McGinnis v. Com.
| Decision Date | 24 March 1994 |
| Docket Number | 92-SC-659-MR,Nos. 92-SC-573-M,s. 92-SC-573-M |
| Citation | 875 S.W.2d 518 |
| Parties | Dante Lee McGINNIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Richard Wayne TERRY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Daniel T. Goyette, Public Defender, Bruce P. Hackett, Deputy Public Defender, Louisville, for appellant McGinnis.
Chris Gorman, Atty. Gen., E.M. Lowery and Paul D. Gilbert, Asst. Atty. Gen., Crim. Appellate Div., Frankfort, for appellee.
Donna L. Boyce, Asst. Public Advocate, Frankfort, for appellant Terry.
In these separate appeals, both from Jefferson Circuit Court, each appellant has been convicted of wanton murder. In each case the appellant testified at the trial, admitting that he shot the victim, and attempting to justify the killing on grounds it was an act of self-protection. KRS Chapter 507 provides four different criminal homicide offenses. In each of the present cases the trial court instructed the jury, separately and alternately, on five different possible offenses: intentional murder, wanton murder, first-degree manslaughter, second-degree manslaughter, or reckless homicide. Intentional murder was Instruction No. 1, and included as an element that the accused "was not privileged to act in self-protection" (as elsewhere explained). Wanton murder was set out in Instruction No. 2 as a possible verdict if the jury did "not find the defendant guilty under Instruction No. 1," dropping out the element of self-protection.
Given this set of circumstances, in the McGinnis case, by its verdict, the jury first specified the defendant was "not guilty" of intentional murder and then found him guilty of wanton murder "under Instruction No. 2"; and in the Terry case the jury disregarded Instruction No. 1 on intentional murder and convicted of wanton murder "under Instruction No. 2."
In each case the appellant claims he was entitled to a directed verdict of acquittal on the wanton murder charge because the only evidence presented was that he shot intentionally in self-defense. 1 In each case the appellant objected both to submitting a wanton murder instruction, as unsupported by any evidence of a wanton act as contrasted with an intentional act, and further objected to the form of the wanton murder instruction, complaining that the trial court compounded the error in instructing on wanton murder by failing to qualify it with instructions on the right of self-protection.
Thus, once again we are confronted with trying to reconcile the various provisions of the 1974 Kentucky Penal Code, found in KRS Chapter 507, "Criminal Homicide," and KRS Chapter 503, "General Principles of Justification." This has come to be commonly known as the Shannon problem. Shannon v. Commonwealth, Ky., 767 S.W.2d 548 (1988). There are several different facets to the problem, including:
1) Under KRS 507.020, "murder" is but one offense which may be committed in one of two different ways: either by intentionally causing the death of another person, or by wantonly engaging in conduct which "causes the death of another person" "under circumstances manifesting extreme indifference to human life." As explained in the Commentary accompanying the Penal Code, to punish wanton conduct as murder it must be conduct as culpable as intentional murder: "the culpable mental state defined in KRS 501.020 as 'wantonness,' ... without more, will suffice for a conviction of manslaughter in the second degree" but not for murder because, to qualify as "murder," "a capital offense," it must be "accompanied" by further "circumstances manifesting extreme indifference to human life." Commentary to the Penal Code, KRS 507.020. 2 The Commentary to KRS 507.020 explains that this structure derives from the Model Penal Code of the American Law Institute. To qualify as "circumstances manifesting extreme indifference to human life," a "culpable mental state" equivalent to intentional murder, wanton killing must exhibit "purposeful or knowing" indifference, "conduct evidencing a 'depraved heart' with no regard for human life." American Law Institute, Model Penal Code and Commentaries, 1980 ed., Part II, Sec. 210.2. Murderous intent is as much a component of wanton murder as it is of intentional murder. It is an equally culpable mental state differing in that, while the consequences of the act are equally foreseeable, the actor is indifferent to who is/are the victim(s). The first question raised by the Shannon problem is whether wanton murder is a viable concept when proof of wantonness derives from an act committed in self-defense which is wanton in nature.
2) In Kentucky we have long recognized as fundamental that when the accused has " 'admitted the shooting' and then 'attempted to justify it on the grounds of self-protection' ... 'there is no evidence that his actions were anything other than intentional'; ... that 'we cannot escape the fact that an act claimed to be done in self-defense is an intentional act.' " Shannon, supra at 548-49, quoting from Gray v. Commonwealth, Ky., 695 S.W.2d 860, 861 (1985) and Baker v. Commonwealth, Ky., 677 S.W.2d 876, 879 (1984), (overruled in Shannon on other grounds). The second question raised by the Shannon problem is whether one can reconcile the intentional character of an act done in self-defense with wanton murder as defined in KRS 501.020.
Before the Kentucky Penal Code was enacted, the threshold for recognizing an act of self-protection as a defense was proof it was "objectively reasonable" to believe in the need for self-defense. The Penal Code has changed this to one of "subjective belief." See KRS 503.050 and Commentary. However, KRS 503.120(1) then qualifies an act of self-protection as a defense by specifying it is "unavailable in a prosecution for an offense for which wantonness or recklessness, as the case may be, suffices to establish culpability." (Emphasis added.) The question presented is whether the intentional nature of an act done in self-defense and the culpable mental state in the crime of wanton murder are irreconcilable concepts.
3) One further complication to this problem occurs when the defendant who claims he acted in self-defense further claims that he didn't mean (intend, or want) to kill the victim at the time he fired the fatal shot in his direction or struck the fatal blow. The question is the impact of testimony to this effect on the instructions.
In Shannon v. Commonwealth, supra, this Court attempted to write a definitive opinion on these problems. In the Shannon case the court concluded trial judges should not instruct on wanton murder where the claim is self-defense because: (1) if this claim is not believed, the accused's intention in firing the fatal shot or striking the fatal blow fits only the definition of "intentionally" in KRS 501.020(1); (2) on the other hand, if this claim of self-defense is believed, but the jury further believes the defendant wantonly or recklessly perceived a need for self-protection or deadly force where none existed, the level of culpability needed for wanton murder is missing and under KRS 503.120 the act should be punished only as Manslaughter II or Reckless Homicide. As Shannon states, the situation then presented is "less culpable than murder"; it is Manslaughter II or Reckless Homicide "depending on whether the belief was wantonly or recklessly formed." Id. at 551.
The unintended result of the Shannon opinion has been to create a class of cases wherein, because the accused claims self-defense, trial courts have been instructing on wanton murder while disregarding the fact that diminished culpability is a necessary corollary to a "wanton or reckless belief" in the need for self-defense. The wanton murder instruction without self-defense which follows from this error provides an easy avenue for erroneous conviction on a charge of wanton murder.
The primary reason Shannon has been misapplied is because Shannon ended up affirming a wanton murder conviction. However, Shannon was affirmed only because of procedural default unrelated to the principles explained in the body of the opinion. We affirmed because Shannon Shannon, supra at 549. We held "[w]e would not reverse this case to order such self-contradictory instructions." Id. at 552. Proof Shannon was guilty of murder (albeit intentional rather than wanton) was overwhelming. We held in Shannon that the error was harmless and unpreserved.
But the purpose of Shannon was to prevent giving an instruction on wanton murder in cases of this nature, not to authorize giving such an instruction, and, even worse, to authorize giving one that invites conviction by omitting the accused's only line of defense. In our latest case on the subject, Sizemore v. Commonwealth, Ky., 844 S.W.2d 397 (1992), dissenting Justice Dan Jack Combs stated: "Shannon is fraught with self-contradiction." Id. at 401. The contradiction comes not from the principles of law explained in Shannon, but from misunderstanding the reason why the wanton murder conviction was affirmed. As we discuss the two cases now presented, we will seek to further unravel the confusion generated by the Shannon case.
Dante Lee McGinnis was convicted on two charges, wanton murder and first-degree wanton endangerment, following a shooting incident about 3:30 a.m. on February 8, 1990. He was sentenced to 40 years imprisonment on the charge of wanton murder and one year for wanton endangerment, to run concurrently.
McGinnis was 19 years old. He and many others were congregated in the parking...
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