Thompson v. Com.

• Decision Date: 15 June 1983
• Citation: 652 S.W.2d 78
• Parties: Lewis Earl THOMPSON, Jr., Movant, v. COMMONWEALTH of Kentucky, Respondent.
• Court: United States State Supreme Court — District of Kentucky

Page 78

652 S.W.2d 78

Lewis Earl THOMPSON, Jr., Movant, v. COMMONWEALTH of Kentucky, Respondent.

Supreme Court of Kentucky.

June 15, 1983.

Nicholas N. King, Franklin & King, P.S.C., Louisville, for movant.

Steven L. Beshear, Atty. Gen., Linda Carnes Wimberly, Asst. Atty. Gen., Frankfort, for respondent.

CERTIFICATION OF THE LAW

GANT, Justice.

At the outset of this opinion, we note that this case arises from a certification of the law by the Court of Appeals on application therefor by the Commonwealth. Discretionary review was granted by the court, which we have chosen to honor despite the fact that the acquitted movant herein has no standing to seek review by this court. There is simply no issue in which this movant has any interest, nor does our law extend to any acquitted person the right of certification of questions of law.

§ 115 of the Kentucky Constitution provides that "... the commonwealth may not appeal from a judgment of acquittal in a criminal case, other than for the purpose of securing a certification of law ..." The Constitution is silent concerning which appellate court has jurisdiction to accomplish this end. The only rule relating to certification of questions of law is CR 76.37, which empowers the Supreme Court of Kentucky to answer questions of law certified to it by the Supreme Court of the United States, federal Circuit Courts of Appeal, and the highest appellate courts of other states.

Customarily, certifications of questions of law are issued by the highest court of the state. The basis for this is obvious, as intermediate courts are bound by applicable precedents of the highest court and without power to overrule them. See SCR 1.030(8)(a). To apply first to the Court of Appeals and then to this court constitutes an exercise in duplication and a waste of time and effort.

Aware that the Commonwealth should have certified the questions here represented to this court, ab initio; realizing that this movant has no standing before us; and hoping that this problem will not appear again, we affirm the Court of Appeals and adopt and adapt its opinion, to-wit:

"The [Commonwealth] requests this Court to certify the law with respect to three separate rulings made by the trial court. Such involve: (1) the admission into evidence of the prior criminal record of the victim to show his propensity for violence and aggression; (2) the admission into evidence of the prior criminal record of an individual possibly present at the time of the shooting, but who did not testify or appear at the trial; and (3) the submission to the jury of instructions allowing the defense of self-protection to charges of second-degree manslaughter and reckless homicide.

"In April of 1981, Lewis Earl Thompson, Jr., was indicted by the Jefferson County Grand Jury and charged with murder. KRS 507.020. As amended, the indictment charged him with "intentionally and wantonly causing the death of Danny Carman by shooting him with a pistol." The shooting occurred early in the morning of November 20, 1980, outside the Left Field Lounge as [Thompson] attempted to break up a fight between several individuals, one of whom was the victim. After [Thompson] intervened, he struggled with the victim, and shot him at point-blank range. At the time of trial, [he] pleaded self-defense. Subsequent to a trial by a jury, [Thompson] was acquitted on all charges.

"Initially, the [Commonwealth] argues that the trial court erred, as a matter of law, in admitting into evidence prior criminal convictions of the victim. Such evidence was admitted to show the victim's character for violence and aggression. In an in-chambers hearing held on the [Commonwealth's] motion in limine that no reference be made to the victim's prior criminal convictions, the trial court stated that such evidence was relevant and admissible in that it went to the question of who was the aggressor.

"Notwithstanding the trial court's logic, it is the settled law in this jurisdiction that evidence of prior specific acts are inadmissible to show a victim's character for violence or aggression. In Parrish v. Commonwealth, Ky., 581 S.W.2d 560 (1979), the Court stated as follows:

"Parrish testified that he was aware of the deceased's reputation for being a person of violent character. He then attempted to testify as to specific incidents of violence. The trial court declined to admit this testimony and Parrish argues error.

"The rule in this jurisdiction is that once the defendant has adduced some evidence that he acted in self-defense, 'Proof of the violent and dangerous character of deceased can only be made by evidence of his general reputation in the community for such character, and not by evidence of specific acts or general bad conduct, or of isolated facts, which are not connected with the homicide.' Robertson's New Criminal Law and Procedure, Second Edition, § 489, p. 657. See also Amos v. Commonwealth, Ky., 516 S.W.2d 836 (1974), and McGill v. Commonwealth, Ky., 365 S.W.2d 470 (1963).

Neither the law in this jurisdiction, nor the Federal Rules of Evidence, allow a defendant to prove character by evidence of prior specific acts. FRE 404(a)(3), (b). Such can only be proved by evidence of the individual's reputation in the community, not by personal opinion, nor by specific acts of conduct. See Lawson's, Kentucky Evidence Law Handbook, § 2.15(2), p. 16 (1976). As such, the trial court erred in admitting into evidence prior criminal convictions of the victim.

"Secondly, the [Commonwealth] argues that the trial court erred in introducing evidence of prior criminal convictions of an individual who did not testify but was alleged to have been present at the scene of the shooting. It argues that such evidence was not only inadmissible, but irrelevant. We agree. It is a fundamental rule of evidence that evidence must be relevant to be admissible. O'Bryan v. Massey-Ferguson, Inc., Ky., 413 S.W.2d 891 (1967). In that the individual was neither indicted, nor a witness at the trial, evidence of his prior criminal convictions was irrelevant. Furthermore, such evidence was inadmissible. See Abney v. Commonwealth, Ky.App., 588 S.W.2d 714 (1979). On the contrary, such evidence may have been highly prejudicial to the Commonwealth.

"Finally, the [Commonwealth] argues that the trial court erred in including in its instructions for second-degree manslaughter and reckless homicide the defense of self-protection. It argues that a self-protection instruction does not apply to wanton or reckless homicide in light of KRS 503.030 and 503.020. Specifically, it urges this Court to reconsider its decision in Kohlheim v. Commonwealth, Ky.App., 618 S.W.2d 591 (1981), in light of the 1974 commentary to KRS 503.120. This, we decline to do. As such, we hold that the trial court, under the facts presented to it, acted correctly."

STEPHENS, C.J., AKER, GANT, STEPHENSON and VANCE, JJ., and VIRGINIA COLLINS BURBANK and ASA M. ROUSE, Special Justices, sitting.

All concur except VIRGINIA COLLINS BURBANK and ASA M. ROUSE, Special Justices, who dissent and file herewith separate dissenting opinions.

VIRGINIA COLLINS BURBANK, Special Justice, dissenting.

Since I reach a different conclusion, I must report my reason. The law is well-settled in Kentucky that evidence bearing on the character of the victim is admissible in limited circumstances, Lucas v. Commonwealth, 141 Ky. 281, 132 S.W. 416 (1910); Johnson v. Commonwealth, Ky., 477 S.W.2d 159 (1972). It is permitted in cases of self-defense to justify the action of the accused by proving the violent reputation known to the accused prior to the commission of the act for which he is charged. Lawson, Kentucky Evidence Law Handbook, Section 2.10(c); Lee v. Commonwealth, Ky., 329 S.W.2d 57 (1959); Wooten v. Commonwealth, Ky., 478 S.W.2d 701 (1972), Amos v. Commonwealth, Ky., 516 S.W.2d 836 (1974).

It appears to me, however, that there are numerous cases in which the victim may be the aggressor, but his violent character and reputation therefor may not be known to the accused. In such instances, the jury is entitled to all material facts from which it can draw logical conclusions. The language of an early Kentucky case, Duke v. Commonwealth, 191 Ky. 138, 229 S.W. 122 (1921), suggests to this writer that evidence of a prior criminal conviction of the victim would have been admitted to show who was the aggressor, but for the incompetent manner in which it was offered. Justice Hurt, speaking for a unanimous Court, stated:

"The ruling of the Court in excluding testimony offered by him of which the accused complains is that he offered to prove by the clerk of the court that prior to the killing of Wells (the victim) ... was indicted, convicted and committed to the penitentiary for the crime of accessory before the fact to the crime of shooting and wounding the accused... [T]he clerk had [no] personal knowledge of the shooting and wounding of the accused or the connection of the deceased with it, and the offered evidence was doubtless excluded, and properly so, upon the well-settled principle that the best evidence of a fact must be offered, and anything less than the best evidence within the power of a party to produce is not competent, and the only way to prove the existence and contents of records which are in existence is the production of same. The bill of exceptions then recites that the appellant offered as evidence an indictment accusing the deceased of counseling and advising and paying Elgin David to willfully and maliciously shoot and wound the accused, but upon objection the reading of the indictment as evidence was excluded by the court. The indictment is copied into the bill of exceptions and it shows that...