Boyle v. Com.

• Decision Date: 29 March 1985
• Docket Number: No. 84-CA-276-MR,84-CA-276-MR
• Citation: 694 S.W.2d 711
• Parties: Adrian BOYLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Kentucky Court of Appeals

Page 711

694 S.W.2d 711

Adrian BOYLE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 84-CA-276-MR

Court of Appeals of Kentucky.

March 29, 1985.

Discretionary Review Denied and

Opinion Ordered Published by

Supreme Court Aug. 28, 1985.

Joseph R. Johnson, Asst. Atty. Gen., David L. Armstrong, Atty. Gen., Frankfort, for appellee.

Joanne Yanish, Asst. Public Advocate, Paul F. Isaacs, Public Advocate, Frankfort, for appellant.

Before COMBS, McDONALD and WILHOIT, JJ.

WILHOIT, Judge.

This is an appeal from a judgment of the Fayette Circuit Court sentencing the appellant to ten years' imprisonment upon his conviction of second-degree manslaughter.

The appellant's first ground for reversal is that prior to selection of the jury which tried the case, the trial judge, sua sponte, informed the panel from which the jury was selected:

... that the penalty that they would impose in the case would always be the maximum penalty; that whether the defendant served any days first of all is dependent upon whether or not I grant him probation and that depended upon many factors, and that they were not to consider that in rendering their verdict in the case. Secondly, if he went to prison, it didn't mean he would stay the maximum term but he might do so. Therefore, they were to look at the facts in the case and make their determination on that basis only.

The long-recognized rule in this jurisdiction has been that neither the court nor the prosecutor should mention to a jury that a defendant could be paroled. Such information should not be given to prospective jurors as well. See Abernathy v. Commonwealth, Ky., 439 S.W.2d 949 (1969). The history of the rule and when sanctions were and were not imposed is set out in Broyles v. Commonwealth, Ky., 267 S.W.2d 73 (1954). Reversal has been mandated in a case in which the Court had given the jury information about parole. See Ringo v. Commonwealth, Ky., 346 S.W.2d 21 (1961). See also Green v. Commonwealth, Ky., 556 S.W.2d 684 (1977). Even in response to a question from the jury concerning parole, the trial court may not provide any information beyond informing the jury that the subject of parole is not to be given any consideration by them in determining innocence, guilt, or punishment. See Brown v. Commonwealth, Ky., 445 S.W.2d 845 (1969). One of the most obvious reasons for the rule is that "the jury's verdict should not be influenced by what another department of state government might or might not do, or had authority to do." Postell v. Commonwealth, 174 Ky. 272, 192 S.W. 39, 44 (1917).

It is true that in the same breath in which the trial court advised the prospective jurors that if the appellant went to prison, he would not necessarily "stay the maximum term," he also advised them they were to look at the facts in the case and make their determination on that basis only. The Commonwealth argues that this latter advice cured the error of the former. We think not, and it may well have only further confused the prospective jurors. Was the court telling them these things because he believed for one reason (probation) or another (parole) that the appellant was unlikely to serve whatever sentence the jury imposed? Although they had been told specifically to disregard probation in arriving at their verdict, was it being suggested by the judge that they speculate upon whether the appellant might be paroled based upon the facts of the case, and take that into account in their arriving at a sentence? While most prospective jurors may not have gotten either of these impressions from what the court said, we obviously cannot say none did, or that none on the actual trial jury did. Trial courts must exercise great caution so as not to appear to invite jurors, either directly or indirectly, to engage in speculation on matters which do not concern them and which can result in substantial prejudice to a defendant.

It has been recognized that the error in giving prospective jurors information about parole can be harmless if upon a consideration of the whole case the reviewing court does not believe there is a substantial possibility that the result would have been any different. See Abernathy v. Commonwealth, supra. We observe that in the case before us the jury fixed the appellant's punishment at the maximum for the offense of which it found him guilty. With this in mind, we cannot say the trial court's error was harmless.

The appellant's next ground for reversal is that the trial court erred in refusing to instruct the jury that the appellant was privileged to use deadly physical force to protect himself against sexual intercourse compelled by force. See KRS 503.050. The evidence indicated that the altercation between the appellant and the victim began when the victim attempted to force the appellant to orally stimulate the victim's penis. The court refused to give the instruction because it held that the right to use deadly physical force applied to "sexual intercourse" as defined in KRS 510.010(8) but not to "deviate sexual intercourse" as defined in subsection (1) of the same statute. The court also appeared to hold that even if the right applied to cases of compelled deviate sexual intercourse, the evidence did not warrant such an instruction because the appellant's use of deadly force was not for the purpose of protecting himself against that.

We do not believe the trial court was correct in holding that the term "sexual intercourse" as used in KRS 503.050 is not intended to include sexual intercourse of the kind involved here. KRS 510.010 itself limits the definitions which it contains to "apply in this chapter." We have nothing to indicate that the Legislature intended this definition to apply to the self-protection statute....