RENDERED: APRIL 15, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0836-MR
WILLARD CALHOUN APPELLANT
APPEAL FROM GREEN CIRCUIT COURT v. HONORABLE DAN KELLY, JUDGE ACTION NO. 16-CR-00017
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION VACATING AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND GOODWINE, JUDGES.
CLAYTON, CHIEF JUDGE: Willard Calhoun appeals from a Green Circuit
Court order denying his motion for relief pursuant to Kentucky Rules of Criminal
Procedure (RCr) 11.42. Calhoun, who was convicted of first-degree manslaughter,
argues that his trial counsel was ineffective for failing to request a jury instruction
on the privilege of protection against burglary. Because Calhoun’s claim cannot be resolved by reference to the record, we vacate and remand for an evidentiary
hearing.
Calhoun and the victim, Gerald Scott, had been friends since
childhood. Calhoun’s girlfriend, Christina Pica, and Gerald’s wife, Shaun, were
also friends. One day Calhoun told Christina that Gerald had propositioned him
for sex when they were children. Christina reported his comments to Shaun.
Shaun told Gerald, who became enraged. Shaun testified that she and Gerald
drove to Calhoun’s home to confront him and that Gerald was going over there to
“whoop his [Calhoun’s] ass.” Shaun testified that she and Gerald had been
consuming alcohol that evening, and methamphetamine and other drugs were
subsequently discovered in Gerald’s system.
When they arrived at Calhoun’s residence, Gerald told Shaun to lie to
Christina, and tell her it was just she and her brother. Christina testified that she
would not have opened the door if she had known Gerald was there. When
Christina opened the door and spotted Gerald standing off to the side of the porch,
she tried to close the door but he pushed past her into the house and ran towards
the living room.
Calhoun was lying on the couch watching TV. Gerald confronted him
and announced he was there to fight Calhoun. They began arguing about
Calhoun’s statement that Gerald had propositioned Calhoun for sex when they
-2- were young boys. Christina and Shaun attempted to defuse the situation, telling
the men they had been friends for too long to argue like this. Shaun told Gerald
she had lied and Calhoun never said he had propositioned him. Christina testified
that she saw Calhoun had a knife in his hand at this point. The men appeared to
calm down and Gerald began to sit down on the couch. Calhoun looked at him
and, in reference to Gerald propositioning him for sex, stated, “Yeah, I said it.”
Gerald jumped over the coffee table and hit Calhoun in the face.
Calhoun pulled out the knife he had been concealing in his hand and stabbed
Gerald several times in the left side. Christina ran from the room seeking help
from Trevor Tucker and Laura Waymon, two friends who were sleeping in the
other room. She saw Gerald flee from the living room into the kitchen with
Calhoun following him. Gerald picked up a pot of boiling water from the stove
and threw it towards Calhoun. The water flowed over Calhoun and burned his
shoulder. Gerald continued swinging the empty pot at Calhoun’s head. He
grabbed Calhoun in a headlock and the two fell to the ground with Gerald choking
Calhoun. Calhoun, who was still holding the knife, stabbed Gerald in the neck
four times.
Shaun testified that she was in the bathroom while the two men were
fighting and that when she returned, Gerald was dead on the kitchen floor. Trevor
Tucker and Laura Waymon heard Calhoun scream “get out of my [f***ing] house”
-3- several times. Tucker testified that Calhoun stabbed Gerald after Gerald threw a
pot at him and placed him in a tight headlock.
Calhoun was indicted on one count of murder and one count of being
a first-degree persistent felony offender (PFO I). At trial, Calhoun did not deny he
stabbed Gerald but argued that he acted in self-defense. Calhoun’s attorney did not
request an instruction on the privilege of protection against burglary. Calhoun was
convicted of one count of first-degree manslaughter and one count of PFO I. He
was sentenced to ten years, enhanced to twenty-five years by the PFO I charge.
His conviction was affirmed on direct appeal to the Kentucky Supreme Court. See
Calhoun v. Commonwealth, No. 2018-SC-000017-MR, 2019 WL 1747075 (Ky.
Apr. 18, 2019). He thereafter filed a motion pursuant to RCr 11.42, alleging
ineffective assistance of counsel. The trial court denied the motion without a
hearing and this appeal followed.
A movant claiming ineffective assistance of counsel must meet two
requirements. “First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674 (1984). “Second, the defendant must show that the
deficient performance prejudiced the defense. This requires showing that
-4- counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Id.
An evidentiary hearing on the motion is required only “if there is a
material issue of fact that cannot be conclusively resolved, i.e., conclusively
proved or disproved, by an examination of the record.” Fraser v. Commonwealth,
59 S.W.3d 448, 452 (Ky. 2001) (citations omitted); RCr 11.42(5). On appeal,
“[o]ur review is confined to whether the motion on its face states grounds that are
not conclusively refuted by the record and which, if true, would invalidate the
conviction.” Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967).
Calhoun argues that his attorney should have requested a jury
instruction on the privilege of protection from burglary, which he could have
invoked without having to prove he believed the use of deadly force was necessary
to protect himself from death or serious physical injury.
“Generally, a trial court is obligated to instruct the jury upon every
theory reasonably supported by the evidence. Each party to an action is entitled to
an instruction upon his theory of the case if there is evidence to sustain it.”
Jackson v. Commonwealth, 481 S.W.3d 794, 797 (Ky. 2016) (internal quotation
marks and citation omitted).
The jury was given the following instruction on self-protection:
-5- SELF-PROTECTION
If at the time an individual, including the Defendant, uses physical force upon another person he believes that person was then and there about to use physical force upon him, he is privileged to use such physical force against that person as he believes to be necessary in order to protect himself against it, including the right to use deadly physical force but only if he believed deadly physical force to be necessary to protect himself from death or serious physical injury.
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RENDERED: APRIL 15, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0836-MR
WILLARD CALHOUN APPELLANT
APPEAL FROM GREEN CIRCUIT COURT v. HONORABLE DAN KELLY, JUDGE ACTION NO. 16-CR-00017
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION VACATING AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND GOODWINE, JUDGES.
CLAYTON, CHIEF JUDGE: Willard Calhoun appeals from a Green Circuit
Court order denying his motion for relief pursuant to Kentucky Rules of Criminal
Procedure (RCr) 11.42. Calhoun, who was convicted of first-degree manslaughter,
argues that his trial counsel was ineffective for failing to request a jury instruction
on the privilege of protection against burglary. Because Calhoun’s claim cannot be resolved by reference to the record, we vacate and remand for an evidentiary
hearing.
Calhoun and the victim, Gerald Scott, had been friends since
childhood. Calhoun’s girlfriend, Christina Pica, and Gerald’s wife, Shaun, were
also friends. One day Calhoun told Christina that Gerald had propositioned him
for sex when they were children. Christina reported his comments to Shaun.
Shaun told Gerald, who became enraged. Shaun testified that she and Gerald
drove to Calhoun’s home to confront him and that Gerald was going over there to
“whoop his [Calhoun’s] ass.” Shaun testified that she and Gerald had been
consuming alcohol that evening, and methamphetamine and other drugs were
subsequently discovered in Gerald’s system.
When they arrived at Calhoun’s residence, Gerald told Shaun to lie to
Christina, and tell her it was just she and her brother. Christina testified that she
would not have opened the door if she had known Gerald was there. When
Christina opened the door and spotted Gerald standing off to the side of the porch,
she tried to close the door but he pushed past her into the house and ran towards
the living room.
Calhoun was lying on the couch watching TV. Gerald confronted him
and announced he was there to fight Calhoun. They began arguing about
Calhoun’s statement that Gerald had propositioned Calhoun for sex when they
-2- were young boys. Christina and Shaun attempted to defuse the situation, telling
the men they had been friends for too long to argue like this. Shaun told Gerald
she had lied and Calhoun never said he had propositioned him. Christina testified
that she saw Calhoun had a knife in his hand at this point. The men appeared to
calm down and Gerald began to sit down on the couch. Calhoun looked at him
and, in reference to Gerald propositioning him for sex, stated, “Yeah, I said it.”
Gerald jumped over the coffee table and hit Calhoun in the face.
Calhoun pulled out the knife he had been concealing in his hand and stabbed
Gerald several times in the left side. Christina ran from the room seeking help
from Trevor Tucker and Laura Waymon, two friends who were sleeping in the
other room. She saw Gerald flee from the living room into the kitchen with
Calhoun following him. Gerald picked up a pot of boiling water from the stove
and threw it towards Calhoun. The water flowed over Calhoun and burned his
shoulder. Gerald continued swinging the empty pot at Calhoun’s head. He
grabbed Calhoun in a headlock and the two fell to the ground with Gerald choking
Calhoun. Calhoun, who was still holding the knife, stabbed Gerald in the neck
four times.
Shaun testified that she was in the bathroom while the two men were
fighting and that when she returned, Gerald was dead on the kitchen floor. Trevor
Tucker and Laura Waymon heard Calhoun scream “get out of my [f***ing] house”
-3- several times. Tucker testified that Calhoun stabbed Gerald after Gerald threw a
pot at him and placed him in a tight headlock.
Calhoun was indicted on one count of murder and one count of being
a first-degree persistent felony offender (PFO I). At trial, Calhoun did not deny he
stabbed Gerald but argued that he acted in self-defense. Calhoun’s attorney did not
request an instruction on the privilege of protection against burglary. Calhoun was
convicted of one count of first-degree manslaughter and one count of PFO I. He
was sentenced to ten years, enhanced to twenty-five years by the PFO I charge.
His conviction was affirmed on direct appeal to the Kentucky Supreme Court. See
Calhoun v. Commonwealth, No. 2018-SC-000017-MR, 2019 WL 1747075 (Ky.
Apr. 18, 2019). He thereafter filed a motion pursuant to RCr 11.42, alleging
ineffective assistance of counsel. The trial court denied the motion without a
hearing and this appeal followed.
A movant claiming ineffective assistance of counsel must meet two
requirements. “First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674 (1984). “Second, the defendant must show that the
deficient performance prejudiced the defense. This requires showing that
-4- counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Id.
An evidentiary hearing on the motion is required only “if there is a
material issue of fact that cannot be conclusively resolved, i.e., conclusively
proved or disproved, by an examination of the record.” Fraser v. Commonwealth,
59 S.W.3d 448, 452 (Ky. 2001) (citations omitted); RCr 11.42(5). On appeal,
“[o]ur review is confined to whether the motion on its face states grounds that are
not conclusively refuted by the record and which, if true, would invalidate the
conviction.” Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky. 1967).
Calhoun argues that his attorney should have requested a jury
instruction on the privilege of protection from burglary, which he could have
invoked without having to prove he believed the use of deadly force was necessary
to protect himself from death or serious physical injury.
“Generally, a trial court is obligated to instruct the jury upon every
theory reasonably supported by the evidence. Each party to an action is entitled to
an instruction upon his theory of the case if there is evidence to sustain it.”
Jackson v. Commonwealth, 481 S.W.3d 794, 797 (Ky. 2016) (internal quotation
marks and citation omitted).
The jury was given the following instruction on self-protection:
-5- SELF-PROTECTION
If at the time an individual, including the Defendant, uses physical force upon another person he believes that person was then and there about to use physical force upon him, he is privileged to use such physical force against that person as he believes to be necessary in order to protect himself against it, including the right to use deadly physical force but only if he believed deadly physical force to be necessary to protect himself from death or serious physical injury.
If you believe from the evidence that Gerald Scott had unlawfully and forcibly entered Willard Calhoun’s dwelling, and that Willard Calhoun knew that Gerald Scott had unlawfully and forcibly entered Willard Calhoun’s dwelling, then you shall presume that Willard Calhoun had a reasonable fear of imminent peril of death or great bodily harm under this instruction.
The self-protection instruction was accompanied by a provocation
qualification, which significantly limits the availability of the self-protection claim.
“The provocation-qualification instruction should be reserved for situations where
the Commonwealth can show the defendant intended to kill the victim all along
and essentially baited the victim to use force first so he could claim self-
protection.” Barker v. Commonwealth, 477 S.W.3d 583, 588 (Ky. 2015). The
provocation qualification instruction stated:
PROVOCATION QUALIFICATION
Provided, however, that if you believe from the evidence, beyond a reasonable doubt, that the Defendant provoked Gerald Scott, to use or attempt to use physical force upon him, and that he did so with the intention of causing
-6- death or serious physical injury to Gerald Scott, then the defense of self-protection is not available to him.
The jury was also given the following instruction on no duty to retreat:
NO DUTY TO RETREAT
A person who is not engaged in an unlawful activity and who is attacked in [a] place where he has a right to be, has no duty to retreat and had a right to stand his ground and meet force with force, including deadly force if he reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a felony involving the use of force.
Kentucky Revised Statutes (KRS) 503.080(1) states that “[t]he use of
physical force by a defendant upon another person is justifiable when the
defendant believes that such force is immediately necessary to prevent . . . [t]he
commission of criminal trespass, robbery, burglary, or other felony involving the
use of force, or under those circumstances permitted pursuant to KRS 503.055, in a
dwelling, building or upon real property in his possession[.]” KRS 503.080(1)(a).
Further, the use of deadly force by a defendant is deemed justifiable
“only when the defendant believes that the person against whom such force is used
is . . . [c]ommitting or attempting to commit a burglary, robbery, or other felony
involving the use of force, or under those circumstances permitted pursuant to KRS
503.055, of such dwelling[.]” KRS 503.080(2)(b). “A person is guilty of burglary
in the third degree when, with the intent to commit a crime, he knowingly enters or
-7- remains unlawfully in a building.” KRS 511.040(1). Thus, “a dweller is
privileged to use deadly force against unlawful entry for any criminal purpose
(including petty theft and simple assault).” Mondie v. Commonwealth, 158 S.W.3d
203, 208 (Ky. 2005) (footnote and citation omitted).
The Kentucky Supreme Court has clarified the critical distinction
between the privilege to use deadly force in the protection of oneself and the
privilege of protection against burglary: “KRS 503.080(2)(b)’s privilege of
protection against burglary is broader than the privilege to use deadly force in the
protection of [one]self [under KRS 503.050], in that under [KRS 503.080(2)(b)] a
defendant need not believe such force necessary to protect against death or serious
physical injury[.]” Id. at 209-10 (internal quotation marks and footnote omitted).
Calhoun argues that the jury could have believed, from the evidence
offered at trial, that Gerald entered Calhoun’s home or remained in Calhoun’s
home with the intent to commit a crime, such as assault, thereby committing a
burglary. If the jury found this to be the case, Calhoun would not have needed to
prove he believed deadly force was necessary to protect against death or serious
physical injury.
Certainly, the self-protection instruction that was provided to the jury
included language which permitted the members of the jury to presume, if they
believed that Gerald had unlawfully and forcibly entered Calhoun’s dwelling, that
-8- Calhoun had a reasonable fear of imminent peril of death or great bodily harm.
But the provocation qualification removed the self-protection defense entirely if
the jury believed that Calhoun had provoked Gerald to use physical force on him
with the intent of causing death or serious injury to Gerald. An instruction on the
privilege of protection against burglary, on the other hand, would have been
unaffected by the provocation instruction.
The Commonwealth argues that Gerald’s conduct did not meet the
statutory definition of burglary because there was a delay between the time Gerald
pushed his way into Calhoun’s house, announcing he was there to fight, and the
actual physical altercation between the two men. According to the
Commonwealth, the evidence shows that, whatever he may have been shouting
when he entered the home, Gerald had calmed down and did not intend to strike
Calhoun until Calhoun provoked him.
The burglary statute does not specify that the intent to commit a crime
must be manifested continuously and indefinitely. In any event, the evidence is by
no means undisputed that Gerald’s intent to commit a crime had dissipated. The
evidence at trial could support a finding that Gerald entered Calhoun’s home
unlawfully with the intent to commit a crime, thereby committing a burglary. An
instruction on the privilege of protection against burglary was fully supported by
the facts of the case.
-9- The Commonwealth’s reliance on Fuston v. Commonwealth, 217
S.W.3d 892 (Ky. App. 2007) is misplaced as the facts of that case are significantly
distinguishable in several respects. Fuston and several others were in his sister’s
apartment when her abusive boyfriend, Brown, arrived. Fuston and the others told
Brown to leave, but Brown kept advancing into the apartment. Fuston claimed
Brown threatened to kill him but the others did not recall Brown saying this.
Fuston pulled out a gun but Brown kept coming towards him and then reached for
the gun in his hand. Fuston shot him seven times and was subsequently convicted
of first-degree manslaughter.
Fuston claimed his attorney provided ineffective assistance for failing
to present evidence of the use of deadly force in protection against burglary. The
Court rejected the claim on several grounds. First, the jury would have been
required to find that Fuston believed Brown was about to commit burglary. Unlike
the case before us, in which it was undisputed that Gerald openly announced his
intent to attack Calhoun when he arrived at his home, the only evidence that Brown
made a threatening statement against Fuston was Fuston’s own testimony. Second,
the jury would have been required to find that Fuston possessed the property
against which Brown’s unlawful conduct was directed. There is no dispute that
Calhoun possessed the home which Gerald entered without permission. Third, the
jury would have had to find that Fuston had an immediate need to employ force to
-10- prevent the unlawful conduct. In this case, Gerald initiated a physical attack on
Calhoun whereas Brown was unarmed and there was conflicting evidence as to
whether he threatened to kill Fuston.
Because the facts of Calhoun’s case are significantly distinguishable,
we cannot conclude on the basis of the evidence in the record that his counsel’s
decision not to pursue an instruction on the privilege of protection against burglary
fell “within the wide range of reasonable professional assistance” or that “the
challenged action might be considered sound trial strategy.” Id. at 896 (internal
quotation marks and citations omitted). For this reason, an evidentiary hearing is
required.
The order of the Green Circuit Court denying Calhoun’s RCr 11.42
motion is vacated as to the claim regarding the privilege of protection against
burglary, and the case is remanded for an evidentiary hearing on this issue.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Andrea Reed Daniel Cameron Frankfort, Kentucky Attorney General of Kentucky
Jenny L. Sanders Assistant Attorney General Frankfort, Kentucky
-11-