Blake v. Com., 79-SC-507-DG
| Decision Date | 03 November 1980 |
| Docket Number | No. 79-SC-507-DG,79-SC-507-DG |
| Citation | 607 S.W.2d 422 |
| Parties | Darrell Wayne BLAKE, Movant, v. COMMONWEALTH of Kentucky, Respondent. |
| Court | United States State Supreme Court — District of Kentucky |
Kevin Michael McNally, Asst. Public Advocate, Frankfort, for movant.
Robert F. Stephens, Atty. Gen., Willie E. Peale, Jr., Asst. Atty. Gen., Frankfort, for respondent.
The movant, Darrell Wayne Blake, was convicted of first-degree manslaughter in the Todd Circuit Court for the shooting death of David Grissom. Blake received the minimum sentence of 10 years. The judgment was affirmed by the Court of Appeals, --- S.W.2d ---- and we granted discretionary review. Blake contended that he shot the victim in self-defense. However, he maintains that he was entitled to an instruction on second-degree manslaughter and reckless homicide on the grounds that he was wanton or reckless in believing deadly force was necessary in self-protection. We agree.
On the night of August 20, 1977, Blake and a friend, David Davis, drove to a bootlegging joint for the stated purpose of buying some beer. This particular establishment had a drive-in window which eliminated the necessity for patrons to leave their car. As Blake and Davis drove up to the window, Blake observed David Grissom working there. In the next instant Blake fired his pistol, a .357 magnum, in the direction of the window where the victim was standing, and sped away. The bullet from Blake's gun hit Grissom and caused his death. It was established that Grissom and Blake had had a serious altercation about six to eight weeks prior to this incident, as which time Grissom participated in a beating of Blake and threatened to kill him. Blake testified that he shot Grissom because he saw Grissom pulling up either a shotgun or a rifle and thought Grissom was going to shoot him. It was generally known that the occupants of this establishment kept a shotgun just inside the window, and Blake was aware of this. When the police arrived a short time later to investigate the shooting, they found no gun of any sort in or about the building. There was testimony however, to suggest that a neighbor, who had a proprietary interest in the bootleg operation, may have removed the gun. At trial Blake requested a tendered instruction on second-degree manslaughter and reckless homicide which was refused by the court. Blake bases his assignment of error on KRS 503.120(1) which says:
"(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."
Since no weapon was found at the scene it would not have been unreasonable for the jury to believe that no gun actually existed but yet also believe that Blake thought he saw a gun and thus may have been wanton or...
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Smith v. Com.
...or not, and let the jury, as a trier of fact, decide which offense best described the circumstances of the killing. Blake v. Commonwealth, Ky., 607 S.W.2d 422 (1980). As attested by the present opinion, the opposite approach simply creates confusion and then compounds it. On the one hand, t......
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