RENDERED : MARCH 18, 2010 P BE P LIS ~D
,Suyrrmr t-9 X.Waurf of 2007-SC-000267-
FREDERICK RENNEL HANNAH APPELLANT
ON APPEAL FROM McCRACKEN CIRCUIT COURT V. HONORABLE R. JEFFREY HINES, JUDGE NO . 04-CR-000459-002
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT PAY JUSTICE SCOTT
REVERSING
Appellant, Frederick Rennel Hannah, appeals as a matter of right from a
murder conviction in the McCracken Circuit Court for which he was sentenced
to life imprisonment without parole. Ky. Const. § 110(2) (b) . He now argues
that the trial court erred by: (1) depriving him of his right to present his
defenses of self-defense and protection of another by declining to give an
instruction that in defending himself and his friend, he had "no duty to
retreat" ; (2) prohibiting him from questioning the jury pool during voir dire on
the "no duty to retreat" rule; (3) prohibiting him from arguing he had "no duty
to retreat" in closing argument ; (4) prohibiting him from introducing the entire
video of his police interrogations from which the Commonwealth introduced
only selected oral summaries through testimony of the interrogating officer;
and (5) allowing the prosecutor to make improper arguments outside the
evidence in closing arguments . For reasons that the trial court erred by prohibiting Appellant from
questioning the jury pool as to any prejudices they may have had concerning a
duty to retreat during voir dire and by prohibiting him from arguing in his
closing argument that he had "no duty to retreat," we reverse on grounds (2)
and (3) above. For the benefit of the parties, we will also address such
remaining issues as are capable of repetition.
I. Facts
On October 28, 2004, Appellant and his friends, Undra Ingram, Clarence
Ballard, and Keosha McGowen, from Decatur, Illinois, came to Paducah,
Kentucky . Late the following night, the group went to a location in Paducah
called "The Set," where Andre Grady and his friends, Terry Parker and Antonio
Sains, also happened to be. Grady and Ballard had a history of problems .
Grady was carrying a concealed weapon, had been smoking marijuana,
and, along with Parker and Sains, had been drinking heavily. Parker saw
Ballard and pointed him out to Grady. Grady then headed toward him and
approached him from behind. Saying that he was "going to get at" Ballard,
Grady pulled his gun and confronted Ballard .
Thereafter, the gun was pointed, from time to time, at both Ballard and
Hannah . When Ballard and Grady began to fight, Ballard yelled about Grady's
gun and asked Hannah and Ingram to take it away from him . Hannah then
intervened and he and Ballard wrestled with Grady to get the gun. The gun fell
and Hannah picked it up. Though both Ballard and Hannah told Grady to leave before he was
killed, Grady said he "wasn't going out like that" and continued fighting. He
was struck and knocked to the ground at various times by both Ballard and
Hannah, but got back up each time.
There was conflicting evidence as to whether Grady's acquaintances tried
to shoot Hannah during the fray. When Parker was asked if he heard a gun
"clicking" before Hannah shot Grady, he said he did hear "something." Grady's
cousin, Jeremiah Hughes, told police that he ran up to Hannah, trying to fire
his gun but it just went "click, click, click" (misfired) . However, at trial, he
claimed this was only after Hannah shot Grady. According to Hannah,
however, Grady was still attacking as he backed away and shot him.
Once shot, Grady turned to run, collapsed, and died. Ballard, Ingram,
and Hannah then retreated behind a nearby dumpster to avoid being shot by
Grady's friends . Several bullets hit the dumpster while the three hid behind it.
While there may have been more than one person shooting, it is undisputed
that Sains was among those who fired shots . Soon thereafter, McGowen got
their van and he, Ballard, Ingram, and Hannah fled back to Illinois .
While in the van, McGowen noticed that Hannah had two guns : one
silver and one black. He had seen Ballard with the silver gun earlier that day.
At the time, Hannah was praying and banging his head, saying something to .
the effect that he had shot the boy, and that he was probably dead . When
Hannah was arrested in Illinois on November 9, 2004, two handguns--one
silver and one black-were found in the basement under a mattress . Although Ballard and Ingram did not testify at trial, Hannah did. He told
the jury that Grady approached Ballard from behind and hit him with the gun
and that Ballard then grabbed Grady, yelled Grady had a gun, and they fell to
the ground fighting . Ballard hollered for Hannah to get the (black) gun and he
did. As Grady was getting up, Grady reached for something on the ground and
Hannah hit him with the gun. Hannah picked up what Grady had been
reaching for, and it was a second (silver) gun . Grady again attacked Hannah
and Hannah again knocked him to the ground.
At this point, Hannah heard a gun misfire (click) several times and
believed this was one of the men with Grady was trying to shoot him in the
back. He turned, but was again attacked by Grady, who was holding
something "shiny ." Hannah testified that he fired the silver gun because he
thought Grady was attacking him in order to divert his attention so that one of
Grady's friends could shoot him .
At trial, the medical examiner testified that Grady died of a gunshot
wound to the chest. The examiner opined that the wound was consistent with
Grady having been shot as he was getting up from the ground .
At trial in November 2006, 1 the court denied Appellant's counsel the
right to question the jury regarding the "no duty to retreat" rule during voir
dire, denied him the right in closing argument to argue that he had "no duty to
retreat," and denied his request for an instruction informing the jury that
Appellant had "no duty to retreat."
1 There had been a mistrial earlier in the year . Following closing arguments, the jury was instructed to consider charges
against Appellant of murder, manslaughter in the first degree, manslaughter in
the second degree, and reckless homicide, along with the usual instructions for
self-defense and protection of anotherwithout any guidance to the jury on the
duty (or no duty) to retreat. The jury returned guilty verdicts on the charge of
murder against Appellant, and second-degree hindering prosecution against
Ballard, but acquitted Ingram of "hindering the prosecution." During the
penalty phase, evidence was introduced to show that Appellant had a prior
murder conviction and he was sentenced to life without parole .
II . Analysis
A. Jury Instructions
For a large part of our history, the law in Kentucky was that a person
could stand his ground against an aggressor; quite simply, he was not obliged
to retreat, nor was he required to consider whether he could safely do so.
Gibson v. Commonwealth, 237 Ky. 33, 34 S .W.2d 936 (1931) . Gibson, in fact,
quoted from an opinion of the noted Kentucky jurist and United States
Supreme Court Justice, John M. Harlan, to wit:
The defendant was where he had the right to be, when the deceased advanced upon him in a threatening manner, and with a deadly weapon ; and if the accused did not provoke the assault, and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life, or do him great bodily harm, he was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack made upon him with a deadly weapon, in such way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury. Beard v. United States, 158 U.S. 550, 564 (1895) . "[This] doctrine of the law
permeates the opinions of this court, and an instruction [to the contrary] has
been condemned in several cases ; the more recent one being Caudill v.
Commonwealth, 234 Ky. 142, 27 S .W.(2d) 705." Gibson, 34 S.W .2d at 936 .
Accordingly, at that time, a defendant was not required to choose a safe avenue
of retreat before using deadly force to protect himself in Kentucky . Moreover,
the enactment of the 1974 Kentucky Penal Code did not abrogate this view.
Hilbert v. Commonwealth, 162 S.W.3d 921, 926 (Ky. 2005) .
In Hilbert, citing to Robert G. Lawson 8v William H. Fortune, Kentucky
Criminal Law § 4-2(d)(2) (1998), we noted that "[a] proposal by the drafters of
the Kentucky Penal Code to change this rule was rejected by the General
Assembly and the right of a defender to stand his ground against aggression
was left intact." Hilbert, 162 S.W.3d at 926. Notably, "it is [a] tradition that a
Kentuckian never runs. He does not have to." Id. (quoting Gibson, 34 S.W.2d
at 936 .
However, "[d]espite the defiant attitude towards retreat exhibited by the
Gibson opinion, Kentucky decisions [over the intervening years] have generally
not adhered to such an absolute interpretation of the `no duty to retreat rule,'
nor did our [more recent] predecessor court[s] require jury instructions
describing the same." Hilbert, 162 S .W.3d at 926 ; see also James M. Roberson,
New Kentucky Criminal Law and Procedure § 313 (2d ed. 1927) (stating that
"the rule now is that whether the assailant should stand his ground or give back is the question for the jury, and that he may properly follow that course
which is apparently necessary to save himself from death or great bodily
harm.") . Thus, Kentucky, in more recent years, has followed "the principle
`that when the trial court adequately instructs on self-defense, it need not also
give a no duty to retreat instruction ."' Hilbert, 162 S.W.3d at 926 (citations
omitted) .
However, effective July 12, 2006, and following the occurrence of the
crimes charged herein, but before their trial, the Legislature amended
Kentucky's criminal statues in multiple places to re-insert this long-standing
component of self-defense . 2 KRS 503 .055(1), as amended, established a
presumption, with some exceptions, that a person has "a reasonable fear of
imminent peril of death or great bodily harm" to himself or others when using
defensive force against someone under certain circumstances. The legislation
also codified the pre-existing "no duty to retreat" :
A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a felony involving the use of force .
KRS 503 .055(3) (emphasis added) .
KRS 503 .050 was also amended to state that "[a] person does not have a
duty to retreat prior to the use of deadly physical force." KRS 503 .050(4) .
Likewise, KRS 503 .070 was amended to address the justification of protecting
2 2006 Kentucky Laws Ch . 192 (SB 38) . another and now recognizes that a person "does not have a duty to retreat if
the person is in a place where he or she has a right to be." KRS 503 .070(3) .
However, in Rodgers v. Commonwealth, 285 S.W .3d 740 (Ky. 2009), this
Court held that the substantive provisions of the 2006 self-defense
amendments (including those portions dealing with "no duty to retreat") were
not retroactive . Therefore, because Appellant's actions giving rise to the
murder charge occurred prior to the amendments' effective date, they do not
apply in his case. Since, pursuant to Rodgers, the 2006 self-defense
amendments do not apply retroactively and, pursuant to Hilbert, the self-
defense instruction the trial court gave to the jury was adequate, the trial court
did not err by failing to include a "no duty to retreat" instruction.
B. Closing Arguments and Voir Dire
However, the right to present a defense is not merely limited to the
presentation of the defendant's evidence in support of appropriate instructions
by the court . The right also includes the right to be heard in summation,
Herring v. New York, 422 U .S . 853, 863 (1975), as well as the right to
appropriately question the jury as to their obligation to follow and abide by the
law to be instructed on by the court during voir dire . Temperly v. Sarrington's
Adm'r, 293 S .W.2d 863 (Ky . 1956) .
In the present case, the trial court allowed the Commonwealth to argue
to the jury in closing that Appellant could have withdrawn rather than shoot
Grady. However, Appellant was not afforded any opportunity during his
closing argument to comment as to whether or not he had a duty to retreat before acting in self-defense . Yet, in Hilbert, we recognized that "whether the
assailed should stand his ground or give back is a question for the jury, and
that he may properly follow that course which is apparently necessary to save
himself from death or great bodily harm ." 162 S.W.3d at 926 (quoting James M.
Roberson, New Kentucky Criminal Law and Procedure § 313 (2d ed . 1927)) .
Because it is a question for the jury as to whether Appellant should have
retreated prior to his use of force, deadly or otherwise, it follows that Appellant
should have been permitted to argue to the jury that, under the circumstances
of his particular case, he was privileged to defend himself and others without
first attempting to retreat. Thus, the trial court erred in prohibiting Appellant's
argument in this regard . We must reverse on such ground, as such an error
under these alleged facts could not be harmless .
The trial court also erred when it refused to allow Appellant to question
jurors during voir dire as to any prejudices they may have regarding whether a
person should attempt to retreat before acting in self-defense or in defense of
others . "An important test of qualifications of a juror is his willingness to rid
his mind of predilections and to be able to conscientiously give to the litigants a
fair and impartial trial according to the evidence and the instructions of the
court." Temperly, 293 S.W.2d 868 . "Thus, in practice, counsel should be given
a fair opportunity to question the jurors on voir dire to discover whether or not
any of the prospective jurors have bias or prejudice in the cases to be tried."
Id . "While it is within the discretion of the trial court to limit the scope of
voir dire, that discretion is not boundless. Appellate review of such limitation
is for abuse of discretion ." Hayes v. Commonwealth, 175 S.W.3d 574, 583 (Ky.
2005) (citing Webb v. Commonwealth, 314 S .W.2d 543, 545 (Ky.1958) (trial
court abused discretion by not permitting defendant being tried for the murder
of his father to examine jurors on their views concerning patricide and self-
defense)). The mere fact that the disallowed questions would have been helpful
to the defendant is not enough-rather, "the trial court's failure to ask these
questions must render the defendant's trial fundamentally unfair." Id. (citing
Mu'Min v. Virginia, 500 U.S. 415 (1991)) . "The test for abuse of discretion in
this respect is whether an anticipated response to the precluded question
would afford the basis for a peremptory challenge or a challenge for cause." Id.
Appellant should have been allowed to ask the jurors properly formulated
questions to ascertain any bias they may have had on a duty (or no duty) to
retreat. Thus, the trial court abused its discretion in disallowing these
questions since, under the law at the time of the offense, it was a question for
the jury as to whether or not a defendant should have retreated rather than
acted in self-defense . Prospective jurors' answers to these questions during
voir dire would have certainly "afford[ed] a basis for a peremptory challenge or
a challenge for cause ." Id. Thus, Appellant's trial was rendered fundamentally
unfair, warranting reversal. C. The "Completeness Rule
Detective Rob Estes testified that Hannah gave five differing versions of
what happened the night Grady was shot. In each consecutive version,
Hannah moved more "from the general to the specific ." Though the tapes were
not played, Estes summarized Hannah's differing versions .
At the completion of Estes' direct examination, Appellant first moved to
strike his entire testimony under the rule of completeness, with the stated
assumption that any questions he asked Estes as to other statements he,
Ballard, or Ingram might have made, would violate the rule in Bruton v. United
States, 391 U.S . 123 (1968) . The Commonwealth, however, noted there were
no Bruton violations in any of the other statements, thus they had no objection
to Appellant asking Estes about the other statements . Given the
Commonwealth's concession, the court did not rule on the motion, but simply
noted Appellant could ask whatever questions he desired from the transcripts
of the interrogation with the jury present. Rather than proceeding, Appellant,
however, then chose to reserve cross-examination until later in the trial.
Upon later recall by Appellant, Estes acknowledged that his testimony as
to Hannah's statements on direct was not verbatim, but in summary form only
as he had interpreted it. He acknowledged that Hannah never actually said
that he "pistol whipped" Grady-rather, he simply said that he hit Grady.
Moreover, he could not actually recall whether Hannah actually said he heard
the "clicks" (misfiring) of a gun before Grady was shot, thus backing away from his prior testimony. He simply noted that it was hard to remember fifty
interviews from two years earlier:
In this regard, "[i]t is the duty of one who moves the trial court for relief
to insist upon a ruling, and a failure to do so is regarded as a waiver." Dillard
v. Commonwealth, 995 S .W .2d 366, 371 (Ky. 1999) (citing Brown v.
Commonwealth, 890 S.W .2d 286, 290 (Ky. 1994), Wilkey v. Commonwealth,
452 S .W.2d 420, 422 (Ky. 1970)) . Moreover, in this particular case, Appellant's
motion to strike shifted into a reservation of cross-examination once Appellant
was granted permission to ask the questions he desired . Having received the
relief sought, Appellant cannot ask for further relief on appeal. Hayes v.
Commonwealth, 58 S .W.3d 879, 883 (Ky. 2001) ; Parker v. Commonwealth, 952
S.W.2d 209, 215 (Ky. 1997) ; Templeman v. Commonwealth, 785 S.W.2d 259,
260 (Ky. 1990) .
Appellant nevertheless asserts that the motion to strike under the rule of
completeness, as well as his motion for new trial on grounds that the trial
court prohibited him from introducing the entirety of the statements made to
the officers-preserved the issue for the introduction of the full recording . We
disagree, as the trial court simply did not deny Appellant the right to proceed
with Estes questioning, which was what counsel indicated he wanted to do.
Had the court done so, we note that each party had complete
transcripts of the interrogations of Appellant at issue . Thus, what we said in Soto v. Commonwealth, 139 S .W.3d 827, 865-66 (Ky. 2004), will be dispositive
of the issue, should it reoccur:
KRE 106 provides that when a party introduces a portion of a writing or recorded statement, the adverse party may "require the introduction at that time of any other part . . . which ought in fairness to be considered contemporaneously with it." KRE 106 is a rule of admission, not exclusion. It allows a party to introduce the remainder of a statement offered by an adverse party for the purpose of putting the statement in its proper context and avoiding a misleading impression from an incomplete document. Lawson, supra, at § 1 .20 ("The objective of [KRE 106), in other words, is to prevent a misleading impression as a result of an incomplete reproduction of a statement or document."). It does not require the exclusion of a relevant portion of a document because other portions cannot be found. Furthermore, even if the entire document were available, KRE 106 would require the admission of only that portion which concerns the part introduced by the adverse party. Young v. Commonwealth, Ky., 50 S .W.3d 148, 169 (2001) . See also United States v. Littwin, 338 F.2d 141, 146 (6th Cir.1964) (rule of completeness "is subject to the qualification that only the other parts of the document which are relevant and throw light upon the parts already admitted become competent upon its introduction . There is no rule that either the whole document, or no part of it, is competent." (Citations omitted.)) . The real issue is whether the excluded portion alters the portion already introduced . Young, supra, at 169 ; Commonwealth v. Collins, Ky., 933 S.W.2d 811, 814 (1996) .
However, we also noted in Schrimsher v. Commonwealth, 190 S .W .3d
318, 330-31 (Ky. 2006), that "a party purporting to invoke KRE 106 for the
admission of otherwise inadmissible hearsay statements may only do so to the
extent that an opposing party's introduction of an incomplete out-of-court
statement would render the statement misleading or alter its perceived
meaning."3 We further noted,
3 Roach v. Commonwealth, 2006 WL 2986492, 2005-SC-0211 (Ky. October 16, 2006) (unpublished) did not change the considerations under, and application of, KRE 106. The Appellant simply did not present this issue to the court.
13 This does not mean that by introducing a portion of a defendant's confession in which the defendant admits the commission of the criminal offense, the Commonwealth opens the door for the defendant to use the remainder of that out-of-court statement for the purpose of asserting a defense without subjecting it to cross- examination .
Id. Of course, what is relevant is the trial court's decision, one that is
reviewable for an abuse of discretion. Schrimsher, 190 S .W .3d at 330 .
D. The Commonwealth's Closing Argument
During closing argument, the prosecutor asserted that Grady followed
the "code of the street," a notion that one confronts those who wrong him in
order to regain their respect, asserting that this was not a deadly code of
conduct, and that if Grady wanted to kill Ballard, he would have just walked
up to him and shot him . The prosecutor stated, however, that Appellant
followed a tougher, meaner "code of the street" where one kills without much
thought, if someone challenges his authority. Appellant objected to these
statements on the ground that there was no evidence in the record of any "code
of conduct" or "code of the street." The Commonwealth responded that it was
an argument based upon reasonable inferences from the evidence. The trial
court overruled the objection, noting it was an argument and that the
prosecutor was merely characterizing the evidence .
If this Court (first) determines that a prosecutor engaged in misconduct
in closing argument, reversal is required where "the misconduct is `flagrant' or
if each of the following three conditions is satisfied : (1) Proof of defendant's
guilt is not overwhelming ; (2) Defense counsel objected; and (3) The trial court
failed to cure the error with a sufficient admonishment to the jury ." Matheney
14 v. Commonwealth, 191 S .W.3d 599, 606 (Ky. 2006) (emphasis in original) (citing
Barnes v. Commonwealth, 91 S.W.3d 564, 568 (Ky. 2002)) ; see also Barnes, 91
S.W .3d at 568 (adopting Sixth Circuit test) ; United States v. Carroll, 26 F.3d
1380,1382-90 (6th Cir. 1994) (articulating analysis) . The four factors to be
considered in determining whether the prosecutor's misconduct was "flagrant"
are: "(1) whether the remarks tended to mislead the jury or to prejudice the
accused; (2) whether they were isolated or extensive; (3) whether they were
deliberately or accidentally placed before the jury ; and (4) the strength of the
evidence against the accused ." Car-roll, 26 F.3d at 1385 (citing United States v.
Leon, 534 F.2d 667, 679 (6th Cir. 1976)) . We, however, do not find that the
statements in question amounted to misconduct .
Given the context of this case, the prosecutor's remarks were well within
the bounds of proper argument . The comments did not infringe upon the
jury's ability to judge the facts of the case . It was merely a reference, whereby
the prosecutor was attempting to characterize the conduct of the parties
according to the evidence. As here, the prosecutor is allowed to draw
inferences from the evidence and to argue them to the jury . Commonwealth v.
Mitchell, 165 S .W.3d 129, 132 (Ky. 2005) .
III. Conclusion
For the reasons set out herein, Appellant's conviction and sentence are
hereby vacated and this matter is remanded to the McCracken Circuit Court for such further proceedings as are appropriate and consistent with the opinion
rendered herein .
Cunningham, Noble, Schroder, and Venters, JJ., concur. Minton, C .J .,
and Abramson, J ., concur in result only. Scott, J., concurs by separate
opinion.
SCOTT, JUSTICE, CONCURRING : Although I heartily concur in the
majority's resolution of the other issues, I must state that my concurrence with
the majority's opinion on the non-retroactivity of the "no duty to retreat"
statutes, KRS 503 .050, KRS 503 .055(l),(3),(4), and KRS 503 .040(3), is with a
heavy heart, as I truly believe, as I said in Rodgers, "it was error not to instruct
the jury fully [here] on the relevant law regarding the duty. Rodgers v.
Commonwealth, 285 S .W.3d 740, 766 (Ky. 2009) (Scott, J ., dissenting)
(emphasis added) . And it still amazes me that we expect two (2) opposing
lawyers to argue to opposite views of a "point of law" to a jury, which itself, has
not been told by the court what the law really is . So much for saying that
lawyers should only argue, and jurors should only decide, facts . But, having
had my opportunities to convince the Court of my view on the matter, I concur,
albeit reluctantly. COUNSEL FOR APPELLANT:
Karen Shuff Maurer Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane Suite 302 Frankfort, KY 40601
COUNSEL FOR APPELLEE:
Jack Conway Attorney General of Kentucky
James Coleman Shackelford Assistant Attorney General Office of the Attorney General Office of Criminal Appeals 1024 Capital Center Drive Frankfort, KY 40601-8204