KRS Chapter 503 – General Principles of Justification

 

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TITLE L – KENTUCKY PENAL CODE

KRS ANNOTATED

KRS CHAPTER 503 – GENERAL PRINCIPLES OF JUSTIFICATION

KRS 503.010 Thru KRS 503.120

KRS 503.050 Use of physical force in self-protection — Admissibility of evidence of prior acts of domestic violence and abuse

KRS 503.055 Use of defensive force regarding dwelling, residence, or occupied vehicle — Exceptions

KRS 503.085 Justification and criminal and civil immunity for use of permitted force — Exceptions

KRS 503.110 Use of force by person with responsibility for care, discipline, or safety of others

 

 

 

 Updated 8/01/2013 (2013) GB

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KRS 503.010 Definitions for chapter.

The following definitions apply in this chapter unless the context otherwise requires:

(1) "Deadly physical force" means force which is used with the purpose of causing death or serious physical injury or which the defendant knows to create a substantial risk of causing death or serious physical injury.

(2) "Dwelling" means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

(3) "Imminent" means impending danger, and, in the context of domestic violence and abuse as defined by KRS 403.720, belief that danger is imminent can be inferred from a past pattern of repeated serious abuse.

(4) "Physical force" means force used upon or directed toward the body of another person and includes confinement.

(5) "Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

(6) "Vehicle" means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

Effective: July 12, 2006  History: Amended 2006 Ky. Acts ch. 192, sec. 1, effective July 12, 2006. — Amended 1992 Ky. Acts ch. 173, sec. 1, effective July 14, 1992. — Created 1974 Ky. Acts ch. 406, sec. 26, effective January 1, 1975. Effective: July 12, 2006 History: Amended 2006 Ky. Acts ch. 192, sec. 1, effective July 12, 2006. – Amended 1992 Ky. Acts ch. 173, sec. 1, effective July 14, 1992. — Created 1974 Ky. Acts ch. 406, sec. 26, effective January 1, 1975.

 
ANNOTATION FOR THIS STATUTE:
 

Collett v. Dailey (Ky. App., 2011) 2010-CA-002115

Here, the trial court was in the best position to weigh the credibility of the witnesses who testified that James created conditions at the home of his mother that could have resulted in physical injury to her. The trial court could certainly find that James’s actions were not mere interference or harassment but were actions that could have left his mother without medically required care and that created dangerous conditions within the home. Oneeta and the representative of Adult Protective Services testified that they were afraid that James’s actions would result in physical injury to Hazel since James engaged in a pattern of conduct that continuously placed his mother at risk.

The definition of "imminent" is found in KRS 503.010(3) as follows: "impending danger, and, in the context of domestic violence and abuse as defined by KRS 403.270, belief that danger is imminent can be inferred from a past pattern of repeated serious abuse." Under the facts of this case, with an elderly and infirm petitioner, James exhibited a past pattern of repeated serious abuse that put his mother at risk for the behavior from which the domestic violence statutes were designed to protect.

Therefore, considering the definition of domestic violence and abuse as set forth in KRS 403.720(1) and the evidence introduced at the evidentiary hearing, we conclude that the family court’s finding of domestic abuse and violence were supported by substantial evidence. Based upon the particular facts and circumstances of this case, the trial court’s findings were not erroneous and the order of the Kenton Circuit Court, Family Court Division, is affirmed.

 

Fraley v. Rice-Fraley, No. 2009-CA-002167-ME (Ky. App. 5/7/2010) (Ky. App., 2010)

     …"'[i]mminent’ means impending danger, and, in the context of domestic violence and abuse . . .[,] belief that danger is imminent can be inferred from a past pattern of repeated serious abuse." KRS 503.010(3).

        In the present case, Gail contradicted herself multiple times in the hearing, stating at times that she was not fearful of Dale and that she did not worry about her safety, and at other times stating that she would feel unsafe if the court did not enter a protection order. Nonetheless, she never alleged that Dale had acted violently toward her in the past, had injured her, or had threatened violence in any way. She based her alleged fear of Dale on her marriage counselor’s uninformed opinion that Dale had sociopathic tendencies and on the fact that her counselor told her Dale had unplugged Gail’s telephone to keep her from having outside contact. The family court properly stated that, under the circumstances of this case, it would not consider the opinions that the marriage counselor provided to Gail. However, the court stated that it would consider the "impact" of those opinions on Gail; the court erred in doing so.  

Com. v. Hager, 41 S.W.3d 828 (Ky., 2001)

 Instruction No. 2 did not include the definitions of "physical force," KRS 503.010(4), and "deadly physical force," KRS 503.010(l), which apply to the defense of self-protection. And if the jury had been instructed on the elements of fourth-degree assault, Instruction No. 2 also should have included the definition of "physical injury," KRS 500.080(13), which is the result element of that offense.  

Springer v. Commonwealth, 998 S.W.2d 439 (KY, 1999)

     Commonwealth v. Rose, KY., 725 S.W.2d 588 (19871, cert. denied, 484 U.S. 838 (1987), we described the "battered woman syndrome" as a mental condition which "tends to explain why a person suffering from the syndrome would not leave her mate and would be driven by fear of continuing episodes of increased aggression against herself to perceive certain conduct was necessary in her self-defense, even though another person not suffering from such a condition might believe or behave differently." Id. at 590-91; Dyer v. Commonwealth, KY., 816 S.W.2d 647, 654 (1991) overruling Commonwealth v. Craig, KY., 783 S.W.2d 387 (1990), which had temporarily overruled Rose. In 1992, our legislature added two new provisions to KRS Chapter 503. KRS 503.010(3) defined "imminent," a key word in the justification statutes, as follows:

    "Imminent" means impending danger, and, in the context of domestic violence and abuse as defined by KRS 403.720, belief that danger is imminent can be inferred from a past pattern of repeated serious abuse.

KRS 503.050, the statute authorizing the use of physical force in self-protection, was amended to add a new subsection (3) :

     Any evidence presented by the defendant to establish the existence of a prior act or acts of domestic violence and abuse as defined in KRS 403.720 by the person against whom the defendant is charged with employing physical force shall be admissible under this section  

Lickliter v. Commonwealth, No. 2002-SC-0487-MR (KY 8/26/2004) (KY, 2004)

        The justification is also available when there is a mistaken belief in the existence of use or imminent use of unlawful physical force by another. KRS 503.120(1). "Imminent" is defined in KRS 503.010(3) as impending danger. The dictionary also lists "impending" as being synonymous with "imminent" and further defines it as, "About to occur at any moment." Webster’s II New Riverside University Dictionary 611 (1984).

        Here, it is abundantly clear from all the evidence that Lickliter never believed, mistaken or otherwise, that the threat was imminent. The evidence at trial was that the victim was killed in Fayette County while he slept in the back of the truck. According to Lickliter’s statement, he believed that the victim was going to use physical force against him when they got back to Tennessee, and only if he told anyone that the victim was a hired killer. There simply was no evidence that the physical force was imminent. To require any type of self-defense instruction under these circumstances would be ludicrous. The trial judge properly rejected all the requested instructions.

        There was no violation of Lickliter’s rights under either the federal or state constitution  

Com. v. Vincent, 70 S.W.3d 422 (Ky., 2002)

 KRS 503.050(3) ("Any evidence presented by the defendant to establish the existence of a prior act or acts of domestic violence and abuse as defined in KRS 403.720 by the person against whom the defendant is charged with employing physical force shall be admissible under this section." (emphasis added)). Although the constitutionality of this provision is debatable, See O’Bryan v. Hedaesoeth, KY., 892 S.W.2d 571, 576 (1995) this provision, and a change by the same legislature to the definition of "imminent" contained at KRS 503.010(3), provide strong evidence that the General Assembly recognized, and made allowances for, the fact that victims of past acts of domestic violence or abuse may respond differently to a given situation than a person who had not been subject to such abuse. This Court recognized this possibility Commonwealth v. Rose, KY., 725 S.W.2d 588, 590-591 (1987) ("[Expert testimony concerning battered wife syndrome] might be of assistance to the jury as trier of fact because it tends to explain why a person suffering from the syndrome would not leave her mate and would be driven by fear of continuing episodes of increased aggression against herself to perceive certain conduct was necessary in her self-defense, even though another person not suffering from such a condition might believe or behave differently." (emphasis added)).

 

Sizemore v. Com., 844 S.W.2d 397 (Ky., 1992)  

 In simplest terms, the Constitution, the statutes and the authorities recognize that a murder conviction may not be had if the jury believes that the defendant acted from a perceived need for self-defense. Moreover, no conviction may be had if the jury believes that the defendant’s belief was reasonably founded. Untenably, Shannon would preclude conviction by precluding a wanton murder instruction. But both the elements of murder and the elements of justification are inevitably matters which must be decided by a jury. In order to decide the questions according to law, the jury must be fully instructed in the law.

        In the present case, I think it will not be denied that a jury could find–indeed, this jury did find–that the defendant had used deadly physical force against the victim. KRS 503.010(1) reads:

"Deadly physical force" means force which is used with a purpose of causing death or serious physical injury or which the defendant knows to create a substantial risk of causing death or serious physical injury.

        (Emphasis added.) The conviction for wanton murder required, as an element of the offense, a finding that Sizemore was "aware of … a substantial … risk that the result [i.e., death] [would] occur…." KRS 501.020(3), defining "wantonly."

        Whether the fatal shot was aimed or fired blindly in Gene’s known direction, the evidence would certainly support an inference that Donald knew that he was creating a substantial risk of death or serious physical injury to Gene. As the quoted testimony reveals, there was also considerable evidence to support an inference that Donald believed that the use of deadly force was necessary in order to protect his own life against the imminent use of unlawful deadly force by Gene, and that Donald’s conduct was precipitated by that belief, regardless of whether the fatal shot was aimed or blind. Given an opportunity, therefore, the jury might well have found that Donald’s use of force was justifiable pursuant to KRS 503.050, except as limited by KRS 503.120. And, as has already been established, supra, KRS 503.120 does not negate justification as a defense to a charge of wanton murder. Ergo, the wanton murder instruction ought to have been qualified by a self-protection instruction in accordance with Chapter 503.

 

Foster v. Com., 827 S.W.2d 670 (Ky., 1991)

 Powell was also not entitled to a guilt-phase instruction on voluntary manslaughter in support of her duress claim because the record indicates that Powell had "intentionally or wantonly placed [herself] in a situation in which it was probable that [she] would be subject to coercion." KRS 501.090(2). The trial court properly relegated Powell’s claim of duress to the penalty phase of the trial where it was considered as a mitigating circumstance. KRS 507.020; KRS 532.025(2)(a)6; KRS 503.010 et seq. 

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KRS 503.020 Justification — A defense.

In any prosecution for an offense, justification, as defined in this chapter, is a defense.

Effective: January 1, 1975 History: Created 1974 Ky. Acts ch. 406, sec. 27, effective January 1, 1975.
 
ANNOTATION FOR THIS STATUTE:  

Lapradd v. Commonwealth of Ky., 334 S.W.3d 88 (Ky., 2011)

Because the instructions on the elements of the possession of a handgun offense did not incorporate LaPradd’s choice of evils defense, we must reverse the conviction and remand for a new trial. See Harper v. Commonwealth, 43 S.W.3d 261, 263–64 (Ky.2001). On retrial, we direct the parties to the specimen recommended instructions in Commonwealth v. Hager, 41 S.W.3d at 844–47, relating to self-protection, since choice of evils and self-protection are both justification “defenses” within the meaning of KRS 500.070. KRS 503.020.

 

[U] Jones v. Commonwealth (Ky., 2011)  2009-SC-000221-MR.PDF

Appellant was convicted of murder pursuant to a guilty but mentally ill verdict. On appeal, Appellant argued that the trial court erred in a giving a "no duty to retreat" instruction regarding the victim and in refusing to admit evidence that Appellant believed he was being poisoned in jail. The Supreme Court reversed, holding that it was reversible error to give the "no duty to retreat" instruction regarding the victim because Ky. Rev. Stat. 503.055(3) was not intended to apply to the victim’s conduct but only to a defendant’s conduct relative to his or her claim of self-defense. Remanded for retrial.

The cardinal rule of statutory construction is to . . . give effect to the intent of the legislature." Kentucky Ins. Guar. Ass’n v. Jeffers ex rel. Jeffers, 13 S.W.3d 606, 610 (Ky. 2000) . In ascertaining the intent of the legislature, a court must not be guided by a single sentence, but must look to the provisions of the whole act and its object and policy. Cosby v. Commonwealth, 147 S.W.3d 56, 58 (Ky. 2004) .

KRS Chapter 503 is entitled, "General Principles of Justification." "Justification" is defined in KRS 503.020 as "a defense." Relative to KRS 503.055, KRS 503.085 provides that "[a] person who uses force as permitted in . . . KRS 503.055 . . . is justified in using such force and is immune from criminal prosecution and civil action for the use of such force . . . ." In viewing KRS Chapter 503 as a whole, we deem that it was meant to apply to the conduct of the person who is subject to criminal prosecution as a result of the use of force, and not the victim of such force. Accordingly, the "Use of Defensive Force" instruction in the present case was submitted in error. "In this jurisdiction it is a rule of longstanding and frequent repetition that erroneous instructions to the jury are presumed to be prejudicial; that an appellee claiming harmless error bears the burden of showing affirmatively that no prejudice resulted from the error." McKinney v. Heisel, 947 S.W.2d 32, 35   (Ky. 1997). We cannot say that no prejudice resulted from the erroneous instruction given in this case. Therefore, we reverse the judgment of conviction and remand for a new trial. We address only those remaining allegations of error that are likely to occur again on retrial.

 

Holbrook v. Com., 925 S.W.2d 191 (Ky. App., 1995) 

      A teacher is justified in the use of physical force within certain bounds. Force is permissible if (1) the teacher believes that the force is necessary to further the education of the child or "maintain reasonable discipline" and (2) the force is not "designed to cause or known to create a substantial risk of causing death, serious physical injury, disfigurement, extreme pain, or extreme mental distress." KRS 503.110. The privilege to use force is unavailable as a defense if the teacher is "wanton or reckless in believing the use of any force, or the degree of force used, to be necessary…." KRS 503.120. (Emphasis supplied.) In its response to Holbrook’s motion for discretionary review, the Commonwealth concedes that Holbrook was not wanton or reckless in deciding to paddle the student. Absent a wanton or reckless belief that force is necessary, the teacher is privileged to use whatever force is necessary so long as that force is not "designed to cause or known to create a substantial risk of  causing death, serious physical injury, disfigurement, extreme pain, or extreme mental distress." KRS 503.110.

 

Poteete v. Com., 701 S.W.2d 416 (Ky. App., 1985)  

      In our opinion, the trial court committed reversible error in refusing to instruct the jury on the justification defense. KRS 503.020 states "[i]n any prosecution for an offense, justification, as defined in this chapter, is a defense." The Chapter goes on to create a number of different variations on the justification defense. For example, KRS 503.030 provides that: "… conduct which would otherwise constitute an offense is justifiable when the defendant believes it to be necessary to avoid an imminent public or private injury greater than the injury which is sought to be prevented by the statute defining the offense charged…." KRS 503.040(2)(b) states that "… conduct which would otherwise constitute an offense is justifiable when … [t]he defendant believes his conduct to be required or authorized to assist a public officer in the performance of his duties, notwithstanding that the officer exceeded his legal authority."

        In our opinion, appellant presented sufficient evidence at trial to allow reasonable minds to conclude that he was justified in his actions under either of these statutory sections. Appellant is entitled to have his theory of the case presented to the jury for its consideration. The trial court erred in refusing to instruct the jury on a justification defense.

 

Lapradd v. Commonwealth, No. 2007-CA-001205-MR (Ky. App. 3/27/2009) (Ky. App., 2009)

  As to the correctness of the instructions, KRS 503.020 provides that "[i]n any prosecution for an offense, justification, as defined in this chapter, is a defense." The "choice of evils" defense, found in KRS 503.030, is classified as a justification defense under our penal code. Poteete v. Commonwealth, 701 S.W.2d 416, 418 (Ky.App. 1985). Once there is sufficient evidence to put a justification defense in question, an instruction must be given by the trial court on the issue. Commonwealth v. Hager, 41 S.W.3d 828, 833 (Ky. 2001).

        In this case, the trial court properly issued an instruction, substantially patterned after the "choice of evils" instruction provided in 1 Cooper, Kentucky Instructions to Juries (Criminal) § 11.28 (Rev. 4th ed. 1999), which sufficiently informed the jury regarding LaPradd’s "choice of evils" defense. Contrary to LaPradd’s contention, the trial court did not shift the burden of proof away from the Commonwealth but merely instructed the jury of what it had to believe to find LaPradd guilty of felony handgun possession. Accordingly, the trial court’s instruction was proper.  

Clark v. Kentucky, 229 F.Supp.2d 718 (E.D. Ky., 2002)

   In the present case, the statute that the plaintiff relies on, K.R.S. § 503.090, does not appear to be one that was intended to regulate conduct. While it does address the conduct of law enforcement officers, the statute merely provides a defense against a claim of excessive force and sets forth the elements of that defense. K.R.S. § 503.020 ("In any prosecution for an offense, justification, as defined in this chapter, is a defense."). Therefore, the principles of negligence per se — and, thus, K.R.S. § 446.070 — do not come into play to create a cause of action for the plaintiff. If defendant Wells has violated § 503.090, he cannot rely on the defense of justification in response to a prosecution for an offense. Therefore, this state law claim should be dismissed, and the Court need not consider the more complex question — not fully briefed by the parties — of whether the Board of Claims has exclusive jurisdiction over this claim.

 
V. CONCLUSION

Accordingly, the Court, being otherwise fully and sufficiently advised, HEREBY ORDERS that

(1) the motion to dismiss of defendants

(1) Commonwealth of Kentucky;

(2) Department of Alcohol Beverage Control;

(3) Richard Johnstone, in his official capacity as Commissioner, Department of Alcohol Beverage Control and in his individual capacity; and

(4) Loren Wells, in his official capacity as an Alcohol Beverage Control Officer [DE #4] is GRANTED IN PART and DENIED IN PART in accordance with this opinion and order;

(2) the motion to dismiss of defendant Wells in his individual capacity [DE #9] is GRANTED IN PART and DENIED IN PART in accordance with this opinion and order;

(3) the following claims are DISMISSED WITH PREJUDICE and the plaintiff shall take nothing thereby:

(a) All § 1983 claims against the Commonwealth of Kentucky, the Department of ABC, and defendants Johnstone and Wells in their official capacities;

(b) The § 1983 claim based on respondeat superior against Johnstone in his individual capacity;

(c) All state law claims in Counts II and III against the Commonwealth of Kentucky, the Department of ABC, and defendants Johnstone and Wells in their official capacities;

(d) All state law claims in Count II against defendants Johnstone and Wells in their individual capacities;

(e) All state law claims in Count III against defendant Johnstone in his individual capacity; and

(f) The state law claim in Count III for negligence per se for violation of K.R.S. § 503.090 against defendant Wells in his individual capacity;

(4) the following claims are DISMISSED WITHOUT PREJUDICE:

 (a) The § 1983 claims based on (i) unlawful seizure of his person, (ii) violation of his substantive due process rights, and (iii) lack of probable cause for the arrest against defendant Wells in his individual capacity;

(5) the following claims remain for resolution:

(a) The § 1983 claim based on failure to train against defendant Johnstone in his individual capacity;

(b) The § 1983 claim based on excessive use of force against defendant Wells in his individual capacity; and

(c) The state law claims in Count III for

(i) assault and battery,

(ii) outrage, and

(iii) intentional infliction of emotional distress against defendant Wells in his individual capacity; and

(6) this is an interlocutory order in all respects.

 

Thompson v. Com., 652 S.W.2d 78 (Ky., 1983)

"Finally, the [Commonwealth] argues that the trial court erred in including in its instructions for second-degree manslaughter and reckless homicide the defense of self-protection. It argues that a self-protection instruction does not apply to wanton or reckless homicide in light of KRS 503.030 and 503.020. Specifically, it urges this Court to reconsider its decision in Kohlheim v. Commonwealth, Ky.App., 618 S.W.2d 591 (1981), in light of the 1974 commentary to KRS 503.120. This, we decline to do. As such, we hold that the trial court, under the facts presented to it, acted correctly."

 

Sizemore v. Com., 844 S.W.2d 397 (Ky., 1992)   

 By its very terms, then, KRS 503.120 does not make a justification defense unavailable to a charge of wanton murder. We are left with the terms of KRS 503.020: "In any prosecution for an offense, justification, as defined in this chapter, is a defense," and with the terms of KRS 503.050:

        (1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.

        (2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, or sexual intercourse compelled by force or threat.

        As the statutes reveal, the General Assembly intends that a defendant who has used deadly physical force in the belief that such force was necessary to protect himself against death or serious physical injury is not guilty of wanton murder. The rationale for this legislative decision is similarly plain: where the actor believes in the need to protect his life, the circumstances, while they may demonstrate wantonness, cannot manifest extreme indifference to human life.

        To the extent that it would deny a self-defense instruction, the Shannon premise is also flawed with respect to the lesser offenses of manslaughter in the second degree and reckless homicide. In distinguishing state of mind with respect to results from state of mind with respect to the need for self-protection, Shannon itself recognizes that the latter, like the former, is a jury question. And the question must be posed in terms of justification, pursuant to KRS 503.120(1).

 

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KRS 503.030 Choice of evils.

(1) Unless inconsistent with the ensuing sections of this code defining justifiable use of physical force or with some other provisions of law, conduct which would otherwise constitute an offense is justifiable when the defendant believes it to be necessary to avoid an imminent public or private injury greater than the injury which is sought to be prevented by the statute defining the offense charged, except that no justification can exist under this section for an intentional homicide.

(2) When the defendant believes that conduct which would otherwise constitute an offense is necessary for the purpose described in subsection (1), but is wanton or reckless in having such belief, or when the defendant is wanton or reckless in bringing about a situation requiring the conduct described in subsection (1), the justification afforded by this section is unavailable in a prosecution for any offense for which wantonness or recklessness, as the case may be, suffices to establish culpability.

Effective: January 1, 1975  History: Created 1974 Ky. Acts ch. 406, sec. 28, effective January 1, 1975.
 
ANNOTATION FOR THIS STATUTE:
 

Burke v. Commonwealth, 322 S.W.3d 71 (Ky., 2010)  2009-SC-000431-MR.pdf

Appellant first argues that the trial court erred by not providing a jury instruction on the “choice of evils” defense. This issue is preserved for review by Appellant’s request for this instruction at trial.

The principle of justification known as “choice of evils” is codified in KRS 503.030, and provides in relevant part:

conduct which would otherwise constitute an offense is justifiable when the defendant believes it to be necessary to avoid an imminent public or private injury greater than the injury which is [322 S.W.3d 74] sought to be prevented by the statute defining the offense charged….(emphasis added). The term imminent is defined in KRS 503.010(3) as “impending danger.” The Commentary to KRS 503.030 notes that to qualify for the “choice of evils” defense “a defendant need only to have such a belief” in the necessity of his actions to avoid an imminent injury.

Appellant argues that he should have received a “choice of evils” instruction because he believed that if he did not flee the halfway house, he would be robbed again, or even killed. Appellant cites to Pittman v. Commonwealth, 512 S.W.2d 488 (Ky.1974), for the proposition that a prisoner who is in imminent danger from other inmates can escape from the prison and be entitled to a “choice of evils” instruction. However, we believe that the facts of this case are not analogous to Pittman, and that the trial court correctly denied Appellant’s request for the instruction.

In Pittman, the defendant was cornered by four prisoners in a prison farm dormitory. Pittman did not believe that he could get to a prison guard in time for protection, so he fled the farm. After Pittman was recaptured he stated “I had but one choice. Leave, stay there, kill somebody, or get killed.” Id. at 489. Key to our predecessor court’s determination that Pittman was entitled to a “choice of evils” defense was that Pittman fled his attackers at the moment they confronted him. The danger of Pittman either being seriously injured or seriously injuring one of his attackers was truly “imminent.”

In this case, the danger of Appellant being seriously injured or killed was not “imminent.” Appellant testified that after his attackers initially threatened him, they left him alone. Hours later, Appellant undertook his escape without ever reporting the alleged attacks or the threat to the halfway house authorities or to the police. Had Appellant reported the attack to the proper authorities, they could have prevented the harm he feared. Thus, a jury could not reasonably conclude that Appellant’s conduct was “necessary to avoid an imminent public or private injury.” See Montgomery v. Commonwealth, 819 S.W.2d 713 (Ky.1991) (holding that a “choice of evils” jury instruction was not supported by the evidence when the defendant escaped from a prison facility based on the fear he may be harmed when released into the general prison population). We affirm the trial court’s denial of Appellant’s request for a “choice of evils” instruction because it is unsupported by the evidence.

 

Lapradd v. Commonwealth of Ky., 334 S.W.3d 88 (Ky., 2011)

The issue in this criminal appeal is the burden of proof and how the jury is to be instructed when a choice of evils defense is raised pursuant to KRS 503.030. Because the jury instructions improperly failed to place the burden of proof on the Commonwealth to show that the defendant was not privileged to take the action he did pursuant to a choice of evils, we reverse the conviction for possession of a handgun by a convicted felon and PFO II, and remand for further proceedings.

 

Cromer v. Commonwealth (Ky. App., 2011)  2010-CA-000362

As further explained in Senay v. Commonwealth, 650 S.W.2d 259 (Ky. 1983), for this defense to be available, it must be shown that defendant’s conduct was necessitated by a specific and imminent threat of injury to his person under circumstances which left no reasonable and viable alternative other than the violation of the law for which he stands charged. In other words, the danger presented to the defendant must be "compelling and imminent, constituting a set of circumstances which affords him little or no alternative other than the commission of the act which otherwise would be unlawful." Id. at 260. The commentary to KRS 503.030(1) notes that practical examples of this necessity include where an individual speeds through a school zone to get a dying person to a hospital or where someone destroys the property of another to prevent the spread of fire.

We conclude that the district court properly found that the Beasley contingencies were not met in this case. The record belies Appellant’s claim that he believed driving under the influence was necessary to prevent a possible theft. Indeed, when Appellant initially called police, he only reported a hit-and-run, not a theft. Notwithstanding, we agree with the district court that it was simply unreasonable to believe that operating a motor vehicle under the influence of alcohol was justified under the circumstances presented. Likewise, there is no evidence in the record that the risk of injury was so compelling or imminent as to leave Appellant with no alternative to avoid the injury other than driving under the influence. A general fear or threat is too speculative and anticipatory. Senay, at 261. Appellant’s claim that he was preventing imminent peril to other unidentified motorists was certainly speculative at best. Finally, we agree with the district court that the injury sought to be avoided did not outweigh the offending charge of DUI. "Where a defendant fails to produce evidence which would support him in choosing the commission of an otherwise unlawful act over other lawful means of protecting himself, the trial court is not required to instruct the jury on the choice of evils defense." Id. at 260-261. Accordingly, the district court did not err in denying the instruction on choice of evils.

 

Mullikan v. Commonwealth of Ky., 341 S.W.3d 99 (Ky., 2011)

Even if Mullikan had been correct that Fields and Fryman had attempted to kill him on some earlier occasion, or that they would do so at some unspecified time in the future, he would not be justified in engaging in otherwise criminal conduct unless he believed it necessary to avoid an imminent injury. KRS 503.030. And as previously discussed, there was no evidence of threats of imminent injury when Mullikan accosted Fields on the street or when Mullikan entered Fields’s home and began brandishing a sword and making verbal threats. Therefore, the trial court was correct in declining to issue Mullikan’s tendered instruction on mistake of fact as a defense.

 

Mahmoud v. Commonwealth, No. 2006-CA-001838-MR (Ky. App. 4/10/2009) (Ky. App., 2009)

     Susan was charged with custodial interference, a Class D felony under KRS 503.030. The crime she sought to avoid, sexual abuse in the first degree, is also a Class D felony under KRS 510.010(2), but only if the victim is less than twelve years of age in which case it is a Class C felony. S.M. was ten when Susan took her to Indiana, but fourteen when she was returned to Kentucky. Thus, when Susan’s flight began she was trying to avoid a greater injury than the crime she committed and therefore Beasley does not foreclose her assertion of the choice of evils defense.

        However, based upon all the foregoing, we do not believe a report of sexual abuse allegedly occurring some six years before, and a DVO entered nine years before she absconded with S.M. satisfied Susan’s burden of production by a preponderance of the evidence. Dixon, supra, 548 U.S. at 2, 126 S.Ct. at 2439. We are simply unconvinced Susan offered sufficient proof to establish she faced a compelling and imminent danger on June 8, 2000, such that she had no reasonable choice but to ignore a valid visitation order. Based upon our review of the proof, Susan did not establish her belief was reasonable, her criminal act was contemporaneous with the danger she faced, nor that injury to her daughter was imminent such that she had to act immediately to avoid it.

        Based on the evidence before us, we agree with the Commonwealth’s argument on cross-appeal and conclude Susan was not entitled to a choice of evils defense. If on retrial she can establish her conduct was "necessitated by a specific and imminent threat of injury to [her] person under circumstances which left [her] no reasonable and viable alternative, other than the violation of the law for which [s]he stands charged[,]" she will be entitled to assert a choice of evils defense and jurors should be so instructed. Senay, supra, 650 S.W.2d at 260. However, if she produces the same evidence elicited during this trial, or otherwise fails to meet her burden of production, the trial court need not instruct jurors on the choice of evils defense. Peak v. Commonwealth, 34 S.W.3d 80, 82 (Ky. App. 2000

 

Montgomery v. Com., 819 S.W.2d 713 (Ky., 1991)

     In KRS 503.030, the Penal Code recognizes a legal justification for criminal conduct in circumstances "in which individuals are confronted with a choice of engaging in conduct defined as criminal or suffering the consequences of greater injury." Commentary to the Penal Code, KRS 503.030. This principle of justification is designated "choice of evils," and is codified in KRS 503.030(1), providing in pertinent part, as follows:

"… conduct which would otherwise constitute an offense is justifiable when the defendant believes it to be necessary to avoid an imminent public or private injury greater than the injury which is sought to be prevented by the statute defining the offense charged,…."

  Even though the instructions of the trial court in the instance case was different from the procedure outlined in Reneer, it is at most a procedural matter which was unobjected to at the time of trial and which did not result in an enhancement of the penalty. It is as likely that the failure of the jury to set a sentence on the underlying offense had a mitigating effect, as that it had a punitive effect. The Wellman principle does not apply in these circumstances.

        The Appellants’ Brief takes note of a comment Commonwealth v. Hayes, Ky., 734 S.W.2d 467, 469 (1987): "no doubt because the persistent felony offender statute, KRS 532.080(1), does not authorize an enhanced sentence of imprisonment when there has been no sentence of imprisonment assessed for the underlying offense." Hayes is factually distinguishable because the jury imposed only a fine for the underlying offense which it thereafter attempted to enhance with a prison sentence upon conviction as a PFO. The holding in Hayes is that only a prison sentence and not a fine can be enhanced under the language of the PFO statute. Thus we were confronted in Hayes (as in Wellman ) with a longer sentence than the law allowed, which is not the case here. The error here, if there was one, was a procedural matter which we need not address in the absence of a contemporaneous objection.

 

Senay v. Com., 650 S.W.2d 259 (Ky., 1983)

He also contends that the trial court erred in refusing to instruct the jury on the affirmative defense of "choice of evils" as defined by KRS 503.030. While we agree that under certain circumstances such defense may be available to one so charged, nevertheless we hold that the defense is not appropriate under the specific facts of this case. Thus, the trial court’s refusal to instruct on the defense was not error, and we affirm the opinion of the Court of Appeals upholding the conviction.

 

Lapradd v. Commonwealth, No. 2007-CA-001205-MR (Ky. App. 3/27/2009) (Ky. App., 2009)

   The "choice of evils" defense, rooted in Kentucky’s common law doctrine of necessity, has been codified in KRS 503.030. Senay v. Commonwealth, 650 S.W.2d 259, 260 (Ky. 1983). KRS 503.030(1) provides the following:

        Unless inconsistent with the ensuing sections of this code defining justifiable use of physical force or with some other provisions of law, conduct which would otherwise constitute an offense is justifiable when the defendant believes it to be necessary to avoid an imminent public or private injury greater than the injury which is sought to be prevented by the statute defining the offense charged, except that no justification can exist under this section for an intentional homicide.

        A defendant is not entitled to a "choice of evils" instruction unless he produces "evidence which would support him in choosing the commission of an otherwise unlawful act over other lawful means of protecting himself." Id. at 260-61.

 

Thompson v. Commonwealth, No. 2006-CA-002568-MR (Ky. App. 11/30/2007) (Ky. App., 2007)

  Second, Thompson contends the trial court erred in failing to instruct the jury as to the "choice of evils" defense pursuant to KRS 503.030.6 She testified the narcotics did not belong to her, but rather she concealed the drugs only because she was ordered to do so by Shanklin, a man she claimed was armed, violent, and caused her substantial fear. Thus, she claims she submitted sufficient proof to warrant the instruction she tendered on the affirmative defense.

        Allegations of error in jury instructions are questions of law which are reviewed de novo. Reece v. Dixie Warehouse and Cartage Co., 188 S.W.3d 449 (Ky.App. 2006). In order to be entitled to an instruction under KRS 503.030, a defendant must prove:

        (1) that the person believes the necessity of his action is mandated by his subjective value judgment (this must be weighed by the reasonableness standard);

        (2) that such action must be contemporaneous with the danger of injury sought to be avoided. See Duvall v. Commonwealth, Ky.App., 593 S.W.2d 884 (1980);

        (3) that the injury is imminent, requiring an immediate choice if to be avoided; and

 (4) that the danger or injury sought to be avoided must be greater than the penalty or offending charge occasioned by the action chosen by the party.

The inference raised by the Commonwealth was clearly reasonable based upon the evidence adduced during the trial. Contrary to Thompson’s argument, there was no manifest necessity for a mistrial, nor did the trial court err in denying her motion.

        For the foregoing reasons, the judgment of conviction of the Jefferson Circuit Court is in all respects affirmed

 

Ferrell v. Commonwealth, 1999 KY 42025 (KYCA, 1999)

       Ferrell’s tendered instructions were very similar to the first paragraph of the above instruction that was given. However, Ferrell objected to the inclusion of the second paragraph set out above on the grounds that the crime of escape was an intentional act and that KRS 503.030(2) specifically states that the language in the second paragraph applies only to offenses having wantonness or recklessness as the culpable mental state. The Commonwealth did not object to the deletion of the second paragraph; however, after a recess, the trial court included the second paragraph in the instruction on the basis that the charge herein was similar to a self-defense case.

       The "choice of evils" defense has its origins in the common law doctrine of necessity and has been recognized as a defense since the turn of this century. Chesapeake & Ohio Railway v. Commonwealth, 119 Ky. 519, 84 S.W. 566 (1905). Kentucky’s requirement that the threat of injury be "specific and imminent" has traditionally been very narrowly construed by the courts. An inmate that escapes can rely on the defense of "choice of evils" only if he can show that his escape from custody "was necessitated by a specific and imminent threat of injury to his person under circumstances which left him no reasonable and viable alternative, other than the violation of the law for which he stands charged." Senay v. Commonwealth, Ky., 650 S.W.2d 259, 260 (1983). Also Montgomery v. Commonwealth, Ky., 819 S.W.2d 713 (1991), and Damron v. Commonwealth, Ky., 687 S.W.2d 138 (1985).

     We do not say as a matter of law that in every case the option provided by KRS 503.030 must be a choosing on the part of the defendant so contemporaneous with the offense sought to be justified that it must be considered as a part of the res gestae as held in Duvall v . Commonwealth, Ky. App., 593 S.W.2d 884 (1980). However, the danger presented to the defendant must be compelling and imminent, constituting a set of circumstances which affords him little or no alternative other than the commission of the act which otherwise would be unlawful." See also Damron, supra, and Montgomery, supra (denying instructions based on lack of imminence).

       Our highest court has repeatedly interpreted the statute to require that a threat of imminent injury must actually exist to bring this defense into play. See Beasley, Senay, Damron, and Montgomery, all supra. Pittman v. Commonwealth, Ky., 512 S.W.2d 488, 490 (1974) (emphasis added), the Court determined that the defendant was entitled to an instruction and stated that "[t]he validity and submissibility of the defense must rest on imminent, impending danger to life or great bodily harm based on a well-grounded apprehension." In Beasley, supra (emphasis added), the Court determined that the subjective value belief "must be weighed by the reasonableness standard". In Senay, supra (emphasis added), the Court stated that "the danger . . . must be compelling." In Damron, supra (emphasis added), the Court stated that "[t]here must be a showing of a specific and imminent threat to his person." Each of these cases either implicitly or explicitly requires the application of an objective standard to the defendant’s subjective belief. The cases do not turn on the defendant’s belief concerning whether the danger to him is imminent. Rather, the cases state that there "must be" an imminent threat. We conclude that these cases require an objective qualification to the defendant’s subjective belief. See also Abramson, Kentucky Practice, Substantive Criminal Law, § 5.41 (1990).

 

Poteete v. Com., 701 S.W.2d 416 (Ky. App., 1985)

      In our opinion, the trial court committed reversible error in refusing to instruct the jury on the justification defense. KRS 503.020 states "[i]n any prosecution for an offense, justification, as defined in this chapter, is a defense." The Chapter goes on to create a number of different variations on the justification defense. For example, KRS 503.030 provides that: "… conduct which would otherwise constitute an offense is justifiable when the defendant believes it to be necessary to avoid an imminent public or private injury greater than the injury which is sought to be prevented by the statute defining the offense charged…." KRS 503.040(2)(b) states that "… conduct which would otherwise constitute an offense is justifiable when … [t]he defendant believes his conduct to be required or authorized to assist a public officer in the performance of his duties, notwithstanding that the officer exceeded his legal authority."

        In our opinion, appellant presented sufficient evidence at trial to allow reasonable minds to conclude that he was justified in his actions under either of these statutory sections. Appellant is entitled to have his theory of the case presented to the jury for its consideration. The trial court erred in refusing to instruct the jury on a justification defense.

        Appellant also alleges that the trial court erred in excluding the testimony of inmates Morris and Despain. Despain’s testimony establishes that prison officials made prior deals with inmates to recover contraband from the yard. Morris’ testimony sheds light on appellant’s state of mind during the events which led to his arrest. Because KRS 503.030 and 503.040 are couched in terms of the defendant’s belief at the time of the alleged offense, whether he believes his conduct is necessary or justifiable, then testimony which sheds light on the defendant’s state of mind at that time is relevant and admissible. See Lawson, The Kentucky Evidence Law Handbook Sec. 850 (2nd ed. 1984). The trial court erred in excluding the testimony of Despain and Morris.

        Because we reverse appellant’s conviction for the principal charge of promoting contraband, we also reverse appellant’s PFO conviction. We have considered appellant’s other claims of error, but we find no fault with the ruling of the trial court.

        The judgment of the Oldham Circuit Court is reversed and remanded for further proceedings consistent with this opinion

 

Duvall v. Com., 593 S.W.2d 884 (Ky. App., 1979)

KRS 503.030 states:

(1) Unless inconsistent with the ensuing sections of this code defining justifiable use of physical force or with some other provisions of law, conduct which would otherwise constitute an offense is justifiable when the defendant believes it to be necessary to avoid an imminent public or private injury greater than the injury which is sought to be prevented by the statute defining the offense charged, except that no justification can exist under this section for an intentional homicide.

(2) When the defendant believes that conduct which would otherwise constitute an offense is necessary for the purpose described in subsection (1), but is wanton or reckless in having such belief, or when the defendant is wanton or reckless in bringing about a situation requiring the conduct described in subsection (1), the justification afforded by this section is unavailable in a prosecution for any offense for which wantonness or recklessness, as the case may be, suffices to establish culpability.

        The option provided by this section must be a choosing on the part of the defendant which is sufficiently contemporaneous with the offense sought to be justified so as to be considered a part of the res gestae. In the face of the facts of this case, we are unpersuaded by appellant’s argument that he was confronted with a choice of engaging in conduct defined as criminal, i. e. possession of a handgun, or suffering the consequences of serious physical injury or possibly death at the hands of the deceased.

        Had the appellant been charged with the offense described in KRS 527.020 (Carrying a Concealed Weapon) rather than the charge of 527.040, we believe he may have been entitled to such an instruction. However, the evidence in this case is clear by appellant’s own admission that he came into actual, physical custody and control of the deadly weapon at least two days prior to the altercation. At such time, appellant could not have known there would be a subsequent altercation or the necessity of exercising the choice of self-defense. Thus, he is precluded from the option provided by "choice of evils." We therefore find no error in the trial court’s rejection of this instruction.

 

Damron v. Com., 687 S.W.2d 138 (Ky., 1985)  

  First, he asked for and was denied a "choice of evils" instruction, KRS 503.030. Damron testified that he escaped from jail because it was a "matter of life or death." He testified that he was ill while in jail, lost weight, and suffered severe chest pains. Further, he testified he had been denied medical attention and felt that "it was serious enough that my life was in jeopardy."

        We are of the opinion the situation described by Damron is not sufficient to invoke the provisions of KRS 503.030. There must be a showing of a specific and imminent threat to his person in order to justify the giving of the instruction. Senay v. Commonwealth, Ky., 650 S.W.2d 259 (1983).

 

Gardner v. Commonwealth, No. 2006-CA-000160-MR (Ky. App. 8/24/2007) (Ky. App., 2007)  

    Gardner contends that the choice of evils was a crucial part of his defense and he offers that he was denied the opportunity to present that defense. A defendant who admits being in possession of a handgun as a convicted felon may seek to exonerate himself on grounds of justification under KRS 503.030 provided the accused shows a threat of injury to himself or imminent peril making the possession of a handgun necessary. See Senay v. Commonwealth, 650 S.W.2d 259 (Ky. 1983). Gardner argues that every time he went out, Washington would threaten him. However, the assertions of peril cannot be a general fear posed by a single threat communicated through a third person, but requires "a choosing on the part of the defendant which is sufficiently

contemporaneous with the offense sought to be justified so as to be considered a part of the res gestae." Duvall v. Commonwealth, 593 S.W.2d 884, 886 (Ky.App. 1979).

        Considering that the trial court properly instructed the jury on the choice of evils and the defense had every opportunity to introduce additional evidence, we find no error. 

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 KRS 503.040 Execution of public duty.

(1) Unless inconsistent with the ensuing sections of this code defining justifiable use of physical force or with some other provisions of law, conduct which would otherwise constitute an offense is justifiable when it is required or authorized by a provision of law imposing a public duty or by a judicial decree.

(2) The justification afforded by subsection (1) applies when:

(a) The defendant believes his conduct to be required or authorized by the judgment or direction of a competent court or tribunal or in the lawful execution of legal process, notwithstanding lack of jurisdiction of the court or defect in the legal process; or

(b) The defendant believes his conduct to be required or authorized to assist a public officer in the performance of his duties, notwithstanding that the officer exceeded his legal authority.

Effective: January 1, 1975

History: 1974 Ky. Acts ch. 406, sec. 29, effective January 1, 1975.

 
ANNOTATION FOR THIS STATUTE:
 

Hannah v. Commonwealth, No. 2007-SC-000267-MR (Ky. 3/18/2010) (Ky., 2010)

 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(1),(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.

 

Baird v. Com., 709 S.W.2d 458 (Ky. App., 1986)

Appellant, Marcus Keith Baird, seeks review of a judgment of the Daviess Circuit Court sentencing him to a term of imprisonment of one year in consequence of his conviction for possession of a handgun by a convicted felon. He now disputes that result based upon his contention that the trial court erred in: 1) failing to grant his proposed instruction to the jury regarding his defense of justification as contained in KRS 503.040; 2) allowing the admission of testimony that the gun in his possession was loaded at the time of his arrest; and 3) overruling his objections to two separate comments made by the prosecuting attorney during the course of his closing argument. We have examined the record in this case and conclude that the trial court erred in regard to the first of appellant’s contentions. Accordingly we reverse the judgment of the Daviess Circuit Court and remand for a new trial.

 

Walker v. Com., 127 S.W.3d 596 (Ky., 2004)

 Alternatively, Appellant asserts that he was entitled to a jury instruction on the justification afforded by KRS 503.040(2)(a) because he believed that the orders of the Ohio court authorized him to apprehend Barkley and return him to Ohio. Again, he is mistaken. KRS 503.040(2)(a) was adopted verbatim from section 3.03(3)(a) of the Model Penal Code. Comment 4 to that section of the Model Code clarifies that the defense applies only when the mistaken belief is the result of a lack of jurisdiction of the court or a defect in the legal process.

 

Poteete v. Com., 701 S.W.2d 416 (Ky. App., 1985)

 In our opinion, the trial court committed reversible error in refusing to instruct the jury on the justification defense. KRS 503.020 states "[i]n any prosecution for an offense, justification, as defined in this chapter, is a defense." The Chapter goes on to create a number of different variations on the justification defense. For example, KRS 503.030 provides that: "… conduct which would otherwise constitute an offense is justifiable when the defendant believes it to be necessary to avoid an imminent public or private injury greater than the injury which is sought to be prevented by the statute defining the offense charged…." KRS 503.040(2)(b) states that "… conduct which would otherwise constitute an offense is justifiable when … [t]he defendant believes his conduct to be required or authorized to assist a public officer in the performance of his duties, notwithstanding that the officer exceeded his legal authority."

 

Basham v. Com., 675 S.W.2d 376 (Ky., 1984)

  No exception is made for police or police activity in KRS Chapter 526. But KRS 503.040(1) provides that "conduct which would otherwise constitute an offense is justifiable when it is required or authorized by a provision of law imposing a public duty or by a judicial decree." "Provision of law" is not confined to provisions of state law. KRS 503.040 further provides:

"(2) The justification afforded by subsection (1) applies when:

        (a) The defendant believes his conduct to be required or authorized by the judgment or direction of a competent court or tribunal or in the lawful execution of legal process …

        With these statutes in mind we address the threshold question, whether the wiretap was a violation of Kentucky law when authorized by a federal wiretap order. United States v. Votteller, 544 F.2d 1355 (6th Cir., 1976), the Sixth Circuit Court of Appeals affirmed a ruling by the Hon. Howard D. Hermansdorfer, Judge of the District Court for the Eastern District of Kentucky, admitting evidence obtained by federal officers conducting electronic surveillance in Kentucky pursuant to a federal wiretap order. Judge Hermansdorfer concluded that such surveillance was not illegal under the Kentucky eavesdropping statute because "it was justified under the provisions of KRS 503.040." On appellate review the Sixth Circuit affirmed, but thought it unnecessary to its decision to decide if there was a violation of state law. We agree with Judge Hermansdorfer’s conclusion that under KRS 503.040 federal officers conducting an eavesdropping operation pursuant to a valid federal wiretap order are not in violation of state law.

 

U.S. v. Votteller, 544 F.2d 1355 (C.A.6 (Ky.), 1976)

     The district judge denied the appellants’ motion to suppress this evidence for the reason that it was justified under the provisions of K.R.S. 503.040. This section provides in part " * * * conduct which would otherwise constitute an offense is justifiable when it is required or authorized by a provision of law imposing a public duty or by a judicial decree."

        Evidence lawfully obtained under federal law is admissible in federal courts even though it may possibly be a violation of state law. United States v. Eddie Hodge and Nathaniel Robertson, 539 F.2d 898 (6th Cir.) decided July 23, 1976; On Lee v. United States, 343 U.S. 747, 754-755, 72 S.Ct. 967, 96 L.Ed. 1270 (1952); United States v. Shaffer 520 F.2d 1369, 1371-1372 (3rd Cir. 1975); United States v. Neville, 516 F.2d 1302, 1309 (8th Cir. 1975); United States v. Armocida, 515 F.2d 49, 51-52 (3rd Cir. 1975); United States v. Keen, 508 F.2d 986, 988-989 (9th Cir. 1975); United States v. Infelice, 506 F.2d 1358, 1365 (7th Cir. 1974).

        We conclude that the Motion to suppress the evidence the Government obtained against these appellants by wire tapping was properly denied.

 

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KRS 503.050 Use of physical force in self-protection — Admissibility of evidence of prior acts of domestic violence and abuse.

(1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.

(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055.

(3) Any evidence presented by the defendant to establish the existence of a prior act or acts of domestic violence and abuse as defined in KRS 403.720 by the person against whom the defendant is charged with employing physical force shall be admissible under this section.

(4) A person does not have a duty to retreat prior to the use of deadly physical force.

Effective: July 12, 2006 History: Amended 2006 Ky. Acts ch. 192, sec. 3, effective July 12, 2006. — Amended 1992 Ky. Acts ch. 173, sec. 2, effective July 14, 1992. — Created 1974 Ky. Acts ch. 406, sec. 30, effective January 1, 1975.

 
ANNOTATION FOR THIS STATUTE: 
 

[U] Stokley v. Commonwealth (Ky., 2012)  2011-SC-000104-MR December 20, 2012

A. The trial court did not err in refusing to

instruct the jury on defensive force in a dwelling.

Appellant claims that the jury should have been instructed on the use of defensive force regarding a dwelling under KRS 503.055. At trial, Appellant tendered a jury instruction that somewhat tracked the language in KRS 503.055(1) and KRS 503.055(3), which create a presumption that a person has a "reasonable fear of imminent peril of death or great bodily harm" if the person against whom force is used has "unlawfully and forcibly entered a dwelling." This fear is the precondition for claiming self-defense. KRS 503.050. KRS 503.055 also states that the person using force has "no duty to retreat." Appellant contends that it was reversible error to exclude his tendered jury instructions.

However, a fundamental flaw in this argument is that the facts simply do not support the giving of any self-defense instruction, much less the requested instruction. Appellant was not charged with committing a murder in his home. He was charged with murder committed in the street in front of his home, after Gibson and April had fled the house, gone to the street, and got into the car. Any threat to his person or his home was ended by that time. Instead, he pursued the two women who were clearly on the run. No reasonable person would have felt the use of deadly force was necessary to protect against death or serious physical injury at that point. And the proof simply does not justify an instruction that would have given Appellant a presumption of that belief under KRS 503.055.

He also argues that the proposed instruction is nonetheless relevant because he had "no duty to retreat’ under KRS 503.050(3). This Court acknowledges that the trial court must instruct on all relevant aspects of a case. "It is the obligation of the circuit court to instruct the jury on the whole law of the case." Carver v. Commonwealth, 328 S.W.3d 206, 209 (Ky. App. 2010). A trial court "is required to instruct the jury on every theory of the case that is reasonably deducible from the evidence." Fredline v. Commonwealth, 241 S.W.3d 793, 797 (Ky. 2007) (citing Manning v. Commonwealth, 23 S.W.3d 610, 614 (Ky. 2000)). Such "instructions should be stated within the context of the statutory framework." McGuire v. Commonwealth, 885 S.W.2d 931, 936 (Ky. 1994). A defense is raised by the presentation of evidence from which a jury could reasonably infer that an element of the crime is excused, and that could justify a reasonable doubt of the defendant’s guilt. Jewell v. Commonwealth, 549 S.W.2d 807, 812 (Ky. 1977). The sufficiency of the evidence in such situations is a question of law for the courts to determine on a case-by-case basis. Id.

The legislature did not intend for "no duty to retreat" to mean the right to pursue an invader who has ceased entering or even being in the residence and has instead fled. The very term "retreat" implies the victim of the violence has no duty to leave an oppressor’s presence, not that the victim may chase down an oppressor who is retreating. Additionally, the statute provides that a person has no duty to retreat, and has a right to meet force with force, only "if he or she reasonably believes it 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." KRS 503.050(3).

While it is possible that Appellant stood his ground within the house, he did far more than that when he chased Gibson and April outside the home, and shot Gibson after she got into her car in an attempt to leave, with three other persons in the close confines of the car. Appellant did more than simply stand his ground—he took advantage of the women’s retreat to take more ground, to pursue the fleeing women. While April’s actions might have been threatening and might have justified Appellant in using force against her to defend himself inside the house, when she left the house and fled, Appellant’s response was no longer warranted.

The trial court did commit error here, but it was in giving a self-defense instruction in the first place, which inured to the Appellant’s benefit. While the trial court did not give the instruction Appellant wanted, it did give a standard self-defense instruction. It is the trial court’s duty to instruct based on the evidence, and there was none in this case that could convince a reasonable juror (or trial court) that when Appellant left his home, followed the women to the street, and shot Gibson repeatedly at point blank range that he was under any kind of threat to his person. While giving the instruction was error, it accrued to the Appellant’s benefit in that it allowed him to make a defense that he was not entitled to under the facts. There is no basis for reversal on this issue, and Appellant’s arguments are not well-taken.

                                                                                                                                           

[U] Cantrill v. Commonwealth (Ky. App., 2013)  2011-CA-001923-MR January 11, 2013

 Again, we disagree with Cantrill that the evidence supported a finding that the gunshot wound to the abdomen requiring Shortridge to be airlifted to the hospital was only a physical injury instead of a serious physical injury. Thus, the trial court did not err in failing to give the lesser included offense instructions. Compare Swan v. Commonwealth, wherein the Kentucky Supreme Court recently addressed a gunshot wound which required a lesser included jury instruction on assault in the second degree as "The proof here simply does not establish such an all-or-nothing proposition." Swan v. Commonwealth, 2012 WL 3631412 (Ky. 2012)(2011-SC-000085-MR), as corrected (Sept. 11, 2012).

Last, Cantrill argues that he should have received an instruction under KRS 503.120, the imperfect self-defense statute. KRS 503.120 provides:

(1) When the defendant believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish a justification under KRS 503.050 to 503.110 but the defendant is wanton or reckless in believing the use of any force, or the degree of force used, to be necessary or in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of his use of force, the justification afforded by those sections is unavailable in a prosecution for an offense for which wantonness or recklessness, as the case may be, suffices to establish culpability.

(2) When the defendant is justified under KRS 503.050 to 503.110 in using force upon or toward the person of another, but he wantonly or recklessly injures or creates a risk of injury to innocent persons, the justification afforded by those sections is unavailable in a prosecution for an offense involving wantonness or recklessness toward innocent persons. KRS 503.120.

In summary, "[a] mistaken belief in the need to act in self-protection does not affect the privilege to act in self-protection unless the mistaken belief is so unreasonably held as to rise to the level of wantonness or recklessness with respect to the circumstance then being encountered by the defendant." Commonwealth v. Hager, 41 S.W.3d 828, 841-42 (Ky. 2001) (citing Elliott v. Commonwealth, 976 S.W.2d 416, 420 (Ky. 1998)). Imperfect self-defense does not provide for complete exoneration, but instead allows a jury to convict a defendant of a lesser offense, i.e., one for which wantonness or recklessness is the culpable mental state. Elliott at 420.

The above authorities, however, do not stand alone in determining whether Cantrill was entitled to a lesser included offense instruction. KRS 503.060 provides in part:

Notwithstanding the provisions of KRS 503.050, the use of physical force by a defendant upon another person is not justifiable when:. . . .

(3) The defendant was the initial aggressor, except that his use of physical force upon the other person under this circumstance is justifiable when:

(a) His initial physical force was nondeadly and the force returned by the other is such that he believes himself to be in imminent danger of death or serious physical injury; or

(b) He withdraws from the encounter and effectively communicates to the other person his intent to do so and the latter nevertheless continues or threatens the use of unlawful physical force.KRS 503.060(3).

We do not believe that the failure to instruct the jury on imperfect self-defense rises to the level of palpable error as there was not a substantial possibility that the result in the case would have been different. If Cantrill had received an imperfect self-defense instruction, then he would have also received an initial aggressor instruction. KRS 503.060(3) specifically addresses this situation where Cantrill was the initial aggressor.

Under established rules of statutory construction, "when two statutes deal with the same subject matter, one in a broad, general way and the other specifically, the specific statute prevails." Land v. Newsome, 614 S.W.2d 948, 949 (Ky. 1981); Commonwealth v. Phon, 17 S.W.3d 106, 107 (Ky. 2000); Withers v. University of Kentucky, 939 S.W.2d 340, 345 (Ky. 1997). Thus, we find no palpable error necessitating reversal.

 

Tackett v. Commonwealth (Ky., 2012)  2011-SC-000703-MR   September 20, 2012

At trial, Appellant testified that he did not remember how Heather was shot. He fails to describe any scenario supported by the evidence that would show how his actions, if he did shoot Heather, were wanton or reckless. Further, we found no evidence to support a finding that he was aware of and acted with conscious disregard of an unjustifiable risk. Likewise, we found no evidence that would support a finding that Appellant failed to perceive a substantial and unjustifiable risk. Therefore, Appellant was not entitled to an instruction on manslaughter in the second degree.

We also conclude that Appellant was not entitled to an instruction on self defense because the evidence presented would not support a finding by the jury that Appellant believed that the use of deadly force was necessary for his own protection. "The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person." KRS 503.050(1). A person may exert deadly physical force upon another person when there is a belief that it "is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under circumstances permitted pursuant to KRS 503.055." KRS 503.050(2).

Once again, Appellant testified that he could not remember what occurred in the early morning hours of September 5, 2009. At trial, he advanced the theory of an alternate perpetrator, but there is no evidence in the record to indicate that Appellant believed the use of deadly physical force against Heather, or anything else was necessary to protect himself against Heather. Therefore, we find no error in the trial court’s refusal to instruct upon self defense.

 

[U] Burns v. Commonwealth (Ky. App., 2013) 2011-CA-001959-MR April 19, 2013

Paragraph two (2) of the statute states that, in cases where the defendant is justified in using force but the defendant wantonly or recklessly injures or creates a risk of injury to innocent persons, the justification afforded by KRS 503.050 to 503.110 is unavailable in a prosecution for an offense involving wantonness or recklessness toward innocent persons. This statutory provision apparently influenced the trial court’s decision that, once it granted the directed verdict on any degree of intentional murder, it eliminated the impact of Leland’s intentionality and the justification of wantonness or recklessness was unavailable. Therefore, the trial court held that it was unnecessary to provide the jury with this instruction.

However, Casey was not an innocent bystander.

Leland’s defense contended that the court’s reasoning did not comport with caselaw. The Kentucky Supreme Court first held in Elliot v. Commonwealth, 976 S.W.2d 416 (Ky. 1998), that self-defense was allowed as a defense to a crime that did not require an intentional mens rea but rather a wanton or reckless state of mind. Additionally, the Court noted that, while imperfect self-defense or, in this case, the imperfect defense of protection of another was not originally permitted, it now recognized it, too, as a defense to several degrees of criminal homicide. Id. at 420. Imperfect self-protection (of another) does not provide complete exoneration but allows a jury to convict a defendant of a lesser offense, that is, one for which wantonness or recklessness is the culpable mental state. Id.

Subsequently, in Commonwealth v. Hager, 41 S.W.3d 828 (Ky. 2001), the Court examined the interplay between prior precedents and KRS 503.120(1). Unlike Elliott, Hager involved both intentional and unintentional homicide instructions, making it even more relevant to the situation herein. Therein, the Court stated:

The statute does not provide that a wantonly or recklessly held belief in the need to act in self-protection always reduces a primary offense to a lesser included offense. It provides that an act in self-protection committed under a wantonly held belief is no defense to an offense predicated on wantonness, and that an act in self-protection committed under a recklessly held belief is no defense to an offense predicated on recklessness . . . .

Hager, 41 S.W.3d at 843. The Court then provided a chart of sorts demonstrating the possible impact of a successful claim of imperfect self-defense on various degrees of homicide. With regard to reckless homicide, the Court outlined the following:

Reckless homicide.

a. Actual belief not wantonly or recklessly held = acquittal.
b. Wanton or reckless belief = reckless homicide, because a wanton belief could not elevate an offense with a mens rea element of recklessness to a higher offense, i.e. second-degree manslaughter, and a reckless belief makes self-protection unavailable as a defense to recklessness, the mens rea element of reckless homicide. Id. at 844.

Based on this legal reasoning, if the jury had been provided with an imperfect defense of another instruction, and had ascertained that evidence supported it, the imperfect defense would have been a defense to wanton murder and manslaughter in the second degree. Regarding wanton murder, the jury could have discerned that Leland wantonly held the belief that Patrick needed protection, and, thus, was justified in using deadly force against Casey, thereby making the correct verdict manslaughter in the second degree. Likewise, with regard to manslaughter in the second degree, if the jury had deemed that Leland recklessly held the belief that Patrick needed protection, then he would have been justified in using deadly force against Casey, which would then render the correct verdict reckless homicide.

 

Wilson v. Commonwealth (Ky. App., 2012)   2010-CA-002221-MR July 13, 2012

Finally, we address Jason’s assertion that the court erred in denying his motion for directed verdict with respect to the charges of attempted manslaughter of William and assault under extreme emotional disturbance of Darryl. Jason argues that there was no proof of the intent to commit murder, and that all of the evidence established that he was acting in self-defense. We disagree.

The elements of self-defense are set forth in KRS 503.050, which states, in pertinent part, as follows:

(1)The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by another person; and

(2)The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055 . . . .

Jason argues that he had a right to re-enter the house, openly carrying a gun, in order to retrieve his keys and cell phone, because he reasonably believed that he would again be attacked by William and Darryl. While that may have certainly been an understandable concern, Jason could have chosen not to re-enter the home at all. Upon removing himself from the fight, the "imminent" threat of danger subsided. Moreover, it was Tiffany’s testimony that Jason re-entered the home and began shooting at William and that, subsequently, the bullets struck Darryl, and Stephanie.

…. This was well within the province of the jury and, accordingly, the court below did not err in denying the motion for directed verdict. We affirm.

 

Commonwealth of Ky. v. Bushart, 337 S.W.3d 666 (Ky. App., 2011)

Because we believe that a manifest injustice could have occurred when the trial court reviewed Bushart’s affidavit in support of his motion to dismiss, we will review the Commonwealth’s arguments for palpable error.

KRS 503.085 provides that “[a] person who uses force as permitted in KRS 503.050, 503.055, 503.070, and 503.080 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom the force was used is a peace officer….” The Kentucky Supreme Court has provided procedural guidance in situations where a defendant claims immunity under KRS 503.085. In Rodgers v. Commonwealth, 285 S.W.3d 740 (Ky.2009), the Court plainly stated: “[I]f the defendant claims immunity the court must dismiss the case unless there is probable cause to conclude that the force used was not legally justified.” Id. at 754. The Court rejected Rodgers’ argument that an evidentiary hearing was necessary to determine immunity under a preponderance of evidence standard. Id. The Court held that it was improper to consider evidence from a defendant on the issue of immunity and explained that the Commonwealth had [337 S.W.3d 669] to establish probable cause and “it may do so by directing the court’s attention to the evidence of record including witness statements, investigative letters prepared by law enforcement officers, photographs and other documents of record.” Id. at 755. The Court noted that an evidentiary hearing at which a defendant could counter probable cause would create “in essence a mini-trial” which would be “fraught with potential for abuse.” Id. The Court found that this would result in the trial court ruling on one of the elements of the crime from the bench, rather than a jury deciding the issue. Id.

In the instant case, Bushart submitted an affidavit in support of his motion to dismiss the indictment which included the allegation that the victim was attempting to break in to Boyd’s home. Bushart also alleged that Clapp had severely beaten him prior to this incident and that Clapp often carried a stick. However, the allegation that a break in occurred is not un-refuted. There is evidence in the record that Boyd called or sent Clapp a text message saying she loved him, and according to one witness, told Clapp she wanted him back. The garage door through which Clapp allegedly broke into the house was re-secured by a rake handle, an unexpected action for a trespasser to take. There was at least some evidence that the victim may have thought he was on the property lawfully and was not intending to break in to Boyd’s home.

Bushart’s affidavit served to rebut this circumstantial evidence, and the trial court considered it when determining whether probable cause existed. Unlike what the Court in Rodgers approved for review by the trial court, the affidavit was outside the police reports and interviews. Upon review, it appears the trial court conducted a “mini-trial” and made a determination on an element of the offense for which Bushart was charged. This error was compounded because the Commonwealth was unable to examine Bushart’s allegations through cross-examination. This is precisely the type of potential abuse about which the Court in Rodgers was concerned. Therefore, we hold that the trial court committed palpable error when it considered Bushart’s affidavit. Accordingly, we must reverse the trial court’s dismissal of the indictment and remand this matter for a probable cause determination wherein the affidavit is not considered.

 
[U] Hartley v. Commonwealth (Ky., 2011)   2009-SC-000640-MR.pdf

Upon review for palpable error under RCr 10.26, we conclude that the lack of an imperfect self-defense instruction did not affect Appellant’s substantial rights, nor did it result in manifest injustice. The doctrine of imperfect self-defense, found in KRS 503.050 and KRS 503.120, limits the effect of a defendant’s subjective belief in the need to use physical force when that belief is wantonly or recklessly held. Elliott v. Commonwealth, 976 S.W.2d 416, 420 (Ky. 1998). The result is that the defendant is not acquitted, but rather guilty of "a lesser offense for which wantonness or recklessness is the culpable mental state, i.e., second-degree manslaughter or reckless homicide." Id.

Imperfect self-defense is a limitation on the usual self-defense instruction. In other words, if a jury finds that the elements of self-defense are met, it would normally acquit the defendant of that charge. However, when a jury proceeds to find that the self-defense was imperfect (i.e., that the defendant’s belief in the need for self-defense was wantonly or recklessly held), it does not acquit the defendant, but rather finds him guilty of a lesser offense, i.e., second-degree manslaughter or reckless homicide. In the instant case, the jury, after being properly instructed on self-defense, rejected Appellant’s self-defense argument outright when it convicted him of wanton murder and first-degree wanton endangerment. Therefore, Appellant suffered no manifest injustice and no palpable error when the jury was not instructed on imperfect self-defense.

 

Pollini v. Commonwealth Of Ky. (Ky. App., 2010)

    Pollini contends that the above circumstances unequivocally entitle him to a new trial. We must disagree. As to whether error occurred in the submission of these self-defense instructions to the jury, we find it significant that use of the word "unlawful" is in compliance with Kentucky Revised Statutes (KRS) 503.050(1). As reaffirmed in Hager, 41 S.W.3d at 835, "all substantive law related to criminal responsibility, including general principles of liability, accountability, justification and responsibility[,] is now statutory, and instructions should be stated within the context of the statutory framework." Id. (quoting McGuire v. Commonwealth, 885 S.W.2d 931, 936 (Ky. 1994)). We are unaware of any court in this jurisdiction that has reversed a conviction for improperly including statutory terminology within the instructions submitted to a jury.

 

Ball v. Commonwealth, No. 2008-SC-000430-MR (Ky. 3/18/2010) (Ky., 2010)

(1) When the defendant believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish a justification under KRS 503.050 to 503.1105 but the defendant is wanton or reckless in believing the use of any force, or the degree of force used, to be necessary[,] . . . the justification afforded by those sections is unavailable in a prosecution for an offense for which wantonness or recklessness, as the case may be, suffices to establish culpability.

        (Emphasis added).

        In summary, "[a] mistaken belief in the need to act in self-protection does not affect the privilege to act in self-protection unless the mistaken belief is so unreasonably held as to rise to the level of wantonness or recklessness with respect to the circumstance then being encountered by the defendant." Commonwealth v. Hager, 41 S.W.3d 828, 841-42 (Ky. 2001) (citing Elliott v. Commonwealth, 976 S.W.2d 416, 420 (Ky. 1998)). Imperfect self-defense does not provide for complete exoneration, but instead allows a jury to convict a defendant for a lesser offense, one for which wantonness or recklessness is the culpable mental state. Elliott, 976 S.W.2d at 420.

        The above authorities, however, do not stand alone in determining whether Ball was entitled to a lesser included offense instruction. KRS 503.060(1) (improper use of physical force in self-protection) provides as follows:

Notwithstanding the provisions of KRS 503.0506, the use of physical force by a defendant upon another person is not justifiable when:

(1) The defendant is resisting an arrest by a peace officer, recognized to be acting under color of official authority and using no more force than reasonably necessary to effect the arrest, although the arrest is unlawful [.]

 

Rodgers v. Com., 285 S.W.3d 740 (Ky., 2009)

    Effective July 12, 2006, after Rodgers’s alleged 2004 crime but before his September 2006 trial, the Kentucky General Assembly joined a trend urged by the National Rifle Association and, through Senate Bill 38, extensively amended the self-defense3 provisions of KRS Chapter [285 S.W.3d 750] 503. See generally Renee Lerner, The Worldwide Popular Revolt Against Proportionality in Self-Defense Law, 2 J.L. Econ. & Pol’y 331 (2006); Daniel Michael, Florida’s Protection of Persons Bill, 43 Harv. J. on Legis. 199 (2006). Among other changes Senate Bill 38 created presumptions that one "unlawfully and by force" entering a dwelling, residence, or occupied vehicle does so with the intent to commit an unlawful act involving force or violence, KRS 503.055(4), and that a person encountering such an intruder reasonably fears death or great bodily injury. KRS 503.055(1). It expanded the circumstances in which the use of deadly force is justified to include those instances when one reasonably believes that such force is necessary to prevent the commission of a felony involving the use of force. KRS 503.050(2). The bill expressly provided that the right to use force, including deadly force, in defense of self or others is not contingent upon a duty to retreat. See, e.g. KRS 503.050(4), KRS 503.070(3). Moreover, the bill declared that one who justifiably used defensive force "is immune from criminal prosecution," including arrest, detention, charge, or prosecution in the ordinary sense. KRS 503.085(1).

        Pursuant to this latter provision, Rodgers claimed immunity from prosecution, moved to have the charges against him dismissed, and sought an evidentiary pre-trial hearing to address the immunity question. Denying Rodgers’s motion to dismiss, the trial court ruled that the new immunity statute did not apply retroactively to Rodgers’s case but that even if it did a review of the discovery record was sufficient to determine that Rodgers’s assertion of self-defense was significantly controverted, precluding his immunity. Rodgers contends that these rulings were incorrect: that the new self-defense legislation does apply retroactively and that he was entitled to an evidentiary hearing to address his assertion of immunity. Although we agree with Rodgers that the immunity statute (KRS 503.085) applied to his trial, the trial court appropriately addressed the immunity question and otherwise correctly determined that the new self-defense laws do not apply retroactively.

 

Hawes v. Lapointe, No. 2008-CA-001559-MR. and (Ky. App. 10/16/2009) (Ky. App., 2009)

     Effective July 12, 2006, the Kentucky General Assembly, through Senate Bill 38, extensively amended the defense provisions of KRS Chapter 503. Among the changes was the enactment of KRS 503.085, which provides in pertinent part:

        (1) A person who uses force as permitted in KRS 503.050, 503.055, 503.070, and 503.080 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom the force was used is a peace officer, as defined in KRS 446.010, who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law, or the person using force knew or reasonably should have known that the person was a peace officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.

        Essentially, through KRS 503.085, the legislature has declared that one is free from criminal prosecution and civil liability for using force if such use was justified under the law.

   At least in cases such as this one, that do not involve a peace officer, [KRS 503.085] does not constitute substantive law; it has nothing to do with who is entitled to use self-defense or under what circumstances selfdefense is justified. It is, rather, purely procedural, and by prohibiting prosecution of one who has justifiably defended himself, his property or others, it in effect creates a new exception to the general rule that trial courts may not dismiss indictments prior to trial. By declaring that one who is justified in using force "is immune from criminal prosecution," and by defining "criminal prosecution" to include "arresting, detaining in custody, and charging or prosecuting the defendant," the General Assembly has made unmistakably clear its intent to create a true immunity, not simply a defense to criminal charges. This aspect of the new law is meant to provide not merely a defense against liability, but protection against the burdens of prosecution and trial as well. With KRS 503.085, the General Assembly has created a new procedural bar to prosecution, and that bar, like other procedural statutes, is to be applied retroactively.

        Before turning to implementation of the immunity afforded by KRS 503.085, it bears noting that the statute grants immunity to a person who "uses force as permitted in KRS 503.050, 503.055, 503.070, and 503.080". But KRS 503.055 is a wholly new substantive statute pertaining to "Use of defensive force regarding dwelling, residence, or occupied vehicle-Exceptions." and, as previously discussed, is not to be applied retroactively.

    Similarly, the 2006 amendments to KRS 503.050 (self-protection); 503.070 (protection of others); and 503.080 (protection of property) were substantive law changes and are not retroactive. Thus persons whose conduct occurred prior to the July 12, 2006 effective date of these amendments but whose trials were not concluded are entitled to immunity only for actions in conformity with the version of the applicable statute, (i.e. self-protection, protection of others, protection of property) in effect at the time they acted.

  For the foregoing reasons, we vacate the Spencer Circuit Court’s order of dismissal. Hawes’ civil action against LaPointe is reinstated and the matter is remanded for further proceedings in accordance with the Chapter 503 substantive defense provisions at the time of the January 2006 incident.

 

Commonwealth v. Stone, No. 2007-SC-000107-DG (Ky. 8/27/2009) (Ky., 2009)

   In 2006, several months after Appellee’s trial, and two years after the incident that took Griffin’s life, the "no duty to retreat" tradition was codified by the enactment of KRS 503.050(4). We directly addressed this question in Rodgers, and concluded that any change of the "no duty to retreat" doctrine created by the 2006 amendment of KRS 503.050(4) was a change to the substantive law, and therefore has no retroactive application. Id. at ___.

        Upon retrial, Appellant is not entitled to a "no duty to retreat" instruction.

 

Wines v. Commonwealth, No. 2007-SC-000081-MR (Ky. 6/25/2009) (Ky., 2009)

    Effective July 12, 2006, after Wines’s alleged 2005 crime but before his October/November 2006 trial, the Kentucky General Assembly extensively amended the self-defense provisions of KRS Chapter 503. The new legislation—Senate Bill 38—created presumptions that one "unlawfully and by force" entering a dwelling, residence, or occupied vehicle does so with the intent to commit an unlawful act involving force or violence, KRS 503.055(4), and that a person encountering such an intruder reasonably fears death or great bodily injury. KRS 503.055(1). It expanded the circumstances in which the use of deadly force is justified to include those instances when one reasonably believes that such force is necessary to prevent the commission of a felony involving the use of force. KRS 503.050(2). The bill also expressly provided that the right to use force, including deadly force, in defense of self or others is not contingent upon a duty to retreat. See, e.g. KRS 503.050(4), KRS 503.070(3). And it declared that one who justifiably used defensive force "is immune from criminal prosecution," including arrest, detention, charge, or prosecution in the ordinary sense. KRS 503.085(1).

     In sum, Wines is not entitled to relief. The trial court did not abuse its discretion by trying the murder and assault charges together. It did not run afoul of the new immunity statute by concluding that Wines’s self-defense claims were sufficiently controverted to render him subject to prosecution, and it correctly instructed the jury based on the substantive law of self-defense that existed at the time of Wines’s offenses. In the absence of a more specific objection on the issue, the trial court adequately instructed on the defense of extreme emotional disturbance. Finally, the court did not err by admitting into evidence Nelson’s initial excited utterance to Detective Sherrard or the medical examiner’s testimony concerning cast off blood. Accordingly, we affirm the December 22, 2006 Judgment of the Jefferson Circuit Court

 

Sizemore v. Com., 844 S.W.2d 397 (Ky., 1992)

  COMBS, Justice, dissenting

 Secondly, contrary to the majority’s implication, the trial court gave no sufficient self-defense instruction apropos of any of the homicide instructions. The so-called "self-defense instruction in connection with intentional murder and its lesser included offenses" (ante at 398) required for conviction a finding "that [Sizemore] was not privileged to act in self-protection." Beyond that, the instructions were silent as to justification–the subject of one entire chapter (503) of the Kentucky Revised Statutes! There was no definition of the privilege of self-protection, no reference to the circumstances which give rise to the privilege, and no opportunity for the jury to find the defendant innocent of those offenses for which justification is a defense, based upon the defendant’s state of mind regarding the need for self-protection. Pace v. Commonwealth, Ky., 561 S.W.2d 664 (1978). The terse reference to self-protection was patently insufficient to advise the jury of the very essence of statutory justification, i.e., that the use of deadly physical force was justifiable if the defendant believed such force to be necessary to protect himself against death or serious physical injury. KRS 503.050.

      LEIBSON, Justice, dissenting.

        Respectfully, I dissent.

        Justice Combs has also dissented. I agree with Justice Combs’ dissent, Part II, outlining why the trial court committed reversible error in overruling the objection to Deputy Davenport’s testimony that the defendant had "said … he got tired of him [Gene] whipping him and he settled it himself." I agree with Justice Combs that "this surprise statement attributed to the defendant was seriously inconsistent with the prepared defense," that there is a "glaringly significant difference" between this evidence and what the defense had been told regarding the appellant’s statements at the scene, and that failure to provide relief in the circumstances constituted error. This evidence shot right through the heart of the appellant’s claim of self-defense, and should have been suppressed when not properly disclosed in pretrial discovery.

        Further, I agree with Justice Combs that this case should be reversed on failure to provide self-defense instructions adequate to the situation. KRS 503.050(2) specifies:

        "The use of deadly physical force by a defendant upon another person is justifiable … when the defendant believes that such force is necessary to protect himself against death [or] serious physical injury,…."

 

Com. v. Rose, 725 S.W.2d 588 (Ky., 1987)

      It is true that the use of physical force in self-protection is based on what "the defendant believes." KRS 503.050. But KRS 503.120(1) provides that when "such belief … is wanton … the justification afforded by [KRS 503.050] is unavailable in a prosecution for an offense for which wantonness … suffices to establish culpability." Very often, as in this case, the fact of killing is unambiguous but the accused’s mental state at the time of the killing presents a mixed picture.

    The act of killing in self-defense may be intentional, but it is not planned or premeditated. It is a reaction to existing or imminent use of force. KRS 503.050(1). When, viewed objectively, the act involves an excessive use of force which is grossly unreasonable and therefore culpable; it is punishable as wanton criminal behavior. This is the set of circumstances that KRS 503.050(1) and KRS 503.120(1), when read together, were designed to address. See the Commentary (1974) for the Penal Code, KRS Sections 503.050 and .120. The Code sets out, and the Commentary explains, that the need for self-defense must be viewed subjectively from the standpoint of the accused, not objectively from the standpoint of a reasonable person, but that the defendant who acts culpably in self-defense because his behavior, viewed objectively, is wanton, shall not go unpunished.

        The holding in Gray, supra, while perhaps appropriate to the facts of that case, would be inappropriate to the present situation. Here, the jury could reasonably believe that this was a wanton killing to terminate what the accused subjectively believed to be an intolerable situation from which there was no other way out. The Penal Code was intended to provide Manslaughter II as a lesser homicide offense to murder to punish an unjustified killing under circumstances such as this which warrant a conclusion of diminished culpability, but do not warrant exoneration.

        The evidence justified the trial court’s instructions on Manslaughter II, and the jury’s finding of guilty thereunder.

        To the extent that Gray is in conflict with this decision, it is limited to its facts.

        The decision of the Court of Appeals is reversed. The verdict of the jury and the judgment of the trial court is affirmed.   

Russell v. Com., 720 S.W.2d 347 (Ky. App., 1986)

   Russell next assigns error to the trial court’s instruction concerning the "erroneous belief qualification" to the self-protection instruction. Having decided from the evidence that the defendant was entitled to the KRS 503.050 "self defense" instruction, the trial court further instructed the jury pursuant to KRS 503.120(1), which reads:

When the defendant believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish a justification under KRS 503.050 to 503.110 but the defendant is wanton or reckless in believing the use of any force, or the degree of force used, to be necessary or in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of his use of force, the justification afforded by those sections is unavailable in a prosecution for an offense for which wantonness or recklessness, as the case may be, suffices to establish culpability.

        This instruction, in effect, allowed the jury to "take back" the self-protection justification if it found that Russell’s belief that he needed to use force to protect himself was "unreasonable."

   The "unreasonable belief" instruction, as well as the other instructions dealing with wanton, rather than intentional, conduct were objected to by counsel for appellant, and should not have been given. Accordingly, the judgment of the Fayette Circuit Court is reversed and this case is remanded for proceedings consistent with this opinion.   

Spivey v. Commonwealth of Kentucky (Ky. App., 2003)

 As the emphasized language of this statute and the 1974 Commentary thereto indicate, its purpose (and only purpose) is to limit the effect of the subjective belief provisions of KRS 503.050 and the other KRS Chapter 503 justification to the extent that a belief which is so unreasonable that it rises to the level of wantonness or recklessness with respect to the circumstance then being encountered by the defendant, e.g., whether he needed to act in self-protection, does not result in acquittal, but rather in conviction of a lesser offense for which wantonness or recklessness is the culpable mental state, e.g., second-degree manslaughter or reckless homicide.3 [Footnote in original opinion]. The issue is presented to the jury by an instruction along the lines of those suggested at 1 Cooper, Kentucky Instructions to Juries §§ 11.08A and B (4th ed. Anderson 1993). See Blake v. Commonwealth, Ky., 607 S.W.2d 422, as reaffirmed by Shannon v. Commonwealth, supra, at 551. Since the language of KRS 503.120(1) limits its application to whether the defendant was wanton or reckless with respect to a circumstance, e.g., whether he needed to act in self-protection, it has no application to whether he was wanton or reckless with respect to the result of his conduct, e.g., whether his act would cause the death of another person.

    However, the defendant is not entitled to unlimited access or use of the evidence sought. Instead, where the doctor or the patient raises the physician-patient privilege, or some other similar privacy interest is raised, an in-camera hearing shall be conducted by the trial court in the presence of the prosecutor and defense counsel to determine which information would be both relevant and material to the witness’s credibility.

        Upon remand, the trial court should direct subpoenas appropriately, and conduct any incamera review necessary.

        The record indicates the trial court offered to conduct an incamera review of Green’s juvenile record and to make available to Spivey and the Commonwealth any information deemed relevant to the proceeding against Spivey. The court’s action complied with the Eldred mandate.

        For the foregoing reasons, we affirm in part and reverse in part and remand the judgment and sentence of the Madison Circuit Court for further proceedings.  

Kohlheim v. Com., 618 S.W.2d 591 (Ky. App., 1981)

   The court gave the self-protection instruction in the first degree manslaughter charge but excluded it in the second degree manslaughter charge and reckless homicide on the basis of the language in KRS 503.120(2). We find that the plain meaning of KRS 503.120(2), as it pertains to KRS 503.050 to KRS 503.110, requires us to construe it to mean that the justification afforded by these latter sections is unavailable when he wantonly or recklessly injures or creates a risk of injury to innocent persons. It is not disputed that Pam Felker was an innocent person at the time of the fatal shooting.

      The judgment of the McCracken Circuit Court is affirmed as to appellant’s conviction for second degree manslaughter as a result of the death of Pam Felker. It is reversed as to his conviction for assault under extreme emotional disturbance in regard to the shooting of Anna Taylor, and the case is remanded for a new trial under proper instructions.  

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KRS 503.055 Use of defensive force regarding dwelling, residence, or occupied vehicle — Exceptions.

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) of this section does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person;

(b) The person sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of the person against whom the defensive force is used;

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(d) The person against whom the defensive force is used is a peace officer, as defined in KRS 446.010, who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties, and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a peace officer.

(3) 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.

(4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

Effective: July 12, 2006  History: Created 2006 Ky. Acts ch. 192, sec. 2, effective July 12, 2006.

 
ANNOTATION FOR THIS STATUTE:
 

[U] Stokley v. Commonwealth (Ky., 2012) 2011-SC-000104-MR December 20, 2012

The trial court did not err in refusing

to instruct the jury on defensive force in a dwelling.

 Appellant claims that the jury should have been instructed on the use of defensive force regarding a dwelling under KRS 503.055. At trial, Appellant tendered a jury instruction that somewhat tracked the language in KRS 503.055(1) and KRS 503.055(3), which create a presumption that a person has a "reasonable fear of imminent peril of death or great bodily harm" if the person against whom force is used has "unlawfully and forcibly entered a dwelling." This fear is the precondition for claiming self-defense. KRS 503.050. KRS 503.055 also states that the person using force has "no duty to retreat." Appellant contends that it was reversible error to exclude his tendered jury instructions.

However, a fundamental flaw in this argument is that the facts simply do not support the giving of any self-defense instruction, much less the requested instruction. Appellant was not charged with committing a murder in his home. He was charged with murder committed in the street in front of his home, after Gibson and April had fled the house, gone to the street, and got into the car. Any threat to his person or his home was ended by that time. Instead, he pursued the two women who were clearly on the run. No reasonable person would have felt the use of deadly force was necessary to protect against death or serious physical injury at that point. And the proof simply does not justify an instruction that would have given Appellant a presumption of that belief under KRS 503.055 

Wheeler v. Commonwealth (Ky. App., 2013)  June 14, 2013

On appeal, Wheeler argues that the trial court erroneously concluded that the Commonwealth carried its burden. She argues that, under KRS 503.055, the force she used against Sparks was justified. KRS 503.055 provides that an occupant of a dwelling or residence may reasonably assume that he or she is in imminent peril of death or great bodily harm if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered a dwelling, residence, . . . and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

KRS 503.055(1)(a), (b).

As in Rodgers, Wheeler’s claims of error are "purely academic" because she "has been tried and convicted by a properly instructed jury in a trial with no reversible error." 285 S.W.3d at 756. Her claims of justified force were "thoroughly examined by both the trial judge under the directed verdict standard and the jury under the court’s instructions." Id. The trial court rejected Wheeler’s pretrial motion for immunity, denied her motion for a directed verdict, and the jury convicted her. Her claims of justification regarding her use of force were thoroughly considered and rejected, and remanding this matter to the trial court for reconsideration of its determination would not change the outcome. Accordingly, reversal is not required.

 

[U] Wilson v. Commonwealth (Ky. App., 2012) 2010-CA-002221-MR July 13, 2012

Finally, we address Jason’s assertion that the court erred in denying his motion for directed verdict with respect to the charges of attempted manslaughter of William and assault under extreme emotional disturbance of Darryl. Jason argues that there was no proof of the intent to commit murder, and that all of the evidence established that he was acting in self-defense. We disagree.

The elements of self-defense are set forth in KRS 503.050, which states, in pertinent part, as follows:

(1)The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by another person; and

(2)The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055 . . . .

Jason argues that he had a right to re-enter the house, openly carrying a gun, in order to retrieve his keys and cell phone, because he reasonably believed that he would again be attacked by William and Darryl. While that may have certainly been an understandable concern, Jason could have chosen not to re-enter the home at all. Upon removing himself from the fight, the "imminent" threat of danger subsided. Moreover, it was Tiffany’s testimony that Jason re-entered the home and began shooting at William and that, subsequently, the bullets struck William, Darryl, and Stephanie.

While there was conflicting evidence as to exactly what ensued during the second violent encounter of the evening, it was for the jury to consider the evidence and choose to rely upon that which it found most credible. See Stafford v. Commonwealth, 490 S.W.2d 738 (Ky. 1973). Below, the jury clearly found Tiffany’s description to be more credible than Jason’s, and chose to believe that he left the house, returned with a gun, and began shooting at other individuals. This was well within the province of the jury and, accordingly, the court below did not err in denying the motion for directed verdict. We affirm.

 

[U] Tackett v. Commonwealth (Ky., 2012)  2011-SC-000703-MR  September 20, 2012

 We also conclude that Appellant was not entitled to an instruction on self-defense because the evidence presented would not support a finding by the jury that Appellant believed that the use of deadly force was necessary for his own protection. "The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person." KRS 503.050(1). A person may exert deadly physical force upon another person when there is a belief that it "is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under circumstances permitted pursuant to KRS 503.055." KRS 503.050(2).

Once again, Appellant testified that he could not remember what occurred in the early morning hours of September 5, 2009. At trial, he advanced the theory of an alternate perpetrator, but there is no evidence in the record to indicate that Appellant believed the use of deadly physical force against Heather, or anything else was necessary to protect himself against Heather. Therefore, we find no error in the trial court’s refusal to instruct upon self-defense.

 

Shephard v. Commonwealth (Ky. App., 2012) 2011-CA-000936-MR December 21, 2012

KELLER, JUDGE: Andre S. Shephard (Shephard) appeals, pro se, from an order of the Jefferson Circuit Court denying his motion for post-conviction relief filed pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42 without conducting an evidentiary hearing. After careful review, we affirm.   In this case, Shephard has failed to identify a triggering event that would support a defense of EED. Thus, Shephard’s vague allegation that counsel failed to investigate and advise him of a defense of EED, without offering specific facts to support what such an investigation would have revealed, is insufficient to support an RCr 11.42 motion. Sanders v. Commonwealth, 89 S.W.3d 380, 390 (Ky. 2002) overruled on other grounds, Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). Furthermore, we note that Shephard’s assertion that he suffered from EED is inconsistent with his previous statement that the stabbing was an accident. Thus, the record offers little indication that Shephard’s defense of EED would have succeeded.

        Further, there is little indication that, the defense of self-defense would have succeeded at trial. KRS 503.050 establishes the defense of self-protection:

(1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.

(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055.    

 

[U] Orantes-Pierce v. Commonwealth (Ky., 2013) 2012-SC-000209-MR May 23, 2013

  KRS 503.050(2) provides that "the use of deadly physical force by a defendant upon another person is justifiable . . . when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055." Appellant argues that he was justified in using deadly force against the victim given that he was attempting to rob him at the time, and therefore should be immune from prosecution.

Here, there is no question that the Commonwealth established probable cause that Appellant was not using justifiable force against the victim. The only time the idea of self-defense was mentioned throughout Appellant’s trial was during Masri’s testimony, and even she stated that she did not believe Appellant. Given that several witnesses testified that Appellant admitted to killing the victim with no mention of acting in self-defense, probable cause that he was not using justifiable force was established. Furthermore, it is not the duty of a court to address the issue of immunity sua sponte, and therefore it had no duty to instruct the jury on any such matter. Id. at 755. Thus, no error occurred, palpable or otherwise.

 

Commonwealth v. Ousley (Ky., 2013) 2011-SC-000403-DG  March 21, 2013

The police in this case walked onto the Appellee’s property and into an area near his home late at night to search trash in closed trash containers which ended up containing evidence of drug trafficking. The containers had not been put out on the street for trash collection. Because the police invaded the curtilage without a search warrant, the search was illegal. Thus, this Court affirms the decision of the Court of Appeals, which found that the trial court erred in not suppressing the evidence.

5. Policy considerations in not allowing trash pulls in the curtilage.

There is also a policy consideration in not permitting undue invasions of the curtilage. That a homeowner might lawfully act to protect himself and his home against a perceived invader of his property is especially troubling in a case like this. Kentucky recognizes a strong "castle doctrine" that not only allows a person to use self-defense to repel an invasion of his home, see KRS 503.055, but also to protect property, see KRS 503.080. The latter statute goes so far as to allow the use of deadly physical force when the defendant believes it necessary to prevent the occurrence of any of a list of crimes, some of which are serious (criminal trespass, robbery, burglary) and some of which are not so serious (theft, criminal mischief, or any trespassory taking of tangible, movable property). KRS 503.080(1). The only qualification is that the defendant has to believe the person is attempting to dispossess him of his dwelling or is committing or attempting to commit arson, burglary, robbery, or other felony involving the use of force. KRS 503.080(2).

 

Caudill v. Commonwealth, 374 S.W.3d 301 (Ky., 2012)   August 23, 2012

 

Summaries: Source: Justia

Pursuant to a guilty verdict, Defendant was convicted of one count of murder and three counts of wanton endangerment in the first degree. The trial court sentenced Defendant to thirty-five years’ imprisonment. Appellant appealed, arguing (1) there was insufficient proof to support a charge of murder because the Commonwealth failed to establish, beyond a reasonable doubt, that Appellant was not privileged to act in self-defense; and (2) certain conduct of the Commonwealth attorney during his cross-examination of Appellant amounted to reversible prosecutorial misconduct. The Supreme Court vacated the convictions and remanded, holding (1) there was sufficient evidence from which a reasonable juror could find Appellant guilty of murder; but (2) the prosecutor’s conduct in certain instances was improper, and the prosecutorial misconduct in this case was reversible error.

 

 The prosecutor’s repeated questions to the Appellant demanding, “Why not just go on, get in the car, and drive home?” could certainly have suggested to the jury that the Appellant had a duty to retreat. Moreover, the trial judge overruled Appellant’s objections, allowing this line of questioning to continue for over fifteen minutes, permitting the prosecution’s suggestion that the Appellant should have retreated to his home to be strengthened by implicit judicial approval. The prosecution’s line of questioning stands in stark contrast to the law. KRS 503.055(3) provides:

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.

See also KRS 503.050(4); KRS 503.070(3); KRS 503.080(3).

Where the prosecution’s case, and the Appellant’s liberty, turn on the jury’s determination of which man was the initial aggressor and “who fired first,” creating the erroneous impression, strengthened by implied judicial approval, that the Appellant was acting wrongly or illegally by remaining on his property when approached by Carpenter is highly prejudicial and improper. The trial judge should have corrected this error with an appropriate admonishment to the jury that the law does not require a person to retreat when he or she is attacked in a place where he or she has a right to be.   

 

Jones v. Commonwealth (Ky., 2011) 2009-SC-000221-MR.PDF

Appellant was convicted of murder pursuant to a guilty but mentally ill verdict. On appeal, Appellant argued that the trial court erred in a giving a "no duty to retreat" instruction regarding the victim and in refusing to admit evidence that Appellant believed he was being poisoned in jail. The Supreme Court reversed, holding that it was reversible error to give the "no duty to retreat" instruction regarding the victim because Ky. Rev. Stat. 503.055(3) was not intended to apply to the victim’s conduct but only to a defendant’s conduct relative to his or her claim of self-defense. Remanded for retrial.

The cardinal rule of statutory construction is to . . . give effect to the intent of the legislature." Kentucky Ins. Guar. Ass’n v. Jeffers ex rel. Jeffers, 13 S.W.3d 606, 610 (Ky. 2000) . In ascertaining the intent of the legislature, a court must not be guided by a single sentence, but must look to the provisions of the whole act and its object and policy. Cosby v. Commonwealth, 147 S.W.3d 56, 58 (Ky. 2004) .

KRS Chapter 503 is entitled, "General Principles of Justification." "Justification" is defined in KRS 503.020 as "a defense." Relative to KRS 503.055, KRS 503.085 provides that "[a] person who uses force as permitted in . . . KRS 503.055 . . . is justified in using such force and is immune from criminal prosecution and civil action for the use of such force . . . ." In viewing KRS Chapter 503 as a whole, we deem that it was meant to apply to the conduct of the person who is subject to criminal prosecution as a result of the use of force, and not the victim of such force. Accordingly, the "Use of Defensive Force" instruction in the present case was submitted in error. "In this jurisdiction it is a rule of longstanding and frequent repetition that erroneous instructions to the jury are presumed to be prejudicial; that an appellee claiming harmless error bears the burden of showing affirmatively that no prejudice resulted from the error." McKinney v. Heisel, 947 S.W.2d 32, 35   (Ky. 1997). We cannot say that no prejudice resulted from the erroneous instruction given in this case. Therefore, we reverse the judgment of conviction and remand for a new trial. We address only those remaining allegations of error that are likely to occur again on retrial.   

Gray v. Commonwealth, No. 2008-CA-001294-MR (Ky. App. 3/5/2010) (Ky. App., 2010)

   Gray claims that KRS 503.055 and KRS 503.085 required the inclusion of the following additional element in the instruction: "that Gray did not possess the firearm for purposes of self-defense." He contends that the above statutes have essentially repealed KRS 527.040 to the extent that convicted felons are now entitled to possess firearms for the purpose of self-defense. This argument is without merit.         Statutes are construed according to the plain meaning of the language set forth therein. King Drugs, Inc. v. Commonwealth, 250 S.W.3d 643, 645 (Ky. 2008). Where two statutes appear to be in conflict, "it is the Court’s duty to harmonize the law so as to give effect to both statutes." Commonwealth v. Phon, 17 S.W.3d 106, 108 (Ky. 2000).

        KRS 527.040 plainly states that convicted felons are prohibited from possessing, manufacturing, or transporting firearms. There is no language in KRS 503.055 or KRS 503.085 which professes to repeal any portion of KRS 527.040. Moreover, language granting all persons the right to possess firearms for the purpose of self-defense is likewise absent in these statutes.

        Rather, the language contained in KRS 503.055 and KRS 503.085 provides that persons in Kentucky may use defensive force, including force that is intended to or likely to cause death or great bodily harm, in certain circumstances where they hold a "reasonable fear of imminent peril of death or great bodily harm to himself or herself or another . . . ." KRS 503.085. Gray argues that this right to use deadly defensive force in certain circumstances "necessarily anticipates that persons will go about armed. How else to protect one’s person from sudden attack?"

        Gray’s argument is without merit and spurious. KRS 503.055 and KRS 503.085 do not expressly or impliedly grant convicted felons the right to "go about armed" for the purpose of self-defense. Accordingly, the trial court did not err in rejecting Gray’s proposed instruction to the jury for possession of a firearm by a convicted felon.

        In his final argument, Gray argues that the trial court erred when it denied his motion to suppress the gun discovered on his person by the police officers. He claims that the gun was subject to suppression because his constitutional rights were violated during the stop and seizure.

        Gray does not challenge any of the factual findings set forth by the trial court above. Rather, he argues that these facts are not sufficient to support the trial court’s conclusion that Officer Jones had "reasonable suspicion that criminal activity had occurred, was occurring, or was about to occur, so as to permit a brief forcible stop of Gray and a subsequent frisk for weapons." We disagree.   

Hawes v. Lapointe, No. 2008-CA-001559-MR. and (Ky. App. 10/16/2009) (Ky. App., 2009)

      Before turning to implementation of the immunity afforded by KRS 503.085, it bears noting that the statute grants immunity to a person who "uses force as permitted in KRS 503.050, 503.055, 503.070, and 503.080". But KRS 503.055 is a wholly new substantive statute pertaining to "Use of defensive force regarding dwelling, residence, or occupied vehicle-Exceptions." and, as previously discussed, is not to be applied retroactively. Similarly, the 2006 amendments to KRS 503.050 (self-protection); 503.070 (protection of others); and 503.080 (protection of property) were substantive law changes and are not retroactive. Thus persons whose conduct occurred prior to the July 12, 2006 effective date of these amendments but whose trials were not concluded are entitled to immunity only for actions in conformity with the version of the applicable statute, (i.e. self-protection, protection of others, protection of property) in effect at the time they acted.         Rodgers v. Commonwealth, 285 S.W.3d 740, 753 (Ky. 2009)

      In dismissing the criminal indictment and the civil action against LaPointe, both trial courts found that his actions were justified and lawful under KRS 503.080 and KRS 503.055, and thus he was immune from prosecution pursuant to KRS 503.085. The trial court handling the civil matter basically relied upon the findings and rationale of the criminal court, which opined:

        Pursuant to 503.080(2)(b), a person may use deadly force against another "under circumstances permitted pursuant to KRS 503.055." KRS 503.055 provides that a "person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm . . . if: "the person against whom the defensive force was used (1) "had unlawfully and forcibly entered a dwelling, residence," . . . and (2) "the person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act . . . had occurred." It is important to note that KRS 503.055 uses the past tense "had" which allows an individual to justifiably use force after the unlawful and forcible entry into the dwelling has taken place, as it did in the current action. There is a presumption in KRS 503.055(4) which states:

        A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

        In the current action, Hawes unlawfully and forcibly entered the LaPointe residence. The second part of the analysis pursuant to KRS 503.055(1)(b) provides that LaPointe, the individual who used defensive force, had reason to believe that the unlawful and forcible entry had occurred. Herein, LaPointe was informed by his wife, Mrs. LaPointe, of Hawes’ illegal entry into their home and his continued presence on the LaPointe property and refusal to leave after LaPointe returned to his home is sufficient evidence that LaPointe had reason to believe that Hawes had made an unlawful and forcible entry into his residence. Therefore, LaPointe has shown pursuant to the terms of KRS 503.055(1) that he was in reasonable fear of imminent peril of death or bodily harm and his use of defensive force was justified and lawful for the purposes of KRS 503.080 and KRS 503.055.

        Both trial courts engaged in an analysis of KRS 503.085, and properly concluded that the statute was remedial and thus retroactive. However, the courts clearly failed to recognize that KRS 503.055 was also not in effect at the time of the incident in question and, since it is deemed to be a substantive change in the law, cannot be applied retroactively to this case. Rather, LaPointe was entitled to immunity only for actions in conformity with the version of the applicable statute in effect at the time he acted. Rodgers, 285 S.W.3d at 753. Thus, we conclude that the trial court clearly erred in dismissing the civil action against LaPointe on the grounds that his conduct was lawful and justified under KRS 503.080 and KRS 503.055.

        Notwithstanding the erroneous application of the law, we are troubled by the trial court’s determination that LaPointe’s conduct was justified and lawful. We find no evidence in this record to support a finding that LaPointe held a "reasonable fear of imminent peril or great bodily harm," when he returned to his property and found Hawes and Martin standing in the driveway. In fact, there does not appear to be any dispute that at the time LaPointe fired his gun, Hawes was backing into the street. We are compelled to agree with Appellant that under the trial court’s interpretation of KRS 503.055, a person would be permitted to inflict deadly force upon another individual who had forcibly and unlawfully entered his home days, months or even a year earlier. Certainly, this was not the legislature’s intent, as such an interpretation would lead to an absurd result.   

 Rodgers v. Com., 285 S.W.3d 740 (Ky., 2009)

    Effective July 12, 2006, after Rodgers’s alleged 2004 crime but before his September 2006 trial, the Kentucky General Assembly joined a trend urged by the National Rifle Association and, through Senate Bill 38, extensively amended the self-defense3 provisions of KRS Chapter [285 S.W.3d 750] 503. See generally Renee Lerner, The Worldwide Popular Revolt Against Proportionality in Self-Defense Law, 2 J.L. Econ. & Pol’y 331 (2006); Daniel Michael, Florida’s Protection of Persons Bill, 43 Harv. J. on Legis. 199 (2006). Among other changes Senate Bill 38 created presumptions that one "unlawfully and by force" entering a dwelling, residence, or occupied vehicle does so with the intent to commit an unlawful act involving force or violence, KRS 503.055(4), and that a person encountering such an intruder reasonably fears death or great bodily injury. KRS 503.055(1). It expanded the circumstances in which the use of deadly force is justified to include those instances when one reasonably believes that such force is necessary to prevent the commission of a felony involving the use of force. KRS 503.050(2). The bill expressly provided that the right to use force, including deadly force, in defense of self or others is not contingent upon a duty to retreat. See, e.g. KRS 503.050(4), KRS 503.070(3). Moreover, the bill declared that one who justifiably used defensive force "is immune from criminal prosecution," including arrest, detention, charge, or prosecution in the ordinary sense. KRS 503.085(1).

        Pursuant to this latter provision, Rodgers claimed immunity from prosecution, moved to have the charges against him dismissed, and sought an evidentiary pre-trial hearing to address the immunity question. Denying Rodgers’s motion to dismiss, the trial court ruled that the new immunity statute did not apply retroactively to Rodgers’s case but that even if it did a review of the discovery record was sufficient to determine that Rodgers’s assertion of self-defense was significantly controverted, precluding his immunity. Rodgers contends that these rulings were incorrect: that the new self-defense legislation does apply retroactively and that he was entitled to an evidentiary hearing to address his assertion of immunity. Although we agree with Rodgers that the immunity statute (KRS 503.085) applied to his trial, the trial court appropriately addressed the immunity question and otherwise correctly determined that the new self-defense laws do not apply retroactively.   

Wines v. Commonwealth, No. 2007-SC-000081-MR (Ky. 6/25/2009) (Ky., 2009)

     III. The Trial Court Correctly Determined That Wines Was Not Immune From Prosecution And That Substantive Changes To KRS Chapter 503 Did Not Apply Retroactively To Wines’s Case.

        Effective July 12, 2006, after Wines’s alleged 2005 crime but before his October/November 2006 trial, the Kentucky General Assembly extensively amended the self-defense provisions of KRS Chapter 503. The new legislation—Senate Bill 38—created presumptions that one "unlawfully and by force" entering a dwelling, residence, or occupied vehicle does so with the intent to commit an unlawful act involving force or violence, KRS 503.055(4), and that a person encountering such an intruder reasonably fears death or great bodily injury. KRS 503.055(1). It expanded the circumstances in which the use of deadly force is justified to include those instances when one reasonably believes that such force is necessary to prevent the commission of a felony involving the use of force. KRS 503.050(2). The bill also expressly provided that the right to use force, including deadly force, in defense of self or others is not contingent upon a duty to retreat. See, e.g. KRS 503.050(4), KRS 503.070(3). And it declared that one who justifiably used defensive force "is immune from criminal prosecution," including arrest, detention, charge, or prosecution in the ordinary sense. KRS 503.085(1).    

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KRS 503.060 Improper use of physical force in self-protection.

Notwithstanding the provisions of KRS 503.050, the use of physical force by a defendant upon another person is not justifiable when:

(1) The defendant is resisting an arrest by a peace officer, recognized to be acting under color of official authority and using no more force than reasonably necessary to effect the arrest, although the arrest is unlawful; or

(2) The defendant, with the intention of causing death or serious physical injury to the other person, provokes the use of physical force by such other person; or

(3) The defendant was the initial aggressor, except that his use of physical force upon the other person under this circumstance is justifiable when:

(a) His initial physical force was nondeadly and the force returned by the other is such that he believes himself to be in imminent danger of death or serious physical injury; or

(b) He withdraws from the encounter and effectively communicates to the other person his intent to do so and the latter nevertheless continues or threatens the use of unlawful physical force.

Effective: January 1, 1975  History: Created 1974 Ky. Acts ch. 406, sec. 31, effective January 1, 1975.
 
ANNOTATION FOR THIS STATUTE:
 

Barker v. Commonwealth of Ky., 341 S.W.3d 112 (Ky., 2011)

Appellant Adam Barker was found guilty in the circuit court of manslaughter in the second degree. Barker appealed, arguing that the trial court erred in giving a provocation qualifier of the self-defense instruction because there was insufficient evidence to support the instruction. The Supreme Court failed to reach the merits of Barker’s argument because the Court found the language of the provocation instruction constituted palpable error in this case. According to Ky. Rev. Stat. 503.060(2), a person forfeits his right to the defense of self-protection when the defendant has the intention of causing death or serious physical injury to the victim and the defendant actually provokes the victim to use physical force. Because the instruction given in this case required the victim, Zachary Scarpellini, or the victim’s friend, Shawn Reilly, to have had the intent to cause death or serious injury to Barker, the instruction was fatally flawed as it failed to properly set out the elements of the statute. The Court held that because there was a substantial possibility there would have been a different verdict with a proper instruction, a manifest injustice occurred. The Court reversed Barker’s conviction for manslaughter and remanded the case.

 

Ball v. Commonwealth, No. 2008-SC-000430-MR (Ky. 3/18/2010) (Ky., 2010)

 Because KRS 503.060(1) specifically addresses the use of force by a person against a police officer in the course of an arrest, it follows that it must prevail over the more general statute, KRS 503.120(1). Moreover, because 503.060(1) does not contain an exception for a wantonly held belief by an arrestee that he is entitled to use self-protection against an arresting officer, the imperfect self-defense provisions contained in KRS 503.120(1) are not applicable under the circumstances described in KRS 503.060(1). See also Baze v. Commonwealth, 965 S.W.2d 817, 822 (Ky. 1997) (holding that even though a defendant may believe that deadly physical force is necessary to protect himself against unlawful force by another, the use of such force is not justifiable when the defendant is resisting arrest by a police officer recognized to be acting under color of official authority and using no more force than reasonably necessary to effect the arrest even though the arrest is unlawful) and Stopher v. Commonwealth, 57 S.W.3d 787, 803 (Ky. 2001) ("There is no right to use self-defense during an arrest.").7

        In summary, the language of KRS 503.060(1) forecloses the application of KRS 503.120(1) in situations where a police officer uses no more force than reasonably necessary to arrest and the arrestee was aware that he was being placed under arrest.

        In the present case, the uncontradicted testimony by Allison was that after following Ball into the residence he moved Ball’s left hand behind his back in preparation to cuff him, and at the same time told him to place his hands behind his back and that he was under arrest. Thus, there is no evidence that Allison used unreasonable force for an arrest under these circumstances. It follows that Ball was not entitled to a fourth-degree assault instruction based upon imperfect self-defense, and the trial court did not abuse its discretion by denying Ball’s request to give the instruction.

 

McIntosh v. Commonwealth, No. 2008-CA-000114-MR (Ky. App. 6/19/2009) (Ky. App., 2009)

   The circuit court ruled against McIntosh because it found that, based on the evidence at trial, McIntosh was not entitled to an imperfect self-protection instruction. We agree.

 KRS 503.060 provides that

 [T]he use of physical force by a defendant upon another person is not justifiable when:        . . .

(2) The defendant, with the intention of causing death or serious physical injury to the other person, provokes the use of physical force by such other person; or

(3) The defendant was the initial aggressor, except that his use of physical force upon the other person under this circumstance is justifiable when:

(a) His initial physical force was nondeadly and the force returned by the other is such that he believes himself to be in imminent danger of death or serious physical injury; or

 (b) He withdraws from the encounter and effectively communicates to the other person his intent to do so and the latter nevertheless continues or threatens the use of unlawful physical force.

        As noted by the circuit court, the evidence at trial was overwhelming and unrebutted that McIntosh, who was armed, sought out and approached Krull, and that he pulled out his gun and aimed it at Krull prior to being threatened or attacked. Furthermore, the evidence was overwhelming that Greene simply tried to restrain McIntosh in response to McIntosh’s use of potential deadly force against Krull. The circuit court correctly determined that McIntosh was not entitled to an imperfect self-protection instruction and may not have been entitled to a perfect self-protection instruction. Because counsel is not required to make useless motions or objections, we discern no error on the part of the circuit court. See Commonwealth v. Davis, 14 S.W.3d 9, 11 (Ky. 1999).

 

Colyer v. Commonwealth, No. 2007-SC-000195-MR (Ky. 3/19/2009) (Ky., 2009)

    Since the failure to provide an instruction on voluntary intoxication entitles Appellant to a new trial, we now will only review his other allegations of error to the extent necessary to provide guidance to the trial court on retrial.

   Appellant next argues that the trial court’s instruction on self-defense improperly stated the law and affected the jury’s ability to consider that defense. Appellant argues that the trial court’s jury instructions were erroneous because it did not indicate that if he was mistaken in his belief that he needed to defend himself he could be found guilty of a lesser included wanton or reckless crime, such as fourth-degree assault. KRS 503.060.

      The trial court has a duty in a criminal prosecution to instruct the jury on the entire law of the case. Lawson v. Commonwealth, 218 S.W.2d 41 (Ky. 1949). Thus, the jury must receive instructions on any state of the case supported by the evidence provided. Commonwealth v. Duke, 750 S.W.2d 432 (Ky. 1988). Instructions on the mistaken belief to use self-defense must be provided if supported by the evidence. Hilbert v. Commonwealth, 162 S.W.3d 921, 925 (Ky. 2005). In this matter, the trial court erred by not providing a self-defense jury instruction which accounted for the lesser-included offense of fourth-degree assault. Appellant’s main defense at trial was that he acted in self-defense during the altercation with Sam Hodge. Appellant testified that he initially believed that everyone who was outside was trying to attack him. After he claimed he blacked out, Appellant ended up injuring people other than Hodge who apparently were not involved in the altercation. Thus, the jury could potentially have found that Appellant had a mistaken belief that he needed to act in self-defense and thus acted recklessly or wantonly in attacking people who were of no threat to him. At retrial, if evidence similar to that  presented at the initial trial is presented, an instruction on fourth-degree assault should be provided.

    For the foregoing reasons, the judgment and sentence of the Pulaski Circuit Court is reversed and the case is remanded for a new trial.

 

Charles v. Com., 634 S.W.2d 407 (Ky., 1982)

    Before we can consider whether the evidence precluded a qualifying instruction, we first must determine whether one who provokes an altercation with the intent to kill or inflict serious bodily injury is ever entitled to use physical force. Under KRS 503.060(3)(b) the initial aggressor may use reasonable force upon another person if the aggressor is confronted with physical force after withdrawing and communicating his intent to withdraw. The trial court’s qualifying instruction, however, used the provocation exception in KRS 503.060(2) rather than the initial aggressor exception in KRS 503.060(3). The provocation exception is silent on whether the accused can avail himself of the self-protection defense in the event of withdrawal.

        In construing code provisions, this court in the past has looked to the commentary accompanying the 1971 Final Draft as suggested by KRS 500.100. Kennedy v. Commonwealth, Ky., 544 S.W.2d 219 (1976). The commentary makes clear that the provocation and initial aggressor exceptions "serve merely to codify existing principles." Under pre-code law it was well established that a good faith withdrawal coupled with its communication permitted the accused to use reasonable force for his self-protection even if he initially provoked the affray. Banks v. Commonwealth, 196 Ky. 639, 245 S.W. 296 (1922). We therefore hold that one who provokes a fight with the intent to kill or seriously injure may claim self-protection if the conditions in KRS 503.060(3)(b) are met by the evidence.

        After reviewing the record we think the instructions properly addressed the matters which were put in issue by the evidence. The evidence was by no means uncontradicted, as appellant claims, on the provocation and withdrawal issues. The trial court accordingly submitted instructions on each issue with which the jury could have justified appellant’s use of force if they believed his version of the shooting. We find no error in the trial court’s qualifying the defense of self-protection.

 

Ward Carlos Hightower v. Commonwealth of Kentucky (Ky. App., 2003)

   Notably absent in KRS 503.120(1) is any reference to its availability when, during the course of resisting arrest, the actor uses physical force upon an officer. However, KRS 503.060 specifically addresses this situation and is controlling. KRS 503.060(1) provides that the use of physical force is not justified when:

        The defendant is resisting arrest by a peace officer, recognized to be acting under color of official authority and using no more force then reasonably necessary to effect the arrest, although the arrest is unlawful; . . . .

        In Baze v. Commonwealth, the court rejected the contention that the accused was justified in using deadly force against an officer in the course of an arrest. Noting that KRS 503.060 prohibits the use of any force on a police officer for the sole purpose of resisting arrest the court held:

        Even though a defendant may believe that deadly physical force is necessary to protect himself against unlawful force by another, the use of such force is not justifiable when the defendant is resisting arrest by a police officer recognized to be acting under color of official authority and using no more force than reasonably necessary to effect the arrest even though the arrest is unlawful.

        The holding in Baze was reiterated in Stopher v. Commonwealth, where the court upheld Stopher’s convictions for murder of a deputy sheriff and third-degree assault on four other officers when the court stated unequivocally that "[t]here is no right to use self-defense during an arrest."

        The language of KRS 503.060(1) precludes the application of KRS 503.120(1) to situations where a police officer used no more force than reasonably necessary to arrest and the defendant was aware that he was being placed under arrest. In this case, the jury was properly instructed and found that Hightower’s conduct did not justify the use of physical force against the officer. We find no error.

 

Baze v. Com., 965 S.W.2d 817 (Ky., 1997)

   There was no evidence to justify a wanton or reckless self-defense instruction in this case. KRS 503.060(1) prohibits the use of any force on a police officer for the sole purpose of resisting arrest. There was never any testimony that Deputy Briscoe went for his gun during the first encounter at the Baze cabin. Baze’s wife testified that she thought that Briscoe was going for his gun and hollered. Moments later, Baze shot the first two volleys into Briscoe’s back. The self-defense instructions used here were qualified by the provisions of KRS 503.090 and KRS 503.060. There was no error.

 

Flanders v. Commonwealth, No. 2005-SC-000815-MR (Ky. 6/21/2007) (Ky., 2007)

 Additionally, KRS § 503.060(3) provides that the use of physical force in self-defense is not justifiable if "[t]he defendant was the initial aggressor." In such a situation, self-defense is not applicable unless (a) the initial physical force was nondeadly and the force returned by the other is such that he believes himself to be in danger of death or serious physical injury or (b) the defendant withdraws from the encounter.8

        A directed verdict would not have been proper if the evidence, viewed in the light most favorable to the Commonwealth, provides a reasonable basis for the jury to conclude that Flanders did not actually believe that he was acting in self-defense or, in the alternative, that Flanders was the initial aggressor. Upon viewing the evidence as a whole, we cannot say that the jury’s determination was clearly unreasonable. First, there was sufficient evidence for the jury to conclude that Flanders did not subjectively believe in the need for self-defense. Testimony at trial detailed that the victim had trouble walking, that the pocket knife in the victim’s possession was not open, and that Flanders took extensive measures to conceal the victim’s death. Further, there was testimony that the victim was not intoxicated and that Flanders may have been the initial aggressor or may have escalated the violent encounter. Moreover, the trial court properly instructed the jury on the justification of self-defense, including the fact that an actual belief in the need for deadly force, even if wantonly or recklessly held, precludes a wanton murder conviction. Properly instructed, the jury determined that self-defense did not justify Flanders’ conduct. Under the evidence, we cannot say that this determination was clearly unreasonable. Therefore, the trial court properly denied Flanders’ motion for a directed verdict on the charge of wanton murder.

 

Pollini v. Com., 172 S.W.3d 418 (KY, 2005)

    Concurring opinion by Justice COOPER

  As Palmore & Lawson suggested, situations when a defendant would believe the victim was about to lawfully use physical force against him are rare. Instances of lawful use of physical force are defined in KRS Chapter 503, "General Principles of Justification," and include force used by the victim in self-protection when the defendant was the initial aggressor, KRS 503.060(3); force provoked by the defendant, KRS 503.060(2); force used by a police officer or a person acting under official authority in effecting a lawful arrest, KRS 503.060(1), KRS 503.090; force used to prevent suicide or to prevent the commission of a crime involving or threatening serious physical injury to person, substantial damage to or loss of property, or any other violent conduct, KRS 503.100; or force used by a parent, guardian, teacher, official at a correctional institution, operator of a common carrier vehicle, doctor, or other therapist under circumstances specified in KRS 503.110. When there is evidence of such an exception to the privilege to act in self-protection, it is usually identified as such in a separate instruction or by a proviso to the self-protection instruction, itself. See, e.g., Cooper, supra, §§ 11.11-11.13, 11.18B, & 11.20-11.27. For example, under the facts of this case, if the trial court believed there was sufficient evidence for the jury to find that Appellant believed Pruitt was about to use physical force against him for a lawful purpose, the following specimen instruction would have been appropriate:

INSTRUCTION NO. ___ SELF-PROTECTION

        Even though the Defendant might otherwise be guilty of Murder under Instruction No. ___, if at the time the Defendant killed Byron Pruitt (if he did so), he believed that Pruitt was then and there about to use physical force upon him, he was privileged to use such physical force against Pruitt as he believed to be necessary in order to protect himself against it, but including the right to use deadly physical force in so doing only if he believed it to be necessary to protect himself from death or serious physical injury at the hands of Pruitt.

        Provided, however, if you further believe beyond a reasonable doubt that the Defendant believed Pruitt intended to use physical force against him for the purpose of preventing him from committing a crime involving or threatening substantial damage to or loss of property, then the Defendant was not so privileged and is not entitled to the defense of self-protection.   

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KRS 503.070 Protection of another.

(1) The use of physical force by a defendant upon another person is justifiable when:

(a) The defendant believes that such force is necessary to protect a third person against the use or imminent use of unlawful physical force by the other person; and

(b) Under the circumstances as the defendant believes them to be, the person whom he seeks to protect would himself have been justified under KRS 503.050 and 503.060 in using such protection.

(2) The use of deadly physical force by a defendant upon another person is justifiable when:

(a) The defendant believes that such force is necessary to protect a third person against imminent death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, or other felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055; and

(b) Under the circumstances as they actually exist, the person whom he seeks to protect would himself have been justified under KRS 503.050 and 503.060 in using such protection.

(3) 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.

Effective: July 12, 2006  History: Amended 2006 Ky. Acts ch. 192, sec. 4, effective July 12, 2006. — Created 1974 Ky. Acts ch. 406, sec. 32, effective January 1, 1975.

 
ANNOTATION FOR THIS STATUTE:
 
 

Caudill v. Commonwealth, 374 S.W.3d 301 (Ky., 2012)   August 23, 2012

 

Summaries: Source: Justia
Pursuant to a guilty verdict, Defendant was convicted of one count of murder and three counts of wanton endangerment in the first degree. The trial court sentenced Defendant to thirty-five years’ imprisonment. Appellant appealed, arguing (1) there was insufficient proof to support a charge of murder because the Commonwealth failed to establish, beyond a reasonable doubt, that Appellant was not privileged to act in self-defense; and (2) certain conduct of the Commonwealth attorney during his cross-examination of Appellant amounted to reversible prosecutorial misconduct. The Supreme Court vacated the convictions and remanded, holding (1) there was sufficient evidence from which a reasonable juror could find Appellant guilty of murder; but (2) the prosecutor’s conduct in certain instances was improper, and the prosecutorial misconduct in this case was reversible error.

 

 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.

See also KRS 503.050(4); KRS 503.070(3); KRS 503.080(3).

Where the prosecution’s case, and the Appellant’s liberty, turn on the jury’s determination of which man was the initial aggressor and “who fired first,” creating the erroneous impression, strengthened by implied judicial approval, that the Appellant was acting wrongly or illegally by remaining on his property when approached by Carpenter is highly prejudicial and improper. The trial judge should have corrected this error with an appropriate admonishment to the jury that the law does not require a person to retreat when he or she is attacked in a place where he or she has a right to be.

The evidence was conflicting on certain key issues, there were varying accounts by several eye-witnesses, and there was conflicting expert testimony. Depending on which version of the facts jurors believed, more than one legal conclusion could have been drawn. When a prosecutor, bolstered by his or her authority, misstates the law, the result may be juror confusion or worse, a miscarriage of justice. Accordingly, we deem the prosecutorial misconduct in this case to be reversible error.

The judgment of the Breathitt Circuit Court is hereby reversed as to the Appellant’s convictions for murder and three counts of wanton endangerment, and remanded for further proceedings consistent with this opinion.

 
 

[U] Burns v. Commonwealth (Ky. App., 2013) 2011-CA-001959-MR    April 19, 2013

Besides the instructions on these three degrees of homicide, the jury was instructed on the defense of protection of another. Pursuant to KRS 503.070(2), the use of deadly physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect another person against death or serious physical injury. Therefore, the jury was instructed that Leland was permitted to use deadly force if he believed such force was necessary to protect Patrick.

Since the failure to provide an instruction to the jury on imperfect defense of another may have resulted in a different conviction with a lesser punishment, we cannot say the error was harmless.

CONCLUSION

For the reasons set forth in this opinion, the judgment of conviction and sentence imposed upon Appellant are reversed, and this case is remanded to Warren Circuit Court for a new trial consistent with this opinion and, at which, if the evidence is the same, Leland shall be entitled to an instruction on the defense of imperfect self-protection of another.

 

Rodgers v. Com., 285 S.W.3d 740 (Ky., 2009)

 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 "[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 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).

        Here, the 2006 amendments on the "no duty to retreat" doctrine did not create any new duty or obligation on behalf of the defendant, nor impair any vested right, but only operated in confirmation of his preexisting right. See Hilbert, 162 S.W.3d at 926; see also Riggs, 918 S.W.2d at 747 ("When a statute is purely remedial … and does not violate a vested right, but operates to further a remedy or confirm a right, it does not come within … the general rule against the retrospective operation of statutes." (emphasis added).). Thus, its application was retroactive if there was sufficient evidence to support the instruction.

 

Springer v. Commonwealth, 998 S.W.2d 439 (KY, 1999)

     If the defender uses non-deadly physical force in protection of another, he is Judged by his own subjective belief as to whether the person being protected would have been privileged to act in self-protection. KRS 503.070(1). However, if, as here, deadly force is used, the defender is judged in accordance with the circumstances as they actually existed with respect to whether the person being protected would have been privileged to use deadly physical force in self-protection. KRS 503.070(2) (b). This latter provision is contrary to the law of most other jurisdictions, R. Lawson and W. Fortune, supra, § 4-3(b) (3), Perkins on Criminal Law 1021 (2d ed. Foundation Press 19691, but represents a codification of the holding in Stanley v. Commonwealth, supra, that a defender intervenes at his peril if the person he killed was not at fault. Id., 6 S.W. at 156.

       Bearing these principles in mind, there are several reasons why Eades was not entitled to an instruction on protection of another. At trial, she claimed no involvement in the crime. In her confession, she did not claim to have killed Ernest Springer in defense of her sister. Kimberly Springer’s entitlement to a self-protection instruction was premised not on the facts as they actually existed, but upon her theory that her affliction with the "battered woman syndrome" caused her to believe it was necessary to kill her sleeping husband. Eades was not suffering from "battered woman syndrome;" thus, her culpability is not dependent upon a syndrome-induced belief in the need to use deadly physical force in defense of Kimberly Springer, but upon the facts as they actually existed. Ernest Springer was killed while asleep in his bed. Under the actually existing facts, there was no need to kill Ernest Springer in order to protect Kimberly from "imminent death, serious physical injury . . . or [forcible] sexual intercourse"’ at his hands. KRS 503.070(2) (a). "The fear of future danger will not justify a homicide." Grubbs v. Commonwealth, 240 Ky. 473, 42 S.W.2d 702, 703 (1931). Although Grubbs pre-dates the penal code, that principle was codified by use of the word imminent" in the justification statutes. R. Lawson and W. Fortune, supra, § 4-2(b) (3), p. 139. While evidence of domestic violence and abuse and affliction with "battered woman syndrome" .&lay create an exception to that principle, that exception is unavailable to Eades.

       Thus, the legislature determined, for whatever reason, that the exemption from the probation or conditional discharge restrictions in KFZS 533.060(l)applies whether the domestic violence and abuse occurred previous to the offense or at the time the offense was committed; but the exemption from the parole restrictions in KRS 439.3401 applies only if the domestic violence and abuse was "involved” in the offense. The trial Judge interpreted both of these provisions to mean that the exemptions applied only if the domestic violence and abuse was involved in the offense, and found that such was not the situation in this case. The trial Judge is not required to accept the defendant’s version of the events surrounding the offense; thus, the trial Judge’s finding on this issue was not clearly erroneous and would have precluded Springer from benefitting from the exemption in KRS 439.3401(4). However, the trial Judge should have made an additional finding whether Springer had been previously subjected to domestic violence and abuse so as to fall within the exemption in KRS 503.060(l). Nevertheless, the failure to make that additional finding did not prejudice Springer, because the trial Judge treated her as if she were eligible for probation or conditional discharge, but found that such a Disposition was inappropriate because it would unduly depreciate the seriousness of the crime. KRS 533.010(2) (c); Hughes v. Commonwealth, KY., 875 S.W.2d 99 (1994).

   For the reasons stated herein, the convictions and sentences imposed on both Springer and Eades are reversed and this case is remanded to the Kenton Circuit Court for a new trial in accordance with the contents of this opinion

 

Worley v. Commonwealth, No. 2007-CA-000175-MR (Ky. App. 7/3/2008) (Ky. App., 2008)

     A person who uses force as permitted in KRS 503.050, 503.055, 503.070, and 503.080 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom the force was used is a peace officer, as defined in KRS 446.010, who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law, or the person using force knew or reasonably should have known that the person was a peace officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.

        KRS 503.050, 503.070, and 503.080 describe circumstances under which the use of deadly force is permissible to defend one’s self, a third party, or to prevent home invasion. KRS 503.055, also amended by the General Assembly while the indictment against Worley was pending, reads, in relevant part, as follows:

(3) 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.

        Worley contends that, since the shooting occurred outside his home and he had reason to believe that Cole would injure him and/or invade his home, he was justified in using deadly force against him without first retreating. Thus, he claims that the trial court was required to dismiss the indictment pursuant to KRS 503.085.

  We note that significant evidence of Cole’s past violent behavior was introduced. Christi, the mother of his child, testified that she lived in fear of Cole, that he had cut her with a knife and given her black eyes and bruises. Further, she asserted that Worley was aware of this abuse. Worley himself told the jury that he saw Cole beat up another man. We note that the case cited by Worley in support of his reverse KRE 404(b) argument actually dealt with the admissibility of other crimes or bad acts committed by an alleged alternate perpetrator. Worley has failed to show an abuse of the trial court’s discretion in refusing to admit the victim’s juvenile court records.

        For the foregoing reasons, the judgment of the Whitley Circuit Court is affirmed.

 

Walters v. Commonwealth, No. 2006-CA-002614-MR (Ky. App. 10/3/2008) (Ky. App., 2008)

   Our discussion now turns to KRS 508.085 and whether it falls within the KRS 446.110 exception. The newly enacted KRS 503.085 grants immunity when:

A person who uses force as permitted in KRS 503.050, 503.055, 503.070, and 503.080 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom the force was used is a peace officer, as defined in KRS 446.010, who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law, or the person using force knew or reasonably should have known that the person was a peace officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.

      Using the three-tier analysis of Bell, the evidence regarding the comments made by Walters to Jasmine should have been excluded as the probative value of the statements were substantially outweighed by the prejudicial effect. Wilson v. Commonwealth, 199 S.W.3d 175(Ky.2006). The lewd statements made by Walters were not within the bounds of acceptable parlance between co-workers and would only serve to elicit strong emotional responses from the jury. Moreover, the statements to Jasmine are not so inextricably interwoven4 that the introduction of the evidence was unavoidable. The jury could have simply been told that the animosity between Walters and Maltaner was the result of an incident between Walters and Jasmine. Certainly the testimony could have elaborated on the conversation between Walters and Jasmine without a verbation recitation. Thus, it was possible for the jury to be apprised that statements were made without the prejudicial effect that would necessarily result if the statements were introduced into evidence verbatim. See Funk at 480-481. The introduction of the The introduction of the highly prejudicial evidence exceeded the trial court’s discretion and constitutes reversible error.

        For the foregoing reasons, we reverse and remand for a new trial.

 

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KRS 503.080 Protection of property.

(1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is immediately necessary to prevent:

(a) The 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 or in the possession of another person for whose protection he acts; or

(b) Theft, criminal mischief, or any trespassory taking of tangible, movable property in his possession or in the possession of another person for whose protection he acts.

(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that the person against whom such force is used is:

(a) Attempting to dispossess him of his dwelling otherwise than under a claim of right to its possession; or

(b) Committing 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; or

(c) Committing or attempting to commit arson of a dwelling or other building in his possession.

(3) 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.

Effective: July 12, 2006  History: Amended 2006 Ky. Acts ch. 192, sec. 5, effective July 12, 2006. — Created 1974 Ky. Acts ch. 406, sec. 33, effective January 1, 1975.

 
ANNOTATION FOR THIS STATUTE:
 
Commonwealth v. Ousley (Ky., 2013) 2011-SC-000403-DG  March 21, 2013

The police in this case walked onto the Appellee’s property and into an area near his home late at night to search trash in closed trash containers which ended up containing evidence of drug trafficking. The containers had not been put out on the street for trash collection. Because the police invaded the curtilage without a search warrant, the search was illegal. Thus, this Court affirms the decision of the Court of Appeals, which found that the trial court erred in not suppressing the evidence.

5. Policy considerations in not allowing trash pulls in the curtilage.

There is also a policy consideration in not permitting undue invasions of the curtilage. That a homeowner might lawfully act to protect himself and his home against a perceived invader of his property is especially troubling in a case like this. Kentucky recognizes a strong "castle doctrine" that not only allows a person to use self-defense to repel an invasion of his home, see KRS 503.055, but also to protect property, see KRS 503.080. The latter statute goes so far as to allow the use of deadly physical force when the defendant believes it necessary to prevent the occurrence of any of a list of crimes, some of which are serious (criminal trespass, robbery, burglary) and some of which are not so serious (theft, criminal mischief, or any trespassory taking of tangible, movable property). KRS 503.080(1). The only qualification is that the defendant has to believe the person is attempting to dispossess him of his dwelling or is committing or attempting to commit arson, burglary, robbery, or other felony involving the use of force. KRS 503.080(2).

Because the officer retrieved Ousley’s trash from his curtilage, the search violated Ousley’s Fourth Amendment and Section 10 rights, and he was entitled to have the evidence obtained suppressed. For that reason, the Court of Appeals is affirmed.

 
 

Caudill v. Commonwealth, 374 S.W.3d 301 (Ky., 2012) August 23, 2012

 

Summaries: Source: Justia

Pursuant to a guilty verdict, Defendant was convicted of one count of murder and three counts of wanton endangerment in the first degree. The trial court sentenced Defendant to thirty-five years’ imprisonment. Appellant appealed, arguing (1) there was insufficient proof to support a charge of murder because the Commonwealth failed to establish, beyond a reasonable doubt, that Appellant was not privileged to act in self-defense; and (2) certain conduct of the Commonwealth attorney during his cross-examination of Appellant amounted to reversible prosecutorial misconduct. The Supreme Court vacated the convictions and remanded, holding (1) there was sufficient evidence from which a reasonable juror could find Appellant guilty of murder; but (2) the prosecutor’s conduct in certain instances was improper, and the prosecutorial misconduct in this case was reversible error.

 

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.

See alsoKRS 503.050(4); KRS 503.070(3); KRS 503.080(3).

Where the prosecution’s case, and the Appellant’s liberty, turn on the jury’s determination of which man was the initial aggressor and “who fired first,” creating the erroneous impression, strengthened by implied judicial approval, that the Appellant was acting wrongly or illegally by remaining on his property when approached by Carpenter is highly prejudicial and improper. The trial judge should have corrected this error with an appropriate admonishment to the jury that the law does not require a person to retreat when he or she is attacked in a place where he or she has a right to be.

The next instance of misconduct occurred early in the course of the Commonwealth Attorney’s cross-examination of the Appellant, when he began inquiring into the history of the property dispute between the Appellant and Carpenter and about Appellant’s feelings toward Carpenter. In response, the Appellant freely acknowledged that he and Carpenter had not ever gotten along. The Appellant then stated rhetorically, “I don’t think you have to get along with your neighbors, do you?” The prosecutor seized this opportunity to expound his own personal philosophy to the court room, opining that:

Yes sir, I think you should get along with your neighbors. Absolutely I think you should get along with your neighbors. I think you should go the extra mile to get along with your neighbors. I certainly don’t think you should take a gun out every time you see your neighbors.

In its brief, the Commonwealth argues that the prosecutor was entitled to question the Appellant about any feelings he had toward Carpenter because “motive is a relevant issue in a murder prosecution.” Be that as it may, the prosecutor’s monologue about his personal view of appropriate neighborly behavior fell outside the scope of proper cross-examination. When he made this comment, the prosecutor was no longer conducting legitimate cross-examination. He was, in effect, testifying. See Moore v. Commonwealth, 634 S.W.2d 426, 438 (Ky.1982)(prosecutor’s personal opinion is not relevant and not proper); see also Chipman v. Commonwealth, 313 S.W.3d 95, 101 (Ky.2010) (citingMiller v. Commonwealth, 283 S.W.3d 690, 695 (Ky.2009)) (arguments of counsel are not evidence). While the prosecutor’s comment was intended to rebut Appellant’s statement, it was argument for argument’s sake and was not supported by facts in the record. To effectively testify during cross-examination was improper.

As we have determined that the prosecutor’s conduct in the above enumerated instances was improper, we must next determine what, if any, relief is warranted. ….

…. In the present case, Appellant’s trial counsel objected to the above-enumerated acts of misconduct and the trial court overruled the objections, thereby precluding the ability to cure the error with a sufficient admonishment to the jury. Thus, the second and third conditions have been met. Moreover, the proof of Appellant’s guilt was not overwhelming. The evidence was conflicting on certain key issues, there were varying accounts by several eye-witnesses, and there was conflicting expert testimony. Depending on which version of the facts jurors believed, more than one legal conclusion could have been drawn. When a prosecutor, bolstered by his or her authority, misstates the law, the result may be juror confusion or worse, a miscarriage of justice. Accordingly, we deem the prosecutorial misconduct in this case to be reversible error.

Conclusion

The judgment of the Breathitt Circuit Court is hereby reversed as to the Appellant’s convictions for murder and three counts of wanton endangerment, and remanded for further proceedings consistent with this opinion.

 

Hartley v. Commonwealth (Ky., 2011)  2009-SC-000640-MR.pdf

Appellant argues he was entitled to an instruction on protection of property, pursuant to KRS 503.080. This argument is not properly preserved. Defense counsel argued for an instruction on the use of physical force to protect property, pursuant to KRS 503.080(1). The trial court denied the request, because KRS 503.080(1) deals with non-deadly physical force. Defense counsel began to discuss KRS 503.080(2), which deals with deadly force, but never specifically requested such an instruction. We therefore review for palpable error under RCr 10.26.

We conclude that no palpable error resulted from the jury not being instructed on protection of property. A defendant may use physical force to prevent a robbery "upon real property in his possession . . . ." KRS 503.080(l)(a). A defendant may also use physical force to prevent "[t]heft, criminal mischief, or any trespassory taking of tangible, movable property in his possession . . . KRS 503.080(l)(b). However, a defendant is justified in protecting property using deadly physical force only in defense of a dwelling. See KRS 503.080(2).

Appellant used deadly physical force when he fired a gun. He did so in his front yard as Angel Riddell and Brenda Davenport drove away. He did not use deadly physical force to protect a dwelling under any of the circumstances allowed under KRS 503.080(2). "An error is ‘palpable,’ only if it is clear or plain under current law." Miller, 283 S.W.3d at 695 (citing Brewer, 206 S.W.3d 343). No palpable error occurred, because the victims were in a vehicle, driving away from the scene when Appellant shot. This clearly shows that Appellant was not attempting to protect private property.

 

Deberry v. Commonwealth, No. 2009-CA-000286-MR (Ky. App. 4/16/2010) (Ky. App., 2010)

  First, we will address Deberry’s claim that the trial court’s failure to instruct the jury on a defense of property entitled him to a judgment notwithstanding the verdict. "In a criminal case, it is the duty of the trial judge to prepare and give instructions on the whole law of the case, and this rule requires instructions applicable to every state of the case deducible or supported to any extent by the testimony." Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999). We must review a trial court’s refusal to give a jury instruction for abuse of discretion. Williams v. Commonwealth, 178 S.W.3d 491, 498 (Ky. 2005).

        After reviewing the record, we conclude that the facts of the case do not support a defense of property instruction. KRS 503.080 provides:…..

        Finally, we firmly disagree with Deberry’s claim that his conviction violates public policy. Public policy and Kentucky law have long supported the rights of self-protection and property protection. However, neither the law nor public policy encompasses the facts of this case.   

Hawes v. Lapointe, No. 2008-CA-001559-MR. and (Ky. App. 10/16/2009) (Ky. App., 2009)

    On March 10, 2008, the trial court dismissed the criminal indictment, finding that LaPointe "was in reasonable fear of imminent peril of death or bodily harm and his use of defensive force was justified and lawful for purposes of KRS 503.080 and KRS 503.055[,]" and therefore "the immunity from criminal prosecution pursuant to KRS 503.085 applies in the current action." In so doing, the court concluded that "KRS 503.085 is a remedial statute which may be applied retroactively." On March 17, 2008, Hawes’ civil action was dismissed on the same grounds. Following the denial of his motion to alter, amend or vacate, Hawes appealed to this Court as a matter of right.

        On appeal, Hawes first argues that the trial court erroneously violated his right to a jury trial by granting LaPointe’s motion to dismiss. Hawes contends that the trial court treated the motion as a motion for summary judgment, despite the fact that there were disputed issues of fact and law.

In its order denying Hawes’ motion to alter, amend or vacate based on this same argument, the trial court found:

The Court considers the telephone conference of February 25, 2008, between the Court and counsel, to be of paramount importance to the resolution of this issue. This conference call was referenced by the Court in its March 17, 2008 decision and discussed at length during the hearing on this motion.

   It is axiomatic that by agreeing to the preceding procedures, the parties are barred from objecting to those procedures after receiving an affirmative waiver of other procedural objections.

Inexplicably, Hawes now argues that even though he plainly consented to the above-procedure with regard to the evidentiary hearing, he did not forfeit his right to a jury trial. While such may be true had the trial court not granted the motion to dismiss, we fail to perceive how Hawes could be entitled to a jury trial once the trial court concluded that dismissal of the case was appropriate. Thus, we find no merit in Hawes’ claims that his rights were violated by a procedure he specifically agreed to.

In the current action, Hawes unlawfully and forcibly entered the LaPointe residence. The second part of the analysis pursuant to KRS 503.055(1)(b) provides that LaPointe, the individual who used defensive force, had reason to believe that the unlawful and forcible entry had occurred. Herein, LaPointe was informed by his wife, Mrs. LaPointe, of Hawes’ illegal entry into their home and his continued presence on the LaPointe property and refusal to leave after LaPointe returned to his home is sufficient evidence that LaPointe had reason to believe that Hawes had made an unlawful and forcible entry into his residence. Therefore, LaPointe has shown pursuant to the terms of KRS 503.055(1) that he was in reasonable fear of imminent peril of death or bodily harm and his use of defensive force was justified and lawful for the purposes of KRS 503.080 and KRS 503.055.

Both trial courts engaged in an analysis of KRS 503.085, and properly concluded that the statute was remedial and thus retroactive. However, the courts clearly failed to recognize that KRS 503.055 was also not in effect at the time of the incident in question and, since it is deemed to be a substantive change in the law, cannot be applied retroactively to this case. Rather, LaPointe was entitled to immunity only for actions in conformity with the version of the applicable statute in effect at the time he acted. Rodgers, 285 S.W.3d at 753. Thus, we conclude that the trial court clearly erred in dismissing the civil action against LaPointe on the grounds that his conduct was lawful and justified under KRS 503.080 and KRS 503.055.

Notwithstanding the erroneous application of the law, we are troubled by the trial court’s determination that LaPointe’s conduct was justified and lawful. We find no evidence in this record to support a finding that LaPointe held a "reasonable fear of imminent peril or great bodily harm," when he returned to his property and found Hawes and Martin standing in the driveway. In fact, there does not appear to be any dispute that at the time LaPointe fired his gun, Hawes was backing into the street. We are compelled to agree with Appellant that under the trial court’s interpretation of KRS 503.055, a person would be permitted to inflict deadly force upon another individual who had forcibly and unlawfully entered his home days, months or even a year earlier. Certainly, this was not the legislature’s intent, as such an interpretation would lead to an absurd result.

 For the foregoing reasons, we vacate the Spencer Circuit Court’s order of dismissal. Hawes’ civil action against LaPointe is reinstated and the matter is remanded for further proceedings in accordance with the Chapter 503 substantive defense provisions at the time of the January 2006 incident.   

Mondie v. Commonwealth, No. 2002-SC-0534-DG (KY 3/17/2005) (KY, 2005)

  As previously noted, Appellant tendered a protection against burglary instruction, which the trial court rejected. The Court of Appeals, despite recognizing that "the evidence before the trial court is conflicting as to whether McGowan actually entered the Mondie residence" and that "Mondie claims that McGowan entered his home… and then physically attacked him," affirmed this omission and stated that "[t]he record does not indicate that McGowan was committing burglary or any other crime justifying the use of deadly force in protection of a dwelling." We must disagree. Based on Appellant’s and Callinan’s testimony, the jury could have reasonably believed that McGowan had entered or remained in Appellant’s home with the intent to assault him, thereby committing a burglary, and that Appellant shot him, believing that it was necessary to prevent the burglary. Accordingly we hold that Appellant was entitled to a protection against burglary instruction and that the trial court erred in failing to give such an instruction. Moreover, because 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," we hold that the failure to give the protection against burglary instruction was reversible error.   

Raney v. Commonwealth, No. 2006-SC-000030-MR (Ky. 1/25/2007) (Ky., 2007)

   Evidence that the Appellant admitted giving permission to Danny to enter his residence, although later revoked, and that Danny was unarmed goes against such an instruction. Furthermore, there was no indication that Danny used or was going to use assaultive behavior. The Appellant admitted that Danny had not hit or threatened him prior to the shooting. Testimony confirms that he was raising his hands in a blocking manner when the Appellant raised the shotgun in his direction. Moreover, the Appellant’s explanation of the shooting was that it was accidental and KRS 503.080 concerns an intentional activity used to prevent the commission or attempted commission of burglary of his dwelling. Thus, the failure of the trial court to instruct the jury on protection of property did not affect the substantial rights of the Appellant, and therefore, there was no palpable error.   

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KRS 503.085 Justification and criminal and civil immunity for use of permitted force — Exceptions.

(1) A person who uses force as permitted in KRS 503.050, 503.055, 503.070, and 503.080 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom the force was used is a peace officer, as defined in KRS 446.010, who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law, or the person using force knew or reasonably should have known that the person was a peace officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1) of this section, but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff, if the court finds that the defendant is immune from prosecution as provided in subsection (1) of this section.

Effective: July 12, 2006  History: Created 2006 Ky. Acts ch. 192, sec. 6, effective July 12, 2006.

 
ANNOTATION FOR THIS STATUTE:
 
Farmer v. Commonwealth (Ky. App., 2013)      2012-CA-001659-MR   February 15, 2013

 We begin with the broad nature of Kentucky’s version of justifiable self-defense contained in KRS 503.085. The language in KRS 503.085 is unambiguous. It directs that citizens of this Commonwealth may, under certain circumstances, use force without fear of arrest, criminal prosecution and civil liability. Subsection (1) states:

A person who uses force as permitted in KRS 503.050, 503.055, 503.070, and 503.080 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom the force was used is a peace officer, as defined in KRS 446.010, who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law, or the person using force knew or reasonably should have known that the person was a peace officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.

It is obvious that if a defendant cannot immediately appeal the trial court’s decision and must await the outcome of a criminal trial, nothing is gained by invoking KRS 503.085 at the "earliest stage of the proceeding." After trial and conviction, the burdens have been shouldered and the harm irreparable.

We cannot ignore the futility in an appeal of the denial of KRS 503.085 immunity after a defendant’s conviction. As explained by the author of this opinion in his dissent in Lemons v. Commonwealth, 2012 WL 2360131 (Ky. App. 2012) (2010-CA-001942-MR), motion for discretionary review pending, following a trial and conviction, any argument that immunity was improperly denied would be subject to the harmless error rule, and the defendant required to overcome the strong preference in the law for deferring to a jury’s verdict. It is simply nonsensical for the General Assembly to have clearly established immunity from prosecution that is to be determined by the court, but leave defendant denied immunity without an opportunity for meaningful judicial review.

We end our discussion with a quote by the District of Columbia Court when it considered whether an immediate appeal was available from a denial of  immunity from prosecution under a statutory provision. In Stein v. U.S., 532 A.2d 641, 644 (D.C. 1987), the Court stated:

The question of whether Stein is immune is "effectively unreviewable" on appeal from a judgment of conviction because, if he is immune, he has a statutory right not to be tried at all. His asserted right to [immunity] is forever lost if not resolved in [his] favor before jeopardy has attached.

In this case, the same reasoning is persuasive. If Farmer is entitled to immunity under KRS 503.085, he cannot be tried. He is entitled to immediate review of the circuit court’s decision.

As pointed out in Rodgers, whether a defendant is entitled to immunity should be decided as early in the prosecution as possible. Rodgers, 285 S.W.3d at 755. Therefore, we order that the merits of this matter be briefed on an expedited schedule.

The Russell Circuit Court Clerk is directed to transmit the record on appeal to this Court upon the expiration of the briefing time established by this Court. The Clerk of this Court shall serve a copy of this order on the Clerk of the Russell Circuit Court.

 

[U] Wheeler v. Commonwealth (Ky. App., 2013)  2011-CA-001229-MR  June 14, 2013

Wheeler next contends that the trial court erred by not dismissing her indictment based on KRS 503.085, the "castle doctrine." We disagree.  

Prior to trial, Wheeler moved to dismiss the indictment against her pursuant to KRS 503.085. That statute grants immunity from criminal prosecution when a person’s use of force is permissible under one of several statutes dealing with protection of self, property, or another person. As set forth in Rodgers v. Commonwealth, 285 S.W.3d 740 (Ky. 2009), "if the defendant claims immunity the court must dismiss the case unless there is probable cause to conclude that the force used was not legally justified." Id. at 754.

Here, the trial court held a hearing on March 18, 2011, and concluded that the Commonwealth had met its burden of showing probable cause that the force Wheeler used was unjustified. The trial court subsequently entered an order denying Wheeler’s motion.

 As in Rodgers, Wheeler’s claims of error are "purely academic" because she "has been tried and convicted by a properly instructed jury in a trial with no reversible error." Her claims of justified force were "thoroughly examined by both the trial judge under the directed verdict standard and the jury under the court’s instructions." Id. The trial court rejected Wheeler’s pretrial motion for immunity, denied her motion for a directed verdict, and the jury convicted her. Her claims of justification regarding her use of force were thoroughly considered and rejected, and remanding this matter to the trial court for reconsideration of its determination would not change the outcome. Accordingly, reversal is not required.  

[U] Orantes-Pierce v. Commonwealth (Ky., 2013) 2012-SC-000209-MR  May 23, 2013

Appellant next argues that the trial court failed to instruct the jury that he was entitled to immunity from prosecution. Specifically, Appellant alleges that the trial court failed to instruct the jury that he should be immune from prosecution under KRS 503.085(1), as he was acting in self-defense at the time of the murder. Appellant therefore requests this Court grant him a new trial. Appellant concedes that this issue is unpreserved, but asks that it be reviewed for palpable error. RCr 10.26

  KRS 503.085 grants immunity to defendants whose justifiable use of self-defense results in the death of the perpetrator. In Rogers v. Commonwealth, 285 S.W. 740 (Ky. 2009), this Court set forth the procedures to be used in order to properly raise and address a claim of immunity made under this statute. We explained that immunity is not merely a defense to be raised at trial, but is instead a protection from the burdens of prosecution in its entirety. Id. at 753. It is for this reason that the trial court had no duty to instruct the jury on this ‘defense,’ as it is not a ‘defense’ to be raised at trial, but an outright immunity from prosecution.   

Commonwealth of Ky. v. Bushart, 337 S.W.3d 666 (Ky. App., 2011)

Because we believe that a manifest injustice could have occurred when the trial court reviewed Bushart’s affidavit in support of his motion to dismiss, we will review the Commonwealth’s arguments for palpable error.

KRS 503.085 provides that “[a] person who uses force as permitted in KRS 503.050, 503.055, 503.070, and 503.080 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom the force was used is a peace officer….” The Kentucky Supreme Court has provided procedural guidance in situations where a defendant claims immunity under KRS 503.085. In Rodgers v. Commonwealth, 285 S.W.3d 740 (Ky.2009), the Court plainly stated: “[I]f the defendant claims immunity the court must dismiss the case unless there is probable cause to conclude that the force used was not legally justified.” Id. at 754. The Court rejected Rodgers’ argument that an evidentiary hearing was necessary to determine immunity under a preponderance of evidence standard. Id. The Court held that it was improper to consider evidence from a defendant on the issue of immunity and explained that the Commonwealth had [337 S.W.3d 669] to establish probable cause and “it may do so by directing the court’s attention to the evidence of record including witness statements, investigative letters prepared by law enforcement officers, photographs and other documents of record.” Id. at 755. The Court noted that an evidentiary hearing at which a defendant could counter probable cause would create “in essence a mini-trial” which would be “fraught with potential for abuse.” Id. The Court found that this would result in the trial court ruling on one of the elements of the crime from the bench, rather than a jury deciding the issue. Id.

In the instant case, Bushart submitted an affidavit in support of his motion to dismiss the indictment which included the allegation that the victim was attempting to break in to Boyd’s home. Bushart also alleged that Clapp had severely beaten him prior to this incident and that Clapp often carried a stick. However, the allegation that a break in occurred is not un-refuted. There is evidence in the record that Boyd called or sent Clapp a text message saying she loved him, and according to one witness, told Clapp she wanted him back. The garage door through which Clapp allegedly broke into the house was re-secured by a rake handle, an unexpected action for a trespasser to take. There was at least some evidence that the victim may have thought he was on the property lawfully and was not intending to break in to Boyd’s home.

Bushart’s affidavit served to rebut this circumstantial evidence, and the trial court considered it when determining whether probable cause existed. Unlike what the Court in Rodgers approved for review by the trial court, the affidavit was outside the police reports and interviews. Upon review, it appears the trial court conducted a “mini-trial” and made a determination on an element of the offense for which Bushart was charged. This error was compounded because the Commonwealth was unable to examine Bushart’s allegations through cross-examination. This is precisely the type of potential abuse about which the Court in Rodgers was concerned. Therefore, we hold that the trial court committed palpable error when it considered Bushart’s affidavit. Accordingly, we must reverse the trial court’s dismissal of the indictment and remand this matter for a probable cause determination wherein the affidavit is not considered.

 
Jones v. Commonwealth (Ky., 2011) 2009-SC-000221-MR.PDF

Rodgers v. Commonwealth, 285 S.W.3d 740 (Ky. 2009), was this Court’s first opportunity to address the 2006 amendments to the self-defense provisions of KRS Chapter 503. We held that under the facts in Rodgers, wherein the crime was committed before the amendments were enacted, the amendments did not entitle the defendant to a "no duty to retreat" instruction because the amendments (with the exception of the immunity provision in KRS 503.085) were adjudged to be substantive and, thus, could not be applied retroactively. Id. at 756-57. We left the question of whether the amendments now allow for a "no duty to retreat" instruction for another day. Id. at 757. Under the facts in the instant case, we likewise do not reach the issue because we adjudge that the amendments do not apply on behalf of the victim of the crime who is not subject to criminal prosecution.

"The cardinal rule of statutory construction is to . . . give effect to the intent of the legislature." Kentucky Ins. Guar. Ass’n v. Jeffers ex rel. Jeffers,  13 S.W.3d 606, 610 (Ky. 2000) . In ascertaining the intent of the legislature, a court must not be guided by a single sentence, but must look to the provisions of the whole act and its object and policy.  Cosby v. Commonwealth, 147 S.W.3d 56, 58 (Ky. 2004) .  

MOORE V v. Commonwealth of Ky. (Ky., 2010)

    Because immunity is designed to relieve a defendant from the burdens of litigation, it is obvious that a defendant should be able to invoke KRS 503.085(1) at the earliest stage of the proceeding. While the trial courts need not address the issue sua sponte, once the defendant raises the immunity bar by motion, the court must proceed expeditiously. Thus a defendant may invoke KRS 503.085 immunity and seek a determination at the preliminary hearing in district court or, alternatively, he may elect to await the outcome of the grand jury proceedings and, if indicted, present his motion to the circuit judge. A defendant may not, however, seek dismissal on immunity grounds in both courts. Once the district court finds probable cause to believe that the defendant’s use of force was unlawful, the circuit court should not revisit the issue. In the case of a direct submission or where a defendant has elected to wait and invoke immunity in the circuit court, the issue should be raised promptly so that it can be addressed as a threshold motion.

     Nevertheless, as in Rodgers, the trial court’s failure to conduct an independent probable cause review "is purely academic" as to Moore "because he has been tried and convicted by a properly instructed jury in a trial with no reversible error." Id. at 756. "In short, his self-defense claim has been thoroughly examined by both the trial judge under the directed verdict standard and the jury under the court’s instructions and his entitlement to self-defense has been rejected." Id. Moore suffered no discernible prejudice. Indeed, if the trial court had followed the procedure outlined in Rodgers, "applying the probable cause standard would have produced the same conclusion, no entitlement to immunity and denial of [Moore’s] motion to dismiss." Id. Accordingly, the error was harmless.   

Gray v. Commonwealth, No. 2008-CA-001294-MR (Ky. App. 3/5/2010) (Ky. App., 2010)

  Rather, the language contained in KRS 503.055 and KRS 503.085 provides that persons in Kentucky may use defensive force, including force that is intended to or likely to cause death or great bodily harm, in certain circumstances where they hold a "reasonable fear of imminent peril of death or great bodily harm to himself or herself or another . . . ." KRS 503.085. Gray argues that this right to use deadly defensive force in certain circumstances "necessarily anticipates that persons will go about armed. How else to protect one’s person from sudden attack?"

        Gray’s argument is without merit and spurious. KRS 503.055 and KRS 503.085 do not expressly or impliedly grant convicted felons the right to "go about armed" for the purpose of self-defense. Accordingly, the trial court did not err in rejecting Gray’s proposed instruction to the jury for possession of a firearm by a convicted felon.

        In his final argument, Gray argues that the trial court erred when it denied his motion to suppress the gun discovered on his person by the police officers. He claims that the gun was subject to suppression because his constitutional rights were violated during the stop and seizure.

        Gray does not challenge any of the factual findings set forth by the trial court above. Rather, he argues that these facts are not sufficient to support the trial court’s conclusion that Officer Jones had "reasonable suspicion that criminal activity had occurred, was occurring, or was about to occur, so as to permit a brief forcible stop of Gray and a subsequent frisk for weapons." We disagree.  

Hawes v. Lapointe, No. 2008-CA-001559-MR. and (Ky. App. 10/16/2009) (Ky. App., 2009)

   On March 10, 2008, the trial court2 dismissed the criminal indictment, finding that LaPointe "was in reasonable fear of imminent peril of death or bodily harm and his use of defensive force was justified and lawful for purposes of KRS 503.080 and KRS 503.055[,]" and therefore "the immunity from criminal prosecution pursuant to KRS 503.085 applies in the current action." In so doing, the court concluded that "KRS 503.085 is a remedial statute which may be applied retroactively." On March 17, 2008, Hawes’ civil action was dismissed on the same grounds. Following the denial of his motion to alter, amend or vacate, Hawes appealed to this Court as a matter of right.

        On appeal, Hawes first argues that the trial court erroneously violated his right to a jury trial by granting LaPointe’s motion to dismiss. Hawes contends that the trial court treated the motion as a motion for summary judgment, despite the fact that there were disputed issues of fact and law.

        In its order denying Hawes’ motion to alter, amend or vacate based on this same argument, the trial court found:

        The Court considers the telephone conference of February 25, 2008, between the Court and counsel, to be of paramount importance to the resolution of this issue. This conference call was referenced by the Court in its March 17, 2008 decision and discussed at length during the hearing on this motion.

 

Rodgers v. Com., 285 S.W.3d 740 (Ky., 2009)

    Specifically, the trial court ruled that even if KRS 503.085 applied to Rodgers’s case, Rodgers was not entitled to dismissal because the discovery record included conflicting evidence as to whether his use of deadly force was justified. Noting that the immunity statute does not specify who bears the burden of proof or what standard of proof applies, the trial court in effect imposed on the Commonwealth a directed verdict standard, which was met, the court held, because the discovery record, in particular Eubanks’s and Palmore’s statements accusing Rodgers of pulling a gun and firing several times at McAfee, was sufficient to raise a jury question concerning self-defense. Rodgers contends that the trial court’s use of the discovery record and directed verdict standard failed to comport with KRS 503.085. Relying on People v. Guenther, 740 P.2d 971 (Colo. 1987), in which the Supreme Court of Colorado was called upon to fill in the procedural gaps of that state’s self-defense immunity provision, Rodgers contends that he was entitled to a pre-trial evidentiary hearing at which he would bear the burden of proving by a preponderance of the evidence that his use of deadly force was justified. We disagree.

        The trial judge’s uncertainty regarding how to implement the immunity provision is understandable because the statute offers little guidance. Indeed, the only express indication of legislative intent is in KRS 503.085(2) which provides that immunity must be granted pre-arrest by the law enforcement agency investigating the crime unless there is "probable cause that the force used was unlawful." Because the statute defines the "criminal prosecution" from which a defendant justifiably acting in self-defense is immune to be "arresting, detaining in custody and charging or prosecuting," we can infer that the immunity determination is not confined to law enforcement personnel. Instead, the statute contemplates that the prosecutor and the courts may also be called upon to determine whether a particular defendant is entitled to KRS 503.085 immunity. Regardless of who is addressing the immunity claim, we infer from the statute that the controlling standard of proof remains "probable cause." Thus, in order for the prosecutor to bring charges or seek an indictment, there must be probable cause to conclude that the force used by the defendant was not fully justified under the controlling provision or provisions of KRS Chapter 503. Similarly, once the matter is before a judge, if the defendant claims immunity the court must dismiss the case unless there is probable cause to conclude that the force used was not legally justified.   

Walters v. Commonwealth, No. 2006-CA-002614-MR (Ky. App. 10/3/2008) (Ky. App., 2008)

  The newly enacted KRS 503.085 provides immunity from prosecution unlike the PFO statute which has the effect of increasing a sentence. We do not equate Walters’s immunity from prosecution argument with mitigation of punishment contemplated by KRS 446.110. KRS 503.085 gives immunity from prosecution, i.e., bars prosecution. This is unlike the PFO statute which enhances sentences for repeat offenders. Thus, there was no error in the trial court’s denying retroactive application of KRS 503.085.

 

Worley v. Commonwealth, No. 2007-CA-000175-MR (Ky. App. 7/3/2008) (Ky. App., 2008)

After he was convicted, Worley filed a motion for a new trial arguing, in part, that KRS 503.085 obligated the trial court to dismiss the charges against him. The trial court found that the statute could not be applied retroactively and, thus, Worley could not benefit from the immunity conferred by the amended statute. On appeal, Worley argues that KRS 503.085 was meant to apply to cases pending when it was enacted. We disagree. KRS 446.080(3) explicitly states, "No statute shall be construed to be retroactive, unless expressly so declared." There is nothing in the language of KRS 503.085 which even suggests that the General Assembly intended it to apply retroactively. Nevertheless, Worley directs our attention to KRS 446.110 which reads as follows:

        No new law shall be construed to repeal a former law as to any offense committed against a former law, nor as to any act done, or penalty, forfeiture or punishment incurred, or any right accrued or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued or claim arising before the new law takes effect, except that the proceedings thereafter had shall conform, so far as practicable, to the laws in force at the time of such proceedings. If any penalty, forfeiture or punishment is mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.

   

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KRS 503.090 Use of physical force in law enforcement.

(1) The use of physical force by a defendant upon another person is justifiable when the defendant, acting under official authority, is making or assisting in making an arrest, and he:

(a) Believes that such force is necessary to effect the arrest;

(b) Makes known the purpose of the arrest or believes that it is otherwise known or cannot reasonably be made known to the person to be arrested; and

(c) Believes the arrest to be lawful.

(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when:

(a) The defendant, in effecting the arrest, is authorized to act as a peace officer; and

(b) The arrest is for a felony involving the use or threatened use of physical force likely to cause death or serious physical injury; and

(c) The defendant believes that the person to be arrested is likely to endanger human life unless apprehended without delay.

(3) The use of physical force, including deadly physical force, by a defendant upon another person is justifiable when the defendant is preventing the escape of an arrested person and when the force could justifiably have been used to effect the arrest under which the person is in custody, except that a guard or other person authorized to act as a peace officer is justified in using any force, including deadly force, which he believes to be necessary to prevent the escape of a person from jail, prison, or other institution for the detention of persons charged with or convicted of a crime.

Effective: January 1, 1975  History: Created 1974 Ky. Acts ch. 406, sec. 34, effective January 1, 1975.
 
ANNOTATION FOR THIS STATUTE:  

Clark v. Kentucky, 229 F.Supp.2d 718 (E.D. Ky., 2002)

 With respect to the negligence claim, the plaintiff’s complaint states the following: "The acts of the Defendants in violating the provisions of KRS 503.090, constituted negligence per se." Section 503.090 of the Kentucky Revised Statutes provides in relevant part the following:

        The use of physical force by a defendant upon another person is justifiable when the defendant, acting under official authority, is making or assisting in making an arrest, and he:

        (a) Believes that such force is necessary to effect the arrest;

        (b) Makes known the purpose of the arrest or believes that it is otherwise known or cannot reasonably be made known to the person to be arrested; and

        (c) Believes the arrest to be lawful.

        K.R.S. § 503.090(1). The statute in question does not provide for a cause of action for damages based upon its violation and, therefore, under Kentucky law, the plaintiff must necessarily rely on K.R.S. § 446.070 for recovery:

        A person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation, although a penalty or forfeiture is imposed for such violation.

 Accordingly, the Court, being otherwise fully and sufficiently advised, HEREBY ORDERS that*****       

        (3) the following claims are DISMISSED WITH PREJUDICE and the plaintiff shall take nothing thereby: ******

            (f) The state law claim in Count III for negligence per se for violation of K.R.S. § 503.090 against defendant Wells in his individual capacity;

 

Prince v. Com., 987 S.W.2d 324 (Ky. App., 1997)

     We agree with the Commonwealth that a self-protection instruction was unnecessary. KRS 503.060(1) states that the use of physical force by a defendant upon another person is not justifiable when "[t]he defendant is resisting an arrest by a peace officer, recognized to be acting under color of official authority and using no more force than reasonably necessary to effect the arrest, although the arrest is unlawful…." Prince contends that this statute is not applicable since he believed that Patterson was using more force than reasonably necessary to effect the arrest. However, Prince, who admitted that he was under the influence of crack cocaine which made him feel paranoid, testified that Patterson pulled him off the fence to the ground, got on top off him, and put his gun in his face saying, "Don’t move, Mother F_ _ _ _ _, I will shoot you." Prince testified that he then pushed the gun away and it went off and injured Patterson. These facts are not sufficient to indicate that Patterson used more force than reasonably necessary to effect the arrest so as to cause an "imperfect self-protection" instruction to be submitted to the jury. KRS 503.090(1).   

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KRS 503.100 Prevention of a suicide or crime.

(1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is immediately necessary to prevent such other person from:

(a) Committing suicide or inflicting serious physical injury upon himself; or

(b) Committing a crime involving or threatening serious physical injury to person, substantial damage to or loss of property, or any other violent conduct.

(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1)(b) only when the defendant believes that the person whom he seeks to prevent from committing a crime is likely to endanger human life.

(3) The limitations imposed on the justifiable use of force in self-protection by KRS 503.050 and 503.060, for the protection of others by KRS 503.070, for the protection of property by KRS 503.080, and for the effectuation of an arrest or the prevention of an escape by KRS 503.090 apply notwithstanding the criminality of the conduct against which such force is used.

Effective: January 1, 1975  History: Created 1974 Ky. Acts ch. 406, sec. 35, effective January 1, 1975.
 
ANNOTATION FOR THIS STATUTE:
 

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KRS 503.110 Use of force by person with responsibility for care, discipline, or safety of others.

(1) The use of physical force by a defendant upon another person is justifiable when the defendant is a parent, guardian, or other person entrusted with the care and supervision of a minor or an incompetent person or when the defendant is a teacher or other person entrusted with the care and supervision of a minor, for a special purpose, and:

(a) The defendant believes that the force used is necessary to promote the welfare of a minor or mentally disabled person or, if the defendant’s responsibility for the minor or mentally disabled person is for a special purpose, to further that special purpose or maintain reasonable discipline in a school, class, or other group; and

(b) The force that is used is not designed to cause or known to create a substantial risk of causing death, serious physical injury, disfigurement, extreme pain, or extreme mental distress.

(2) The use of physical force by a defendant upon another person is justifiable when the defendant is a warden or other authorized official of a correctional institution, and:

(a) The defendant believes that the force used is necessary for the purpose of enforcing the lawful rules of the institution;

(b) The degree of force used is not forbidden by any statute governing the administration of the institution; and

(c) If deadly force is used, its use is otherwise justifiable under this code.

(3) The use of physical force by a defendant upon another person is justifiable when the defendant is a person responsible for the operation of or the maintenance of order in a vehicle or other carrier of passengers and the defendant believes that such force is necessary to prevent interference with its operation or to maintain order in the vehicle or other carrier, except that deadly physical force may be used only when the defendant believes it necessary to prevent death or serious physical injury.

(4) The use of physical force by a defendant upon another person is justifiable when the defendant is a doctor or other therapist or a person assisting him at his direction, and:

(a) The force is used for the purpose of administering a recognized form of treatment which the defendant believes to be adapted to promoting the physical or mental health of the patient; and

(b) The treatment is administered with the consent of the patient or, if the patient is a minor or a mentally disabled person, with the consent of the parent, guardian, or other person legally competent to consent in his behalf, or the treatment is administered in an emergency when the defendant believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent.

Effective: July 1, 1982  History: Amended 1982 Ky. Acts ch. 141, sec. 135, effective July 1, 1982. – Created 1974 Ky. Acts ch. 406, sec. 36, effective January 1, 1975.
 
ANNOTATION FOR THIS STATUTE:
 

Bd. of Educ. of Fayette Cnty. v. Hurley-Richards (Ky., 2013) 2011-SC-000599-DG April 25, 2013

Appellants contend that the circuit court failed to give deference to the facts found by the hearing Tribunal, and that it substituted its own judgment of the facts, thereby exceeding the scope of its authority. The Court of Appeals, Appellants claim, compounded the error by affirming the circuit court’s reinterpretation of the facts, and by misconstruing the meaning of the statutory term, "conduct unbecoming a teacher." Specifically, Appellants contend that:

1) whether conduct constitutes "conduct unbecoming a teacher" is exclusively a question for the hearing Tribunal;

2) the circuit court misinterpreted the Tribunal’s findings of fact and applied its own judgment to conclude that Richards’ conduct was justified pursuant to KRS 503.110(1)(a);  3) the Court of Appeals failed to properly apply the rules of statutory interpretation in ascertaining the meaning of "conduct unbecoming a teacher;" and finally, 4) having construed the statutory meaning of "conduct unbecoming a teacher," the Court of Appeals should have remanded the matter to the Tribunal for findings of fact and conclusions of law based upon the Court of Appeals’ definition.

For the reasons set forth herein, we affirm the Court of Appeals’ decision, but we do so for different reasons.

1. We decline to address the circuit court’s reference to KRS 503.110(1)(a). It was not a material part of the circuit court’s judgment and the Court of Appeals did not refer to it. The justification of "physical force" provided by KRS 503.110(1)(a) relates to criminal conduct charged under the Kentucky Penal Code and has no application to the adjudication of teacher’s discipline for "conduct unbecoming a teacher" under KRS 161.790(1)(b).    

Holbrook v. Com., 925 S.W.2d 191 (Ky. App., 1995)

   A teacher is justified in the use of physical force within certain bounds. 3 Force is permissible if (1) the teacher believes that the force is necessary to further the education of the child or "maintain reasonable discipline" and (2) the force is not "designed to cause or known to create a substantial risk of causing death, serious physical injury, disfigurement, extreme pain, or extreme mental distress." KRS 503.110. The privilege to use force is unavailable as a defense if the teacher is "wanton or reckless in believing the use of any force, or the degree of force used, to be necessary…." KRS 503.120. (Emphasis supplied.) In its response to Holbrook’s motion for discretionary review, the Commonwealth concedes that Holbrook was not wanton or reckless in deciding to paddle the student. Absent a wanton or reckless belief that force is necessary, the teacher is privileged to use whatever force is necessary so long as that force is not "designed to cause or known to create a substantial risk of causing death, serious physical injury, disfigurement, extreme pain, or extreme mental distress." KRS 503.110.

 

Stoker v. Com., 828 S.W.2d 619 (Ky., 1992)

    We have no difficulty in holding the bizarre misconduct involved in those charges of Criminal Abuse I generated by tying up the children, putting tape over their mouths, and forcing them to watch pornographic movies, can reasonably and appropriately be deemed by a jury to constitute "torture, cruel confinement or cruel punishment … to a person twelve (12) years of age or less." KRS 508.100(1)(c). The question whether "hitting [a child] with a wire coat hanger" is sufficient to prove Criminal Abuse I is more difficult, particularly where, as here, the blows inflicted did not result in medical treatment or leave scars or marks to verify that severe beating had occurred. It may well be there are situations where using a wire coat hanger to correct a child’s behavior, if not appropriate, is at least within the legal limits of parental discretion in raising their children. See KRS 503.110 on the "use of force by [a] person with responsibility for care, discipline or safety of others."

        Nevertheless, we conclude the beatings administered here were sufficient to sustain the charges because the children testified to circumstances proving the nature of the beatings to have been cruel and indiscriminate, and far different in character from normal parental discipline. The evidence was such that the jury could believe the beatings qualified as "torture … or cruel punishment … to a person [under] twelve (12) years of age." KRS 508.100(1)(c), supra.

        The appellants neither asked for nor complained of the lack of an instruction qualifying the use of force under KRS 503.110(1), supra, and certainly there was no reason why the judge should have given any such instruction sua sponte. The lack of such an instruction is not an issue involved in the particular circumstances of this case.   

Kohlheim v. Com., 618 S.W.2d 591 (Ky. App., 1981)

    The court gave the self-protection instruction in the first degree manslaughter charge but excluded it in the second degree manslaughter charge and reckless homicide on the basis of the language in KRS 503.120(2). We find that the plain meaning of KRS 503.120(2), as it pertains to KRS 503.050 to KRS 503.110, requires us to construe it to mean that the justification afforded by these latter sections is unavailable when he wantonly or recklessly injures or creates a risk of injury to innocent persons. It is not disputed that Pam Felker was an innocent person at the time of the fatal shooting.

    The judgment of the McCracken Circuit Court is affirmed as to appellant’s conviction for second degree manslaughter as a result of the death of Pam Felker. It is reversed as to his conviction for assault under extreme emotional disturbance in regard to the shooting of Anna Taylor, and the case is remanded for a new trial under proper instructions.   

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KRS 503.120 Justification — General provisions.

(1) When the defendant believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish a justification under KRS 503.050 to 503.110 but the defendant is wanton or reckless in believing the use of any force, or the degree of force used, to be necessary or in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of his use of force, the justification afforded by those sections is unavailable in a prosecution for an offense for which wantonness or recklessness, as the case may be, suffices to establish culpability.

(2) When the defendant is justified under KRS 503.050 to 503.110 in using force upon or toward the person of another, but he wantonly or recklessly injures or creates a risk of injury to innocent persons, the justification afforded by those sections is unavailable in a prosecution for an offense involving wantonness or recklessness toward innocent persons.

Effective: January 1, 1975  History: Created 1974 Ky. Acts ch. 406, sec. 37, effective January 1, 1975.
 
ANNOTATION FOR THIS STATUTE:   

[U] Cantrill v. Commonwealth (Ky. App., 2013)   2011-CA-001923-MR January 11, 2013

Last, Cantrill argues that he should have received an instruction under KRS 503.120, the imperfect self-defense statute.

KRS 503.120 provides:

(1) When the defendant believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish a justification under KRS 503.050 to 503.110 but the defendant is wanton or reckless in believing the use of any force, or the degree of force used, to be necessary or in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of his use of force, the justification afforded by those sections is unavailable in a prosecution for an offense for which wantonness or recklessness, as the case may be, suffices to establish culpability.

(2) When the defendant is justified under KRS 503.050 to 503.110 in using force upon or toward the person of another, but he wantonly or recklessly injures or creates a risk of injury to innocent persons, the justification afforded by those sections is unavailable in a prosecution for an offense involving wantonness or recklessness toward innocent persons. KRS 503.120.

In summary, "[a] mistaken belief in the need to act in self-protection does not affect the privilege to act in self-protection unless the mistaken belief is so unreasonably held as to rise to the level of wantonness or recklessness with respect to the circumstance then being encountered by the defendant." Commonwealth v. Hager, 41 S.W.3d 828, 841-42 (Ky. 2001) (citing Elliott v. Commonwealth, 976 S.W.2d 416, 420 (Ky. 1998)). Imperfect self-defense does not provide for complete exoneration, but instead allows a jury to convict a defendant of a lesser offense, i.e., one for which wantonness or recklessness is the culpable mental state. Elliott at 420.

Finding no reversible error, we affirm the conviction and sentence imposed upon Cantrill.

 

[U] Burns v. Commonwealth (Ky. App., 2013) 2011-CA-001959-MR April 19, 2013

Besides the instructions on these three degrees of homicide, the jury was instructed on the defense of protection of another. Pursuant to KRS 503.070(2), the use of deadly physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect another person against death or serious physical injury. Therefore, the jury was instructed that Leland was permitted to use deadly force if he believed such force was necessary to protect Patrick.

Notwithstanding the instruction on defense of protection of another, the jury found Leland guilty of manslaughter in the second degree. Therefore, the jury did not believe that the self-defense justification was valid or Leland would have been acquitted.

Leland, however, argues that the trial court erred when it failed to provide an instruction on imperfect self-defense of another. The imperfect self-defense of another is described in KRS 503.120(1):

It is well-settled law that a trial court has a duty to instruct upon the whole law applicable to the case. As the Kentucky Supreme Court stated, "In a criminal case, the duty of the trial judge is to prepare and give instructions on the whole law of the case, and this rule requires instructions applicable to every state of the case deducible or supported to any extent by the testimony." Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999); see also Kentucky Rules of Criminal Procedure (RCr) 9.54(1). Thus, we conclude that, under the circumstances of this case, Leland was entitled to instructions on the imperfect defense of protection of another. He was ultimately convicted of second-degree manslaughter, a crime with a wanton mental state. Under Hager, however, if the jury found that Leland acted recklessly in defending Patrick, he would not have been convicted of a homicide greater than reckless homicide. Because the instructions in this case did not allow that result, they are improper.

Since the failure to provide an instruction to the jury on imperfect defense of another may have resulted in a different conviction with a lesser punishment, we cannot say the error was harmless.

For the reasons set forth in this opinion, the judgment of conviction and sentence imposed upon Appellant are reversed, and this case is remanded to Warren Circuit Court for a new trial consistent with this opinion and, at which, if the evidence is the same, Leland shall be entitled to an instruction on the defense of imperfect self-protection of another.   

 

Ordway v. Commonwealth, 391 S.W.3d 762 (Ky., 2013) February 21, 2013

 

Summaries: Source: Justia

After a jury trial, Defendant was convicted of two counts of intentional murder and sentenced to death. The deaths occurred as a result of a shooting during which Appellant claimed he was acting in self-defense. Defendant appealed, raising multiple issues in support of reversal of his convictions and sentences. The Supreme Court reversed, holding that the trial court committed reversible error in (1) admitting testimony from a policy detective that Appellant’s behavior after the shooting was inconsistent with someone who had actually acted in self-defense, thereby implying that from his experienced observations Appellant had fabricated his self-defense claim; (2) admitting evidence of Appellant’s post-arrest invocation of his right to remain silent; (3) failing to strike for cause a potential juror who was the sibling of the victim’s advocate directly connected to the case; and (4) excluding evidence of the victims’ statements immediately before the shooting. Remanded for a new trial.

 

Here, Appellant testified that he intentionally and deliberately shot the two victims in order to protect himself because he believed they were going to kill him in connection with their efforts to rob him. Appellant’s version describes a justifiable homicide to prevent the victims from assaulting him with their guns. If true, then he would be entitled to an acquittal. His version of events does not describe wanton conduct, only intentional shootings. It follows that the trial court did not err by rejecting his request for a wanton murder instruction.

If Appellant was mistaken in his belief that he was entitled to shoot the victims in self-defense, and if that mistaken belief was a result of a wanton level of mental culpability, the proper instruction is an imperfect self-defense instruction permitting a conviction for second-degree manslaughter or reckless homicide, not a wanton murder Instruction. 

See Commonwealth v. Hager, 41 S.W.3d 828 (Ky.2001);  KRS 503.120.

Therefore, upon retrial, if the evidence is the same, Appellant will not be entitled to a wanton murder instruction.

 
[U] Hartley v. Commonwealth (Ky., 2011)  2009-SC-000640-MR.pdf

Upon review for palpable error under RCr 10.26, we conclude that the lack of an imperfect self-defense instruction did not affect Appellant’s substantial rights, nor did it result in manifest injustice. The doctrine of imperfect self-defense, found in KRS 503.050 and KRS 503.120, limits the effect of a defendant’s subjective belief in the need to use physical force when that belief is wantonly or recklessly held.  Elliott v. Commonwealth, 976 S.W.2d 416, 420 (Ky. 1998). The result is that the defendant is not acquitted, but rather guilty of "a lesser offense for which wantonness or recklessness is the culpable mental state, i.e., second-degree manslaughter or reckless homicide." Id.   

Hatcher v. Commonwealth, No. 2008-CA-001569-MR (Ky. App. 4/23/2010) (Ky. App., 2010)

     Further, we note that although self-protection turns on the defendant’s subjective belief in the need to use force, a defendant may be mistaken in his belief that force is required. Hager, supra. Indeed, a defendant may be so sorely mistaken in his belief in the need to use force that his mistaken belief itself may "constitute wantonness or recklessness with respect to the circumstance then being encountered." Id. at 842. This is precisely the "wanton or reckless belief" qualification to a defendant’s belief in the need for self-protection that is discussed in Hager. In situations where such a belief is wantonly or recklessly held, self-protection is unavailable as a defense to all offenses having a mens rea of wantonness or recklessness. KRS 503.120(1). See also, Elliott v. Commonwealth, 976 S.W.2d 416, 422 (Ky. 1998), and Hager, supra. In these situations, however, self-protection can still be used to negate an intentional mental state, such as that required for intentional murder. Id. See also, Abramson, Kentucky Practice, Vol. 10, Substantive Criminal Law, 2d Ed., 2000 (Pocket Part §5.31). Indeed, [A]ll KRS 503 justifications, including self-protection, are premised upon a defendant’s actual subjective belief in the need for the conduct constituting the justification and not on the objective reasonableness of that belief. . . . [However], the statute recognizes that a defendant may be mistaken in his belief and that the mistaken belief, itself, may be so unreasonably held as to constitute wantonness or recklessness with respect to the circumstance then being encountered. If so, the statute provides that the justification, e.g., self-protection, is unavailable as a defense to an offense having the mens rea element of wantonness, e.g. second-degree manslaughter, or recklessness, e.g., reckless homicide, "as the case may be."

     Thus, while a wantonly held belief in the need to act in self-protection is a defense to an offense having the mens rea element of intent, it supplies the element of wantonness necessary to convict of second-degree manslaughter; and while a recklessly held belief in the need to act in self-protection is defense to an offense requiring either intent or wantonness, it supplies the element of recklessness necessary to convict of reckless homicide.   

Finnell v. Commonwealth, No. 2008-SC-000085-MR (Ky. 10/29/2009) (Ky., 2009)

Notes:

1. There is a second theory of conviction for reckless homicide, but it is not germane here. Essentially, that theory is one of a reckless, wrongful use of force under a false claim of self-defense. Id. (citing KRS 501.020(4) and KRS 503.120(1)). No plausible view of the evidence here could suggest that Edwards shot Glowers under claim of self-defense.

  
Commonwealth v. Hager, 2001 KY 28 (KY, 2001)
     CERTIFYING THE LAW

William Thomas Hager, Jr., killed John Allen Brown by stabbing him in the chest with a knife. Hager admitted the killing and claimed self-defense. He was indicted for murder, but a Fayette Circuit Court jury convicted him of fourth-degree assault, a class A misdemeanor, for which he was sentenced to the maximum penalty of twelve months in jail and a $500 fine. KRS 508.030(2); KRS 532.090(l); KRS 534.040(2)(a). Since the jurors were not instructed on the elements of fourth-degree assault, they presumably did not know that when an assault results in the victim’s death, the offense is not an assault, but a homicide. KRS 507.010.

     Thus, a conviction of fourth-degree assault can only be obtained if the result of the assault is physical injury, not death. KRS 508.030(l). Hager did not appeal his conviction. However, the Commonwealth requested a certification of the law with respect to the jury instructions that led to this unusual verdict. Ky. Const. § 115; CR 76.37(10). We granted certification primarily to address the issue of how KRS 503.120(l), which defines "imperfect self-defense," i.e., an act in self-protection under a mistaken belief in the need therefor, applies to the offenses of second-degree manslaughter, KRS 507.040, and reckless homicide, KRS 507.050. However, the instructions in this case contain a number of other errors, all of which will be addressed in this opinion.

I. THE TRIAL INSTRUCTIONS.

       The jury was instructed on all degrees of homicide and on the defense of self- protection, subject to both the initial aggressor qualification, KRS 503.060(3), and the imperfect self-defense qualification, KRS 503.120(l). As noted above, the jury was not instructed on the elements of fourth-degree assault, the offense of which Hager was ultimately convicted. Instead, the jury was led to its verdict by a series of interrogatories, or mini-verdicts, which required them to find Hager guilty of fourth- degree assault if they believed that he committed either second-degree manslaughter or reckless homicide under a recklessly held belief in the need to act in self-protection.

        Interrogatory No. 4 seriously misstated the substantive law of self-protection. By allowing the jury to consider whether the defendant was "mistaken in his need" for self- protection, instead of "mistaken in his belief’ in the need for self-protection, the interrogatory not only did not track the wording of either KRS 503.120(l) or the instruction on self-protection (Instruction No. 6A), but also directed the jury to evaluate the defendants need rather than his belief, and thus substituted an objective test for the subjective one embodied in the statutory scheme. KRS 503.050(l), (2); KRS 503.120(l). "[T]he initial focus of the penal code is on the defendant’s actual subjective belief in the need for self-protection and not on the objective reasonableness of that belief." Elliott v. Commonwealth, supra, at 419.

       Even if fourth-degree assault were a lesser included offense of reckless homicide (which it is not), Instruction No. 9 erroneously permitted the jury to find Hager guilty of that offense without having found that the elements of that offense had been proven beyond a reasonable doubt. Appellee asserts that evidence of a wantonly or recklessly held belief in the need to act in self-protection always requires an instruction on a lesser offense even if the elements of the lesser offense do not fall within the facts of the case. KRS 503.120(l) does not so provide.

       II. THE "WANTON OR RECKLESS BELIEF" QUALIFICATION.

       We note at the outset that a mistaken belief in the need to act in self-protection does not affect the privilege to act in self-protection unless the mistaken belief is so unreasonably held as to rise to the level of wantonness or recklessness with respect to the circumstance then being encountered by the defendant. Elliott v. Commonwealth, KRS 503.120(l) provides as follows: supra, at 420.   

Elliott v. Com., 976 S.W.2d 416 (Ky., 1998)

    Thus, the initial focus of the penal code is on the defendant’s actual subjective belief in the need for self-protection and not on the objective reasonableness of that belief. However, KRS 503.120 describes two circumstances when an assault or a homicide committed under an actual belief in the need for self-protection 2 will not result in complete exoneration. One such circumstance is when the defendant’s act causes injury, risk of injury, or death to an innocent bystander. KRS 503.120(2). The other is described in KRS 503.120(1):

        When the defendant believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish a justification under KRS 503.050 to 503.110 but the defendant is wanton or reckless in believing the use of any force, or the degree of force used, to be necessary in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of his use of force, the justification afforded by those sections is unavailable in a prosecution for an offense for which wantonness or recklessness, as the case may be, suffices to establish culpability.

    One misconception is that a homicide offender’s state of mind can be measured in terms of its relationship to the offender’s act . In most instances, the state of mind of such an offender is measured in terms of its relationship to the result of his act (namely, the death of the victim). In one very important instance [the "wanton or reckless belief" qualification in KRS 503.120(1) ], the state of mind of a homicide offender is measured in terms of its relationship to a circumstance involved in the offender’s conduct. In no instance, however, do the provisions of the Code allow the culpable mental state for homicide to be measured in relationship to an offender’s act.

     Having concluded that the statutory analysis set forth in Shannon, Part II was fundamentally flawed, we now depart from its holding that KRS 503.120(1) precludes the assertion of self-protection and the other KRS Chapter 503 justifications as defenses to charges of wanton murder, second-degree manslaughter, or reckless homicide (as well as to charges of wanton or reckless assault), and reinstate the holdings in Thompson v. Commonwealth, supra, and Kohlheim v. Commonwealth, supra. We specifically overrule Shannon, Part II, Holbrook, Barbour, Sizemore, and McGinnis, all supra, to the extent that they hold otherwise. We also overrule that portion of McGinnis which holds that an assertion of self-defense or another KRS Chapter 503 justification precludes an instruction on wanton murder as an alternative to intentional murder.

        For the reasons set forth in this opinion, the judgment of conviction and sentence imposed upon Appellant are reversed and this case is remanded to the Simpson Circuit Court for a new trial at which, if the evidence is the same, Appellant shall be entitled to an instruction on the defense of self-protection.   

Shannon v. Com., 767 S.W.2d 548 (Ky., 1988)

    Thus, to cover killings culpable in nature because the offender wantonly or recklessly acted in self-defense, the Penal Code classified these offenders for penalty with Manslaughter II or Reckless Homicide. It accomplished this end by providing in KRS 503.120 "the justification afforded by those sections [covering self-protection and similar justification] is unavailable in a prosecution for an offense for which wantonness or recklessness, as the case may be, suffices to establish culpability."

        The problem with Baker and Gray is that reason and history 1 supports the premise that "[w]e cannot escape the fact that an act claimed to be done in self defense is an intentional act." Baker, supra at 879. But this premise, albeit correct, has led us to conclude, mistakenly, that because "self-defense is an intentional act," this excludes conviction for Manslaughter II or Reckless Homicide, that wantonness or recklessness must characterize the act and not the belief. An act cannot be classified as both intentional and wanton or reckless at the same time. But an intentional act may be accompanied by a wanton or reckless belief, and, indeed, this specifically characterizes the circumstances that exist when a person kills in self-defense, but is wanton or reckless in the belief that his action was justified.

For like reasons, the trial court was also correct in refusing to qualify the instructions on Manslaughter II and Reckless Homicide with the element of self-protection. KRS 503.120(1) provides, "the justification afforded by those sections [self-protection] is unavailable in a prosecution for an offense for which wantonness or recklessness, as the case may be, suffices to establish culpability." Kohlheim v. Commonwealth, Ky.App., 618 S.W.2d 591 (1981) and Thompson v. Commonwealth, Ky., 652 S.W.2d 78 (1983) are overruled to the extent that they state otherwise.

        The next argument on behalf of the appellant covers excluding evidence of past acts of violence by the victim, offered to lend credibility to the accused’s belief in the need for self-defense. This evidence was of a relatively remote and insubstantial nature. If there was any error in its exclusion, it was not reversible error.

        The complaints of prosecutorial misconduct are similarly insubstantial.

        The judgment of the trial court is affirmed.   

Elliott v. Commonwealth of Kentucky, 976 S.W.2d 416 (KY, 1998)

(Emphasis added.) Thus, the initial focus of the penal code is on the defendant’s actual subjective belief in the need for self-protection and not on the objective reasonableness of that belief. However, KRS 503.120 describes two circumstances when an assault or a homicide committed under an actual belief in the need for self-protection will not result in complete exoneration. One such circumstance is when the defendant’s act causes injury, risk of injury, or death to an innocent bystander. KRS 503.120(2). The other is described in KRS 503.120(1):……….

       Shannon v. Commonwealth, supra, addressed two issues with respect to KRS 503.120(1), both of which were directly traceable to Baker v. Commonwealth, Ky., 677 S.W.2d 876 (1984) and Gray v. Commonwealth, Ky., 695 S.W.2d 860 (1985). First, Baker/Gray misinterpreted KRS 503.120(1) to pertain to a defendant’s act rather than to his belief with respect to the circumstances motivating his act. Baker/Gray then held that self-defense is an intentional act and second-degree manslaughter and reckless homicide are unintentional acts; a fortiori, an act committed in self-defense can never constitute the crimes of second-degree manslaughter or reckless homicide, overruling Blake v. Commonwealth, supra. Baker, supra, at 879; Gray, supra, at 862. Baker/Gray then read KRS 503.120(1) to mean that self-protection is available as a defense to an unintentional crime, but only if the defendant’s belief in the need for self-protection was not wantonly or recklessly held, i.e., was objectively reasonable. Baker, supra, at 878; Gray, supra, at 862. This interpretation left the law of self-defense in the incongruous posture that an unreasonable belief in the need for self-protection was a complete defense to an intentional crime, but an objectively reasonable belief was required for exoneration of an unintentional crime. A defendant who killed intentionally was entitled to be subjectively unreasonable, but one who killed unintentionally was required to be objectively reasonable. Cooper and Lawson, supra, at 185-87.

     Having concluded that the statutory analysis set forth in Shannon, Part II was fundamentally flawed, we now depart from its holding that KRS 503.120(1) precludes the assertion of self-protection and the other KRS Chapter 503 justifications as defenses to charges of wanton murder, second-degree manslaughter, or reckless homicide (as well as to charges of wanton or reckless assault), and reinstate the holdings in Thompson v. Commonwealth, supra, and Kohlheim v. Commonwealth, supra. We specifically overrule Shannon, Part II, Holbrook, Barbour, Sizemore, and McGinnis, all supra, to the extent that they hold otherwise. We also overrule that portion of McGinnis which holds that an assertion of self-defense or another KRS Chapter 503 justification precludes an instruction on wanton murder as an alternative to intentional murder.

     For the reasons set forth in this opinion, the judgment of conviction and sentence imposed upon Appellant are reversed and this case is remanded to the Simpson Circuit Court for a new trial at which, if the evidence is the same, Appellant shall be entitled to an instruction on the defense of self-protection.   

Spivey v. Commonwealth of Kentucky (Ky. App., 2003)

    Having concluded that the statutory analysis set forth in Shannon, Part II [Ky., 767 S.W.2d 548] was fundamentally flawed, we now depart from its holding that KRS 503.120(1) precludes the assertion of self-protection and the other KRS Chapter 503 justifications as defenses to charges of wanton murder, second-degree manslaughter, or reckless homicide (as well as to charges of wanton or reckless assault), and reinstate the holdings in Thompson v. Commonwealth, supra, [Ky., 652 S.W.2d 78], and Kohlheim v. Commonwealth, supra [Ky. App., 618 S.W.2d 591]. We specifically overrule Shannon, Part II, Holbrook [v. Commonwealth, Ky., 813 S.W.2d 811], Barbour [v. Commonwealth, Ky., 824 S.W.2d 861], Sizemore [v. Commonwealth, Ky., 844 S.W.2d 397] and McGinnis [v. Commonwealth, Ky., 875 S.W.2d 518], all supra, to the extent that they hold otherwise. We also overrule that portion of McGinnis which holds that an assertion of self-defense or another KRS Chapter 503 justification precludes an instruction on wanton murder as an alternative to intentional murder.

     Spivey also contends that the trial court erred in not making the juvenile records of the complaining witnesses available to his counsel. We disagree. The trial court denied the motion but agreed to conduct an in-camera review of the juvenile records in question and release any documents that would be deemed relevant to the case. We believe the trial court properly addressed this issue and that Spivey has failed to show that the trial court abused its discretion on this issue. In Eldred v. Commonwealth, Ky., 906 S.W.2d 694, 702, our Supreme Court, citing Illinois v. Dace, 114 Ill.App.3d 9-8, 70 Ill. Dec. 684, 449 N.E.2d 1031, held:

        However, the defendant is not entitled to unlimited access or use of the evidence sought. Instead, where the doctor or the patient raises the physician-patient privilege, or some other similar privacy interest is raised, an in-camera hearing shall be conducted by the trial court in the presence of the prosecutor and defense counsel to determine which information would be both relevant and material to the witness’s credibility.         . . . .

        Upon remand, the trial court should direct subpoenas appropriately, and conduct any in camera review necessary.

        The record indicates the trial court offered to conduct an in camera review of Green’s juvenile record and to make available to Spivey and the Commonwealth any information deemed relevant to the proceeding against Spivey. The court’s action complied with the Eldred mandate.

        For the foregoing reasons, we affirm in part and reverse in part and remand the judgment and sentence of the Madison Circuit Court for further proceedings.

 

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