*1 BAKER, Appellant, Bobby Scott
COMMONWEALTH of
Appellee.
Supreme Kentucky. Court 4, 1984.
Oct. *2 Martin, Louisville, Jr., appellant.
Joe for Gen., Armstrong, Atty. David L. David Martin, Gen., Atty. Frankfort, K. Asst. for appellee.
VANCE, Justice. question is whether (K.R.S. 507.050) given in a in case which the defendant person believing kills another force used was him- self unlawful force deceased, but under circumstances a where such belief was unreasonable. K.R.S. 503.120.
Appellant, Bobby Baker, Scott was con- victed jury the Jefferson Circuit wife, Court for the murder of his former Vivian Ann Baker. He was sentenced to years prison.
Baker stormy marriage, and Vivian had a They which ended divorce. had alterca- during marriage. tions both their after they At times threatened kill one anoth- 2, 1981, er. On November Baker and his drinking brother went out to a local bar. evening working That his former was wife at Club a Louisville bar. Vivian fight employee had a with another female night, girl appel- who was friend of evening appellant lant. visited Later that house, enraged this woman at her became her, had way at the his former wife treated looking and went the Club 68 handgun along. He took a Baker wife. the bar around 3:00 a.m. After arrived at night’s he confronted Vivian with events, began running she to the bar. She bar, kept generally was purse at the purse. keep handgun known her Appellant back shot Vivian six times bar, continuing she to shoot ran lying until she was the floor. One shot gun provides fired with the in full contact with K.R.S. 503.120 that an unrea- shooting body. After Baker belief that the use nec- Vivian’s sonable of force is placed gun essary protection on the bar and called for an for self which es- justification police. and the He confessed to tablish for an intentional act ambulance police pursuant arrived. No 503.050 *3 crime when K.R.S. cannot be used gun premises. prosecution as in a justification other was found on the where wan- tonness or suffices to estab- recklessness gave jury The the trial court instructions culpability. commentary points The lish murder, degree man- on first and second out that while an unreasonable but actual slaughter, Appellant con- and self-defense. necessity physical use belief the to force failing tends that the trial court erred to protection justify for self will an intention- give Ap- a homicide instruction. reckless act, justify a al it cannot used to wanton be 503.120(1) authority pellant as cites K.R.S. or reckless act. giving for a reckless homicide instruction reasoning, Following line of we held this case, present relying on the Blake v. Commonwealth, supra, that in Blake v. Commonwealth, Ky., 422 607 S.W.2d jury might from cases which a conclude (1980). genuinely the evidence that a defendant was neces- believed that the use of force penal to adoption Prior the of the might sary protection, for his self but also code, justification self defense was a for belief was required conclude that the defendant’s the It show crime of murder. a unreasonable, entirely an instruction ing of that the defendant believed use given. reckless homicide should be physical necessary to force was himself, reasonable, that his was and belief holding in We have re-examined our necessary that force used was believed Blake, supra, and it to erroneous. find danger. protect against to imminent If the An offenses specific instruction as to is of force was neces belief that only is required when there some evidence protection for was unreason sary self an reasonably support to the instruction. belief, protection self not avail able is de- The offense of reckless homicide Hargis as v. Common able a defense. fined statute as follows: (1909). wealth, 239 Ky. S.W. person guilty “A is of when, subjec a recklessness causes
K.R.S. 503.050 substitutes with person.” 507.- objective death of another K.R.S. tive rather than an test as that the use of 050. reasonableness of belief protection. for Un is self force mental K.R.S. 501.020 defines three statute, physical
der
the use of
force
this
culpability
penal
under the
code.
states for
death,
protection
for
serious
self
are,
wanton,
(3)
(1) intentional, (2)
They
and
or
inter
physical injury, kidnapping,
sexual
reckless.
compelled by
justi
force or threat is
course
with
The intentional mental state
if
is
that
force is
it
believed
such
fiable
of
or
conduct consists
respect to a result
to
regardless of
necessary, and
is true
this
objective
a
cause that result
conscious
to
necessity
as
is reason
whether the belief
engage in
that conduct.
unreasonable.
able or
an aware
penal
ex-
Wantonness consists of
commentary to the
code
of a sub
previous
disregard
of
conscious
plains
departure
this
from
ness
and
that
partic
unjustifiable risk that a
brought
feeling
stantial and
practice was
about
must be of
result will occur.
risk
person ought
to be convicted for
ular
that a
disregard
degree that
has
a nature and
where he
labored
such
a crime
intention
that,
from
gross
deviation
had the facts
thereof constitutes
a mistake such
a reasonable
of conduct that
been
the standard
supposed,
as he
he would have
person
observe
situation.
guilt.
free
appellant
Recklessness consists of the failure
In this case the
does not
perceive
even contend that he
unjustifiable
perceive
substantial and
failed to
firing
risk
particular
body
six shots into
risk that a
result will occur. The
the deceased would cause her
degree
risk
death. Since
must be
such a nature and
the risk
result would occur is so
perceive
failure
it constitutes a
appellant
obvious
since the
does not
gross deviation from
the standard
care
perceive
risk,
contend that
failed to
person
that a reasonable
would observe in
there was no basis
the situation.
homicide,
give
failure
concurring
In separate
opinion
the view
such an instruction was not erroneous.
expressed
that recklessness as used in
Commonwealth, supra,
Blake v.
insofar
K.R.S. 507.050 refers
conduct as distin-
otherwise,
it holds
is overruled.
*4
guished from recklessness as defined in
There seems to be little doubt that the
perceive
as
K.R.S. 501.020
the failure to
the commentary
drafters of
in
had mind
the
to
authority
risk as
result. No
is cited
that a defendant who kills another believ-
interpretation.
for this
ing,
believe,
but without
to
reason
so
that
his
necessary
protect
use of force was
to
provides
K.R.S. 501.020
that the
himself should not be convicted murder
of
apply
definitions contained therein
subject
but that he nevertheless should be
criminal code. When
specifically
words are
prosecution
to
for the lesser offenses of
defined
statute courts must use the
manslaughter in the
degree
second
reck-
or
prescribed by
definition
the
in
statute
the
less homicide.
interpretation of the
Kentucky
statute.
Farm Bureau Mutual
Insurance Co.
general
assembly
provide,
did not
Mason, Ky.App.,
(1980);
the accused was not entitled under the
facts of this case to an instruction on self-
protection, nor to an instruction on reckless
homicide in the the jury event believed self-protection, recklessly.
acted in but J.,
AKER, joins concurring opin- this
ion.
COMMONWEALTH
Appellant, LITTRELL, Appellee.
Wilbur Hite
Supreme of Kentucky. Court
Oct. 1984.