Dudlеy GRAY, Movant, v. COMMONWEALTH of Kentucky, Respondent.
Supreme Court of Kentucky.
Sept. 5, 1985.
697 S.W.2d 860
Therefore, the minimum facts required to establish the completed offense of second degree assault would be where a person (1) intentionally causes serious physical injury to another or (2) causes physical injury to another by using a deadly weapon or dangerous instrument.
In the present case, evidence was introduced which met the separate requirements for the crimes of robbery and assault. The offense of first degree robbery was completed when the appellants, in the course of committing a theft, threatened the patrons of the Fun Center with the immediate use of physical force and werе armed with deadly weapons. If the appellants had abandoned their activity at that time, there is no question that they could have been convicted of first degree robbery. However, after completing the robbery, one or more of the appellants intentionally shot and wounded two of the patrons, thеreby causing physical injury with their deadly weapons. This additional fact of intentionally causing physical injury with the deadly weapons they had armed themselves with satisfied the elements for the completed offense of second degree assault.
Since the conviction for each offense required proof оf at least one additional element not required to prove the other, the convictions of appellants for both offenses do not violate еither
The judgments of the Warren Circuit Court are affirmed.
All concur except STEPHENSON, J., who did not sit.
David L. Armstrong, Atty. Gen., W. Bruce Cowden, Jr., Asst. Atty. Gen., Frankfort, for respondent.
VANCE, Justice.
The movant was indicted for murder, was convicted of second-degree manslaughter and was sentenced to seven years imprisonment. The conviction was affirmed on appeal to the Court of Appеals, and we granted discretionary review to consider movant‘s claim that the instructions concerning second-degree manslaughter were erroneously given.
Movant and some of his friends attended a party at movant‘s home which lasted into the early morning hours. All of those in attendance had been drinking. Movant shot and killed the victim, but claimed he acted in self-defense because the victim was in the process of drawing a gun on him at the time.
At trial the movant objected to an instruсtion on second-degree manslaughter because all the evidence indicated the shooting was an intentional act, not a wanton or negligent act. The Court of Appeals upheld the instruction on the authority of Blake v. Commonwealth, Ky., 607 S.W.2d 422 (1980). Since that time, this court in Baker v. Commonwealth, Ky., 677 S.W.2d 876 (1984), overruled Blake v. Commonwealth.
It is without question that the movant intended to shoot the victim. He admitted the shooting and attempted to justify it on the ground of self-protection. There is no evidence whatever that his actions were anything other than intentional.
Second-degree manslaughter by statutory definition consists of causing the death of another wantonly, not intentionally.
Wanton conduct is to be distinguished from intentional conduct and is punishable by a lesser penalty simрly be
As this court indicated in Baker v. Commonwealth, supra, an instruction as to a specific offense should not be given unless there is some evidence which would reasonably sustain the conclusion as to the defendant‘s guilt of the specific offense.
Because there is no question here but that the movant‘s act of shooting was intended by him to kill or to injure the victim, the instructiоns on specific offenses should have been limited to intentional crimes, and it was error to instruct, over the objection by movant, so as to permit the jury to find movant guilty of wanton conduct.
The instructions concerning self-defense were as follows:
“5. Self Protection.
“If at the time Dudley Gray shot Johnny Perdue (if he did so) as mentioned in these instructions, the defendant believed that Johnny Perdue was then and there аbout to use physical force upon him, Dudley Gray was privileged to use such physical force against Johnny Perdue as he believed necessary to prоtect himself, but including the right to use deadly physical force in so doing only if he believed it was necessary to protect himself from death or serious physical injury аt the hands of Johnny Perdue.
“This privilege is subject to the following qualification. Regardless of what Dudley Gray then believed, if you believe from the evidence beyond а reasonable doubt all of the following:
“(a) That it was not in fact necessary for him to use any physical force against Johnny Perdue to protect himself or, if it was, he used more than was actually necessary;
“AND
“(b) That, his belief to the contrary, the action he took against Johnny Perdue in reliance upon that belief amounted to:
“(i) Wanton conduct, then he was not privileged to use self-protection, and you will find him guilty of second-degree manslaughter under Instruction 3;
“OR
“(ii) Reckless conduct, then he was not privileged to use self-protection, and you will find him guilty of reckless homicide under Instruction 4.”
These instructions were erroneous for the reаson that they permitted the jury to find movant guilty of second-degree manslaughter if his belief in the necessity to use deadly force to protect himself was unreasоnable. As we held in Baker v. Commonwealth, supra, an unreasonable belief concerning the necessity of self-defense is not a factor in the statutory definition of second-degree mаnslaughter. To constitute second-degree manslaughter a person must be guilty of wanton conduct, he must act without the intention to kill, but nevertheless be aware of and consciously disregard a substantial and unjustifiable risk that his conduct will cause the death of another person.
By reason of
Thus, where the acts of a defendant are wanton and an instruction on second-degree manslaughter is proper, the defendant is not entitled to acquittal, even if he believed his actions were necessary to defend himself, if the jury finds that his belief in that regard was unreasonable. The fact that his belief was unreasonable, however, does not change the status of an intentional act to an unintentional one so as to bring it within the definition of second-degree manslaughter.
The movant further contends that he was entitled to a directed verdict on the ground of self-defense. We think the Court of Appeals correctly determined that movant was not entitled to a directed verdict on this ground. It is unnecessary to elaborate
The judgment is reversed.
STEPHENS, C.J., and GANT, STEPHENSON and VANCE, JJ. concur.
LEIBSON and WINTERSHEIMER, JJ., dissent by separate opinions.
AKER, J., not sitting.
LEIBSON, Justice, dissenting.
Respectfully, I dissent.
I continue to believe that mental state of the accused determines the degree of homicide. When the accused claims self-defense, “wantonly” (
When the perceived need to kill results from a subjective, unreasonable, wantonly held belief that it is necessary, the instructions and results in this case are appropriate to the circumstances.
As stated in my Dissent, Baker v. Commonwealth, Ky., 677 S.W.2d 876, 880 (1984), we should return to Blake v. Commonwealth, Ky., 607 S.W.2d 422 (1980), which correctly analyzed the situation.
WINTERSHEIMER, Justice, dissenting.
I must respectfully dissent from the majority opinion because I believe that this Court should not apply its holding in Baker, supra, retroactively. In this case the trial was conducted in 1982. At that time, Blake, supra, was the law and had not yet been overruled. Additionally, the Court of Appeals decision was issued in 1983, and it was not until 1984 that Baker was rendered by this Court.