*1 307 (6] Next, or conduct appellant charges thorize the court to entertain that he long fol- competency hearing. deprived We have of effective assistance of grounds complaint lowed the criterion that reasonable counsel. This was not court; consequently, must be called to the attention of the to the trial it has not by preserved appellate the defendant or must be so obvi- for review. Huff been court cannot fail to be supra. ous that v. aware of them. The record does not reflect by appellant Contention is made Huff v.
such an obvious situation. Com- the trial court failed follow KRS monwealth, (1977). Ky., 560 544 S.W.2d sentencing proce 532.050 and 533.010 his dure. The record does not bear out this Further, appellant contends that contrary, contention. On the the record right confrontation and due his proper sentencing does disclose that At was violated when the Commonwealth’s was followed. procedure torney stated the evidence to the with The record re calling any witnesses. is affirmed. proceeding flects that this mode of
agreed upоn by counsel for the Common concur, STEPHENSON, J., except All wealth and counsel for the At only. concurs in result who appellant the time of trial made no
objection order conse procedure; to this
quently, brought it cannot now be before
this court for consideration. The record September
reflects that on when judge, in the course of his sentenc asked the if he judg any why lawful reason to show him, pronounced against RATLIFF, not be Appellant, ment should Kelly, attorney, Mr. his reminded the court grounds one of the set out Kentucky, COMMONWEALTH upon new trial based motion for a Appellee. alleged irregularity sequence in the At that time coun sentations to Supreme Kentucky. Court of sel for moved the court to set June a trial aside the sentence and to conduct purpose for the pointed the sеntence fixed. As heretofore
out, grounds the motion and for a new trial overruled the court. This issue has review. appellate
not been complains that the Com an inflamma Attorney
monwealth’s made argument stating while the evidence.
tory transcript of the statements made Attorney does not
the Commonwealth’s inflammatory. to be any of them
However, objection was made presentation by
time of the Common Attorney; consequently, it has
wealth’s review preserved appellate Commonwealth, Ky., 550 Luckett v.
court. (1977). 517
S.W.2d
The Public Defender’s assertion that judge erred in not postponing the trial and conducting hearing to determine appellant’s competency to stand trial clearly refuted the record. The truth is judge that the trial showed cоmmendable concern. He had examined as to her mental competency on his own mo tion; he held due evidentiary issue; hearing on the he found she was not competent to stand trial. Sometime later (a attorney member of the Public De staff) fender’s that she be tried and her certified in writ ing that she was then judge trial. The trial acceded to the re quests of appellant’s counsel psychi and her atrist who attended the trial. Appellate nothing counsel do to establish credibility with the by claiming error in such circumstances. This claim of spe error is cifically rejected.
This court appel has concluded that lant in the context sufficiеntly objected to the instructions of the trial judge to the jury preserve question of their validity appeal. for consideration on We have decided that was enti tled to an instruction on first man slaughter as her attorney requested in the judge prej court. The trial udicial error when he failed to so instruct thereby to allow the jury to consider mitigating the existence of the influence of extreme emotional disturbance rather than сonfining their inquiry solely to the exist ence of the exculpating circum Defender, Jack Emory Farley, Public stance of mental disease or defect to the McDaniel, Defender, Rodney Asst. Public high degree legal insanity аt the time of Frankfort, the commission of the offense. Gen., Stephens, F. Atty. Robert J. Gerald Under the indictment and the Gen., Frankfort, Henry, Atty. ap- Asst. the situation one which pellee. past would have been labeled as wilful REED, Justice. with а defense of however, Today, Code, under our Penal Ratliff, possible offenses are defined statute. convicted of murder and sentenced to 20 507.020 defines murder as an inten- years’ Asserting confinement. several revеrsal, tional grounds for where the defendant is not appeals. We find necessary it to deal with two of them. only acting under the influence of extreme emo- tional disturbance for which there was believed the storе clerk excuse, against explanation conspirator or rea- her. She testified: up sonableness of to be determined . Charlie Gilbert went and told which shot; viewpoint person from the of a in the de- that woman the one I he up fendant’s situation under the circumstances went told her not sell me nothing “They as the defendant believed them be. KRS the store . .” me, 507.030(l)(b) manslaughter yes, defines in the watched with got smart me *3 degree as of they they first the intentional and acted like wanted to bother not girl another under circumstances which do me—the Mullens there’s another —and street, girl constitute murder because the defendant come in from across the a little girl, togeth- acts the influence of extreme emo- black and both they got under headed thought in 507.- they going tional disturbance as defined er there and was to jump me.” de- Appellant police told 020. (the Bellamy, lаdy victim) tective “That 1, 1976, appellant traveled On November going pull looked at me as if she was to bought she a .22 caliber to Morehead where hair.” had been on medication to box of shells. returned pistol and a She visiting Comprehen- and had been the local Grayson day. day The next she that same prior sive Center for some time to Care the Gray- to went the Dollar General Store in shooting treatment of mental cоndi- store, fatally son. While in the she shot a foregoing tion. If the evidence would not prior female clerk. There had been no permit objective jury an to reasonably appel- the victim and the trouble betwеen doubt the of extreme absence emotional the eyewitnesses lant. There were no to case, this is use shooting although a second clerk outside the expressed this element in the Penal store arrivеd in time to see leave. mitiga- Code a permitting as circumstance the When reached the outside of tion. pistol again. she fired her Two-shots man, a were fired the direction of The case of Edwards v. stranger hеr, just
apparent Ky., (1977) to who had inapposite. truck near the store parked his entrance. There the issue was whether the defendant a shot was fired into store front. Af- was a One entitled to directed verdict in her firеd, proceeded to exculpatory legal ter these shots were she favor on her of defense street, gun a walk down the tossed the into We held that her evidence nearby apprehended and yard immedi- fails to that ately police. crime], the the of thereafter the a mental disease or [date defect had so reduced her mental state that of an replete The record with evidence aрpreciate she either was unable to the which, if emotional disturbance believed criminality of her acts or to the resist im- jury, mitigate could the the have served pulse the to commit crime.” Id. at 383. Pe- culpability present of under our rising proof, while not to the level of In view of this failure of we could nal .Code legal insanity complete exculpation. judge’s and find no error in the trial refusal to grant Edwards the directed verdict оf ac- that expert psychiatrists Two quittal sought. that she schizophrenia-para- from appellant suffered experts presently us, she In type. agreed prose- noid Both the case the likely very psychotiс satisfy jury at the time cution carried the burden to the the shooting comprehend and was unable to of of extreme emotional absence distur- occurring. appellant’s statutorily own bance The what was as dеfined. defend- jury indicated that she was under the ant the to convince the testimony carried burden time legally sizeable number of town’s insane the delusion by County McDavid and the commission of the offense. KRS 504.- people Judgе led policeman jury Gilbert formed If the had a doubt local Charlie had proved had not conspiracy to run her out of town. that the defendant acted the liberately
have under influence extreme the crimе with which emotional disturbance for which there charged. she was justification a reasonable or excuse under the opinion am of as circumstances she believed them to great showed a of compassion deal be, punishment they could otherwise understanding. the public Had defender mitigat- assess for could have been the psy- trial had not aby finding degree manslaugh- ed of first chiatrist who attended certified trial coursе, Of ter. if defense in- trial, that Clarsie was sanity had jury been believed perhaps she would not have trial. been complete exculpa- result would have Her counsel and her were so mitigation punishment. tion and not jury сonfident would not convict case, on the if new insanity because they defense substantially later directed herein is pressed trial, one, got for a did same, court should instruct as they what were supposed do. Lawsоn, *4 set forth in Kentucky Palmore gave on Clarsie minimum sentence mur- Juries, 2.02, pp. Instructions to Sec. der. It in futility exercise to send this 10.31, pp. 372. These and Sec. rec case back for another trial with directions ommended instructions should be con the trial court instruct formed to the the references to first-degree manslaughter. protection the defense of should self be There is no doubt Clarsie was suffer- omitted, and the sentence: “The law frоm mental disease. classi- She was every contrary sumes man sane until the schizophrenic fied as a evidence.”, be shown should omitted paranoid. A psychiatrist from Sec. 10.31. See Mason might again commit similar offense Ky (1978) (Ren ., again. If an iota of evidence existed that 12, 1978). April dered acting Clarsie was under extreme emotional other We reserve decision on all issues join I would majority in this appeal. raised saying that she was entitled to an instruc- first-degree manslaughter. tion on I do not is reversed for is the or any believe it function of this opinion. consistent with this appellate court to embark on a crusade to PALMORE, J.,C. and CLAYTON and find errors where none exist. LUKOWSKY, JJ., concur. I do not believe the trial court committed
JONES, prejudicial failing give error in a first-de- STEPHENSON and STERN- BERG, JJ., gree manslaughter instruction in this case. dissent. judgment. therefore would affirm the Justice,
JONES, dissenting. I respectfully For the reasоns stated dis- view, Jane Clarsie Ratliff had a sent. I am of fair trial. Under all opinion properly say There is not shred of am authorized to instructed STEPHEN- STERNBERG, JJ., join in evidence that Clarsie acted under extreme SON and calmly emotional disturbance.' She and de- dissent.