Shannon v. Com., 86-SC-1015-MR

• Decision Date: 15 December 1988
• Docket Number: No. 86-SC-1015-MR,86-SC-1015-MR
• Citation: 767 S.W.2d 548
• Parties: Franklin E. SHANNON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 548

767 S.W.2d 548

Franklin E. SHANNON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 86-SC-1015-MR.

Supreme Court of Kentucky.

Dec. 15, 1988.

Rehearing Denied May 4, 1989.

Larry H. Marshall, Asst. Public Advocate, Frankfort, for appellant.

David L. Armstrong, Atty. Gen., John Gillig, Asst. Atty. Gen., Frankfort, for appellee.

LEIBSON, Justice.

The appellant was convicted of the offense of wanton murder and sentenced to confinement for a period of 20 years.

The principal question on appeal is whether the wanton murder instruction should have been qualified by the defense of self-protection. The appellant was also denied the defense of self-protection in the instructions on Manslaughter II (wanton homicide) and Reckless Homicide, but he makes no special point of this in his Brief.

The appellant admitted that he shot and killed Shirley Porter. He claimed that he did so in self-defense, and that just immediately prior to the shooting, he and Shirley Porter had been arguing; that he was seated at a table with his head bent forward resting upon his arms; that there was a pistol on the table; that the deceased was drunk and had threatened to kill him; that she approached from the rear with a knife drawn back ready to strike; and that he jumped up and shot her to protect himself.

In his Brief the appellant has presented arguments inherently contradictory.

On the one hand he argues that he could not be convicted of wanton murder, that his state of mind must be classified as intentional because he "admitted the shooting" and then "attempted to justify it on the grounds of self-protection." He supports this with quotes from Gray v. Commonwealth, Ky., 695 S.W.2d 860, 861 (1985), that in this posture "[t]here is no evidence whatever that his actions were anything other than intentional"; and from Baker v. Commonwealth, Ky., 677 S.W.2d 876, 879 (1984), that "[w]e cannot escape the fact that an act claimed to be done in self defense is an intentional act."

On the other hand, the appellant did not move for a directed verdict on the charge of wanton murder, nor did he object to an instruction on this offense. Indeed, he requested such an instruction. His argument at trial was only that the wanton murder instruction should include self-defense as a justification. The trial court overruled this request, taking the position that "there is a basic inconsistency to include a definition of self-defense with Wanton Conduct." So the appellant's second argument on this appeal, contrary to his claim the evidence is insufficient to convict of wanton murder, is the instruction as given without a self-defense qualification was erroneous.

At the close of proof the appellant moved for a directed verdict on all counts, seeking a judgment of acquittal as to the entire range of criminal homicide. His stated grounds were that his evidence that he killed in self-defense was conclusive. However, his evidence on self-defense was far from conclusive and this is not his argument on appeal. There was ample evidence to find the defendant guilty of one or the other of the various aspects of criminal homicide. He was not entitled to a directed verdict of not guilty. To preserve the claim that the charge as submitted should not have included an instruction on the wanton murder theory, he was required to specifically object to the giving of an instruction on that charge. A general motion for acquittal on all counts is "insufficient to apprise the trial court of the precise nature of the objection." Seay v. Commonwealth, Ky., 609 S.W.2d 128, 130 (1981):

"The proper procedure for challenging the sufficiency of evidence on one specific count is an objection to the giving of an instruction on that charge." Id.

Because the appellant desired an instruction on wanton murder and did not object to it, the question whether the murder instructions should have been limited only to intentional murder is not preserved for appeal and will not be decided here.

Nevertheless, because the appellant specifically requested that the instruction on wanton murder, and the instructions on Manslaughter II (wanton homicide) and Reckless Homicide as well, should include the defense of self-protection, once again we are confronted with the legal dilemma involving the relationship between self-defense and homicide offenses charging wanton or reckless conduct. We are cognizant of the ebb and flow of decisions on this point. Starting with Blake v. Commonwealth, Ky., 607 S.W.2d 422 (1980), followed by Baker v. Commonwealth, Ky., 677 S.W.2d 876 (1984), Gray v. Commonwealth, Ky., 695 S.W.2d 860 (1985), and Commonwealth v. Rose, Ky., 725 S.W.2d 588 (1987), we have struggled with the problem involved in trying to analyze and reconcile the relationship between the claim of self-defense and the various classifications of criminal homicide defined in Kentucky's Penal Code, KRS Chapter 507. The problem is exacerbated by statements in two cases peripherally involved, Kohlheim v. Commonwealth, Ky.App., 618 S.W.2d 591 (1981) and Thompson v. Commonwealth, Ky., 652 S.W.2d 78 (1983), seeming to approve the use of a qualification based on self-defense in instructions covering offenses based on wantonness or recklessness.

We must go back to basics to address the confusion in this area. The background for understanding the structure of Kentucky's Penal Code covering criminal homicide is provided in a law review article by William S. Cooper and Robert G. Lawson, Self-Defense in Kentucky: A Need for Clarification or Revision, 76 Ky.L.J. 167, 174-79 (1987-88). We note that Professor Lawson was instrumental in drafting the Kentucky Penal Code. The article advises that the "drafters of the Penal Code" addressed "classification for purposes of penalty of at least five types of homicide," including ("the fourth type") the situation where "the offender intends to kill, but he acts under a threat of death or serious bodily injury that is both erroneously perceived and so imprudently held that no reasonably cautious person would act in self-protection. The culpability of the offender is contained in the risk of unnecessary killing which he either consciously disregards or fails to perceive." Id. at 175. Prior to the enactment of the Penal Code the claim of self-protection was not a defense unless under the circumstances it was objectively reasonable. See, e.g., Brown v. Commonwealth, 308 Ky. 486, 214 S.W.2d 1018 (1948). The Cooper and Lawson article explains:

"[T]he drafters of the Code came firmly to believe that a wide difference exists in the moral blameworthiness of first -type offenders [murder] and fourth -type offenders [wanton or reckless in perceiving the need for self-protection].... The drafters decided to eliminate the possibility of a murder conviction when the offender has an honest but an unreasonable belief in the need for self-protection.... Once this decision was made, however, the drafters of the Code addressed a question of much greater difficulty. What is an appropriate penalty classification for the fourth type of homicide since a murder conviction no longer would be possible?" 76 Ky.L.J. at 176.

The article explains that the solution selected was to assign to this type of offender the penalty for manslaughter in the second-degree, which otherwise applies to a criminal homicide where one "wantonly causes the death of another person," or the penalty for reckless homicide, which otherwise applies to the offender "when, with recklessness he causes the death of another person," depending on the circumstances. This was not because the act (which was intentional) fit the classification, but because the belief in the need for self-protection was wanton or reckless. Appropriate "Erroneous Belief" instructions to effect this classification were prepared and included in Palmore and Lawson's Kentucky Instructions to Juries, Vol. I, Secs. 10.25 and 10.26. Palmore's Comment (p. 370) states:

"While excusing an intentional assault (or homicide) on the ground of self-defense, it [the instruction] would at the same time permit a conviction of wanton or reckless assault (or homicide)."

Thus, to cover killings culpable in nature because the offender wantonly or recklessly acted in self-defense, the Penal Code classified these offenders for penalty with Manslaughter II or Reckless Homicide. It accomplished this end by providing in KRS 503.120 "the justification afforded by those sections [covering self-protection and similar justification] is unavailable in a prosecution for an offense for which wantonness or recklessness, as the case may be, suffices to establish culpability."

The problem with Baker and Gray is that reason and history ¹ supports the premise that "[w]e cannot escape the fact that an act claimed to be done in self defense is an intentional act." Baker, supra at 879. But this premise, albeit correct, has led us to conclude, mistakenly, that because "self-defense is an intentional act," this excludes conviction for Manslaughter II or Reckless Homicide, that wantonness or recklessness must characterize the act and not the belief. An act cannot be classified as both intentional and wanton or reckless at the same time. But an intentional act may be accompanied by a wanton or reckless belief, and, indeed, this specifically characterizes the circumstances that exist when a person kills in self-defense, but is wanton or reckless in the belief that his action was justified.

As stated in the article by Cooper and Lawson, supra, discussing the "flawed analysis" in Baker and Gray:

"These statements imply that self-defense belongs exclusively to the realm of intentional crimes. Neither legal authority nor logic supports such a position.

Limiting self-defense to intentional crimes would lead clearly to irrational results....

... Under the Code, a person may wantonly or recklessly cause the death of another through gross carelessness in assessing the need for...