Charles v. Com.

• Decision Date: 15 June 1982
• Docket Number: No. 81-SC-700-TG,81-SC-700-TG
• Citation: 634 S.W.2d 407
• Parties: Greenville T. CHARLES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 407

634 S.W.2d 407

Greenville T. CHARLES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 81-SC-700-TG

Supreme Court of Kentucky.

June 15, 1982.

Francis D. Burke, Kathryn Burke, Pikeville, for appellant.

Steven L. Beshear, Atty. Gen., Nancy M. Collins, Asst. Atty. Gen., Frankfort, for appellee.

CLAYTON, Justice.

Greenville T. Charles was convicted by a jury in Pike Circuit Court of first degree manslaughter (KRS 507.030) and was sentenced to twenty years in prison. The two issues raised by his appeal are whether the trial court erred in qualifying appellant's right of self-protection in its instructions to the jury, and whether the reference to a prior arrest warrant prejudiced appellant's substantial rights.

On July 5, 1980, appellant arrived at a house leased by Cletus May on Coon Creek where a poker game was being played. Archie Charles, who is appellant's brother and one of the five people present at the game, told appellant he was barred from playing. Appellant responded by pulling a .22 caliber pistol from his trouser pocket. After threatening several players, appellant pointed the gun at Ted Scott and said, "I ought to shoot you" or "I've got it in for you," to which Scott said, "Here I am." When appellant stepped back lowering the gun to his side, a struggle began for the gun between Scott and appellant. Five shots were fired before the scuffle ended with Scott dead and Archie Charles wounded.

Following the presentation of evidence, the trial court instructed the jury on the defense of self-protection (KRS 503.050) and its qualifications (KRS 503.060). Specifically, the jury was given a qualifying instruction stating that if appellant provoked Scott to use physical force, while intending to cause death or serious injury to Scott, then appellant's use of force for his own protection was unlawful.

Appellant now argues that the instruction was prejudicially erroneous because it assumed appellant believed he was not justified in beginning the encounter. We need not comment on the unsoundness of this argument. The grounds for the objection are different from those asserted at the trial court and, therefore, are not properly preserved for appellate review. Daugherty v. Commonwealth, Ky., 572 S.W.2d 861 (1978).

Appellant, however, did preserve his objection to the qualifying instruction on the grounds that uncontroverted evidence showed appellant withdrew from the encounter. Appellant argues his withdrawal entitles him to self-protection under KRS 503.060(3)(b) and, as a result, no qualifying instruction should have been given.

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 ...