Com. v. Duke, s. 87-SC-109-D

• Decision Date: 19 May 1988
• Docket Number: 87-SC-335-DG,Nos. 87-SC-109-D,s. 87-SC-109-D
• Citation: 750 S.W.2d 432
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Joyce Marie DUKE, Appellee. Joyce Marie DUKE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 432

750 S.W.2d 432

COMMONWEALTH of Kentucky, Appellant, v. Joyce Marie DUKE, Appellee.

Joyce Marie DUKE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Nos. 87-SC-109-DG, 87-SC-335-DG.

Supreme Court of Kentucky.

May 19, 1988.

David L. Armstrong, Atty. Gen., David K. Martin, Asst. Atty. Gen., Frankfort, for appellant/cross appellee.

Kathleen Kallaher, Asst. Public Advocate, Dept. of Public Advocacy, Frankfort, for appellee/cross appellant.

WINTERSHEIMER, Justice.

This appeal is from a decision of the Court of Appeals which reversed the conviction of manslaughter in the second degree and a sentence of five years.

The principal issue is whether the Court of Appeals erred in determining that the challenge by Duke to the self-protection instruction was preserved for appellate review.

The jury instructions contained two theories authorizing a second-degree manslaughter verdict. Instruction No. 5 related to the elements of KRS 507.040. Instruction No. 6, the self-protection instruction, was based on Palmore, Kentucky Instructions to Juries Sec. 10.26, and also permitted a second-degree manslaughter verdict. The Court of Appeals reversed the judgment of conviction on the ground that the self-protection instruction allowed for conviction of a wanton homicide when her conduct was intentional, in its view. The Court of Appeals rejected the lack of preservation argument.

The Court of Appeals misapplied the law regarding preservation in order to reach the merits of the challenge to the self-protection instruction. Error may not be assigned regarding instructions unless a specific objection is made stating the grounds for such objection. RCr 9.54(2).

It is the duty of counsel who wishes to claim error to keep current on the law and to object stating the specific basis for objection so that the trial judge will be advised on how to instruct. Commonwealth v. Goforth, Ky., 692 S.W.2d 803 (1985). Failure to comply with RCr 9.54(2) has been consistently held to prohibit review of alleged error in instructions because of the failure to properly preserve the claimed error. Commonwealth v. Thurman, Ky., 691 S.W.2d 213 (1985).

The objections by Duke at trial to Instruction No. 6 were totally different from the argument made on appeal which was the basis for the reversal. At trial, Duke stated she wanted an instruction based on Palmore, supra, Sec. 10.02, rather than the instruction taken from Sec. 10.26. The defense theory was that there were no facts warranting an instruction on an erroneous belief that self-defense was necessary. She claimed that she had to defend herself because she saw the victim with a hammer. Other witnesses testified that they saw no hammer in the hand of the deceased. There was a sufficient basis for an erroneous belief instruction. The jury must be instructed on all theories which are deducible from the evidence. Pace v. Commonwealth, Ky., 561 S.W.2d 664 (1978). Duke did not argue that Instruction No. 6 or Sec. 10.26 of Palmore were incorrect law due to the decisions in Baker v. Commonwealth, Ky., 677 S.W.2d 876 (1984) and Gray v. Commonwealth, Ky., 695 S.W.2d 860 (1985) which is her theory on appeal. She only claimed that the facts of the case had nothing to do with an erroneous belief that self-defense was necessary. There was no objection to Instruction No. 5, the manslaughter in the second-degree instruction.

A defendant cannot pursue one theory at the trial court level and another on the appellate review. Kennedy v. Commonwealth, Ky., 544 S.W.2d 219 (1976). There was no objection to the wanton instruction at trial and Duke cannot contend on appeal that only the intentional murder instruction should have been given. See Charles v. Commonwealth, Ky., 634 S.W.2d 407 (1982). Procedural rules must be adhered to because they prevent the chaos of subjectivity which leads to a destruction of even substantive rights. There is always a proper procedural avenue for the enforcement of every right at an appropriate time during the course of any litigation. Cf. Brown v. Commonwealth, Ky., 551 S.W.2d 557 (1977).

Reversal in this case is a misapplication of the law of preservation and results in a miscarriage of justice. It would be unfair to permit a defendant to claim on appeal that the jury should only have been instructed on the greater intentional offense or acquittal and then to plead an allegedly improper conviction of the lesser offense as an acquittal of the intentional crime under the double jeopardy standard.

In this situation, it was error to reach the merits of the Duke challenge to Instructions 5 and 6.

In view of our decision, it is unnecessary to reach the issue of whether the instructions on self-protection were proper and a...