Grimes v. McAnulty

GRIMES, Appellant, v. M. Christina McANULTY, Judge, E. Jefferson

William Court, Appellee,

Circuit Kentucky,

Commonwealth of Party

Real in Interest.

No. 95-SC-745-MR. Kentucky.

Supreme Court of

2,Oct.

Rehearing Denied Jan.

224 Heideman, remedy by pellant adequate

Richard The Heidman Law did not have P.C., Group, Washington, Appellant. appeal Id. 61. for from the mistrial order.” III, General, Attorney A.B. Chandler C. proscription against The constitutional General, II, Lloyd Attorney Vest Assistant jeopardy protects citizens inter alia double Frankfort, Chauvin, Louisville, McKay for being prosecuted again for an from offense Appellee. prosecution for which a former resulted which acquittal

either an or a conviction has subsequently not been set aside. KRS GRAVES, Justice. 505.030(1). If, here, prosecu as the former Grimes, Appellant, a appeals Christina by tion was terminated mistrial after the first right matter of an order of the of from Court witness was and the verdict sworn before Appeals denying petition for a writ of rendered, a if precluded was retrial petition, prohibition. In her seeks granted mistrial was without the defendant’s prevent to a retrial of her murder indictment consent and in the absence of a manifest grounds jeopardy. of double After 505.030(4); necessity to do so. KRS Nichols hearing arguments reviewing oral Commonwealth, Ky., v. 932 657 S.W.2d record, Appeals. we affirm the Court denied, (1983), 1028, cert. 465 104 S.Ct U.S. .1289, (1984). 79 L.Ed.2d 691 was shot to death his James Grimes 2, July County home in Jefferson 1992. necessity” concept of “manifest wife, causing Appellant, was His accused Perez, 22 first in United States v. enunciated charged A death and with murder. his (1824). (9 Wheat.) 579, 580, U.S. 6 L.Ed. 165 by jury trial was held the Jefferson Circuit recognizes right to have It of a defendant 22, July through July from 12 Court completed by particular a a tribunal trial testify in Appellant was the last witness to duly to legally which been selected has of her her defense. At the conclusion direct 684, Hunter, try him. Wade v. 336 U.S. a examination the Commonwealth moved for 834, 837, (1949); 93 L.Ed. 974 Baker 69 S.Ct. and, objection Appellant, mistrial over the Ky. 132 v. 280 S.W.2d granted. the motion was When the trial (1939). analysis, the the final “[I]n date, a judge .proposed schedule new trial always temper must the decision Appellant petitioned Appeals the Court of for by whether or not abort the consider claiming would prohibition, a writ of retrial being ing importance to the defendant of cause her “for the same offense to twice be able, all, once and for to conclude con put jeopardy life and limb.” U.S. society through the verdict of frontation with Const, V; § 13. The amend. Const. favorably might a believe to be tribunal he petition Appeals denied the Court Jorn, disposed fate.” States v. to his United Appellant appealed to Court as a matter this 470, 486, 547, 557-58, 27 91 S.Ct. 400 U.S. § right. Ky. Const. (1971). ex The most common L.Ed.2d 543 necessity” a mis grant ample of “manifest prohibition A writ of is akin and unable trial is when a is deadlocked mandamus, granted when which be E.g., Skaggs v. Common to reach a verdict. remedy by appeal exists adequate no other (1985), wealth, cert. de Ky., 694 S.W.2d relief, and, injustice great will occur. absent nied, 1998, 90 106 S.Ct. 476 U.S. Williamson, Haight Ky., v. v. Common Nichols L.Ed.2d denied, (1992), cert. Crooks, supra; Commonwealth (1993). In Macklin v. 122 L.Ed.2d 687 (1983). However, it has Ky., 655 Ryan, Ky., Court 672 S.W.2d 60 this exist when the defendant also been found to appropriate a writ is established such preju improper introduces evidence seeking protection from accused is when an right to a fair Commonwealth’s dices the inappropriately when a mistrial was retrial Richardson, Ky., mistrial, definition, Chapman v. trial. ordered. “Since Manís, Stacy or S.W.2d dispose the merits case does not ap- necessarily preclude litigation, future dental, to introduce thus was not entitled reviewing grant a mistri decision to bad acts.

al, a measure of the victim’s the trial court must have orderly, impar “The discretion. interest required could not have This Court if he were procedure impaired would tial be ultimate testimo- disclose her power exercising from deterred nor taking the witness stand ny prior any reviewing court that at time a concern testi- required her to this Court have could trial disagreed with his of the assessment How- offering any proof. fy prior to other automatically be a retrial situation would ever, having now that she did not testified Washington, 434 U.S. barred.” Arizona it an acci- gun, to fire the i.e. was intend 824, 834, 54 L.Ed.2d 717 98 S.Ct. dent, proof specific entire offer of of the (1978). Furthermore, adoption of a “[t]he violence, only becomes of domestic acts in of review stringent appellate standard Court, irrelevant, inflammatory. The but seriously impede ... the this area would of her presentation prior to defendant’s proper of his judge performance trial in the defense, precluded her of- could not have protect integrity of the ‘duty, in order to the However, having point at heard this fer. (Quoting States v. trial..." Id. United testimony finds that her the now her Court Dinitz, 600, 612, 96 S.Ct. self defense proof support offer (1976)). 47 L.Ed.2d subterfuge restrictions to avoid the was consid- compelling There are institutional applicable. on character evidence otherwise militating appellate erations in favor of concluded that the admission The Court judge’s to the trial evaluation of deference prejudicial the Common- evidence was the significance possible juror bias. He the jury conveyed in that it jurors during heard voir has seen and die”, and therefore the “victim deserved to judge examination. most dire He is ade- remedy other than a mistrial was no back- familiar with the evidence and the quate. ground of the case He has lis- on trial. argument the tone of as it was tened to Thus, deciding ne- a manifest whether apparent and has delivered observed the fact, did, justify a mistrial cessity exist to short, jurors. far In he is reaction case, necessarily decide in this we must more “conversant with the factors relevant presented at trial whether the evidence reviewing to the determination” than supported on self- an instruction would have possibly court can be. Specifically, is an accused enti- protection. notwith- self-protection the defense of tled to supra, Washington, at at 834 standing testimony victim’s Wade, supra, 69 S.Ct. at (quoting dis- the result of the unintended death was 836). weapon? charge of a constitutionally protected interest Because decision, inevitably by any affected mistrial primarily on this Court’s Appellant relies discre- judge must exercise “sound in Pace v. decision Perez, declaring supra. mistrial. tion” Pace, the defendant order, shooting for the death of her judge ex- indicted In his written was at trial The defendant testified there was husband. plained that a manifest fighting over and her husband were discharge the of the introduc- because accidentally discharged. gun when by Appellant of tion voluminous the victim had further testified prior acts of domestic violence She the victim’s daughter. to kill her and her against Appellant and her threatened directed and abuse give a self-defense trial court refused to that the admissi- The children. stated testimony conditionally light instruction defendant’s bility of such evidence was discharge. This Court re- upon showing Appellant of the accidental predicated 503.050(3). conviction, despite holding that in self-defense. KRS versed acted accident, testimony where oth- However, Appellant’s close testimo- defendant’s at the indicating the de- had is introduced Appellant er evidence ny the court concluded that have acted shooting acci- could also was fendant established returned to the house. testified a self-defense instruction warranted. Id. gun at 667. that she asked husband where his was, usually he because she knew carried perceive We marked differences between Appellant’s with him at husband all times. present Notably, Pace and the ease. al- kitchen, gun brought got went though the defendant in Pace testified that testified, it back. accidental, testimony shooting other said, presented to the inci- put my established I and I ‘Please let hand out dent, had told a relative that she gun, gun.’ me have the let me have during glass had at the victim thrown put gun in [left] And he hand on, argument “If I’m .keeps going he ... [toward himself] he turned it around Further, kill him.” initial- defendant had [reaching I like this and all did went ly authorities that the victim killed informed gun] and it went off. I fell back for the Thus, despite the defendant’s ulti- himself. gun ... put my after hand he testimony shooting mate acci- went off. dental, presented sup- other evidence at trial her hus- Appellant thought testified that she intentionally ported possibility fell; playing game he she band was when shot her husband. did not realize he been shot until she saw had Here, nothing testimony we find in the the blood. presented support finding to that A is entitled to have the defendant intentionally Appellant shot her husband. any jury on the merits of lawful instructed dire, During voir defense counsel informed defense which he or she has. Sanborn jury Appellant’s that defense would be statements, During opening coun- accident. Curtis v. again Appellant was a “victim sel stated (1916). However, the entitlement S.W. 1105 tape In the 911 which was of accident.” dependant to an affirmative instruction is introduced, said, just my Appellant “I shot justi of some evidence upon the introduction tapes, ... on accident.” husband EMS fying a inference of the existence reasonable introduced, Appel- contained

which were also Commonwealth, Ky., of a defense. Brown v. me lant’s that “He told to shoot statements Jewell Com 555 S.W.2d him”, loaded”, “I and “I didn’t know was monwealth, Ky., 549 S.W.2d Gray, who mean to.” Officer James didn’t grounds, Payne v. on other Com overruled scene, to arrive at the testified was the first monwealth, Ky., 623 gave him the victim told gun to him. told and told her shoot She reviewing tes After the evidence and Gray, “I never even knew it was Officer opinion that timony presented, we are of the any- and “I don’t nothing” or know loaded nothing presented Appel to indicate anything thing any shooting or guns about or recognize that in self-defense. We lant acted like this.” Pace, supra, be read holding our stand, instruction notwith authorize a self-defense took the witness When claim of accident. standing a defendant’s victim’s abuse she recounted the are incon fact that these defenses infor- “The mere her children. Defense counsel elicited preclude jury from victim sistent ... should not concerning bad acts of the mation appropriate considering under both theories up until the time of his death. from the 1970’s However, de at 666. circumstances.” Id. Finally, Appellant described events testimony fact that the defendant’s July 2, spite she and her 1992. She stated that accident, other evidence in Pace their home rested a conversation at husband had issue as to whether created an telephone number that had introduced regarding a she simply That beeper. They for awhile she acted self-defense. talked found on his Therefore, we conclude four the case here. period left for a of about and then he well within his discretion judge trial acted Appellant, when her According to hours. determining the introduction returned, he attacked her and husband victim, the absence patio. bad acts of the to the He then dragged her outside ” inflammatory evidence of was so other than intentional.’ v. Com- McGinnis (1994) prejudicial as to monwealth, create a manifest neces- Ky., 875 S.W.2d sity again for mistrial. We defer (quoting Shannon v.

language Washington, set forth in (1988)). Arizona v. 548-549 Pursuant supra, admits, the defendant but self-defense judge precipitately justify,

The trial did not act seeks to the intentional commission response prosecutor’s request act, for a whereas the essence of an accident contrary, evincing mistrial. On the a con- defense the defendant’s contention that he possible for the jeopardy cern con- double did not commit the state act the sequences of an ruling, gave he erroneous alleges constitutes crime. prosecutor both defense counsel and the persuaded We are the rationale of Jus- opportunity explain positions full their Stephenson tice in his Pace dissent to the propriety of a mistrial. We are opinion, persuaded by therefore the record responsibly Particularly acted and deliber- as here in an kill- unwitnessed ately, and ing, accorded careful I not believe consideration do that there is a rational respondent’s having interest in for a to infer where basis self-defense single concluded in a proceeding. Since he herself the kill- testified that exercised “sound ... discretion” mis- ing testify that was accidental did not supported is “high trial order de- she killed in fear the deceased gree” required which in a bodily harm at of serious or death this case of kind. involuntary; hands. Accident is self-de- recognized fense is intentional. It is all 515-516, Id. at S.Ct. contradictory. that defenses these are opinion In this we have that concluded appropriately determined the law Id. at 670. Pace, supra, and, under although inconsis- that, Stephenson opined further appropriate, tent defenses could have been majority opinion impose The will an intol- given such not the case the evidence upon presented. However, erable burden at- bench opinion it is our that tempting to if holding determine the circumstances fundamentally of Pace is flawed. cases such this warrant a self-defense A defendant who affirmatively asserts the practical The instruction. solution this defense of accident cannot claim self- also problem undoubtedly will result in the var- protection. giving courts’ in- ious trial a self-defense Pace, Prior to our decision in this requested every if where struction case repeatedly had general Court affirmed the during death resulted course that principle when a defendant in homicide struggle or altercation. prosecution killing, admits the claims it but accident, Id. was an he is not to a self- entitled instruction. defense Howard v. Common therefore conclude the de We that (1951); Ky., 240 S.W.2d 616 Howard “mu fenses of self-defense and accident are Commonwealth, Ky. v. exclusive, tually contemplating the former an Pelfrey leading intentional act to death while Ky. 57 S.W.2d 474 and Maiden such at 671. negatives latter intention.” Id. S.W. yet A defendant cannot assert accident alter nature, By very its re self-defense natively an claim intentional act done in self- knowing an lates to intentional or use of defense, affirmatively evi presenting without shooting. not an “In force and accidental Therefore, over dence of self-defense. we Kentucky long recognized we have as funda rule Pace. when the mental that accused has ‘admitted shooting’ justify ‘attempted Appeals and then de- The decision Court grounds protection nying Appellant’s prohibition of self ... there is writ of is af- anything

no his actions firmed. Retrial of under were interpretation dissenting opinion’sstrained murder indictment is not barred under the immediately after the inci- principles jeopardy. her statements of double dent, one reach the conclusion could GRAVES, JOHNSTONE, LAMBERT and intentionally, although not self- JJ., WINTERSHEIMER, concur. defense, husband. shot her JOHNSTONE, J., by separate some circum- concurs a defendant under Whereas LAMBERT, GRAVES, opinion an instruc- stances be entitled to both accident, JJ., join. the evi- tion on self-defense and clearly support not in this case did dence COOPER, J., opinion by separate dissents dissenting The instruction self-defense. STUMBO, J., joins. in which majority opinion in opinion misconstrues the STEPHENS, C.J., separately dissents concluding proposition for the stands opinion. without an claim to specifically á must defendant Rather, ma- acted in have self-defense. JOHNSTONE, Justice, concurring. must be some evi- jority holds that there majority opinion but take I concur support instruction. introduced to dence dissenting opinion. issue with the Appellant, Evidence of the victim’s abuse advocates, alone, satisfy that burden. dissenting opinion standing The does not Indeed, emotion, Kentucky finding Legislature much that the the trial court was correct given spouse conveyed certain victims of abuse of the evidence has that the admission they may jury “victim to die.” rights which assert in defense deserved including murder. and other crimes assault people Kentucky to a right majority opinion suggested It guilty or finding this verdict essentially protection “emas- erodes such utterly by the guilty would denied be presumption of innocence.” the eulatefs] the opinion voiced in the dissent. Under However, Legislature unlikely it that the is analysis, walk the defendant would dissent’s spousal of abuse grant to victims intended having jury away faced a ver- without ever without con- right unfettered to retaliate the very evi- notwithstanding the substantial dict sequence. The murdered husband. dence that she dissenting opinion’s that the The assertion is emerge the dissent would from rule which “represents not an ero- majority opinion for move must never that the Commonwealth and progress, significant of but a [the] sion later appellate for if some court a mistrial is unfounded. unconstitutional retreat” wrong, got regardless thinks the trial court it dissenting opinion quick point is to out a reasoning prompted which the order of the instruction on is entitled to an mistrial, precluded. retrial would be to estab- the evidence tends defense which mistrial, the on the motion for ruling In lish, by supported the defendant’s whether to unique position the judge was in trial However, evidence or Commonwealth’s. assess the factors a fact finder and serve as this'ease, inescapable upon relied fact of whether the determination relevant to that, majority despite the by is over- At this appropriate. was indeed mistrial spousal abuse on the whelming evidence proceedings, in the absence of stage absolutely no victim, part there was ball, crystal should not circumvent we Ap- Appellant. of self-defense evidence judge of the trial judgment call well-reasoned police indicated that pellant’s to statements It is from the a mistrial. evident granting Further, accidentally her husband. she shot judge exercised opinion order that “just gun at trial Appellant testified reaching such decision. sound discretion even realize her she did not went off’ and majority opin- paints the the dissent saw blood. While shot until she husband had been highly re- discarding trial, as “oft-cited during did ion point, to or At no ignores the completely it spected precedent,” ever contend judge a unanimous the trial of fear for fact gun in out fired the self-defense Appeals Kentucky Court best, panel of the Appellant’s and the At under her life. Wheat.) 579, 580, (1824), majority reached the same conclusion as the 6 L.Ed. day this Ky., Court. will have her v. Nichols during present (1983), denied, court she which can de- cert. (1984), appropriate

fenses At that manner. 79 L.Ed.2d and that S.Ct. stage, up jury pick it is example necessity” to and choose one of “manifest is when which parts of her improper statements to believe. the defendant introduces Although easy sympathize Appel- it is prosecution’s right prejudices situation, system Richardson, lant’s our Chapman dictates fair v. trial. Manis, Commonwealth has the same to a fair right Stacy Ky., 709 S.W.2d 929 v. course, Clearly, as does a defendant. this did S.W.2d 433 Of is a corol original not proceedings occur in the lary principle to this that if the evidence was necessary. Dawson, admitted, retrial is properly Taylor v. (6th Cir.1989), Tay F.2d 1124 Leibson v. cf. LAMBERT, JJ., join GRAVES and this lor, (1986), Ky., 721.S.W.2d 690 overruled on concurring opinion. grounds, Morgan, Ky., other Shaffer (1991), S.W.2d 402 or if the evidence did not COOPER, Justice, dissenting. case, prejudice the Commonwealth’s Lillard Rose, Ky., In Commonwealth v. S.W.2d 712 (1987), denied, S.W.2d 588 cert. U.S. discharge then (1987), prose 98 L.Ed.2d 80 without manifest and a retrial cution of a battered wife for the murder of precluded proscription the constitutional husband, her deceased we intro authorized against jeopardy. suggested double It duction regarding of evidence the “battered concurring opinion Justice Johnstone’s syndrome” explain wife why person suf grant ought an erroneous of a mistrial fering syndrome from that perceive would (as here) preclude a retrial if the error was necessary certain conduct was in her However, of an result honest mistake. though suffering even one not “good exception there is no faith” might from that condition behave believe or requirement constitutional of “manifest ne part package otherwise. mutually cessity.” concepts The two are ex legislation improve plight intended “got If wrong,” clusive. spouses, Assembly battered the General jeopardy applies. double self-protection amended the autho statute to then The issue becomes whether evidence rize the prior introduction of evidence acts prior of domestic the deceased’s acts vio- perpetrated domestic violence and abuse Appellant against lence abuse directed and against alleged victim and her children was inadmissible rendered 503.050(3) of a homicide or assault. KRS pro by Appellant’s prejudicial and nunc tunc (1992 2). Ky. § Acts ch. 173 was the Thus specifically testify failure to she killed family existence of a sordid secret rescued self-protection. her in husband ages from the dark of criminal jurisprudence. Finally, spouse was battered entitled presumption pro

same of innocence and due cess of law to the most afforded hardened chief, ease in In its the Commonwealth majority opinion criminals. The rendered presented prove evidence to the offense of represents only this case an erosion of ie., murder, Appellant intentionally shot progress, significant abut and unconsti end, and her husband. To this killed tutional retreat. tape Commonwealth introduced the stated, just my “I shot Appellant first by the husband.” This was followed EMS majority correctly tape Appellant

The mistri- that her hus- notes that a in which stated gun told her granted prosecution al can be a criminal band handed her the and him, that, objection she although over the if there shoot did not defendant’s so, loaded, gun pulled she exists a to do KRS believe the was manifest (9 505.030(4), Perez, trigger. tape Ap- A States v. recorded statement United Hasty pellant was introduced which she stated (1954); also, Pennington v. see pulled trigger.

that she Officer James scene, Gray, Ky., 344 S.W.2d the first officer on the testified him, gave Ky. me Appellant told “He the Benson v. I gun and me to shoot him and did.” Common told Rutherford (13 Bush) (1878). Appel- Charles Grider testified that Howev Officer testify her er, lant him that her husband handed in her own Appellant told did choose to me, just gun you believe and said if don’t defense. me, him. shoot and she shot Appellant testified to the deceased’s also At the conclusion of Commonwealth’s prior acts of domestic violence abuse. case, for directed verdict Appellant moved incident in which the prior These included acquittal grounds the Common- her actually weapon at five deceased fired prove insufficient to wealth’s evidence was related the Appellant six times. then or death was the result of that her husband’s shooting on leading up to the fatal incidents judge correctly intentional act. The her husband July testified that 1992. She evidence was ruled that Commonwealth’s dragged her stripped her outside naked juror sufficient induce reasonable into the by her hair. She then crawled back beyond believe a reasonable doubt living room. in the house find her husband killing intentional. Commonwealth v. gun from retrieved his loaded deceased Benham, Ky., 816 S.W.2d began pointing gun first at a cabinet and having introduced suffi- The Commonwealth himself, threatening Appellant and then intent to overcome a direct- cient evideneé of testified that Appellant both of their lives. verdict, necessary longer for ed it was no begged her for her life and hus- she feared anyone, especially Appellant, to introduce ad- description Her give gun. her the band prove intention- evidence to ditional follows: the fatal event was as ally killed James Grimes. said, put my'hand I “Please let I out and Appellant began her case with voluminous gun, gun;” let me have me have the acts of do- of the deceased’s my with it put gun in hand he perpetrated abuse violence and mestic And all I did him]. around [toward turned her children. These against Appellant and was, went off. like that and it I went per- he separate incidents which included handgun. them sonally threatened photographs of also introduced expert wit- testified as an Dr. Anna Wilson body alleged to have been on her bruises that, suf- opinion, Appellant ness her upon deceased inflicted syndrome.” fering spouse “battered during from the At no time night of the fatal incident. Kentucky Appel- that if clear The law of kill- testimony did describe testify in point chosen not to “intentional,” lant had at this or ing as either “accidental” behalf, by introduced the evidence telling daughter own although she admitted Appellant’s and other the Commonwealth day of the inci- and other witnesses sufficed to entitle her would have shooting witnesses an accident. dent self-protection. on to an instruction ignoring the Seizing and upon this admission already that the Common- he had ruled question or fact Concerning the of whether itself, evi- introduced sufficient had to an in- appellant was entitled not the killing to avoid of an intentional find that in dence on we struction acquittal, the verdict of directed the court is re- of this character cases “acci- not claim Appellant could ruled that give to an instruction where quired such an instruction circumstantial, be entitled to dent” and still wholly is there the evidence Having that errone- reached self-protection. struggle, and the accused is of a evidence that all conclusion, judge found or, ous although he does be- testify, fails to irrelevant prior abuse was witness, testify of the evidence not he does come a “manifest created a introduction and that its indicating the manner in which any facts necessity” mistrial. for a death. the deceased met

231 law, jus- Anglo-Saxon the “cornerstone of tice,” point concept “focal and the Recognizing judge’s that the trial decision process.” Sundby, Reasonable due S. The directly contrary this case Innocence, Meaning Doubt Rule and the holding in Pace v. 561 Hastings 40 457 the rendi- L.J. Since (1978), majority routinely S.W.2d 664 dis 478, 483, Taylor Kentucky, tion of 436 U.S. highly respected pre cards that oft-cited and 1930, 1933-34, 98 S.Ct. 56 L.Ed.2d 468 cedent, see, 983, e.g., 15 A.L.R.4th 1011 (1978), every every criminal case tried (1982), West, Kentucky Survey L. Law law Kentucky “[t]he is instructed that (Criminal Law), 403, 406, 74 n. L.J. 27 presumes a to be innocent of a (1) (1986), and holds that a defendant cannot [y]ou crime [and] ... shall find the defendant i.e., theories, claim inconsistent accident and you guilty are from unless satisfied (2) self-protection, self-pro cannot claim beyond reasonable alone specifically admitting tection without 9.56(1). guilty.” doubt that he is RCr intentionally killed the deceased. In other words, although pro can Commonwealth presumption At the heart inno- theories, e.g., ceed on alternative Bedell v. requirement cence state is the must Commonwealth, Ky., (1993), 779 prove beyond every a reasonable fact doubt Commonwealth, Ky., Wells v. 561 S.W.2d 85 necessary to constitute the crime (1978), cannot; although the defendant charged. Winship, a defendant is In re prove by Commonwealth can its case 358, 364, 1068,1073, U.S. 90 S.Ct. 25 L.Ed.2d evidence, e.g., circumstantial Davis v. Com (1970). Although a state determine monwealth, Ky., (1990), Nu for are the of a itself what elements criminal gent Commonwealth, Ky., 639 S.W.2d 761 thereto, or offense Patterson v. defense (1982), prove the defendant cannot a defense York, New 432 U.S. S.Ct. evidence, prove circumstantial but must (1977), L.Ed.2d 281 once the state has decid- testimony. her own affirmative If that is important ed that a fact is so it must be to be the law of this we have proven presumed, any shifting or the bur- effectively presumption emasculated the proof den of violation of defendant is a innocence. Id., the Due Process Clause. U.S. legislature at 2329. Our has S.Ct. determined once evidence is introduced States, v. United justify which would an instruction on a de- Coffin 394, 403, 39 L.Ed. 481 self-protection, fense such as the Common- Supreme the United States Court traced the disprove beyond wealth burden has the presumption roots of the of innocence from doubt, reasonable its absence becomes law, Deuteronomy through English Roman 500.070(1) an element of the offense. KRS law, common and the common law thereto; Commentary and 1974 Brown v. cf. United States. principle presump- Cooper, Kentucky is a there Instructions (Comment). Juries, § tion of innocence in favor of the accused The burden of 11.07 law, proof assigned by including the undoubted axiomatic and elemen- instruc- tary, charged and its enforcement lies at the foun- tion on the offense the element doing, of our “That in he privileged dation of administration criminal so was not Cooper, self-protection.” E.g., supra, law. act § 3.21. Id., 453, 15 156 at 403. U.S. S.Ct. innocence, presumption although “The of Constitution,

not articulated the is a basic defense, it is component system justify of a fair trial our of To an instruction on a under Williams, necessary prove the justice.” criminal Estelle 425 not evidence would v. 503, doubt, 501, 1691, 1692, or beyond 96 48 the defense a reasonable U.S. S.Ct. L.Ed.2d (1976). evidence, “golden by preponderance It even a of the but 126 has been called the justify could reasonable throughout thread” that runs the criminal that which a 232 jury on the circum- guilt. go of the v. entitled to to the

doubt defendant’s Jewell Commonwealth, 807, Ky., voluntary shooting 812 549 S.W.2d of stantial evidence (1977), grounds, Payne kill, overruled on other v. appellant is intent to likewise Commonwealth, (1981), Ky., 867 623 S.W.2d entitled to submit a circumstantial case denied, 909, 1758, 456 72 cert. U.S. shooting in voluntary self-defense. What (1982). Commonwealth, v. L.Ed:2d 167 Pace for the goose is sauce for the sauce supra, was not the first case to hold that gander. on defendant is entitled to an instruction 425; compare Hafeli, v. 715 Id. at State tends to defense which the evidence estab (Mo.Ct.App.1986), 524 in which S.W.2d lish, by supported whether the defendant’s specifically that the kill- defendant testified See, evidence or that of the Commonwealth. ing was accidental. Commonwealth, 6, e.g., Ky. v. 262 Smith 89 Finally, it has never the law of this been Commonwealth, 3 v. S.W.2d Vick 236 that in order to be entitled to (1930). Commonwealth 436, Ky. 33 297 Nor was self-protection, the an instruction on defen- case to hold that defendant be first specifically to have acted in dant must claim self-protection, on entitled to an instruction Commonwealth, Alsip v. self-defense. testimony killing despite his own (1972), 571 an instruction on 482 S.W.2d accidental. 32 was Gatliff v. (1908). 1063, by self-protection required held other 107 739 The line K.L.R. S.W. by majority support testify not of cases cited evidence where the defendant did proposition that claims accident but claimed he that he acted incompatible easily self-protection are are happened' what after had no recollection of distinguished. As Palmore Chief Justice And in both he was struck the victim. Pace, opinion in pointed concurring 486, out in his Ky. 214 v. 308 Brown supra, at the evidence none those (1948) and Hamilton v. Com- S.W.2d 1018 justified an instruction on cases would have monwealth, self-protection, none of them overrules Gat- held entitled to the defendants were liff, supra, and all of them were decided despite the self-protection instructions on adoption penal at a time code alleged killing their fact that both denied proof the defendant had the burden when victims and claimed alibis. self-protection. on the issue of also are in accord with Pace and Gatliff majority jurisdictions enlightened Although precedent can be overruled with claim accident permit defendant pen, no court four votes and stroke as alternative theories. self-protection jurisprudential authority aside the has to set Brooks, Ill.App.3d E.g., People v. pre- process and the cornerstones of due (1985); State v. 474 N.E.2d 1287 Ill.Dec. sumption Despite the fact that of innocence. Hill, 68, 744 P.2d 1228 242 Kan. place fit to the bur- legislature our has seen Wilson, Pa.Super. v. Commonwealth proof self-protection on the Com- den of State, (1994); Merritt v. A.2d 1194 monwealth, majority now of this Court In State Tex.Crim. S.W. affirmatively must holds that (Mo.Ct.App. Eldridge, 554 or own testimo- prove that defense rely 1977), permitted to defendant was rely evi- ny on circumstantial and cannot sup where the evidence would both theories by the produced or even evidence dence defendant, theory port either doing, we have In so Commonwealth. here, testify kill specifically did presumption of in- stripped Appellant the issue of ing accidental. On thereby denied her the Consti- nocence prove self- evidence to of direct process of law. Patter- right to due tutional the Court held as follows: protection, York, supra. son New In the absence of direct to an instruction on entitled and killed shot appellant Thus, entitled to self-protection. she was rely upon circum- had to

Davis the State of her husband’s state is introduce evidence fact. If the stantial acts of domestic violence and abuse and there

was no grant manifest a mistrial. precluded

Since her retrial is the Consti- proscription against

tutional jeopardy, double prohibition

the writ of granted. should be

STUMBO, J., joins this dissent. WATTS, By

Chad Through As Infant Legal Guardian,

his Mother and WATTS, Appellant,

Elizabeth

K, H, Gary A Partnership; Stingle, S &

Individually K, H; and Partner S & Hammons,

William Individually David K, H;

and Partner Hugh S &

King, III, Individually K, and Partner H, Appellees.

S &

Hugh KING, Appellant, WATTS,

Chad By Through As Infant Legal Guardian,

his Mother and WATTS, Appellee.

Elizabeth 95-SC-189-DG,

Nos. 95-SC-837-DG.

Supreme Kentucky. Court of

2,Oct.

Rehearing Denied Jan.

Case Details

Case Name: Grimes v. McAnulty

Court Name: Kentucky Supreme Court

Date Published: Oct 2, 1997

Citation: 957 S.W.2d 223

Docket Number: 95-SC-745-MR

Court Abbreviation: Ky.