Elliott v. Com., 97-SC-700-DG

• Decision Date: 03 September 1998
• Docket Number: No. 97-SC-700-DG,97-SC-700-DG
• Parties: William ELLIOTT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 416

976 S.W.2d 416

William ELLIOTT, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 97-SC-700-DG.

Supreme Court of Kentucky.

Sept. 3, 1998.

W. Currie Milliken, Wesley V. Milliken, Milliken Law Firm, Bowling Green, for Appellant.

A.B. Chandler, III, Attorney General, Amy F. Howard, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, for Appellee.

COOPER, Justice.

Appellant was convicted of reckless homicide in the Simpson Circuit Court and sentenced to one year in prison. His sentence was probated on the condition that he serve 120 days in the county jail. KRS 533.030(6). The Court of Appeals reluctantly affirmed in a 2-1 decision, noting that it was compelled to follow the controlling precedent of Shannon v. Commonwealth, Ky. 767 S.W.2d 548 (1988). SCR 1.030(8)(a). We granted discretionary review and now reverse the Simpson Circuit Court and the Court of Appeals and remand this case for a new trial.

THE FACTS.

On July 18, 1993, the Harristown American Legion Post hosted a dance in Franklin, Kentucky, which was attended by approximately one hundred persons, including the victim, Gary Barker. Appellant did not attend the dance, but it was his duty as Post Commander to "check out" the receipts and close up the Post after such an event. To that end, he arrived at the Post at approximately 11:30 P.M. Shortly thereafter, everyone else departed, except Barker and two employees of the Post. One of the employees advised Appellant that Barker had been drinking since three or four o'clock that afternoon and had been harassing some of the women in attendance at the dance. Appellant testified that he was kin to Barker, had known him all his life, and had always gotten along with him. While Appellant and the two employees proceeded with the "check out," Barker waited for his wife, Belvia Barker, to pick him up and take him home.

Upon arriving at the Post, Belvia Barker sent their eleven-year-old son inside to fetch his father. When Barker was reluctant to leave, Appellant took him by the arm and "walked" him out of the Post and into the parking lot. Appellant testified that Barker repeatedly protested that he did not want to leave. Upon arriving at Belvia's vehicle, Barker swung at Appellant and struck him in the forehead with a sack containing a can of beer. Though staggered by the blow, Appellant retaliated by striking Barker in the jaw with his fist, knocking him to the ground. When Barker attempted to get up, Appellant kicked him in the chest. There was evidence that Appellant then stomped Barker, kicked him in the head, and otherwise beat him to an extent in excess of that necessary for his own self-protection. However, everyone who witnessed the incident, including Barker's eleven-year-old son, agreed that Barker started the altercation by striking Appellant in the head with the can of beer.

Barker ultimately got into his wife's car and was driven home. Before going to bed that night, Belvia Barker noticed a small injury over her husband's left eye and some blood in his mouth. When she awakened the next morning, he had fallen out of bed and onto the floor. She helped him back to bed and gave him an aspirin for his headache. When she came home for lunch, Belvia found her husband unconscious on the floor, with a large knot on the back of his head. He was transported to a hospital where he died the next day of a subdural hematoma. The medical examiner testified that Barker's fatal injury could not have been caused by a fall, but was the result of a blow to the head.

The grand jury indicted Appellant for reckless homicide. At trial, Appellant denied stomping and kicking Barker and testified that he only struck Barker in self-defense. However, relying on Shannon v. Commonwealth, supra, the trial judge refused to instruct the jury on self-protection and that refusal is the sole claim of error on appeal. With this fact situation, we are once again squarely presented with what we, ourselves, have characterized as the "Shannon problem." McGinnis v. Commonwealth, Ky., 875 S.W.2d 518, 520 (1994).

THE HOMICIDE STATUTES. ¹

The penal code defines two degrees of intentional homicide, viz: intentional murder and first-degree manslaughter; and three degrees of unintentional homicide, viz: wanton murder, second-degree manslaughter, and reckless homicide. Each offense requires proof that the defendant committed an act which caused the death at another person. The degree of the offense depends upon the state of mind, or mens rea, of the defendant at the time of the act. Intentional murder requires "an intent to cause the death of another person," KRS 507.020(1)(a); whereas first-degree manslaughter requires either "an intent to cause the death of another person," but while acting under extreme emotional disturbance, KRS 507.030(1)(b), or "an intent to cause serious physical injury to another person," though the act nevertheless caused that person's death. KRS 507.030(1)(a). Second-degree manslaughter requires proof that the defendant "wantonly cause[d] the death of another person." KRS 507.040. Wanton murder requires proof that the defendant "cause[d] the death of another person" by "wantonly engag[ing] in conduct" creating a grave risk of death to another person under circumstances manifesting extreme indifference to human life. KRS 507.020(1)(b). Reckless homicide requires proof that the defendant "with recklessness ... cause[d] the death of another person." KRS 507.050. The penal code defines the culpable mental states of intentionally, wantonly and recklessly as follows:

"Intentionally"--A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause that result or to engage in that conduct.

"Wantonly"--A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation....

"Recklessly"--A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

4

KRS 501.020(1), (3) and (4). (Emphasis added.)

Although the definition of "intentionally" refers to a defendant's state of mind with respect to either his conduct or the result of that conduct, the statutes defining the two degrees of intentional homicide clearly refer to intent only with respect to the result of the defendant's conduct, i.e., intent to cause death or serious physical injury to another person. The definitions of "wantonly" and "recklessly" make no reference to the defendant's state of mind with respect to his conduct, but refer only to his state of mind with respect to the result of that conduct or to the circumstance which prompted the conduct.

By examining the homicide offenses in Chapter 507, one can see that "intentionally" is used only in relationship to the result of death. By examining the definitions of "wantonly" and "recklessly," one can see that they are designed for use only in relationship to the result of conduct and circumstances surrounding conduct but not in relationship to conduct itself.

Cooper and Lawson, Self-Defense in Kentucky: A Need for Clarification or Revision, 76 Ky. L.J. 167, 188-89, n. 87 (1987-88).

In other words, it is immaterial to a charge of unintentional homicide that the defendant may have intended his conduct, if he did not intend that his conduct would cause the death of another person. Even though he did not intend to kill, if he was aware of and consciously disregarded a substantial and unjustifiable risk that his conduct would result in the death of another person, he is guilty of second-degree manslaughter or, if accompanied by the statutory aggravating circumstances, wanton murder; or if he failed to perceive a substantial and unjustifiable risk that his conduct would result in the death of another, he is guilty of reckless homicide. Of course, if the defendant did not intend to kill, and if his mental state with respect to the victim's death was neither wanton nor reckless, the death was accidental and the defendant is not guilty of any degree of homicide.

THE SELF-PROTECTION STATUTES.

Under the common law, self-defense was available to preclude a conviction of assault or homicide only if the defendant had reasonable grounds to believe at the time of his act that the action he took was necessary to protect himself from an imminent threat of death or serious bodily injury. E.g., Brown v. Commonwealth, 308 Ky. 486, 214 S.W.2d 1018 (1948); Farley v. Commonwealth, 284 Ky. 536, 145 S.W.2d 100 (1940); Ferguson v. Commonwealth, 237 Ky. 93, 34 S.W.2d 959 (1931). The penal code takes a different approach. KRS 503.050 provides as follows:

(1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.

(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, or sexual intercourse compelled by force or threat.

(Emphasis added.) Thus, the initial focus of the penal code is on the defendant's actual subjective belief in the...