CRIMINAL LAW – CO-DEFENDANT’S TRIAL, STATEMENTS, REDACTION; SELF DEFENSE; IMMUNITY: Frank Rodgers v. Com. of Kentucky (SC 6/25/2009)

Frank Rodgers v. Com. of Kentucky
2007-SC-000040-MR June 25, 2009

Opinion by Justice Abramson; all sitting.

Rodgers was convicted of first-degree manslaughter and PFO second degree. At trial, the prosecution alleged that Rodgers and co-defendant Eddings shot and killed McAfee during the course of an altercation in McAfee’s backyard. On appeal, Rodgers argued, inter alia, that the trial court abused its discretion by joining his trial with Eddings’. Specifically, Rodgers argued that the introduction of statements by he and Eddings to the police deprived him of a fair trial and denied his right to put on a defense.

The Court held that even assuming arguendo that Eddings’ statement was not redacted to sufficiently remove all facial implication of Rodgers, it was still harmlessly cumulative of other admissible evidence presented. Rodgers also argued that he should have been allowed to cross-examine the detective about other portions of the statement relating to self-defense. The Court acknowledged that under Chambers, due process can trump mechanical application of the hearsay rule, but held that the trial court did not err by excluding additional portions of Rodgers’ statement since they were not critical to his defense and were not made under circumstances giving “considerable assurance of reliability.”

Rodgers also argued that the 2006 amendments to the self-defense provisions of KRS Chapter 503 should have been retroactively applied to the charges against him. These amendments included expansion of the justified use of force to prevent the commission of violent felonies and provided that the use of deadly force is not contingent upon a duty to retreat. If applied retroactively, Rodgers contended he was immune from prosecution. The Court held that the amendments, with the exception of the immunity provision, were substantive in nature and thus could only be applied prospectively. The Court agreed with Rodgers’ argument that the immunity provision was procedural and must be applied retroactively, but rejected his claim that he should have received a pre-trial evidentiary hearing on the immunity issue. The Court held that a finding in district court that there was probable cause to believe a defendant’s use of force was unlawful is sufficient to proceed with trial, and that the issue shall not be revisited by the circuit court.

Rodgers also argued that even if the Chapter 503 amendment could not be applied retroactively, he was still entitled to a jury instruction stating he had no duty to retreat. The majority disagreed, noting that the Court had rejected an identical argument in Hilbert, and affirmed Rodgers’ conviction. Justice Scott and Justice Noble both concurred in part and dissented in part by separate opinions. Both asserted that the “no duty to retreat” provision was not a substantive change in the law as the doctrine had long been part of the common law in Kentucky prior to codification by the legislature. Both also asserted that the case should be remanded for a new trial with a “no duty to retreat” jury instruction. Justice Noble also expressed her belief that the immunity provision was substantive rather than procedural since it granted a new status that did not exist prior to the amendment’s enactment and thus should be applied prospectively only.

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