the elements of the
offense; and (3) it permitted the jury to consider the defense of self-protection only if it
had already found Hager guilty of the offense.
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INSTRUCTION NO. 9
INITIAL AGGRESSOR
The defense of self-protection is not available to the Defendant if
you believe based on the evidence beyond a reasonable doubt that he as
(sic) the initial aggressor in the use of physical force between him and
John Allen Brown. Unless his initial aggression was not intended to and
did not create a substantial risk of death or serious physical injury to the
victim, and the force returned or threatened by the victim was such as to
cause the Defendant to believe himself to be in imminent danger of death
or serious physical injury.
INTERROGATORY NO. 6
Do you believe based on the evidence beyond a reasonable doubt
that the Defendant was the initial aggressor?
YES
NO “J”
IS/
FOREPERSON
If you answered “NO,” proceed to Instruction No. IO.
If you answered “YES” and have found the Defendant guilty of
Manslaughter 2nd Degree or Reckless Homicide, enter that verdict on the
verdict form and return to the Courtroom.
***
Instruction No. 9 and the first Interrogatory No. 6 (the instructions included two
interrogatories designated as “No. 6”) were identical to Instruction No. 5 and
Interrogatory No. 1. The second sentence of the instruction was an incomplete
sentence that, in fact, should have been a clause modifying the first sentence.
Furthermore, the initial aggressor qualification qualifies the defense of self-protection.
Thus, the instruction and interrogatory required the jury to decide the qualification
before considering whether the defendant acted in self-protection in the first place.
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(The fact that the jury answered this Interrogatory No. 6 indicates that they had
already found Hager guilty of either second-degree manslaughter or reckless homicide,
though we will never know which.)
INSTRUCTION NO. IO
SELF-PROTECTION
Even though the Defendant might otherwise be guilty of
Manslaughter 2nd Degree under Instruction No. 7, or Reckless Homicide
under Instruction No. 8, if at the time the Defendant killed John Allen
Brown, he believed that Brown was then and there about to use physical
force upon him, he was entitled to use such physical force against Brown
as he believed necessary in order to protect himself, except that he was
entitled to use deadly physical force only if he believed it was necessary in
order to protect himself from death or serious physical injury.
However, if you further believe from the evidence beyond a
reasonable doubt that the Defendant was mistaken in his belief that it was
necessary to use physical force against John Allen Brown in selfprotection, or in his belief in the degree of force necessary to protect
himself,
AND
A. That he knew and disregarded a substantial and unjustifiable
risk that he was mistaken in that belief, and that this was a gross
departure from the level of care that a reasonable person would have
observed in the same situation;
OR
B. That he failed to perceive a substantial and unjustifiable risk that
he was mistaken in that belief, and that this was a gross departure from
the level of care that a reasonable person would have observed in the
same situation, then you shall find him guilty of a lesser offense as
instructed after the following interrogatories:
***
Instruction No. 10 was identical to Instruction No. 6, except that it applied the
defense of self-protection to second-degree manslaughter and reckless homicide rather
than murder and first-degree manslaughter. As in Instruction No. 6, the language used
in subparagraph A with respect to a wantonly held belief and in subparagraph B with
respect to a recklessly held belief deviated in several respects from the language
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contained in the statutory definitions of wantonly and recklessly. KRS 501.020(3) and
(4). Regardless, as will be discussed more fully infra, subparagraph A should have
been omitted in its entirety, because a wantonly held belief in the need to act in selfprotection provides no defense to a charge of either second-degree manslaughter or
reckless homicide.
***
INTERROGATORY NO. 6
Do you believe based on the evidence that the Defendant was
acting as he believed necessary to protect himself?
YES “J”
N
O
/S/
FOREPERSON
If you answered “NO” to Interrogatory No. 6, then you shall find the
defendant guilty of Manslaughter 2nd Degree under Instruction No. 7 or
Reckless Homicide under Instruction No. 8, so indicate on the verdict
form, and return to the Courtroom.
If you answered “Yes,” proceed to Interrogatory No. 7.
INTERROGATORY NO. 7
Do you believe based on the evidence that the Defendant was
mistaken in his belief that it was necessary to use deadly physical force in
order to protect himself from death or serious physical injury or in the
degree of force necessary to protect himself from death or serious
physical injury.
Y E S
“v”’
NOISI
If “YES” proceed to Interrogatory No. 8.
If “NO” you shall find the Defendant NOT GUILTY and enter your
verdict on the verdict form.
***
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i
This second Interrogatory No. 6 and Interrogatory No. 7 were almost identical to
Interrogatory Nos. 2 and 3. Thus, while the language of the second Interrogatory No. 6
tracked the wording of the first paragraph of Instruction No. 10, the self-protection
instruction to which it pertained, the language of Interrogatory No. 7 deviated
substantially from the wording of the second paragraph of that instruction, i.e., that the
Defendant “was mistaken in his belief that it was necessary to use physical force
against John Allen Brown in self-protection, or in his belief in the degree of force
necessary to protect himself.”
***
INTERROGATORY NO. 8
Do you believe based on the evidence that the Defendant knew
and disregarded a substantial and unjustifiable risk that he was mistaken
in his need to protect himself in the degree of force necessary to do so, to
such a degree that this was a gross departure from the level of care that a
reasonable person would have observed in the same situation?
YES -
N O
“J”
IS/
FOREPERSON
If “YES” you shall find the Defendant guilty of Reckless Homicide
under Instruction No. 8, enter your verdict on the verdict form and return to
the Courtroom.
If “NO,” proceed to Interrogatory No. 9.
***
Like Interrogatory No. 4, the language of Interrogatory No. 8 did not track the
wording of Instruction No. IOA to which it pertained and substantially misstated the law
of self-protection by directing the jury to evaluate the defendant’s “need” rather than his
“belief.” Interrogatory No. 8 also erroneously directed the jury that if its answer to the
interrogatory was “Yes,” it “shall find the Defendant guilty of Reckless Homicide.”
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Remember, at this point in the instructions, the jury had already found Hager guilty of
either second-degree manslaughter or reckless homicide, though we do not know
which. The wording of Interrogatory No. 8 tracked the language of the definition of
“wantonly,” KRS 501.020(3), not “recklessly,” KRS 501.020(4). Thus, under that
interrogatory, a wanton belief in the need for self-protection would result in a conviction
of reckless homicide, regardless of whether the defendants mens rea with respect to
the result of his conduct was wanton (second-degree manslaughter) or reckless
(reckless homicide). As will be discussed more fully infra, a wantonly held belief in the
need to act in self-protection provides no defense to a charge of either second-degree
manslaughter or reckless homicide. If the jury has found that the defendant otherwise
committed reckless homicide, a wanton belief in the need to act in self-protection does
not elevate that offense to second-degree manslaughter; and if the jury has found that
the defendant otherwise committed second-degree manslaughter, a wanton belief in the
need to act in self-protection does not reduce that offense to reckless homicide, which
requires a mens rea of recklessness, not wantonness.
***
INTERROGATORY NO. 9
Do you believe based on the evidence that the Defendant failed to
perceive a substantial and unjustifiable risk that he was mistaken in his
need to protect himself or in the degree of force necessary to do so to
such a degree that this was a gross departure from the level of care that a
reasonable person would have observed in the same situation?
Y E S
“J”
NO/S/
-19-
If “YES,” you shall find the Defendant guilty of Assault 4th Degree
and fix his punishment at up to twelve (12) months in jail and/or a $500
fine, and enter your verdict on the verdict form.
If “NO,” you shall find the Defendant NOT GUILTY and enter that
finding on the verdict form.
INSTRUCTION NO. II
VERDICT FORM
The verdict of the jury must be unanimous and be signed by one of
you as Foreperson. You may use the form provided below in writing your
verdict.
(a) We the jury find the Defendant NOT GUILTY.
FOREPERSON
OR
(b) We the jury find the Defendant GUILTY under Instruction
No . -. (Use this form if you find the Defendant guilty under Instruction
No. 3,4, 7 or 8.)
FOREPERSON
OR
(c) We the jury find the Defendant GUILTY of Assault 4th Degree
and fix his punishment at “12 months in iail and a 500.00 (sic) fine.”
IS/
FOREPERSON
***
Even if fourth-degree assault were a lesser included offense of reckless homicide
(which it is not), Instruction No. 9 erroneously permitted the jury to find Hager guilty of
that offense without having found that the elements of that offense had been proven
beyond a reasonable doubt. Appellee asserts that evidence of a wantonly or recklessly
held belief in the need to act in self-protection always requires an instruction on a lesser
-2o-
offense even if the elements of the lesser offense do not fall within the facts of the case.
KRS 503.120(l) does not so provide.
II. THE “WANTON OR RECKLESS BELIEF” QUALIFICATION.
We note at the outset that a mistaken belief in the need to act in self-protection
does not affect the privilege to act in self-protection unless the mistaken belief is so
unreasonably held as to rise to the level of wantonness or recklessness with respect to
the circumstance then being encountered by the defendant. Elliott v. Commonwealth,
supra, 503.120(l)
K R S at 420.
provides as follows:
When the defendant believes that the use of force upon or toward
the person of another is necessary for any of the purposes for which such
belief would establish a justification under KRS 503.050 to 503.110 but the
defendant is wanton or reckless in believing the use of any force, or the
degree of force used, to be necessary or in acquiring or failing to acquire
any knowledge or belief which is material to the justifiability of his use of
force, the justification afforded by those sections is unavailable in a
prosecution for an offense for which wantonness or recklessness, as the
cake m suffices to establish s
( E
be. p h a s i
culpability.d d e d . )
a
The statute first recognizes that all KRS 503 justifications, including selfprotection, 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. Elliott, supra, at 419. Secondly, 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. Id. at 420. If so, the statute provides that the justification, e.a., selfprotection, is unavailable as a defense to an offense having the mens rea element of
wantonness, m, second-degree manslaughter, or recklessness, m, reckless
homicide, “as the case may be.”
-21-
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 a defense to an offense
requiring either intent or wantonness, it supplies the element of recklessness necessary
to convict of reckless homicide. Shannon v. Commonwealth, Ky., 767 S.W.2d
548, 548-
51 (1988) (“Shannon, Part I”) held that an intentional homicide (or assault) committed
under a wanton or reckless belief in the need to act in self-protection results in a
conviction of a lesser offense having wantonness or recklessness as the culpable
mental state. Specifically, murder or first-degree manslaughter is reduced to seconddegree manslaughter by a wantonly held belief or to reckless homicide by a recklessly
held belief.
However, we have not previously addressed how KRS 503.120(l) affects the
defense of self-protection when asserted as a defense to an offense having wantonness
or recklessness as the culpable mental state. Shannon did not address how the statute
would affect an unintentional homicide (or assault), because Shannon at 551-53
(“Shannon. Part II”) held that self-protection could never be a defense to an
unintentional crime. In Elliott. supra, we overruled Shannon. Part II and held that selfprotection was available as a defense to an offense predicated on wantonness or
recklessness, but did not address the effect of KRS 503.120(l) on a claim of selfprotection in that context, because it was not asserted in Elliott that the defendant was
mistaken in his belief that he needed to act in self-protection. Footnote 3 at page 420 of
Elliott restates the holding of Shannon, Part I and further points out that any actual belief
in the need for self-protection, even if wantonly or recklessly held, also precludes a
-22-
conviction of wanton murder, because such a belief negates the aggravating element of
“extreme indifference to the value of human life” and thereby reduces the offense, if the
belief was wantonly held, to an unaggravated wanton homicide, i.e., second-degree
manslaughter, or, if the belief was recklessly held, to reckless homicide. The footnote
did not address the fact that a wantonly held belief negates the defense of selfprotection if asserted as a defense to second-degree manslaughter, and that a
recklessly held belief negates the defense of self-protection if asserted as a defense to
reckless homicide, because both of those propositions are clearly stated in the last
clause of KRS 503.120(l).
The statute does not provide that a wantonly or recklessly held belief in the need
to act in self-protection always reduces a primary offense to a lesser included offense.
It provides that an act in self-protection committed under a wantonly held belief is no
defense to an offense predtcated on wantonness, and that an act in self-protection
committed under a recklessly held belief is no defense to an offense predicated on
recklessness. It also follows that an act in self-protection committed under a wantonly
held belief does not elevate an offense predicated on recklessness, m, reckless
homicide, to a greater offense, m, second-degree manslaughter. Thus, the fact that
the fatal conduct was committed under a wantonly held belief in the need therefor
provides no defense to a charge of either second-degree manslaughter or reckless
homicide; and the fact that the fatal conduct was committed under a recklessly held
belief in the need therefor reduces a charge of second-degree manslaughter to reckless
homicide, but provides no defense to a charge of reckless homicide.
-23-
The following outline explains how an act committed under a mistaken belief in
the need to act in self-protection affects the various degrees of homicide:5
1.
Intentional murder or first-dearee manslauahter.
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 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.
i
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
5 The same analysis would apply to the various degrees of assault.
-24-
second-degree manslaughter, but is unavailable as a defense to recklessness, the
mens rea element of reckless homicide.
3.
Second-degree manslauahter.
a.
Actual belief not wantonly or recklessly held = acquittal.
b.
Wanton belief = second-degree manslaughter, because 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 wantonness, the mens rea element of second-degree manslaughter, but is
unavailable as a defense to recklessness, the mens rea element of reckless homicide.
4.
Reckless homicide.
a.
Actual belief not wantonly or recklessly held = acquittal.
b.
Wanton or reckless belief = reckless homicide, because a wanton
belief could not elevate an offense with a mens rea element of recklessness to a higher
offense, i.e. second-degree manslaughter, and a reckless belief makes self-protection
unavailable as a defense to recklessness, the mens rea element of reckless homicide.
III. SPECIMEN RECOMMENDED INSTRUCTIONS.
In view of the foregoing, the proper instructions in this case would have been
substantially as follows:
INSTRUCTION NO. 1
AUTHORIZED VERDICTS
You shall find the Defendant not guilty under these Instructions unless you
believe from the evidence beyond a reasonable doubt that he is guilty of one of the
following offenses:
A. Murder under Instruction No. 3;
OR
-25
B. First-degree manslaughter under Instruction No. 4;
OR
C. Second-degree manslaughter under instruction No. 5 or Instruction
No. 78(2);
OR
D. Reckless homicide under Instruction No. 6 or Instruction No. 7B(l).
INSTRUCTION NO. 2
DEFINITIONS
Intentionally--A person acts intentionally with respect to a result or
to conduct when his conscious objective is to cause that result or to
engage in that conduct.
Wantonly--A person acts wantonly with respect to a result or to a
circumstance when he is aware of and consciously disregards a
substantial and unjustifiable risk that the result will occur or that the
circumstance exists. The risk must be of such nature and degree that
disregard thereof constitutes a gross deviation from the standard of
conduct that a reasonable person would observe in the situation.
Recklessly--A person acts recklessly with respect to a result or to a
circumstance when he fails to perceive a substantial and unjustifiable risk
that the result will occur or that the circumstance exists. The risk must be
of such nature and degree that failure to perceive it constitutes a gross
deviation from the standard of care that a reasonable person would
observe in the situation.
Extreme Emotional Disturbance--Is a temporary state of mind so
enraged, inflamed, or disturbed as to overcome one’s judgment, and to
cause one to act uncontrollably from the impelling force of the extreme
emotional disturbance rather than from evil or malicious purposes. It is
not a mental disease in itself, and an enraged, inflamed, or disturbed
emotional state does not constitute an extreme emotional disturbance
unless there is a reasonable explanation or excuse therefor, the
reasonableness of which is to be determined from the viewpoint of a
person in the Defendant’s situation under circumstances as the Defendant
believed them to be.
Serious Physical Injury--Means physical injury which creates a
substantial risk of death, or which causes serious and prolonged
disfigurement, prolonged impairment of health, or prolonged loss or
impairment of the function of any bodily organ.
Physical Force--Means force used upon or directed toward the
body of another person.
Deadly Physical Force--Means force which is used for the purpose
of causing death or serious physical injury or which the Defendant knows
to create a substantial risk of causing death or serious physical injury.
-26-
INSTRUCTION NO.3
MURDER
You will find the Defendant guilty of Murder under this Instruction if,
and only if, you believe from the evidence beyond a reasonable doubt all
of the following:
A. That in this county on or about December 24, 1998 and before
the finding of the Indictment herein, he killed John Allen Brown by
stabbing him with a knife;
AND
B.
That in so doing:
(1) He caused the death of John Allen Brown intentionally
and not while acting under the influence of extreme emotional
disturbance;
E He was wantonly engaging in conduct which created a
grave risk of death to another and thereby caused the death of
John Allen Brown under circumstances manifesting an extreme
indifference to human life.
AND
C. That he was not privileged to act in self-protection.
INSTRUCTION NO. 4
FIRST-DEGREE MANSLAUGHTER
If you do not find the Defendant guilty of Murder under Instruction
No. 3, you will find the Defendant guilty of First-Degree Manslaughter
under this Instruction if, and only if, you believe from the evidence beyond
a reasonable doubt all of the following:
A.
That in this county on or about December 24, 1998 and
before the finding of the Indictment herein, he killed John Allen Brown by
stabbing him with a knife;
AND
B.
That in so doing:
(1) He intended to cause the death of John Allen Brown;
OR
(2) He did not intend to kill John Allen Brown, but intended
to cause serious physical injury to John Allen Brown;
AND
C. That he was not privileged to act in self-protection.
INSTRUCTION NO. 5
SECOND-DEGREE MANSLAUGHTER
If you do not find the Defendant guilty under either Instruction No. 3
or Instruction No. 4, you will find the Defendant guilty of Second-Degree
-27-
I
’
Manslaughter under this Instruction if, and only if, you believe from the
evidence beyond a reasonable doubt all of the following:
A. That in this county on or about December 24, 1998 and before
the finding of the Indictment herein, he killed John Allen Brown by
stabbing him with a knife;
AND
B. That in so doing, he was acting wantonly as that term is defined
in Instruction No. 2.
AND
C. That he was not privileged to act in self-protection.
INSTRUCTION NO. 6
RECKLESS HOMICIDE
If you do not find the Defendant guilty under Instruction No. 3 or
Instruction No. 4 or Instruction No. 5, you will find the Defendant guilty of
Reckless Homicide under this Instruction if, and only if, you believe from
the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about December 24, 1998, and before
the finding of the Indictment herein, he killed John Allen Brown by
stabbing him with a knife;
AND
B. That in so doing, he was acting recklessly as that term is
defined in Instruction No. 2.
AND
C. That he was not privileged to act in self-protection.
INSTRUCTION NO. 7
SELF-PROTECTION
Even though the Defendant might otherwise be guilty of an offense
described in Instruction No. 3,4, 5, or 6, if at the time the Defendant killed
John Allen Brown (if he did so), he believed that John Allen Brown was
then and there about to use physical force upon him, he was privileged to
use such physical force against John Allen Brown as he believed to be
necessary in order to protect himself against it, but including the right to
use deadly physical force in so doing only if he believed it to be necessary
in order to protect himself from death or serious physical injury at the
hands of John Allen Brown.
A.
INITIAL AGGRESSOR QUALIFICATION:
Provided, however, if you believe from the evidence beyond
a reasonable doubt that the Defendant was the initial aggressor in the use
of physical force, the defense of self-protection is not available to him,
unless:
(1) He did not initially intend to cause death or serious
physical injury to John Allen Brown and his initial physical force was not
-28-
such that he thereby created and knew he was creating a substantial risk
of death or serious physical injury to John Allen Brown;
AND
(2) The force returned or threatened by John Allen Brown
was such that the Defendant believed himself to be in imminent danger of
death or serious physical injury.
B.
WANTON OR RECKLESS BELIEF QUALIFICATION:
Provided further, however, if you believe from the evidence
beyond a reasonable doubt that the Defendant was mistaken in his belief
that it was necessary to use physical force against John Allen Brown in
self-protection, or in his belief in the degree of force necessary to protect
himself,
AND
(1) That when he killed John Allen Brown, he failed to
perceive a substantial and unjustifiable risk that he was mistaken in that
belief, and that his failure to perceive that risk constituted a gross
deviation from the standard of care that a reasonable person would have
observed in the same situation, then, if you would otherwise find the
Defendant guilty of Murder under Instruction No. 3, or First-Degree
Manslaughter under Instruction No. 4, or Second-Degree Manslaughter
under Instruction No. 5, you shall not find him guilty of that offense, but
shall instead find him guilty of Reckless Homicide under this Instruction
No. 7B(l) and so state in your verdict;
OR
(2) That when he killed John Allen Brown, he was aware of and
consciously disregarded a substantial and unjustifiable risk that he was mistaken
in that belief, and that his disregard of that risk constituted a gross deviation from
the standard of care that a reasonable person would have observed in the same
situation, then if you would otherwise find the Defendant guilty of Murder under
Instruction No. 3, or First-Degree Manslaughter under Instruction No. 4, you shall
not find him guilty of that offense, but shall instead find him guilty of SecondDegree Manslaughter under this Instruction No. 7B(2) and so state in your
verdict.
INSTRUCTION NO. 8
PRESUMPTION OF INNOCENCE
A. The law presumes a defendant to be innocent of a crime and
the Indictment shall not be considered as evidence or as having any
weight against him. You shall find the Defendant not guilty unless you are
satisfied from the evidence alone and beyond a reasonable doubt that he
is guilty. If upon the whole case you have a reasonable doubt that he is
guilty, you shall find him not guilty.
B. If you believe from the evidence beyond a reasonable doubt that
the Defendant would be guilty of intentional Murder under Instruction No.
3B(l), except that you have a reasonable doubt as to whether at the time
he killed John Allen Brown, he was or was not acting under the influence
-29-
I
”
of extreme emotional disturbance, you shall not find the Defendant guilty
of Murder under Instruction No. 3B(l), but shall find him guilty of FirstDegree Manslaughter under Instruction No. 4B(l).
INSTRUCTION NO. 9
RIGHT TO REMAIN SILENT
A defendant is not compelled to testify and the fact that the
Defendant did not testify in this case cannot be used as an inference of
guilt and should not prejudice him in any way.
INSTRUCTION NO. IO
VERDICT
The verdict of the jury must be in writing, must be unanimous and
must be signed by one of you as foreman.
This d a y o f
JUDGE
FORM VERDICTS
NO. 1
We, the jury, find the Defendant not guilty.
FOREPERSON
NO. 2
We, the jury, find the Defendant guilty of
under Instruction No. .
FOREPERSON
The law is so certified.
Lambert, C.J., Graves, Johnstone and Wintersheimer, JJ., concur. Keller, J.,
concurs by separate opinion in which Stumbo, J., joins.
-3o-
COUNSEL FOR APPELLANT:
Raymond Larson
Commonwealth Attorney
Suite 600
116 North Upper Street
Lexington, KY 40507
Margaret E. Bruner
Amanda Foley Naish
Assistant Commonwealth Attorneys
Suite 300
116 North Upper Street
Lexington, KY 40507
COUNSEL FOR APPELLEE:
V. Gene Lewter
Herbert T. West
Fayette Co. Legal Aid, Inc.
111 Church Street
Lexington, KY 40507
-31-
I
RENDERED: JANUARY 252001
TO BE PUBLISHED
1999-SC-IO 18-CL
COMMONWEALTH OF KENTUCKY
V.
APPELLANT
CERTIFICATION OF THE LAW FROM
FAYETTE CIRCUIT COURT
99-CR-267
WILLIAM THOMAS HAGER, JR.
APPELLEE
CONCURRING OPINION BY JUSTICE KELLER
This matter is before the Court on the Commonwealth’s motion for certification of
a question of law pursuant to Kentucky Constitution § 115’ and Civil Rule 76.37(10).2 In
accordance with CR 76.37’s procedural requirement that such motion set forth “[t]he
questions of law to be answered,‘13 the Commonwealth stated:
“‘In all cases, civil and criminal, there shall be allowed as a matter of right at
least one appeal to another court, except that the commonwealth may not appeal from
a judgment of acquittal in a criminal case, other than for the purpose of securing a
certification of law . . . .‘I Ky. Const. § 115.
*“A request by the Commonwealth of Kentucky pursuant to Section 115 of the
Constitution of Kentucky shall be initiated in the Supreme Court. The request shall be
initiated within thirty (30) days of a final order adverse to the Commonwealth. The
Commonwealth shall initiate the certification procedure by motion requesting the
Supreme Court to accept the question(s) for review. . . .‘I CR 76.37(10).
3ti CR 76.37(10) (“The motion shall contain the same elements as provided in
this Rule, Section (3) for a certification order.” Id.); CR 76.37(3) (“A certification order
(continued...)
The question of law to be answered is whether an instruction
on Assault Fourth Degree was properly given as a “lesser
included offense” in the jury trial of Commonwealth v.
William Haaer, Jr., Case No. 99CR267, wherein the
Defendant was tried by the jury for Murder, KRS 507.020.
Accordingly, the sole argument raised by the Commonwealth in its brief reads: “The
Respondent was not entitled to an instruction of Assault in the Fourth Degree where the
evidence was undisputed that the victim was deceased.”
As the evidence submitted at Hager’s trial for murder required the trial court to
instruct the jury regarding both self-defense and lesser included, unintentional homicide
crimes, this Court granted certification in order to eliminate the confusion resulting from
4
Elliott v. Commonwealth by clarifying how KRS 503.120(l) applies to the offenses of
second degree manslaughter and reckless homicide.’ Although the scope of the
opinion would suggest otherwise, we did not grant certification to engage in a “top-to6
bottom” review of all the jury instructions given in the case.
Approximately two-thirds
of the majority opinion criticizes alleged deficiencies in the instructions which were not
even briefed by the parties and which are unrelated to either the narrow question
shall set forth (a) The questions of law to be answered.” Id.).
4Ky., 976 S.W.2d 416 (1998).
‘The parties in this case acknowledge that the KRS 503.120 issue is intertwined
with the question framed for certification: “The Commonwealth also requests that the
Court set forth how the erroneous belief qualification should be applied to the crime of
reckless homicide.” Brief for Movant at 7.
6The majority, without any request for certification, ruminates upon topics such
as: the quality of instructions regarding the presumption of innocence; the breadth of
terms to be defined within a separate instruction for definitions; the sequence in which
instructions should be presented; the use of interrogatories, and the trial court’s
grammar.
-2-
framed for certification or the ancillary KRS 503.120(l) issue.
Because I can see no
legitimate reason for this needless criticism, I write separately.
In the first two paragraphs of its opinion, the majority fully and correctly answers
the certified question: “[A] conviction of fourth-degree assault can only be obtained if
the result of the assault is physical injury, not death.“’ After focusing upon unrelated
instructions for the bulk of the opinion, the majority returns to an issue before us in
Section II and explains how KRS 503.120(l) applies to the offenses of second degree
manslaughter and reckless homicide. Although I have few substantive objections to the
majority’s analysis of the issues actually before this Court, I strongly object to the
remaining portion of the majority opinion, which I can only rationalize as the majority’s
attempt to characterize the verdict in this case as a result of trial court error.
If the
purpose of this opinion is to allocate fault, I submit that this Court should accept its
share.
It was this Court’s failure to adequately address the issues before it in Elliott
which requires us now to answer the questions we should have answered over two
years ago.8
At Hager’s trial, the judge and all of the attorneys recognized that Elliott
‘ M a j o r i t y O p i n i o n a t S.W.3d -
-
*Although the majority asserts that this Court “has not specifically addressed how
KRS 503.120(l) affects the defense of self-protection when asserted as a defense to
an offense having wantonness or recklessness as a culpable mental state . . . because
it was not asserted in Elliott that the defendant was mistaken in his belief that he
the evidence
needed to act in self protection,” Majority Opinion at S.W.3d ,
in Elliott, an appeal from a conviction and indictment for reckless homicide,
unquestionably raised an issue of whether Elliott reasonably believed “the degree of
force used” was necessary: “There was evidence that Appellant then stomped [the
victim], kicked him in the head, and otherwise beat him in excess of that necessary for
his own self-protection.” Elliott v. Commonwealth, Ky., 976 S.W.2d 416, 418 (1998).
KRS 503.120, on its face, applies to wanton or reckless beliefs regarding “the degree of
(continued...)
-3-
should govern the issue before them.g
After turning to Elliott, however, everyone
remained confused about one important question: What crime does a defendant who
would otherwise be guilty of reckless homicide commit when he acts pursuant to a
recklessly erroneous belief in his need for self-protection?
I believe the trial court was
unable to make this determination largely because this Court avoided this exact
question in Elliott and, instead, unrealistically expected the trial courts of the
Commonwealth to deduce the “correct” result without any precedential analysis which
would allow them to do so.” This Court, therefore, shares the blame for the result in
this case.
I write separately also to offer a suggestion which I believe would improve Form
Verdict No. 2 as set out in the majority opinion. Although the majority opinion does not
discuss the evidence introduced at trial in this case, it is important to note that the
evidence would have supported a verdict of either intentional or wanton murder.”
Accordingly, the trial court could properly combine both theories in one instruction. In
another case where the evidence supports only intentional murder or only wanton
*(...continued)
force used.” KRS 503.120. Nonetheless, this Court reversed and remanded Elliott
without instructing the trial court as to how it should instruct the jury with regard to the
erroneous belief qualification upon retrial of this reckless homicide charge. In the
infamous footnote 3, however, this Court was kind enough to explain the effect of a
recklessly erroneous belief in the need for self protection upon every other degree of
criminal homicide.
‘The video trial record is clear on this point, and the attorneys and trial judge
actually take turns reading the Elliott opinion on videotape.
“In fact, it appears the trial court attempted to apply the scant analysis contained
in Elliott’s footnote 3 as it searched for a crime to which reckless homicide could be
“reduced.”
“The evidence also supported both theories for first-degree manslaughter, and
they were also combined in one instruction.
-4-
murder, however, the murder instruction should include only the theory justified by the
evidence. Because jury verdicts must be unanimous, combination instructions increase
the risk of reversible error. In fact, this Court has reversed convictions in combination
instruction cases where the instructions submit a theory not justified by the evidence
and the jury’s verdict does not indicate the theory upon which it found the defendant
guilty.‘* A verdict form similar to the following can reduce this risk:
We, the jury, find the defendant guilty of
under Instruction No. -. [MURDER under Instruction No.
3B(l) or 3B(2); FIRST-DEGREE MANSLAUGHTER under
Instruction No. 4B( 1) or 4B(2); SECOND-DEGREE
MANSLAUGHTER under Instruction No. 5 or 78(2); or
RECKLESS HOMICIDE under Instruction No.6 or 7B(l)]
FOREPERSON
Stumbo, J., joins this concurring opinion.
“a Barbour v. Commonwealth, Ky., 824 S.W.2d 861 (1992); Ice v.
Commonwealth, Ky., 667 S.W.2d 671 (1984); Haves v. Commonwealth, Ky., 625
S.W.2d 583 (1981).
-5
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