Opinion
NO. 2018-CA-001537-MRNO. 2019-CA-000329-MR
03-27-2020
ALLEN WAYNE HATCHER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Allen Wayne Hatcher, pro se LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Wm. Robert Long, Jr. Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEALS FROM EDMONSON CIRCUIT COURT
HONORABLE PHILLIP PATTON, SPECIAL JUDGE
ACTION NO. 03-CR-00118 OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT, MAZE, AND K. THOMPSON, JUDGES. LAMBERT, JUDGE: In these post-conviction actions, Allen Wayne Hatcher, proceeding pro se, has appealed from the orders denying his motions for Kentucky Rules of Criminal Procedure (RCr) 11.42 and Kentucky Rules of Civil Procedure (CR) 60.02(e) relief following his conviction for murder and other charges after his second trial. We affirm.
The Supreme Court of Kentucky described the factual and procedural background of this case in its memorandum opinion rendered on direct appeal after Hatcher's second conviction:
A jury convicted Allen Wayne Hatcher of murder and various other drug offenses in 2005, and this Court affirmed on direct appeal. Hatcher v. Commonwealth, No. 2005-SC-0623-MR, 2006 WL 2456354 (Ky. Aug. 24, 2006). The Court of Appeals later vacated Hatcher's murder conviction on a [RCr] 11.42 motion, and Hatcher was again convicted of murder after a second trial. He now appeals as a matter of right from that murder conviction and sentence of life imprisonment. Hatcher argues that the trial court erred when it (1) allowed the Commonwealth to present evidence of drugs found inside his house; (2) gave an oral addition to the jury instructions; (3) allowed a lay witness to give improper opinion testimony; and (4) allowed a probation and parole officer to testify in too much detail about Hatcher's prior convictions during the penalty phase. Having reviewed the record, the arguments of the parties, and the law, we affirm.
I. BACKGROUND.
At the outset, we note that there are different versions of what occurred on the night in question. We set forth the substantially agreed on facts before the witnesses' retellings diverge.
On the night of November 6, 2003, Edward Tankersly and Christopher Sexton drove from Tennessee to a bar in Bowling Green to have a few drinks and meet women. The pair used drugs at various times that
evening. When the bar closed, Tankersly suggested to Sexton that they go to Hatcher's house in Edmonson County to either meet more women or catch up with old friends. Regardless of the reason, the pair arrived unannounced at Hatcher's house in the early morning hours. Just before entering Hatcher's house, Sexton and Tankersly used cocaine and Tankersly asked Sexton if he "had his back."
Accounts of what happened next differ. Sexton, the Commonwealth's chief fact witness, testified that he and Tankersly were invited inside [Hatcher's] house. However, Sexton, who returned to the car to retrieve a beer, did not follow Tankersly directly into the house. When Sexton entered the house he found Tankersly, Hatcher, James "Rodney" Gross, and Paula Beckner all in the front room. According to Sexton, Hatcher was seated in a recliner and Tankersly was talking with Beckner, who was "breaking up" marijuana at a table in the middle of the room. Sexton claimed to see Tankersly kiss Beckner's hand and testified that this angered Hatcher because Beckner was Hatcher's girlfriend. Hatcher told Tankersly to leave the house, and Hatcher then left the room.
Hatcher and Gross refuted this version of Tankersly's arrival. Gross, who was Hatcher's employee, testified that the two had been working late that night in the woodshop attached to Hatcher's house. Gross testified that he and Hatcher were taking a break and siting with Beckner in the front room of the house when Gross heard a car arrive. Gross contended that as soon as he started to open the front door, Tankersly burst through the entrance, knocking him backward. Gross testified that Hatcher immediately told Tankersly to leave but Tankersly refused. After a brief, heated exchange, Hatcher stood from his recliner and left the room.
Both parties agree to the following: Hatcher returned to the front room carrying a handgun. He
demanded that Tankersly leave, and the pair argued. Moments later, Hatcher fired what he characterized as a warning shot into the floor; however, the bullet struck Tankersly in the leg.
Here again, the witnesses' retellings differ. Sexton testified that, on seeing Hatcher fire the gun, he fled the house through the front door. However, not wanting to abandon his friend, Sexton claimed he immediately returned to help Tankersly escape. Sexton met Tankersly at the front door, but before Tankersly could exit, Hatcher shot him in the head.
Gross, on the other hand, testified that Sexton yelled that he had a gun in the car and that he would kill all of them. Hatcher testified that he saw Sexton and Tankersly meet face-to-face in the front doorway and that he thought Sexton handed Tankersly a gun. Hatcher did not deny shooting Tankersly in the head, but claimed that Tankersly had begun to turn back toward him and that he only shot Tankersly out of self-defense.
Sexton, with Gross's help, carried Tankersly back to the car, and Beckner provided some towels to help curb his bleeding. Not knowing the area, Sexton asked for directions to a hospital, and Gross provided them. However, not long after Sexton drove off, he stopped at another house and asked the residents to call 911. The police and emergency services arrived and transported Tankersly to the hospital, where he died soon after arrival.
Sexton directed the police to Hatcher's house. Finding no one at the house, the police obtained a warrant and searched the house. The police found bullet holes and evidence that someone had attempted to clean up Tankersly's blood. Furthermore, the police seized a large quantity of drugs, drug paraphernalia, drug manufacturing components, and other evidence of drug trafficking. The police later found towels soaked with
Tankersly's blood in the woods off the road when they were leaving Hatcher's house.
A few hours later, Beckner [c]alled the police and reported that she, Hatcher, and Gross had driven to Elizabethtown and checked into a motel. They eventually returned to Edmonson County and surrendered to the police. Hatcher volunteered that the gun he used to shoot Tankersly was inside their car, and the police recovered it. The police did not recover any other guns.
Following a three day trial in 2005, Hatcher was convicted of murder and sentenced to 30 years' imprisonment. Hatcher was also convicted of numerous drug charges and sentenced to a total of 10 years' imprisonment to be served concurrently with the murder sentence. This Court upheld Hatcher's convictions on his appeal as a matter of right. Hatcher, No. 2005-SC-0623-MR, 2006 WL 2456354, at *4.
In 2008, Hatcher filed a RCr 11.42 motion, arguing, among other things, that his trial counsel was ineffective for failing to object to the murder jury instruction. The trial court denied relief, but the Court of Appeals reversed and vacated Hatcher's conviction and sentence for murder and remanded for a new trial on that
charge alone. Hatcher v. Commonwealth, 310 S.W.3d 691, 702 (Ky. App. 2010), as modified (Apr. 23, 2010).Hatcher v. Commonwealth, No. 2015-SC-000258-MR, 2016 WL 3370999, at *1-3 (Ky. Jun. 16, 2016).
Hatcher was convicted of murder after a second trial in 2015 and sentenced to life imprisonment. Due to the significant time lapse between the two trials, several witnesses from the first trial were unavailable to testify, so large portions of testimony at the second trial consisted of video testimony from the first trial. Hatcher now appeals that conviction and sentence to this Court as a matter of right. Ky. Const. § 110(2)(b). We set forth additional facts as necessary below.
Gross and Beckner were also tried for murder, under the theory of complicity, but the jury acquitted them both of that charge. [Footnote 1 in original.]
Trafficking in marijuana, eight ounces or more, while in possession of a firearm; two charges of trafficking in a controlled substance first degree while in the possession of a firearm; possession of drug paraphernalia while in possession of a firearm; and possession of a methamphetamine precursor. [Footnote 2 in original.]
In his first direct appeal, Hatcher's claimed errors were that the trial court improperly denied his motion to sever the drug charges from the murder charge, permitted the introduction of autopsy photos of the victim, and required the jury to remain in court for 21 consecutive hours to complete the trial.
Hatcher argued in his post-conviction appeal that his trial counsel was ineffective for failing "(1) to challenge the indictment; (2) to adequately investigate the prosecution's witnesses; (3) to raise a double jeopardy challenge; and finally, (4) to object to the jury instructions." Hatcher, 310 S.W.3d at 696.
In the first post-conviction appeal, this Court addressed Hatcher's ineffective assistance argument related to the combination murder instruction:
Hatcher's final argument for ineffective assistance of counsel is that trial counsel failed to object to the combination instruction for murder which allegedly contained "mandatory inferred conclusory presumptions," rather than "permissive inferences."
Jury Instruction No. 5, the instruction for murder, read as follows:
You will find the Defendant, Allen Hatcher, 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 November 6, 2003, and before the finding of the Indictment herein, he killed Edward Tankersley by shooting him;
AND
B. That in so doing;
(1) He caused the death of Edward Tankersly [sic] intentionally and not while acting under the influence of extreme emotional disturbance;
OR
(2) He was wantonly engaging in conduct which created a grave risk of Death to Edward Tankersly [sic] under circumstances manifesting an extreme indifference to human life.
AND
C That in so doing he was not privileged to act in self-protection.
The term "wantonly" was separately defined for the jury. However, the phrases "under circumstances manifesting an extreme indifference to human life" and "extreme emotional disturbance" were not defined for the jury. There was no separate instruction or definition for self-protection.
Hatcher argues that the instruction improperly required the jury to infer a presumed fact based upon
proof of a predicate fact. He argues that the predicate fact is "wantonness" and that the presumed fact is "under circumstances manifesting extreme indifference." Hatcher alleges that this presumption effectively allowed the jury to evaluate the case under the standard for second degree manslaughter (wantonness), yet convict for wanton murder (wantonness plus extreme indifference).
Hatcher's argument is without merit. We begin by noting that this instruction is the exact model instruction from Cooper's Kentucky Instructions to Juries. While not binding on our Courts, we have often found this instruction to be persuasive. 1 Cooper, Kentucky Instructions to Juries (Criminal) § 3.24. Further, our Courts have approved of the use of this same instruction in numerous circumstances, provided there is evidence for both intentional murder and wanton murder. See, e.g., Parker v. Commonwealth, 241 S.W.3d 805, 810 (Ky. 2007) and Hudson v. Commonwealth, 979 S.W.2d 106 (Ky. 1998). Moreover, we note that the Kentucky Supreme Court has previously held that it is not error to provide the jury with alternate instructions for both wanton and intentional murder when the defendant is claiming self-protection. Allen v. Commonwealth, 5 S.W.3d 137 (Ky. 1999). Accordingly, while we find no fault with trial counsel's failure to object to the combination instruction, we reiterate a point which the Kentucky Supreme Court has strongly emphasized—that the preferred practice is for the trial court to include a form verdict that allows the jury to state whether they are finding the defendant guilty of intentional murder or wanton murder.Benjamin v. Commonwealth, 266 S.W.3d 775, 785 (Ky. 2008). See also, Hudson v.
Commonwealth, supra. Such separate verdict forms are especially appropriate when, as in this case, the evidence arguably may not support either intentional or wanton conduct.Hatcher, 310 S.W.3d at 698-99 (footnote omitted). This Court reversed after finding ineffective assistance related to this specific jury instruction issue:
Hatcher was provided ineffective assistance of counsel because counsel failed to object that there was no separate self-protection instruction, failed to object that self-protection was not even defined for the jury despite the lack of instruction (the jury being left with no legal basis upon which to decide whether Hatcher acted in self-protection), failed to request an imperfect self-protection instruction, and failed to request that EED be defined for the jury. Moreover, although not raised by Hatcher in this action, defense counsel also failed to object to the instructions on the grounds that there should have been an instruction on second-degree manslaughter as a lesser-included offense to wanton murder. Parker, supra. Finally, although not necessarily objectionable, it would have been preferable for counsel to request that form instructions be used for the combination instruction on intentional and wanton murder so as to distinguish between whether the jury was finding Hatcher guilty of intentional murder or wanton murder. Benjamin v. Commonwealth, supra.Id. at 702.
However, although this issue was not raised by Hatcher in this action, the Kentucky Supreme Court has directed that when wanton murder is instructed upon, there must also be an instruction on second-degree manslaughter as a lesser included offense. Parker, supra. It does appear that counsel should have objected to the failure to instruct upon second-degree manslaughter. [Footnote 3 in original.]
On direct appeal from his second murder conviction, Hatcher raised issues related to the Commonwealth's introduction of drugs and drug-related activity found in his house after the trial court excluded any mention of drugs seized from his house and his drug charges and convictions that had arisen from that seizure; a general oral instruction from the trial court for the jurors to not put themselves in the position of the victim or Hatcher because it kept the jury from considering his defenses; the introduction of a prison informant's testimony; and the introduction of evidence of restitution and forfeiture related to prior convictions during the penalty phase. The Supreme Court found no reversible error and affirmed Hatcher's murder conviction and life sentence. Hatcher, 2016 WL 3370999, at *3-9. That opinion became final on July 7, 2016.
In January 2018, Hatcher filed a pro se motion to vacate his sentence pursuant to RCr 11.42 and for an evidentiary hearing, raising several issues. He argued that 1) his trial was held in violation of his right to a speedy trial and the trial court failed to dismiss his case pursuant to his September 5, 2014, motion; 2) the original trial judge was engaged in judicial misconduct while presiding over his retrial, which deprived him of a fair trial; 3) conflicts of interest existed between him and his acting defense counsel; 4) his trial counsel failed to conduct an independent investigation into his case and to locate an available witness for his defense, and counsel refused to subpoena a material witness for testimony on retrial; 5) his trial counsel misadvised him as to his ability to speak or be heard on retrial; 6) the jury summons and selection process was flawed (Hatcher waived this argument on appeal); 7) his trial counsel failed to investigate Tankersly's and Sexton's criminal backgrounds after being informed by investigator Christopher Estep of the evidence of drug offenses he had found; 8) he was deprived of a matter-of-right appeal (Hatcher waived this argument on appeal); and 9) Kentucky Revised Statutes (KRS) Chapter 31 related to the guarantee of one matter-of-right appeal was unconstitutional (Hatcher waived this argument on appeal). The Commonwealth responded to the RCr 11.42 motion, addressing each issue and arguing that Hatcher failed to prove deficient performance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Hatcher filed two pro se motions on that day; one was a motion to dismiss for the violation of his right to a speedy trial as this Court had reversed his conviction in 2010, and the second one requested dismissal based upon immunity as he was acting in self-defense. The record does not include a written order ruling on these motions, but we assume they were both denied.
On August 6, 2018, the circuit court entered an order denying Hatcher's motion for RCr 11.42 relief and for an evidentiary hearing. Hatcher filed a notice of appeal from this order on October 19, 2018 (Appeal No. 2018-CA-001537-MR).
On August 20, 2018, Hatcher filed a motion to vacate his conviction based upon double jeopardy pursuant to CR 60.02(e). The basis for this motion is the combined instruction for intentional and wanton murder used in the first trial in 2005 and the second trial in 2015. Hatcher argued that his murder conviction in the second trial constituted a double jeopardy violation,
because the jury's return of a guilty verdict under a combined jury instruction at the first trial brough [sic]
about the very situation here where the jury's verdict finding Hatcher guilty of both intentional and wanton murder, jeopardy attached as a matter of law to both intentional and wanton murder barring Hatcher's conviction for intentional murder at the second trial.He argued that, because the jury verdict at the first trial could not be determined to be under the intentional murder or wanton murder part of the murder instruction, it had to be considered under both pursuant to the applicable caselaw. He argued that if he had been found guilty of either intentional or wanton murder in the first trial, there was an implied acquittal on the other charge, which would implicate a double jeopardy violation on retrial.
The trial court denied Hatcher's CR 60.02 motion in an order entered December 19, 2018, and Hatcher timely appealed that order (Appeal No. 2019-CA-000329-MR). The two appeals have been consolidated for this Court's review.
We shall first consider Hatcher's RCr 11.42 appeal. For his first argument, Hatcher claims that the trial court abused its discretion in failing to individually address each claim in his RCr 11.42 motion and in failing to hold an evidentiary hearing. Hatcher contends that the court's order did not contain any factual or legal basis for this Court to review his ineffective assistance claims so that a remand for an evidentiary hearing is necessitated. We disagree.
As the Commonwealth argues, RCr 11.42(5) only requires a hearing "[i]f the answer raises a material issue of fact that cannot be determined on the face of the record[.]" And in Bowling v. Commonwealth, 981 S.W.2d 545, 549 (Ky. 1998), the Supreme Court stated, "[i]f the record refutes the claims of error, there is no need for an evidentiary hearing. A hearing is also unnecessary where the allegations, even if true, would not be sufficient to invalidate the conviction." (Citations omitted.) Our review establishes that Hatcher's allegations were refuted by the record and, thus, the trial court was not required to hold an evidentiary hearing.
In addition, RCr 11.42(6) provides that "[a] final order shall not be reversed or remanded because of the failure of the court to make a finding of fact on an issue essential to the order unless such failure is brought to the attention of the court by a written request for a finding on that issue or by a motion pursuant to Civil Rule 52.02." Hatcher did not make such a request, and, therefore, we find no error in the trial court's failure to address each issue individually, although a more detailed order would have created a better record for us to review.
For his second argument, Hatcher contends that the trial court abused its discretion when it failed to determine his second trial was held in violation of his right to a speedy trial or to determine that he was entitled to immunity for his claim of self-defense. We recognize that a motion filed pursuant to RCr 11.42 "is limited to issues that were not and could not be raised on direct appeal." Sanborn v. Commonwealth, 975 S.W.2d 905, 909 (Ky. 1998), overruled on other groundsby Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). Hatcher did not attempt to argue that the trial court's actions related to these motions amounted to ineffective assistance. These issues certainly could have been raised on direct appeal but were not. Therefore, the merits of these motions cannot be raised for the first time in Hatcher's motion for RCr 11.42 relief, and we find no abuse of discretion on the trial court's part.
For his third argument, Hatcher raises the issue of the original trial judge's misconduct that occurred in an unrelated case at the same time he was presiding over Hatcher's case. That the original trial judge was reprimanded for an improper sexual relationship with a woman who was under indictment in his court is certainly troubling and brings into doubt his fitness to preside over court proceedings, including Hatcher's case. However, Hatcher failed to provide any facts to support his claim that the original trial judge was unfit. RCr 11.42(2) provides that the motion "shall state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds. Failure to comply with this section shall warrant a summary dismissal of the motion." And the Supreme Court has stated, "[c]onclusory allegations that counsel was ineffective without a statement of the facts upon which those allegations are based do not meet the rule's specificity standard and so 'warrant a summary dismissal of the motion.'" Roach v. Commonwealth, 384 S.W.3d 131, 140 (Ky. 2012) (quoting RCr 11.42(2)). We find no error under this argument.
For his fourth argument, Hatcher claims he was denied conflict-free counsel on his retrial, which in turn denied him effective assistance of counsel. Upon remand, Hatcher was again represented by his original counsel, and then by a public defender after that attorney withdrew. Hatcher's argument is based upon his trial counsel's apparent refusals to file Hatcher's motions to dismiss based upon the lack of a speedy trial and to assert his immunity defense. We note that Hatcher filed these motions on his own. We agree with the Commonwealth that these issues were known to Hatcher prior to the second trial and could have been raised on direct appeal, making them inappropriate to raise in a post-conviction proceeding.
For his fifth argument, Hatcher raises several allegations of ineffective assistance of his trial counsel. This Court's standard of review in an RCr 11.42 post-conviction action is well-settled in the Commonwealth. To establish a claim for ineffective assistance of counsel, a movant must meet the requirements of a two-prong test by proving that: 1) counsel's performance was deficient, and 2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052; accord Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986). Pursuant to Strickland, the standard for attorney performance is reasonable, effective assistance. The movant must show that his counsel's representation fell below an objective standard of reasonableness and bears the burden of proof. In doing so, the movant must overcome a strong presumption that counsel's performance was adequate. Jordan v. Commonwealth, 445 S.W.2d 878, 879 (Ky. 1969); McKinney v. Commonwealth, 445 S.W.2d 874, 878 (Ky. 1969). Furthermore, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. If an evidentiary hearing is held, the reviewing court must determine whether the lower court acted erroneously in finding that the defendant below received effective assistance of counsel. Ivey v. Commonwealth, 655 S.W.2d 506, 509 (Ky. App. 1983).
In Haight v. Commonwealth, 41 S.W.3d 436 (Ky. 2001), overruled on other grounds by Leonard, 279 S.W.3d 151, the Supreme Court later observed:
In considering ineffective assistance, the reviewing court must focus on the totality of evidence before the judge or jury and assess the overall performance of counsel throughout the case in order to determine whether the identified acts or omissions overcome the presumption that counsel rendered reasonable professional assistance. See [United States v. Morrow,
977 F.2d 222 (6th Cir. 1992)], Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).Id. at 441-42.
A defendant is not guaranteed errorless counsel, or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance. McQueen v. Commonwealth, Ky., 949 S.W.2d 70 (1997). Strickland notes that a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. The right to effective assistance of counsel is recognized because of the effect it has on the ability of the accused to receive a fair trial.
In a RCr 11.42 proceeding, the movant has the burden to establish convincingly that he was deprived of some substantial right which would justify the extraordinary relief afforded by the post-conviction proceeding. Dorton v. Commonwealth, Ky., 433 S.W.2d 117, 118 (1968). Even when the trial judge does conduct an evidentiary hearing, a reviewing court must defer to the determination of the facts and witness credibility made by the trial judge. Sanborn; McQueen v. Commonwealth, Ky., 721 S.W.2d 694 (1986); McQueen v. Scroggy, 99 F.3d 1302 (6th Cir. 1996).
Hatcher contends that his trial counsel failed to investigate the facts of the case and failed to investigate, interview, and subpoena witnesses who were crucial to his defense. He thought his second counsel should have interviewed and subpoenaed several witnesses rather than rely upon their recorded testimony from the first trial. Hatcher also argues that his second attorney refused to interview Christopher Estep, an investigator hired by his first attorney, about his findings related to the victim and one of the witnesses. Hatcher believes these failures affected his ability to present his claim that he acted in self-defense.
The Commonwealth contends that Hatcher failed to specifically state the facts upon which this argument was made and that there was no legal justification to call Estep as a witness. We agree. As the Commonwealth states, Estep did not have any first-hand knowledge of the case or victim and would not have been able to testify as to the reputations of either the victim or any other witness. Therefore, we find no ineffective assistance in relation to trial counsel's investigation.
Finally, Hatcher argues that he was denied his right to be heard during his retrial. Again, this issue could have been raised on direct appeal but was not. Therefore, Hatcher is precluded from raising it in a post-conviction RCr 11.42 motion.
Accordingly, we hold that the trial court did not abuse its discretion in denying Hatcher's motion for RCr 11.42 relief.
Next, we shall consider Hatcher's motion for CR 60.02(e) relief related to his claim that his conviction for intentional murder at his second trial was a double jeopardy violation based upon the way the jury was instructed in the first trial. CR 60.02(e) provides that a court may grant a party relief from a final judgment if "the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application[.]" "The standard of review of an appeal involving a CR 60.02 motion is whether the trial court abused its discretion. For a trial court to have abused its discretion, its decision must have been arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Grundy v. Commonwealth, 400 S.W.3d 752, 754 (Ky. App. 2013) (citations omitted). With this standard in mind, we shall review Hatcher's argument.
The murder instruction and verdict form used in the second trial provided as follows:
INSTRUCTION NO. 5
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 November 6, 2003 and before the finding of the Indictment herein, he killed Edward Tankersly Jr., by shooting him in the head with a 45 cal. Handgun;
AND
B. That in so doing:
(1) He caused the death of Edward Tankersly Jr., intentionally and not while
acting under the influence of extreme emotional disturbance;
OR
(2) He was wantonly engaging in conduct which created a grave risk of death to another and thereby caused the death of Edward Tankersly, Jr., under circumstances manifesting an extreme indifference to human life.
The verdict form permitted the jury to find Hatcher guilty of intentional murder under form "A," guilty of murder under circumstances manifesting an extreme indifference to human life under form "B," or not guilty under form "C." The instruction for the first trial was similar to the one used in the second trial; the difference was in the verdict form. The former permitted the jury to find Hatcher guilty of murder under form "A" or not guilty under form "B." The court did not split intentional and wanton murder into two different forms.
AND
C. That he was not privileged to act in self-protection.
Hatcher cites to Travis v. Commonwealth, 327 S.W.3d 456 (Ky. 2010), to support his double jeopardy argument. In Travis, the Supreme Court of Kentucky outlined the development of the law regarding the unanimous verdict issue as follows:
Toward the end of the 1970s, the Court began to tackle the situation presented in this case, where multiple theories of a crime are presented in a single instruction. See, e.g., Wells v. Commonwealth, 561 S.W.2d 85, 88 (Ky. 1978). Such an instruction has become known as a "combination instruction." See, e.g., Johnson v. Commonwealth, 12 S.W.3d 258, 265 (Ky. 1999). Wells held that "a verdict can not be successfully attacked upon the ground that the jurors could have believed either of two theories of the case where both interpretations are supported by the evidence and the proof of either beyond a reasonable doubt constitutes the same offense." 561 S.W.2d at 88. In other words, multiple theories of the same offense can be combined so long as there is sufficient evidence of each. This is because, no matter which theory they accepted, all the jurors convicted under a theory supported by the evidence and all the jurors convicted the defendant of the same offense.Id. at 459-60. Hatcher then cites to Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), in which the United States Supreme Court addressed Green's double jeopardy argument:
At Green's first trial the jury was authorized to find him guilty of either first degree murder (killing while perpetrating a felony) or, alternatively, of second degree murder (killing with malice aforethought). The jury found him guilty of second degree murder, but on his appeal that conviction was reversed and the case remanded for a new trial. At this new trial Green was tried again, not for second degree murder, but for first degree murder, even though the original jury had refused to find him guilty on that charge and it was in no way involved in his appeal. For the reasons stated hereafter, we conclude that this second trial for first degree murder placed Green in jeopardy twice for the same offense in violation of the Constitution.
Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury's verdict as an implicit acquittal on the charge of first degree murder.Id., 355 U.S. at 189-90, 78 S.Ct. at 225 (footnotes omitted).
Based upon these cases, Hatcher asserts that, because it was impossible to determine whether the jury convicted him of intentional murder or wanton murder in the first trial, it was equally impossible to determine which offense he was acquitted of. Therefore, he argues that jeopardy attached to both the intentional and wanton murder charges on retrial. However, the Commonwealth aptly points out that this claim was known to Hatcher at the time of the second trial and was therefore available to be raised as an issue on his second direct appeal. CR 60.02 "is for relief that is not available by direct appeal and not available under RCr 11.42." Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983). We agree that Hatcher's double jeopardy argument should and could have been raised on direct appeal, although we do not believe Hatcher would have been successful had he raised this issue in the appropriate forum. The cases he cites do not support his theory, and, while perhaps the trial court could have included separate verdict forms for the first trial, that was remedied in the second case when separate verdict forms were used. We find no abuse of discretion in the trial court's denial of Hatcher's motion for CR 60.02(e) relief.
For the foregoing reasons, the orders of the Edmonson Circuit Court denying Hatcher's post-conviction motions for RCr 11.42 and CR 60.02 relief are affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Allen Wayne Hatcher, pro se
LaGrange, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Wm. Robert Long, Jr.
Assistant Attorney General
Frankfort, Kentucky