Mondie v. Com., 2002-SC-0534-DG.

• Decision Date: 17 March 2005
• Docket Number: No. 2002-SC-0534-DG.,2002-SC-0534-DG.
• Citation: 158 S.W.3d 203
• Parties: Steve MONDIE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

158 S.W.3d 203

Steve MONDIE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 2002-SC-0534-DG.

Supreme Court of Kentucky.

March 17, 2005.

Donald A. Thomas, Liberty, Counsel for Appellant.

Gregory D. Stumbo, Attorney General, Dennis Shepherd, Assistant Attorney General,

Office of Attorney General, Criminal Appellate Division, Anitria M. Alo, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, Counsel for Appellee.

Opinion of the Court by Justice KELLER.

I. ISSUE

Appellant, Steve Mondie, was convicted of Second-Degree Assault for shooting Greg McGowan. Appellant testified that he shot McGowan only after ordering him to leave Appellant's residence and then being hit in the mouth by McGowan. Appellant tendered a protection against burglary instruction, which the trial court refused. Was Appellant entitled to such an instruction? Because the evidence supported a finding that Appellant shot McGowan to prevent a burglary of his residence, we hold that the trial court erred in refusing to give a protection against burglary instruction. Accordingly, we reverse Appellant's conviction and remand for a new trial.

II. BACKGROUND

In 1991, Appellant, who was recovering from back surgery, got into in a fist fight with McGowan and McGowan knocked out four of Appellant's teeth. Eight years later, after McGowan was paroled on unrelated charges, McGowan pulled his vehicle into Appellant's driveway, got out of his vehicle, and approached Appellant and his friend, James "Jim Bob" Callinan, who were on the porch of Appellant's mobile home drinking beer. Appellant met McGowan in the driveway and told him to leave, but McGowan refused. Appellant entered his home and McGowan, uninvited, followed him inside. Appellant again told McGowan to leave. McGowan then hit Appellant in the mouth. Appellant went to his bedroom, retrieved his .45 caliber semi-automatic pistol, and returned to the living room area. Appellant told McGowan to leave a third time, but instead McGowan hit Appellant in the face once more. Appellant then shot twice at McGowan, hitting him once in the chest. Appellant and Callinan then escorted McGowan, who insisted on leaving and driving himself, to his vehicle. As McGowan drove off, Appellant stood in the driveway and fired two shots up in the air so, in Appellant's words, "he wouldn't come back."

Appellant called the Casey County Sheriff's Department to report the incident. Kentucky State Police Lieutenant Mitch Bailey and Detective Ricky Underwood investigated the scene. They found two empty cartridge casings lying approximately three inches apart on the floor in the residence. They found two more empty casings in the driveway.

Callinan's testimony¹ supported Appellant's version of what occurred that night. McGowan's recitation of the events that night, however, differed substantially from Appellant's and Callinan's version. McGowan claimed that he was not the initial aggressor and that the shooting occurred in the driveway and not in Appellant's house. "The decision as to whose story to believe [was], of course, an issue for the jury to decide."²

Appellant was indicted for First-Degree Assault and convicted of the lesser-included offense of Second-Degree Assault. He appealed his conviction to the Court of Appeals, where he claimed primarily that the trial court, although it had given a self-protection instruction, had erred when it refused to give the protection against burglary instruction that he had tendered. The Court of Appeals found that "[t]he record does not indicate that McGowan was committing burglary or any other crime justifying the use of deadly force in protection of a dwelling." It then held that "[t]he record did not support Mondie's claim of burglary, and thus, [it] affirm[ed] the trial court's determination that a property defense instruction was not necessary." We address this issue, and due to the likelihood of a recurrence on retrial, we also address Appellant's claims regarding (1) testimony about the proximity of the cartridge casings and (2) the Commonwealth's Attorney's comments in his closing argument about the capacity of the pistol's magazine.

III. ANALYSIS

A. Protection Against Burglary Instruction

"It is well settled that a defendant is entitled to have his theory of the case submitted to the jury."³ Appellant argues that the evidence was sufficient to support a finding that McGowan was committing a burglary when he shot him, and accordingly, Appellant contends that he was entitled to a protection against burglary instruction. We agree and for this reason, we reverse Appellant's conviction.

"Historically, burglary was born into the common law as a separate substantive offense out of a desire to protect persons in the sanctity of the home."⁴ Thus "[a]t common law burglary [was] the breaking and entering at nighttime of another's dwelling with intent to commit a felony therein."⁵ And from the earliest days of Kentucky's common law, a homicide was justifiable when committed to prevent a burglary.⁶ It was thought that the commission of common law burglary contained an element of potential danger to the person against whom it was committed, and therefore, the prevention of burglary by killing the intruder was excusable.⁷

Before the adoption of the Kentucky Penal Code⁸ ("Penal Code"), Kentucky adopted numerous burglary statutes, but "case law ... interpreted the statutes in accord with common law principles."⁹ Additionally, Kentucky cases continued to recognize that homicide was justifiable to prevent a burglary, although "Kentucky's most recent cases seemed to authorize the use of deadly force only to prevent entries designed to commit felonies or inflict violence upon dwellers."¹⁰ But with the enactment of the Penal Code in 1974, "[a] burglary is committed when someone unlawfully enters (or remains inside) a building with intent to commit a crime therein,"¹¹ which is a more expansive concept of burglary than existed under the common law. The defense against burglary was also codified and broadened with the adoption of the Penal Code. KRS 503.080 provides:

(1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is immediately necessary to prevent:

(a) The commission of criminal trespass or burglary in a dwelling, building or upon real property in his possession or in the possession of another person for whose protection he acts; or

....

(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that the person against whom such force is used is:

....

(b) Committing or attempting to commit a burglary of such dwelling....

"Dwelling" is defined as "any building or structure, though movable or temporary which is for the time being either totally or partially the defendant's home or place of lodging."¹² Thus, with the Penal Code's broadening of burglary to include unlawful entry for any crime — rather than limiting it to felonies — and from a literal reading of KRS 503.080(2)(b), "a dweller is privileged to use deadly force against unlawful entry for any criminal purpose (including petty theft and simple assault)."¹³ But is such a broad privilege to use deadly force what the General Assembly intended?

"A statute should be construed, if possible, so as to effectuate the plain meaning and unambiguous intent expressed in the law."¹⁴ "Where the words used in a statute are clear and unambiguous and express the legislative intent, there is no room for construction and the statute must be accepted as it is written."¹⁵ We cannot ignore the plain meaning of a statute simply because we might consider another interpretation to state a better policy.¹⁶ Thus, in construing a statute, "[w]e have a duty to accord to words of a statute their literal meaning unless to do so would lead to an absurd or wholly unreasonable conclusion."¹⁷ Additionally, "[t]he original draft of KRS 503.080(2)(b) authorized the use of deadly force to prevent burglary only if a defender believed that a burglar intended `to use physical force against an occupant of his dwelling."'¹⁸ The General Assembly, however, "dropped this limitation, for undocumented reasons, and adopted the deadly force rule now in effect."¹⁹ For that reason, and given that the protection against burglary defense was codified at the same time that the definition of burglary was broadened, we must hold that the General Assembly intended the literal meaning of the statute, even though in so doing it "authorize[d] an incredibly generous use of deadly force, far beyond what one would expect under a policy that puts a high premium on the value of human life."²⁰ It is the province of this Court under the constitution to decide what the law is and not to declare what it should be.²¹ If the statute "is unwise or impolitic, the remedy rests with the Legislature; not with the courts."²²

As previously noted, Appellant tendered a protection against burglary instruction, which the trial court rejected. The Court of Appeals, despite recognizing that "the evidence before the trial court is conflicting as to whether McGowan actually entered the Mondie residence" and that "Mondie claims that McGowan entered his home ... and then physically attacked him," affirmed this omission and stated that "[t]he record does not indicate that McGowan was committing burglary or any other crime justifying the use of deadly force in protection of a dwelling." We must disagree. Based on Appellant's and Callinan's testimony, the jury could have reasonably believed that McGowan had entered or remained in Appellant's home with the intent to assault him, thereby committing a burglary, and that Appellant shot him, believing that it was necessary to prevent the burglary. Accordingly we hold that Appellant was entitled to a protection against burglary instruction and that the trial...