*1 authority ruling out prospectively
possibility of Jennifer’s relocation. general exception adjust-
With the problems normally
ment associated
move, Benjamin Huck prove failed to any
likelihood of harm to the children from and, Tennessee, event, in any move to prove
failed to likelihood serious en- Therefore,
dangerment. we reverse the Appeals’s
Court of affirming decision
trial court’s denial of Jennifer Huck’s relo-
cation motion and hér in holding contempt.
We remand to the’ trial court with di- enter an allowing
rections to order her to Collegedale
relocate to with the children.
IY. CONCLUSION reasons, foregoing
For the we affirm the Appeals in
Court of v. Fenwick Fenwick
and, Huck, Huck reverse Appeals
Court of and remand the case to entry Oldham Circuit Court for of an permitting
order Huck to Jennifer relocate
with her children.
All concur. Phillips HOLLAND, Appellant,
Melissa Kentucky,
COMMONWEALTH of
Appellee.
No. 1998-SC-0915-MR. Kentucky. Court
Supreme
Sept. Modified Sept.
As
(10) years, respectively, and recommended consecutively run for a that the sentences forty years. prison total sentence judgment in accor- The trial court entered verdict, and jury’s Appel- dance with the as a matter- appeals lant now to this Court record, of-right.1 After a review of hold that the trial court’s instructions erroneous, and we prejudicially were thus Judgment Imposing reverse the and Order *4 the indictment Sentence and remand a new the Hardin Court for trial. Circuit II. BACKGROUND FACTUAL 1997, County In a Hardin April (3) Jury three Grand returned a count Counts against Appellant. indictment One charged Attempt and Two Murder that “with in alleged ed and [and, Danny E. tent cause the death Two, in Count Darnell or under Rebecca] manifesting an in circumstances extreme Balliet, Susan Asst. Jackson Public Ad- life, wantonly difference to human she en vocate, Frankfort, appellant. for gaged grave which created a conduct III, Chandler, Gen., Atty. A.B. T. Kent Danny E. [/Rebecca] risk death2 to Todd, Young, Gens., Atty. Dana M. Asst. Darnell, E. Danny she shot [/Rebecca] Gen., Atty. Office of Criminal Appellate thereby Darnell caused and serious Division, Frankfort, appellee. physical injury to him at Ken [/her] Drive, C, Elizabethtown, tucky Apartment KELLER, Justice. Kentucky, attempt in an to cause his [/her] charged death.” Three her with Count I. INTRODUCTION (1) First-Degree Burglary count one A Jury Ap- Hardin Circuit Court found alleged and that “with the intent to commit pellant guilty Attempt- of two counts of crime, unlawfully knowingly and en ed and one count Murder of First- Darnell, Danny E. tered the residence of Degree Burglary, Appellant’s fixed sen- C, (15), (15), Drive, Apartment tences fifteen fifteen ten Eliza- Kentucky at 110(2)(b). attempt § KY.CONST. such criminal offense achieve " an unintended result.' See Prince v. Com Although appears charge the indictment monwealth, Ky.App., Appellant alternatively Attempted with both Viser, (1999) (quoting People v. 62 Ill.2d 507.020(l)(a) KRS Intentional Murder and (1975)). Accordingly, 343 N.E.2d 507.020(l)(b) Attempted KRS Wanton Mur Attempted the trial Murder in court’s der, properly court the trial ruled that the only correctly Attempted structions embraced recognize Kentucky Penal Code does not At 507.020(l)(a) Murder. KRS Intentional 507.020(l)(b) tempted Murder KRS Wanton " as a because criminal offense ‘there is no bethtown, Kentucky, tempt try and while the resi- to do so to see he would dence, handgun.” her) she was armed with a stop with the handgun she had purchased purpose for that after unsuc- defense, admitted the cessfully attempting to commit suicide majority allega- of the indictment’s factual' ingesting pills year; twice earlier that In particular, Appellant tions. did not dis- (“Dar- shootings “hap- themselves pute that Danny she shot Darnell nell”) ex-wife, pened sarcastically his Rebecca Darnell so fast” after Darnell Darnell”), (“Becky apart- ahead, me, inside Darnell’s remarked to her shoot “Go handgun ment with a that she had ac- Melissa, eyes. right between the Put me Instead, quired previous day. the is- my suddenly out of misery” and moved sues for resolution at trial related to her, towards but that she “didn’t want to Appellant’s state of mind at the time of the anybody” kill in fact and was unaware that i.e., shooting, degree of intoxication she had at Becky shot Darnell all. Danny and whether she intended to kill Given nature of defense Becky Darnell. The Commonwealth’s charges, much of the evidence at theory Appellant, of the case was that who trial concerned the deterioration of the lover, jealous of the fact that her *5 romantic relationship Appellant between Darnell, making was efforts to reconcile and Darnell on her mental and its effect ex-wife, unlawfully with his entered his Appellant’s state. Because we find testi- apartment, recently- waited there with her and, purchased handgun, Danny mony3 regarding relationship impor- when and arrived, Becky Darnell shot each of them analysis Appellant’s allega- tant to our in cold blood and with kill. the intent to improperly tion that the trial court denied contrast, In Appellant against defended instruction, her a lesser-included offense (1) charges by arguing that: because we will summarize it in some detail. of an pain assortment of medication she 1995, met February Appellant first taking pursuant was to prescriptions she Darnell at the Fort Knox enlisted club given surgery was after her back less than playing. where Darnell’s band was At earlier, a week she did not much recall time, married, that each of was but them day, specifically about that did not spouse. each was from his or her separated traveling entering Appel- remember to or Appellant to a man named was married apartment, lant’s “she never wanted to had in Stacy Holland with whom she lived in kill go anybody” there and and she Colorado, and, Ohio, recently, most assumes instead that her to kill intent was (or 1995, in presence herself Darnell’s to at- Indiana until in January he left her recognize emphasize any 3. We that Darnell inference that the account described here disputed portions Appellant’s testimony re- is "the Because it is the official version.” garding relationship. incomplete jury their romantic While trial court’s instructions trial, however, Appellant’s Appellant some of account was corroborated entitle to a new we witnesses, eye testimony background other much of the structure the factual with an concerning relationship Appel- And we came from towards the instructional omissions. And, although present large- Appellant’s proof we because a trial lant herself. focus on ly story one side of that when we on the whole law summarize court must instruct the behalf, case, testimony presented Appellant’s see notes 8 and 9 and sur- infra recognition rounding instructions were do so in that a fact-finder text. Additional reasonably portions could disbelieve warranted this case because a reason- it. space permitting, ably Appellant’s Time and we would itemize could have believed version point upon each which victims of the events and further believed that those disagree prevent with her version in order to events affected her as she described. than a her, little more and that she was Becky Darnell. Darnell was married to however, outlet “rebound.” Darnell sexual According Appellant, young, attractive marriage thereafter at that time or soon from her mounting told her As debts had been divorced for two bankruptcy protection, that he her to seek forced April Ap- March and years. During ending her began to consider again she other two pellant and Darnell met each life. (B) per times week for lunch
to three Darnell Day Years’ On New however, April, Appel- Later in dinner. Appel- had a conversation Appellant pregnant that she was lant discovered marriage proposal. a interpreted lant child, and she made brief her husband’s later, however, confront- A when she week him that ulti- attempt to reconcile with seri- whether he was inquired ed him and unsuccessful. Soon after mately proved Appel- told proposal, Darnell ous about Oklahoma, contact- she returned from she merely to “proposed” he had lant him that her reconcilia- ed Darnell to tell relationship. This event keep her going tion with husband was suicide at- Appellant’s first precipitated relationship Ap- work out. The between 8, 1996, retir- January before tempt. On and Darnell then became sexual. pellant Darnell, ingested to bed with ing return, suf- long Not after relaxants she took of the muscle quantity de- miscarriage. fered a She became awoke and she later pain, for her back suicide, pur- pressed, applied considered vomiting blood. Darnell feeling numb and handgun, pastor chase a and contacted control and took her poison called gave who her the number of a suicide for a hospitalized hospital, where In August, crisis line. *6 day-and-a-half psychiatric in a ward. Shelbyville, in a in Ken- moved with friend Darnell tucky, relationship and her with looking was Appellant In March appeared progress. Ap- to Darnell took to because her room- place for a new live Charleston, him pellant trip with on a to married. Shelbyville getting in mate was Carolina, they by Ap- stopped South Appel- apartment for Darnell located in pellant’s place father’s North Carolina Radcliff, Kentucky and “fronted” lant in Darnell to her so that she could introduce rent because her and first month’s deposit Dar- family. during period Sometime this Ap- to him. he her to live closer wanted a gave Appellant key apartment. nell to his began spending and Darnell then pellant later, however, prob- A couple of months at either his every night together virtually in began develop relationship lems to arose problems More apartment. or her Appellant began topic when to broach thereafter, howev- relationship soon marriage Thanksgiv- and children. On er, con- began seriously when Darnell ing Appellant Darnell met at her reconciling with his ex-wife. sider and, receiving after a tele- parents’ home 29, 1996, at- Appellant again April On (his call then-ex-wife di- phone from his being fired from her suicide after tempted 1995), having July become final in he vorce having fight a with Darnell. She job and Appellant that he had lied to confessed inten- and told him of her called Darnell had been di- when he told her he your tions, “It’s responded, to which he testi- years. Appellant for two vorced up phone. his end of the hung choice” and that, in this event retrospect, fied at trial apart- then went to Darnell’s Appellant turning in their rela- represented point her of to inform ment and called her sister began to tionship because afterwards she life, a check wrote out actually plans to end that Darnell did not love realize that her surgery. explained psychia- to her sister for the balance of her bank She account, one proceeded to swallow trist did not want her home alone because hundred of the same back medication of concerns that the medications would pills during that she had taken the earlier condition, exaggerate her emotional but attempt. pills suicide She took the in Dar- family she had no or friends nearby Darnell, presence, nell’s as he de- could stay with her and she not afford it, improperly scribed “handled it and used Although Becky home health care. Dar- poor judgment.” According Appellant, sincere, Appellant nell did not believe “you lay Darnell told her can’t here with reluctantly she somewhat consented to the stomach,” pills your those told her con- arrangement. Appellant and Darnell “[g]et hospital,” and then [her]self relationship, Dar- tinued their sexual but berating having started her for audaci- regarding feelings nell’s his equivocation ty apartment to die on his floor when she emotionally. for her Appellant affected told him that she was unable to drive. 10, 1996, Appellant applied On June Appellant operator, then called the 911 but purchase handgun contemplation grabbed phone Darnell and informed taking her life and told Darnell that own operator everything was under herself, she killed she would do so in his emergency control and no services were presence. However, needed. an ambulance eventual- for Appellant’s surgery was scheduled ly arrived after called back and 18, 1996, and, his night following June told operator pills about the she had his ex- trip return from weekend with taken. in a coma Appellant was for three wife, night Ap- which was also the before (3) days, hospital and she remained in the pellant’s surgery, stayed Appel- Darnell at for a week. apartment and he and lant’s discharged the hos- When she was from night, were That after she intimate. same pital, Appellant traveled to North Carolina per- argued with Darnell over what she stayed there with her father and his attempt ceived to make her feel to be his returning to night wife for one before him, guilty sleeping returned, day Radcliff. The after she spoke Brandingham with her friend Susan *7 going told her to a Darnell that he was plans of her (“Brandingham”) and told her counseling divorce reconciliation seminar Then, according Appel- to kill herself. to ex-wife, Darnell Appellant with his but and lant, again Darnell were intimate she and and relationship, continued their sexual way hospi- to the morning the next on that would Appellant Darnell assured he they that suggested pull tal after Darnell after help surgery her convalesce the back in the woods. over and make love that she had scheduled for mid-June. discharged from the hos- Appellant was Becky objection Darnell voiced her When 20, 1996, was pital on June and Darnell plan, Appellant Becky to this and Darnell Her doctors had pick up. there to her During met and talked for about an hour. time, medications— prescribed pain a number of Appellant explained Becky that to to, specifically Darvon to be taken “as need- objection Darnell that she had no and needed,” ed,” to taken “as and fully accept, would the reconciliation Percocet be (6) hours.4 every her after the to be taken six help Darnell would recover Valium cet, typically given hospital Rapp, professor drug re and Valium is to 4. Dr. Robert basis; outpatient patients, University Kentucky, at the testified but not those on search Darvon, danger the medications were much more the combination of Perco that: wearing hospital ny Appellant was Appellant home from the hos- Darnell took wristband, gave Appellant shaky handwriting, her and pital apartment, to her had medications, Appellant sleep. and went to just hospital. told him that she had left early morning awoke in the afternoon, When she appeared Later hours of June 1996 she was disoriented in attorney’s office Louis- at her husband’s find and confused because she could not ville, attorney the office verified and an she should Although Darnell. she admits that, time, in a she was dressed at to driving, Appellant not been drove have gown slippers. and One hospital in, let herself walked apartment, Darnell’s Darnell, repre- was attorneys called who upstairs, sleeping and found Darnell bed action, senting Appellant the divorce Dar- with his ex-wife. She retreated from hurting to her for apologized and Darnell bedroom, nell’s but Darnell awoke and fol- night her the before. they her down the stairs where be- lowed memory of Appellant has little Although stayed gan arguing why about he had not day shooting, appar- she prior apartment. Appellant at ac- apartment arrived at her at some ently “using” cused Darnell of her for sex and Saturday Friday point evening on up “Becky, then called he stairs was awoken on Sat- morning, because she you, love me doesn’t love and he doesn’t brother, urday morning by a call from her playing ... He’s with both our emotions.” groggy who testified that According Appellant, Darnell then incoherent, explained and that her and she neck, grabbed her around the slammed medications. After the con- state on her wall, against up, her told her “shut ended, Appel- versation with her brother you’re going nothing,” to tell her why lant was unable to understand she grabbed then dragged her feet and Darnell, and took had not heard from way her the rest down the stairs. her, to Darnell’s handgun drove Appellant attempted phone, to use the but and, her, him grabbed away apartment, Darnell it from escort- when she did not find and, there, ed apartment according Eventually, her out into his bed. crawled Darnell, key apartment took the to his apartment to check her she called her own from her and instructed her not to return. to see if Darnell had called her. messages Branding- from message She discovered a then police went to the station then, crying emotionally up- ham where she told them of Darnell’s assault set, returned her call to tell her that she her, but she was told that she did not loll gun going and was herself. had meet the criteria for an EPO. After a his cel- Brandingham had her husband use trip hospital return the VA to receive they lular call the phone police, injuries treatment she received from *8 apartment Ap- while arrived at Darnell’s assault, Appellant, wearing while still phone was still on the with Brand- pellant attire, run hospital proceeded to errands. ingham. speaking Appellant, After with Although pur- the dealer from whom she that she one of the officers concluded handgun Ap- chased her .380 denies that ap- left alone she should not be because pellant wearing hospital gown a when drowsy, so, and was during peared did he admitted his testimo- over-medicated she directions, them syner but the medications ous in combination and could have a dose patient gistic patient's judgment that could cause the to effect could affect a and selves experience sleeping, difficulty wak excessive memory or her to deviate and cause him amnesia; ing thinking normally, up and and from the directions. (3) patients supposed follow the and are to back, Darnell, it at groggy, speech, glassy eyes pointed with slurred behind her and (5) life; police and a lack of coordination. The him that he ruined her told had Brandingham’s resi- Appellant responded possible thus took Darnell that it was not (6) talking Appellant him; dence. After for a gun pointed to talk with a at time, however, period Brandingham by staring at him Appellant responded “as her to Darnell’s apart- drove back over through if she stare a hole” him and could Appellant ment so that could collect her Darnell, talking Becky then started about belongings. Appellant decided to admit responded prob- to which Darnell hospital, herself into the VA and she left a Appellant lems he and had were between effect, on to that but (7) note Darnell’s door them, ex-wife; the two of and not his Appellant was unable to remember wheth- Darnell then moved towards his bedroom er in fact attempted she admit herself motioning Becky door and started Dar- professes because she to have no VA (8) apartment; nell for her to leave the memory night shooting. of the before the Appellant, who Darnell described as an- calm, gry-looking but then fired shot thing
According Appellant, the next away, from about five to six feet and Dar- waking up she remembered was Dar- cheek, nell felt a his but burn across Sunday morning, nell’s bed on June (9) him; round struck the wall behind Dar- handgun right pocket. 1996with the in her Appel- nell then shouted to his ex-wife that testified, Appellant’s neighbor next door blanks, and, weapon lant’s was loaded with (1) however, that: he Appellant observed so, fired Appellant as soon as he did (2) Sunday; at around 8:00 a.m. on and chest; in the weapon again and hit Darnell heavily to be medicated because appeared (10) backwards, staggered Ap- as Darnell coming she had a lot of trouble down the and, him pellant looking at stood there and, al- steps apartment complex firing their moving without her hands from though spoke regarding he to her whether position, time and hit Darnell fired third under- driving, she should be he could not (11) area; in the abdominal Darnell everything stand she said return. get screamed at his ex-wife to out Although Danny it undisputed is there like a apartment “stood Becky eventually and Darnell came to (12) shots; statue” and fired three more apartment Darnell’s and that Becky opened Darnell ran to the door and subsequently shot them and fled to Okla- it, Appellant staring up but looked to see homa, shooting account of the eye gun straight her in the pointing itself, above, is described differs which (13) her; pulled trig- at substantially from her accounts. victims’ ger, and Darnell was struck in the Becky According testimony Danny neck. Darnell, Becky up Appellant: stood fled to her shooting, Appellant After the her back Dar- with her hands behind when Stillwater, sister’s home in Oklahoma. inquired why nell entered his bedroom and trip When she reached after a her; Oklahoma called Darnell shouted he had not nearly long that took her twice as as nor- Becky Darnell should call downstairs car over pull mal because she had to Appellant shouted to police;5 occasion, “pass more than one go any- out” on Becky Darnell she should not *9 (4) now”; police him she called both the Stillwater right where or “I’ll kill from to confess to the Appellant brought handgun police out the Elizabethtown battery bed. Darnell 5. record to the and was found on Darnell’s The reflects battery. phone had not removed the downstairs cordless had been removed testified that he
801
her after
Darnell’s abandonment of
both law enforce-
tion to
shooting and informed
with her
surgery was consistent
already
that she had
made her
agencies
ment
dis-
personality
sensitive”
arrangements
Kentucky.
“abandonment
flight
return
testi-
Phillip Wayne
Dr.
Johnson
phone
the Eliz- order.
While she was on
suf-
findings
his
police
ar-
fied to
police,
abethtown
Stillwater
major depression, Gulf War
arrested
fered from
rived at her sister’s home and
person-
chronic borderline
Syndrome, and
her.
addition,
In
Dr. Johnson
ality disorder.
Ken-
After
was extradited to
disorder, which
Appellant’s
testified that
tucky, the trial court ordered that she be
“extreme” and exacer-
he characterized as
Kentucky
Correctional
committed
(1) manifests
by
depression:
bated
(“KCPC”) for
Psychiatric
psychiat-
Center
in
efforts to avoid real or
itself
frantic
(2)
ric examination and treatment. Two
abandonment, a diminished abil-
imagined
of the KCPC doctors who examined and
intensity
feelings, impul-
ity to control
trial.
treated
testified at her
and a
sivity (including
attempts),
suicide
(1)
Dr.
testified that:
Candace Walker
(2)
relationships; and
pattern of unstable
depressed
so
and unstable
Appellant was
inhibitions,
perception,
judgment,
affects
longer-than-typical stay
that a
at KCPC
bizarre, aggressive
and causes
behavior
her;
required
to stabilize
on
including
crazy
you
imagine,”
“as
as
can
Appellant’s patient history,
basis of
which
per-
when the sufferer
anger
rage
included recurrent
themes of abandon-
that he or she is the victim
ceives
ment,
diagnosed Appellant
with bor-
wrongdoing or abandonment.
disorder,
usually
personality
derline
which
evidence,
begins
early
typically
childhood and is
At the conclusion of the
abuse,
that,
abandonment,
under
by
caused
ne-
trial court instructed the
and/or
Two,
glect,
Appellant chronically
Appel-
that rendered
One and
it could find
Counts
(S)
of-
prone
depression;
per-
guilty, guilty
unstable and
lant not
of the indicted
Murder,
guilty
suffering
ap-
Attempted
sons
from this disorder can
fense of
pear
psychotic
normal at some
the lesser-included offense of First-De-
times and
Three,
others;
at
gree
overreac-
Assault.6 Under Count
Commonwealth,
180,
(1932).
Perry
Ky.,
We have
had
See
v.
839
trial court instructed (2) guilty, guilty although find not of First- by testimony”;8 the and Degree Burglary, guilty of First-De- right every defendant has “a to have issue jury found gree Trespass. Criminal The by the and material of fact raised evidence offenses Appellant guilty of the indicted jury to his defense submitted to the on forty and recommended a total sentence of instructions,”9 court proper the trial (40) years, imposed. which the trial court of- should instruct as lesser-included “ if, ‘only considering totality fenses the of III. ANALYSIS evidence, jury might have a rea- brief,
In her itemizes nine guilt sonable doubt as to the defendant’s Many separate allegations error. offense, greater yet beyond believe moot, allegations are rendered how- those guilty that he is of the reasonable doubt ’10 ever, by that the errors in our conclusion lesser offense.” jury trial.7 require instructions new Accordingly, we will first address the DEFINE 1. TO “VOL- FAILURE then address those instruction errors and INTOXICATION” UNTARY remaining allegations of error that are evidence, At the conclusion likely germane to be to retrial. trial agreed the trial court instruc justified that the evidence counsel A. JURY INSTRUCTIONS intox voluntary involuntary tions as to the trial Appellant argues ication, No. 8 explained and Instruction prejudicially court’s instructions were legal effect of both: included neither a they erroneous might Defendant though A. Even intoxication” nor a “voluntary definition Attempt guilty otherwise be of Criminal on At lesser-included offense instruction Murder, Degree-As- to Commit First Manslaughter. We tempted First-Degree sault, Firsh-Degree Burglary or Firsts analyze allegations each of these of error In- Trespass under Degree Criminal princi in accordance with the well-settled 2, 3, 4, you 5 shall structions No. ples duty that: “it is of the trial find Instructions guilty under these on judge prepare give instructions offenses if at committed the [including] law of the the time she whole case (if did), intoxicated that every state of the she was so applicable instructions receive a fair trial in presented Fourth-Degree Assault as a lesser- that she cannot now (recusal judge), County; prosecution. Hardin # 8 of trial included offense in a Murder Judge been moot which has rendered Id. at 831. retirement; (# 9) (alleged prose- Roark’s during closing argu- misconduct cutorial 7. Our reversal for a new trial renders moot ment), moot because we find it which find allegations: (concerning # 4 the trial court's attorney re- unlikely prosecuting will alleged grant appropriate relief after failure to upon peat remand. these statements during the the Commonwealth's disclosure by Appellant), made which trial of statements Commonwealth, Ky., S.W.2d Taylor v. parties have am- is moot because the should prepare ple time to review the statements and retrial; (ven- objections prior thereto # ue), Id. pretrial publicity which is moot because and, time-and-fact-sensitive, re- issues are gardless first of whether the venue for her 10. Gabow may litigate (quoting v. Common appropriate, Appellant Houston trial was (1998)). wealth, Ky. 975 S.W.2d appropriate venue retrial if she believes *11 instructions did argued did not form the to commit counsel that the she intention the offenses. law of intoxi- adequately not define the though you B. from the Even believe rectify asked trial court to cation and the beyond a doubt that evidence reasonable “volun- by adding a definition of the error the Defendant did form the intention to No. I.11 tary intoxication” to Instruction of Attempt commit the offense Criminal that, in argues failing appeal on Murder, First-Degree As- Commit intoxication,” “voluntary the trial to define sault, First-Degree or First- Burglary adequately not ex- court’s instructions did Trespass, not Degree you Criminal shall argues that intoxication.12 plain [change “HR”] find her not initialed by the this error was Com- compounded those guilty under instructions during closing monwealth’s statement its that deprived was so intoxicated she was that start argument you taking “when of capacity appreci- substantial either to that pills, voluntary.” that’s hold the We criminality ate of or to the her conduct failure trial court’s to define the term ‘Vol- her conduct require- conform law; untary intoxication” entitles to a of AND ments such intoxication voluntary on part was not as defined new trial. “HR”] Instruction-No=--L [Initialed stated, Simply trial court’s election the
And Instruction No. “Intoxi- defined “as to strike the defined Instruction No. “meaning] cation” of a disturbance language pausing 1” instead of to retool physical resulting mental or capacities including the instructions a definition and from the introduction of into substances ‘Voluntary deprived intoxication” the body.” any basis which to distin- Appellant’s allegation of error re statutory concepts guish between lates to the “as defined in No. Instruction voluntary involuntary and intoxication. 1” language that struck judge trial Kentucky The Penal Code does con- from the instructions it called to when was separate “involuntary definition of tain his that attention No. 1 did not Instruction Instead, contain a definition. trial Appellant’s such intoxication.” the Code defines Appellant’s disagree position trial presented counsel the trial with the Commonwealth’s treatise, copy Cooper’s procedurally court with of Justice the error defaulted. Kentucky Cooper, "fairly adequate- Instructions to Juries Appellant’s trial and counsel (Criminal) (Anderson 1999), Publishing Co. ly presented position] [his client’s trial requested 9.54(2), trial court include the judge,” RCr at a time when trial sample § instruction found at 3.06: ability had the correct the error be- court submitting fore the case to its Voluntary intoxi- Intoxication —means deliberations. De- cation caused substances which the knowingly body, his fendant introduces into addition, Appellant sirgues, without cita 12. In tendency of which to cause intoxication authority, any supporting that each of tion to [, ought to he knows or unless he know the indicted the trial court's instructions on pursuant them advice introduces to medical lesser-included "should include offenses ....] intoxication, specific language on the effect Accordingly, we no find in the Com- merit previ voluntary involuntary.” We have suggestion Appellant failed monwealth’s claim, rejected ously this see Slaven v. Com preserve error Al- this for our review. monwealth, (1998), Ky., 962 S.W.2d though agree timing we counsel’s trial better, i.e., Appellant provides us with no and because could have been he could have why deviate from our closely examined warrant for we should more the instructions holding, we prior the error trial court find no merit then raised before the began reading jury, claim. instructions to the identical *12 intoxication,”13 “voluntary scope and the Instruction 8B should never have possible involuntary jury’s of forms been included in of intoxi- instructions cation by justify is illuminated what is excluded because the evidence at trial did not finding “voluntary involuntary from the intoxication” defini- intoxication. We disagree with this “[I]ntoxi- tion: assertion. by cation caused substances which the de- 501.080(2)] [KRS is consistent with knowingly fendant into introduces [her] prevailing doctrine and applied has been body pursuant to medical advice” is types to four of situations: intoxication 501.010(4) excluded from the KRS defini- resulting from substances taken into the intoxication,” “voluntary tion of in- duress; body under coercion or intoxi- represents involuntary stead form of in- resulting cation a genuine from mistake toxication that implicate can the KRS as to the character of the substance 501.080(2) defense. The evidence at trial it; causing resulting intoxication unex- demonstrated that was released medication; pectedly prescribed from hospital prescriptions from the resulting and intoxication from a weak- pain three different medications—two ness unknown the defendant and (2) of which she to take “as was needed for grossly quantity excessive to the of stim- pain” that, according expert testimony, — body. ulant taken into the ‘Voluntary commonly prescribed were not in combina- intoxication” is in KRS 501.010 defined tion on an outpatient basis and could have in such a way that these invol- types of a synergistic effect that would affect the untary intoxication are still sufficient And, patient’s ability normally. to think liability to relieve a he defendant of medication, taking while this has the requisite capacity.14 memory suffered lapses, became disori- that, agree And we with Appellant without ented, behavior, and exhibited aberrant i.e. intoxication,” “voluntary a definition of the wearing hospital garments while she ran jury could not properly apply Instruction errands around town and in Louisville. 8B, No. which described the KRS Ap- Other witnesses who interacted with 501.080(2) defense, to the evidence Ap- pellant prior shooting, including pellant’s alleged by intoxication caused neighbor very morning, who saw her that prescription Although medications. the in- incoherent, described over- groggy, her as prejudicial enough structional error was medicated, Although and uncoordinated. alone, that, case, standing we note in this jury certainly Ap- was to believe that free jury merely was not denied the correct pellant conforming her con- capable information, but also might have been af- forming duct to the and of the intent law firmatively by misled prosecuting at- kill, we hold the evidence was torney’s during declaration closing his ar- sufficient to to make the permit the gument that you taking pills, “when start findings factual set forth Instruction No. voluntary.” that’s trial court’s failure to Accordingly, 8B.
The argues Commonwealth this define the in that instruction terms utilized inconsequential omission was and asserts in a manner that allowed evalu- 501.010(4): pursuant 13. KRS duces them to medical advice or under such duress as would afford a de- “Voluntary intoxication” means intoxi- charge cation caused substances which the de- fense to a of crime. knowingly body, introduces into fendant his 501.080, Commentary 14. KRS Official tendency of which to cause intoxication know, (Banks/Baldwin 1974). ought he knows or unless he intro- involuntary intoxi- ate properly to a cation defense entitles new (b) to cause the death intent With proper
trial under instructions.15 causes the death he person, another a third person or of person of such FIRST- 2. EED/ATTEMPTED which do not circumstances under MANSLAUGHTER DEGREE *13 he acts murder because constitute at trial that the Appellant argued emo- influence of extreme under the that, reasonably at the time jury could find in sub- as defined tional disturbance victims, handgun at the she fired (l)(a) of 507.020.17 section KRS acting under an extreme emotional Thus, of EED entitles “[e]vidence (“EED”), Appellant’s trial disturbance on to an instruction defendant [Murder] EED requested be counsel thus: first-degree of included offense lesser of the At incorporated as an element 18because: manslaughter” instructions;16 and Murder tempted in objected First-Degree to the Assault first-degree man- The murder and and asked the trial court instead structions go hand in hand. slaughter statutes Ap it jury to instruct the could find statute, if com- the murder one Under pellant guilty Attempted First-Degree of influ- mits the act while not under the Manslaughter a lesser-included offense. as EED, guilty he is of murder. ence requests, The trial court denied both statute, if he manslaughter Under the argues that the trial court’s rul act while under does the same ings constitute reversible error. We hold EED, guilty is of man- influence of he that the trial court committed reversible Thus, slaughter degree. in the first by failing jury error to instruct finding jury depending on requested by Appellant. pres- to the absence or respect with 507.030(1) that: provides KRS EED, may justi- act ence of same or a convic- fy a conviction of murder person guilty manslaughter A is manslaughter.19 degree the first when: tion of avoiding port contrary view do not cause us to 15. In the interest of additional er- of her retrial, case, holding. rors we observe that Instruction question prior In this our explain however, 8A should also to the that the permitted the evidence at trial negate EED, intoxication could defendant’s Appellant acted under to find that "knowingly” required in connec- mental state produced prove the once evidence was First-Degree Burglary. Rogers tion with See EED, presence bec[ame] "its absence 29, Commonwealth, Ky., v. 86 S.W.3d 46 Messer, Coffey Ky., v. element of the offense.” (2002). 944, (1997). Accordingly, we S.W.2d 946 945 agree Appellant's contention that the tri- appeal, Appellant argues 16. that the ab- On Attempted instructions er- Murder al court's Murder and sence of EED is an element of require roneously the Common- failed has the burden to that the Commonwealth beyond prove EED wealth to an absence of beyond prove that element a reasonable doubt reasonable doubt. regardless prosecutions in all Murder the evidence raises an issue as to whether 507.030(l)(b). 17. KRS the defendant acted under EED. This whether rejected argu- explicitly an identical Court Messer, Coffey supra note 16 at 946. v. Commonwealth, Ky., Stopher v. ment in (2001). Spears v. See also Commonwealth, Ky., Commonwealth, Haight 938 S.W.2d 30 S.W.3d (1997). sup- by Appellant in The cases cited And, in- similarly, ry’s a defendant under the focus on the individual defendant’s EED fluence of who takes a substantial standpoint, presence “the of mental illness step killing person entirely subjective towards with the is relevant to a intent to do First- Attempted so commits evaluation of the reasonableness of the Degree Manslaughter rather than At- response provoca- defendant’s tempted Murder.20 tion.” 507.020(l)(a) Spears Ky., 30
KRS refers to an (2003)26 explained S.W.3d 152 “extreme emotional for which disturbance replaced EED has explanation mitigating there was a reasonable or ex factor of cuse, concept the reasonableness of which is to be common law of “sudden heat of person determined from the of a viewpoint passion” homicide: in the defendant’s situation under the cir is the Extreme emotional disturbance *14 cumstances as the defendant believed concept to the common of successor law them to be.”21 We further defined the the passion.” Though “sudden heat of EED in concept of McClellan v. Common similar, they two are are not identical 22 wealth: Extreme a emotional disturbance is [Ky., 607 ... v. Gall Commonwealth temporary enraged, (1980), state of mind so 97, cert. denied S.W.2d 108-109 inflamed, or disturbed as to overcome 67 L.Ed.2d 450 U.S. 101 S.Ct. judgment, one’s and to cause one to act ], grounds 824 overruled on other uncontrollably impelling Commonwealth, from force the Payne [Ky., v. 623 extreme emotional disturbance the two highlighted ] S.W.2d 867 pur- rather than from evil or malicious primary EED and distinctions between poses. It is not a mental disease passion. Quoting sudden heat of from itself, inflamed, enraged, and an or dis- 507.030, the commentary the to KRS turbed emotional state does not consti- signifi Court in stated most “[t]he Gall tute an extreme emotional disturbance of change cant ... is an abandonment explanation unless there is a reasonable requirement law that the common therefore, or excuse the reasonableness passion’ heat of killing occur ‘sudden ” of which is to be determined from the upon ‘adequate provocation.’ Under viewpoint person of a in the defendant’s EED, is not restricted to “mitigation situation under circumstances as the de- constitute circumstances which would fendant believed them to be.23 ordinary meaning of provocation ‘in the And, it is although ... other words presence “the mere of term.’ words, event, illness, alone, any or even standing possible mental does not for EED,”24 or dis- given inqui- constitute the EED extreme mental emotional arouse Commonwealth, (1986). Perry supra Ky., 20. v. note 6 at 22. S.W.2d 464 Cf. (referencing Attempted trial court's First- instructions); Degree Manslaughter Prince v. 23. Id. at 468-9. Commonwealth, (holding supra note 2 at 326 Attempted First-Degree Manslaughter that Commonwealth, Ky., 44 S.W.3d 24. Fields 507.030(l)(a) under KRS was not a lesser- presented, included offense on the facts but observing that Prince made no claim "[s]ince 25. Id. disturbance, of extreme emotional KRS 507.030(l)(b) applicable.”) is not Supra note 16. 507.020(l)(a). KRS In Fields difference turbance.” The second basic (2001)31 example, the Court requirement
is that view a period that recognized possibility point the defendant’s subjectively, from long last as seven EED could view, objectively.27 rather than event” when “triggering after the months jurispru EED This Court’s Manslaughter First-Degree that a held we provocation thus required dence has “there was proper because instruction was caused the state of “triggering event” that De- that [Fields’s evidence substantial event,” “triggering notion of a EED.28 The discovery of January 1998] 1997 or cember misleading, because may be a bit however pregnancy triggered her out-of-wedlock provocation’ is concept ‘adequate “the until uninterrupted remained EED that to include ‘the cumulative enough broad [immediately after its child she killed her ”29 a series of related events.’ impact of July 1998.]”32 birth at the end provocation jury may adequate And a find Although agree Com im did not “triggering if the event” even do facts of this case monwealth criminal mediately the defendant’s precede finding compel act: EED she shot her vic acting under when However, event need triggering tims, to con pemitted the evidence uninterrupted.” only be “sudden and recognize she did so. We clude that *15 definite trig- time frame the No between definite, non-specu must be some “[t]here killing is gering required, event the an EED instruc support lative evidence to 33 so as the EED remains uninter- long in tion,” the trial record we believe but fact, “may In EED rupted. the onset of sufficiently Appel demonstrates this case gradual point’ be more than the ‘flash to the instructions she lant’s entitlement normally associated with sudden heat days in the lead requested. Specifically, passion.” Springer, “[t]he we said who ing up shooting, Appellant, triggering may fact that the have event personality from a borderline dis suffered for a time in [the defendant’s] festered especially sensitive to order that made her explosive mind the event oc- before had twice and who perceived abandonment a that preclude finding curred does not after year hospitalized been earlier life, her husband while under the attempts killed to take her own unsuccessful (1) crumbling of extreme emotional distur- a love influence confronted with: (3) (2) Darnell; jury surgery; bance.” It is for a to decide wheth- a back affair with discovering a event has occurred and Darnell in bed with his ex-wife triggering er caring during her her recu acted under the instead of whether a defendant surgery promised as he had peration from influence of EED.30 Commonwealth, supra 16 at Spears v. note 30. 27. Id. at 154-5. 155. Commonwealth, Ky., 998 Springer 28. v. See (1999); Whitaker v. Com S.W.2d 452 Supra note 24. monwealth, (1995); Ce S.W.2d 953 895 Commonwealth, Ky., 888 S.W.2d cil v. Id. at 359. Commonwealth, Ky., 979 Commonwealth, 33. Hudson v. supra 24 at note
29. Fields (1998) Morgan (citing Fortune, (quoting & W. Ken R. Lawson (LEX 8-3(b)(3), Ky., 878 S.W.2d tucky § at Criminal Law (1994)). 1998)). IS (a itself, startling enough provocation regarding psycholog- Ms. Holland’s actual here, immediately by but followed his as- ical problems, Jury may the Grand (4) her); upon day spent wandering sault have returned an The trial Indictment[.]” in in hospital gown pain- around while appeal, court denied the motion. On this (5) state; fugue-like killer-induced a suicid- argument has become a one-paragraph al threat in police resulted interven- any assertion —without citation to mean- (6) tion; finally a confrontation inside ingful supporting authority in- —that lover’s home lover ex- where dictment must be dismissed because the ahead, ... put claimed “Go shoot me me in investigating officer the case committed my misery.” out of The could have perjury. that: We observe adequate found for an EED provocation jurisdiction, In this when an indict- (1) in: Darnell’s abandonment of her dur- presented ment is to the court ing her recuperation; Darnell’s assault ... prescribed manner and form it must her; Darnell’s final “abandon- having be taken and considered as been ment” of her when he asked her to shoot law, found and returned due form of him in order to take him out of his “mi- authority inquire and the court has no sery,” or the cumulative effect of this grand into the evidence heard And, jury reasonably series of events. it to ascertain whether was such as could have concluded that state required finding is to authorize the EED uninterrupted through remained on an indictment.34 shooting. Accordingly, we hold hold that trial properly We court de- trial court it Appel- erred when denied clined to revisit the evidence before the request lant’s for a lesser-included offense Jury. Accordingly, we find no Grand error Attempted First-Degree instruction as to And, the trial court’s denial of Manslaughter. the evidence is *16 remand, indictment, and, motion to dismiss the substantially upon the same the remand, trial court the jury may should instruct the as to Commonwealth Attempted First-Degree Manslaughter. proceed prosecution its under this
indictment.
B. APPELLANT’S OTHER
ALLEGATIONS OF 2. DIRECTED VERDICT ERROR Appellant argues that the trial TO MOTION DISMISS court it motion erred when denied her for
INDICTMENT acquittal directed verdict of as to all counts specifically, under the indictment. More Appellant moved the trial at trial Appellant argues that the evidence indictment returned court to dismiss the to to con permit was insufficient Jury “[d]uring the Grand because the beyond that she clude a reasonable doubt testimony Jury] course of the sev [Grand and Rebecca Darnell with the Danny shot made eral incorrect statements were re knowingly intent to kill them and that she to this garding gave the events which rise apartment unlawfully entered Darnell’s indictment.” asserted that a crime. and with the intent to commit misleading testimony, the “[a]bsent argument review under the Jury fully Appellant’s the Grand had been informed We Ky. ground ment of conviction reversed on the Sebree RCr there evidence before See also 5.10 that sufficient (‘‘[N]o indictment.”). quashed judg- grand jury support indictment shall be to to to return purchased that she had ticket articulated in Commonwealth standard pre- was not Oklahoma Kentucky from Benham:35 ticket for our review because served verdict, the for directed motion On appellate part made a itself was not all fair and rea- trial court must draw recognize Although we record.37 inferences from the evidence sonable complicates this error preserve failure If the favor Commonwealth. pur- address the issue ability our a rea- sufficient to induce evidence is appellate “[a]n of remand because poses beyond a rea- juror to believe sonable admissibility cannot address simply court that the defendant is sonable doubt vacuum,”38we do in a prejudice issues verdict should not be guilty, a directed following: Appel- because observe the ruling on purpose For the given. evi- physical the ticket as offering lant is motion, must as- the trial court ie., non-hearsay purpose, dence for the Com- sume that the evidence for prior the ticket prove purchased that she true, reserv[e] monwealth is but to Ken- to her arrest order to return credibility and jury questions as to the KRE has no tucky charges, face the given testimony. to such weight be admissibility except to the bearing on its review, a di- appellate the test of On admonition limiting a KRE 105 extent that is, if under the evidence rected verdict unlikely find it may requested; be we whole, clearly as a it would be unreason- agent ticket testimony from an airline guilt, only for a to find then is able air- necessary to authenticate an would be to a directed ver- the defendant entitled because, 901(b)(1), KRE under line ticket dict.36 satisfy should be able to Appellant herself case, In light of the evidence in this which (3) although precedent; the condition II, is set forth detail above in Part to exclude the trial court has discretion jury’s do not find verdicts re- evidence, it must first find cumulative quired speculation rank as- “probative value is substan- the evidence’s serts, find and we do not those verdicts tially by ... considerations outweighed “clearly unreasonable.” thus hold that We presentation of cumulative needless trial properly court denied evidence.”39 motion. *17 TELEPHONE 4. AUDIOTAPE OF EXCLUSION OF AIRPLANE CONVERSATION TICKET During the Commonwealth’s Appellant’s allegation that the the trial Appellant, cross-examination of prohibited trial court erred when it her to intro- allowed the Commonwealth introducing airplane from into evidence an court (1991). regarding the exclu- allegation of error S.W.2d 186 of an "requires testi- evidence avowal sion of real v. 36. Id. at 187. See also Commonwealth object, mony the document to authenticate Sawhill, 3, (1983) ("The Ky., 660 S.W.2d 4-5 object to the a tender of the document then higher a clearly unreasonable test seems to be exhibit.”). avowal court as an granting a directed verdict standard for re- constituting] appellate an standard of Ferrell, Ky., 38. Commonwealth view.”); Ky., 550 Trowel v. (2000). 5.W.2d Commonwealth, Ky., 48 S.W.3d 37. Garrett 39. KRE 403. (2001) (holding proper preservation that tapes an made of a tion of a number of that portion audiotape duee had been given call one telephone Appellant between and Commonwealth the middle by former of of the trial someone who un- portion her cellmates. The harbored audiotape played jury requited feelings Appellant lasted less romantic for (3) minutes, secretly than three in it had taping and who been phone indicated that she found it “hilarious” that calls with for over a placed year.41 she had been on suicide watch be- if telling anybody cause “I wouldn’t be I argues appeal, Appellant On that planning felt suicidal I was to do it. I deprived of this evidence introduction just anybody
would it let do and not right of her to a fair trial. The section of know.” She also referred to her first sui- Appellant’s allegation brief devoted this attempt cide and said: error, however, contains a series of ar- night that I kill myself [T]he tried to guments under-developed that we find Danny, and called I did what the damn fact, excep- diffícult-to-follow. In with the doctor, Danny what told me to do— argument regarding hearsay tion of an reach out and call—talk to someone if allegation prejudice, of undue we can- kill you’re feeling you’re trying your- Ap- not for specific discern the warrants I self. So reached out and called him. pellant’s appeal broad claim on But But actual- what did he do? Click. tape introduction this violated her due ly my pissed he saved life because he me process rights. Because we are remand- retrial, off. And Melissa doesn’t want to leave ing this case for we will address pissed this world off.... I became an- arguments identify, the two we can al- gry at him .... I want hurt though recognize Appellant may didn’t him, myself. objections but I didn’t want to hurt I raise additional retrial. got personally. changed mad at him It event, any from argu- the identifiable my thought processes. us, before we find no ments abuse of dis- Appellant alleged tape had been cretion the introduction of this evidence. objected Although Appellant argues edited or fabricated40 and also that the audio- grounds taped its introduction on the conversation could not be admitted of it portion played prior for the was mis- inconsistent statement under 801-A(l)(a), that KRE leading, testimony consistent with her trial KRE we observe (and 801-A(2), permits thus admissible under KRE 801- which the introduction A(l)(a)), unduly prejudicial party opponent, because of statements ade- any hearsay objection to profanity. Appellant quately used also answers requested portion perceive any an admonition that the this evidence. Nor do we played only por- for the a small abuse of discretion the trial court’s con- stand, however, Appellant produced tapes the Commonwealth. 40. On the authenti- these tape deny cated that the voice on the was hers and properly Appellant's trial court did The *18 that she had the testified made statements request appeal counsel refers to on for what contained therein. avowal,” (but chambers what actu- as an “in request depose ally appears have to to been separate allegation also raises a And, witness). many Appel- because of error, pur- of which have found moot appear objections to this evidence to lant's 7, poses appeal, supra of this see note as to the weight question should as- grant appropriate trial failure to relief court's sign admissibility, we to it rather than its light development. From of this mid-trial observe that can raise those issues record, however, not our review of the it does jury by introducing to before the evidence prevented Appel- appear that the trial court support allegations appeal. she makes on calling person lant from as a witness the who anger of hurt or is insufficient probativeness elusion that this evidence’s Evidence any of distress. Tal substantially outweighed by prove was not extreme emotional Commonwealth, the KRE 403 considerations that v. 968 S.W.2d bott Thus, remand, Ap- (1998). unless identifies. in the defendant’s life The events additional, pellant raises some meritorious cannot prior day shooting of the objection admissibility, to its the trial court alleged trigger any part constitute of the should allow the Commonwealth to intro- picked up fact ing events. The that she duce this evidence. weapon from a firearms dealer several new her de days shooting before the erodes IV. CONCLUSION EED. prior fense of The events Satur reasons, For the above we reverse the day, support do not June judgment of the Hardin Circuit Court and an EED giving instruction because remand the indictment for new trial. interrupted by those events were Saturday question. The events LAMBERT, C.J.; COOPER, GRAVES, judge supported evidence before the trial STUMBO, JJ., JOHNSTONE concur. EED the denial of an instruction. WINTERSHEIMER, J„ dissents addition, regard In the instructions in separate opinion. involuntary intoxication are sufficient required. reversal is not
WINTERSHEIMER, Justice, Dissenting. I would affirm the convictions in all re- spects.
I respectfully majority dissent from the
opinion judge because the circuit did
abuse his discretion in refusing give
instruction on extreme emotional distur-
bance. 507.020(l)(a) provides
KRS that the de Greg SOMMERKAMP, T. fense extreme emotional disturbance be M.D., Appellant, excuse, explanation a reasonable reasonableness of which is to be deter v.
mined point from the defendant’s of view (Roberts), Appellee. R. Susan LINTON under the circumstances as the defendant Inc., believed them to be. I Arts, Appellant, do not believe that Florence Medical the defendant has provided any reasonable v. explanation or excuse for her behavior. (Roberts), Appellee. Susan R. Linton ap For extreme emotional disturbance ply, the actor must be acting “uncontroll Douglas M.D., Baldridge, Appellant, E. ably from the ex impelling force treme emotional disturbance rather than (Roberts), Appellee. R. Susan Linton from purposes.” evil or malicious McClel 2001-SC-0431-DG, No. 2001-SC- Commonwealth, Ky., lan v. S.W.2d 0438-DG, 2001-SC-0442-DG. (1986). See also Hudson v. Common wealth, Ky., 979 S.W.2d Supreme Kentucky. Court case, this pronouncements of Fields Sept. (2001), 44Ky., *19 Commonwealth, Spears Ky., 30 S.W.3d Springer (1999), apply. do not