Barker v. Commonwealth of Ky., 2009–SC–000794–MR.

• Citation: 341 S.W.3d 112
• Decision Date: 16 June 2011
• Docket Number: No. 2009–SC–000794–MR.,2009–SC–000794–MR.
• Parties: Adam Anthony BARKER, Appellant,v.COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

341 S.W.3d 112

Adam Anthony BARKER, Appellant,

v.COMMONWEALTH of Kentucky, Appellee.

No. 2009–SC–000794–MR.

Supreme Court of Kentucky.

June 16, 2011.

Daniel T. Goyette, Louisville Metro Public Defender, James David Niehaus, Deputy Appellate Defender, Office of the Louisville Metro Public Defender, Louisville, KY, Counsel for Appellant.Jack Conway, Attorney General, Jeffrey Allan Cross, Criminal Appellate Division, Office of the Attorney General, Frankfort, KY, Counsel for Appellee.Opinion of the Court by Justice CUNNINGHAM.

Appellant, Adam Anthony Barker, was found guilty in the Jefferson Circuit Court of manslaughter in the second degree, two counts of tampering with physical evidence, and criminal mischief. The trial court granted the Commonwealth's motion to dismiss the criminal mischief offense.

Appellant was sentenced to ten years imprisonment for manslaughter in the second degree and five years for each of the tampering with physical evidence offenses. The sentences were ordered to run consecutively for a total of twenty years. Appellant now appeals the judgment and sentence as a matter of right. Ky. Const. § 110(2)(b).

Appellant mistakenly believed Zachary Scarpellini was one of three men with whom he had previously had an altercation. This incident resulted in Appellant's arrest, as well as confiscation of one of his firearms by police. Following his arrest, Appellant learned of Scarpellini's address. He then went to Scarpellini's apartment and slashed the tires on his car.

Two weeks later, on October 12, 2003, at about 1:00 a.m., Appellant returned to Scarpellini's apartment, carrying a knife and a loaded gun. While he was slashing Scarpellini's tires for a second time, Scarpellini's roommate, Shawn Reilly, walked by. Reilly told Appellant that he was slashing tires on the wrong car and Appellant began to walk away at an average pace. Reilly entered the apartment and told Scarpellini what had just happened, prompting Scarpellini to place a gun in the back waistband of his pants and, along with Reilly, run after Appellant.

Scarpellini and Reilly quickly caught up to Appellant. An altercation ensued which ended with Appellant shooting Scarpellini to death. Appellant fled the scene and later altered the weapon used to shoot Scarpellini and transferred possession of it. Scarpellini's gun was found the next morning in nearby bushes.

At trial, the case came down to the word of Shawn Reilly against the word of Appellant. Reilly testified that he was certain that Scarpellini never drew his gun during the altercation. Reilly also said Appellant opened fire immediately after Scarpellini yelled at him. Appellant fired four times on the victim, three of which, according to Reilly, were after the victim had hit the ground.

Appellant, however, testified that Scarpellini came at him screaming and wielding a gun. Appellant further testified that he only went to Scarpellini's apartment to slash his tires and get revenge. He also said that his goal was to make Scarpellini mad.

The sole issue raised by Appellant deals with the provocation qualifier of the self-defense instruction. He argues that the trial court erred in giving the instruction because there was insufficient evidence to support it. When we look to the instruction to analyze this issue, we do not get any farther than the wording itself. We find that the language of the provocation instruction constitutes palpable error in this case. Therefore, we reverse without getting to the sufficiency of the evidence issue as to qualification of the provocation instruction.

The provocation instruction, as worded, is clearly erroneous.

Provided, however, that if you believe from the evidence beyond a reasonable doubt that Adam Anthony Barker provoked Zachary Scarpellini and/or Shawn Reilly to use or attempt to use physical force upon the defendant, Adam Anthony Barker, and that they did so with the intention of causing death or serious physical injury to Adam Anthony Barker, then the defense of self-protection is not available to him. (Emphasis added.)

Under the exact wording of KRS 503.060(2), a person forfeits his right to the defense of self-protection when, “with the intention of causing death or serious physical injury to the other person, [he] provokes the use...