ON REVIEW FROM COURT OF APPEALS CASE NO. 2009-CA-000463-MR BULLITT CIRCUIT COURT NO. 08-CR-00185
COUNSEL FOR APPELLANT/ CROSS-APPELLEE: Jack Conway Attorney General of Kentucky, James Coleman Shackelford Assistant Attorney General
COUNSEL FOR APPELLEE/CROSS-APPELLANT: Sarah Bash Brian, G. Murray Turner, Turner, Coombs & Malone, PLLC
Appellee/Cross-Appellant, Janice R. Hasch (Appellee) was indicted for murder and tried in the Bullitt Circuit Court for the shooting death of her husband, Jerald Hasch, in April 2008. Appellee admitted that she killed her husband but claimed that she was acting in self-defense. The jury acquitted her of the murder charge but found her guilty of the lesser offense of reckless homicide and sentenced her to two years' imprisonment. She appealed. The Court of Appeals concluded that the evidence was not sufficient to sustain a reckless homicide conviction. It concluded that the trial court had erred by instructing the jury on that offense, and accordingly it reversed the conviction.
We granted the Commonwealth's motion for discretionary review to consider, inter alia, whether the reckless homicide instruction was properly given in this case, in light of the 2006 revisions of KRS Chapter 503 codifying a form of the common law "no duty to retreat" rule, and whether evidence that Appellee could have retreated or escaped from the incident without resorting to deadly force was properly admitted into evidence as a factor for the jury to consider in determining the reasonableness of her belief. For the reasons set forth below, we reverse the Court of Appeals and reinstate the judgment of the Bullitt Circuit Court. We also review issues raised by Appellee on cross-appeal, which because of its disposition of the case, the Court of Appeals declined to address.
I. FACTUAL AND PROCEDURAL BACKGROUND
The central issue before this Court arises out of the Commonwealth's contentions that Appellee's reckless homicide conviction was supported by the evidence and that the Court of Appeals erred by concluding otherwise. Appellee argued at trial and on appeal that the only verdicts that could be sustained by the evidence were guilty of murder or an acquittal based upon the theory that she acted in self-defense.
Appellee and her husband, Jerald Hasch, had endured several incidents of marital discord, including at least two calls to law enforcement officials for emergency assistance. Appellee claimed that on a number of occasions Jerald had hit her and inflicted physical injury upon her. The final altercation occurred on April 14, 2008, when Appellee reported to the 911 operator that she had shot her husband and needed advice on what to do to keep him alive until emergency medical personnel arrived. Whatever effort she rendered to save him proved to be ineffective. Jerald died from the gunshot that struck him between his eyes.
As a result of the shooting, Appellee was charged with murder. The only direct evidence of the events leading up to the shooting came from Appellee's trial testimony and from earlier statements that she made to police during their investigation of the shooting. According to that evidence, Appellee was cleaning and organizing a bedroom closet when she found a small caliber handgun that Jerald had misplaced. She took the gun, still in its case, into the living room to show Jerald that she had found it. Appellee testified that Jerald suddenly became angry and demanded to have possession of the gun. Appellee refused, fearing that if he got the gun he would use it to harm her. Jerald lunged toward her aggressively and pushed her down as he tried to grab the gun from her hand. They struggled about the house, from the living room and into the kitchen, until Appellee backed herself into the bedroom and shut the door. Jerald, who was still unarmed, forced the bedroom door open and continued his effort to get the gun. Appellee continued to resist his demand. According to Appellee, Jerald finally taunted her by saying that if she intended to use the gun against him, "you better put it between my eyes and shoot me." He moved toward her in a threatening manner, causing her to believe that he intended to kill her. She backed away from him and removed the gun from its case. She inserted the magazine and pointed the weapon toward Jerald. She then closed her eyes because "she could not bear to think of what was about to happen, " and she fired the gun.
The bullet struck Jerald's face between the eyes from a distance of less than twenty-four inches. Appellee is an experienced marksman. She and the Commonwealth both agree, and the evidence is undisputed, that she intended to shoot Jerald when she pulled the trigger. Appellee claims, however, that she acted in self-defense but without a specific intention to kill him.
The police looking about the house saw no evidence of the kind of struggle that Appellee described, casting doubt upon her story. At trial, the Commonwealth's theory was that no physical struggle had occurred, that Appellee did not believe she was in danger of physical harm from Jerald, and that she intentionally killed Jerald by shooting him in the face at close range.
Shortly after the shooting, and in response to intense questioning by a police detective, Appellee acknowledged that instead of shooting Jerald, she "could have gone out the door, " and that she "could have left [the house]" as she had done during previous altercations. These statements were admitted at trial over her objection. In her trial testimony, Appellee attempted to clarify the statement by saying that she meant that she could have left the house before Jerald became angry, but not immediately before the shooting. She testified that by the time the fray reached the point at which she believed she was in imminent danger, she had backed into the bedroom and Jerald was blocking her path to the door. She testified that "he would never let me leave again." The Commonwealth argued at trial that this evidence was relevant because Appellee's conscious decision to bypass a route of escape and stay in her home indicated that she knew at the time of the shooting that deadly force was not necessary.
At the close of all the evidence, and after the trial court denied her motion for a directed verdict of acquittal, Appellee argued to the trial court that the evidence did not support an instruction on any of the lesser homicide offenses. She insisted the only verdicts that could be sustained under the evidence were guilty of murder or not guilty by reason of self-protection. Nevertheless, the trial court instructed upon the full range of homicide offenses: specifically, intentional and wanton murder (KRS 507.020) with the self-protection defense and the wanton/reckless belief (imperfect self-defense) qualification; first-degree manslaughter (KRS 507.030); second-degree manslaughter (KRS 507.040); and reckless homicide (KRS 507.050). Within the self-protection instruction, the trial court provided the jury with the following "no duty to retreat" instruction, based upon KRS 503.055(3):
You are further instructed that if Janice Hasch was not engaged in unlawful activity and was in a place where she had a right to be, then she had no duty to retreat from Jerry Hasch and had the right to stand her ground and meet force with force, including deadly physical force if she reasonably believed it was necessary to prevent death or serious bodily harm to herself.
As indicated by the signature of the jury's foreperson on each individual verdict form, the jury expressly acquitted Appellee of murder, first-degree manslaughter, and second-degree manslaughter. The jury found her guilty of reckless homicide and her sentence was fixed at two years' imprisonment. On appeal, the Court of Appeals concluded that the evidence did not support the lesser offense of reckless homicide and so it reversed the conviction. We reverse the Court of Appeals and reinstate the trial court's judgment convicting Appellee of reckless homicide and imposing a two-year term of imprisonment.
We begin our review with the Commonwealth's contention that the Court of Appeals erred in its conclusion that the evidence failed to support the charge of reckless homicide.
II. THE EVIDENCE SUPPORTED APPELLEE'S CONVICTION FOR RECKLESS HOMICIDE UNDER THE IMPERFECT SELF-DEFENSE THEORY
A. The Alternate Theories of Reckless Homicide
Because the jury acquitted Appellee of murder, first-degree manslaughter, and second-degree manslaughter, the only remaining issue about the instructions is whether the reckless homicide instruction was authorized by the evidence. KRS 507.050(1) provides that "[a] person is guilty of reckless homicide when, with recklessness he causes the death of another person." As this Court explained fully in Saylor v. Commonwealth, 144 S.W.3d 812, 819 (Ky. 2004), there are two theories under which a defendant may be convicted of reckless homicide:
1) The so-called "straight" reckless homicide theory, where the defendant acts without the specific intent to kill and in doing so, fails to perceive a substantial and unjustifiable risk that his actions could cause the victim's death, see KRS 507.050(1) and KRS 501.020(4); and
2) The "imperfect self-defense" theory, where the defendant, with or without the specific intent to kill, acts under an actual but mistaken belief that he must use physical force or deadly physical force against another person in order to protect himself from imminent death or injury about to be inflicted by that person, and in so acting he failed to perceive a substantial and unjustifiable risk that he was mistaken in his belief that force is necessary. See KRS 501.020(4) and KRS 503.120(1).
Under both theories of reckless homicide, the element of recklessness requires the failure to perceive a substantial and unjustifiable risk, and the failure to perceive that risk must be "a gross deviation from the standard of care that a reasonable person would observe in the situation." KRS 501.020(4). Under the straight theory of reckless homicide, KRS 507.050(1), a reckless failure to perceive the risk that the defendant's actions would result in the victim's death supplies the element of recklessness necessary to sustain a reckless homicide conviction. Saylor, 144 S.W.3d at 819.
Under the imperfect self-defense theory of reckless homicide, the defendant knows that his conduct could cause another person's death and he actually believes that the use of force is necessary to protect himself from another person. Id. The element of recklessness is supplied by his failure to perceive a substantial and unjustifiable risk that his belief in the need to use force is mistaken. Id. Again, the element of recklessness requires that the failure to perceive that risk was a gross deviation from the standard of care that a reasonable person would observe in the situation. Because there was no doubt in this case that Appellee intentionally fired the fatal bullet, when the jury convicted Appellee of reckless homicide instead of murder it accepted her claim that she actually believed her use of force was necessary to prevent Jerald from hurting her. Further, it had to conclude that she was mistaken in that belief, and that she was reckless in forming that mistaken belief.
B. The Evidence was Sufficient to Support a Conviction on Reckless Homicide Under the Imperfect Self-defense Theory, But Not Under the Straight Theory
The Commonwealth argues that the trial court properly instructed the jury upon both theories of reckless homicide culpability, and that the Court of Appeals erred when it determined that the evidence was insufficient to sustain the conviction under either theory. "An instruction on a lesser included offense is required only if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant's guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense." Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998). When faced with a sufficiency-of-the-evidence challenge such as the failure to grant a directed verdict on a particular crime or erroneously giving a jury instruction on a particular crime, the appellate court must determine whether, "after viewing the evidence in the light most favorable to the Commonwealth, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009); Commonwealth v. Benham, 816 S.W.2d 186, 187-88 (Ky. 1991). Accordingly, in reviewing Appellee's claim that she was wrongfully convicted by the trial court's error in instructing upon the charge of reckless homicide, our task is to determine whether the Commonwealth presented sufficient evidence to support that conviction, just as we would if reviewing the trial court's denial of a motion for a directed verdict; that is, pursuant to the standards contained in Benham.
Using the foregoing standards, we conclude that the Court of Appeals correctly determined that the evidence was insufficient to sustain a conviction under the theory of straight reckless homicide. But, we further conclude that the Court of Appeals erred in its determination that the evidence did not support a conviction under the imperfect self-defense theory of reckless homicide.
C. Straight Reckless Homicide
There is absolutely no doubt from the evidence presented that Appellee killed her husband by shooting him with a gun. All parties agree, and there is no evidence casting doubt upon the fact, that Appellee intentionally fired the gun knowing that it was pointed in the direction of her husband's head, which was then just a short distance from the muzzle of the gun. Appellee was skilled in the use of firearms, and she clearly understood the likely effect of pulling the trigger under the circumstances as she claimed them to be. The evidence on those points is unmistakable. No juror could reasonably conclude otherwise.
Even if Appellee's claim that she had no specific intent to kill is true, the facts that she closed her eyes when she squeezed the trigger and did not specifically take aim at Jerald do not create any possibility that she failed to perceive the risk that death could result from her conduct. No rational juror could believe that Appellee failed to perceive the risk of death inherent in her conduct of firing a pistol, with or without her eyes closed, in the direction of another person at such close range. The essential element of straight reckless homicide — her failure to perceive the risk that her actions could result in another's death — is undoubtedly absent here, as the Court of Appeals correctly ascertained.
This is exactly the same rationale we applied in Saylor, although in Saylor it was the defendant rather than the Commonwealth arguing in favor of an instruction on straight reckless homicide:
Nor did Appellant testify to anything other than an intentional killing when he testified in his own behalf. His theory of the case was that he knew [the victim] was such a dangerous and violent man that he (Appellant) had no choice but to use deadly physical force against [the victim] in self-protection. Thus, the only evidentiary basis for a conviction of manslaughter 2nd or reckless homicide was that Appellant was wanton or reckless in his belief in the need to use deadly physical force in self-protection. There was no evidentiary basis for "stand alone" [or "straight"] instructions on manslaughter 2nd or reckless homicide premised upon a theory that Appellant unintentionally killed [the victim].
Saylor, 144 S.W.3d at 820; see also Hudson v. Commonwealth, 385 S.W.3d 411, 418-19 (Ky. 2012) (Defendant could not reasonably have failed to perceive the risk of death associated with taking a police informant/victim to a remote area in the dark of night to meet criminal gang members angry about her cooperation with police.).
It was error for the trial court to instruct the jury on this theory of reckless homicide because a trier of fact could not reasonably have found beyond a reasonable doubt the essential element that distinguishes this theory of reckless homicide — Appellee's subjective failure to perceive the substantial risk of death that attended her action of firing the gun. It was established at trial beyond a reasonable doubt that she fired the gun intentionally, not recklessly, and that she clearly perceived the risks involved. The evidence presented at trial did not support a conviction for reckless homicide under the straight theory. We therefore agree with the Court of Appeals in that respect.
We next consider whether a jury could reasonably find that Appellee's claimed belief in the need to act in self-defense was objectively unreasonable so as to constitute recklessness in forming that belief, and thus support a reckless homicide conviction under the imperfect self-defense theory.
D. The Imperfect Self-defense Theory of Reckless Homicide
The reckless homicide conviction can be sustained under the imperfect self-defense theory only if the evidence adduced at trial could lead reasonable jurors to believe beyond a reasonable doubt that Appellee failed to perceive the risk that she was mistaken in her belief that she needed to act in self-protection or in the degree of force necessary. See Jones, 283 S.W.3d at 668; Benham, 816 S.W.2d at 187. Under KRS 503.120(1), the mistaken belief can take either of two forms. There may be a mistaken belief that force of any kind was needed. For example, one might mistake an innocent, friendly visitor for a dangerous intruder. Or, there may be a mistaken belief that deadly force rather than non-deadly force was needed for self-protection. For example, one might mistakenly believe that an unarmed aggressor was about to strike with a deadly weapon or dangerous instrument. In either case, to be "reckless, " the failure to perceive the risk of being mistaken must be "a gross deviation from the standard of care that a reasonable person would observe in the situation."In other words, to support a reckless homicide conviction under the imperfect self-defense theory, there must be evidence from which one could reasonably believe that when Appellee fired the gun, she mistakenly believed that she was in imminent danger of death or serious physical injury at the hands of Jerald Hasch, and that her failure to perceive the risk that she may be mistaken about the need to use force or about the degree of force required, was a gross deviation from the standard of care of a reasonable person.
As provided by the statutory language, the "mistaken belief component of reckless homicide under the imperfect self-defense theory is based upon the defendant's subjective viewpoint: a defendant must actually believe, albeit mistakenly, that the use of deadly force is necessary. But, whether the defendant's failure to perceive the risk of being mistaken was a gross deviation from the standard of care must be based upon an objective viewpoint — what a reasonable person would perceive in the situation. Upon application of these standards, we determine that while Appellee subjectively believed that deadly force was needed to protect herself, as reflected in the jury verdict acquitting her of murder, the evidence was such that a jury could reasonably conclude that she was mistaken in that belief, ...