TAMMY ELIZABETH COLMORE v. COMMONWEALTH OF KENTUCKY
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RENDERED: August 1, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000894-MR
TAMMY ELIZABETH COLMORE
APPELLANT
APPEAL FROM WASHINGTON CIRCUIT COURT
HONORABLE ALLAN RAY BERTRAM, JUDGE
ACTION NO. 01-CR-00024
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
CHIEF JUDGE EMBERTON; KNOPF AND SCHRODER, JUDGES.
KNOPF, JUDGE:
Tammy Colmore appeals from a judgment of the
Washington Circuit Court, entered April 19, 2002, convicting her
of second-degree assault1 and sentencing her to seven years’
imprisonment.
Colmore contends that the trial court erred by
denying her motions for a directed verdict and by giving the
jury confusing instructions.
contention and affirm.
1
KRS 508.020.
We are persuaded by neither
The charge against Colmore stemmed from an altercation
between her and her companion, James Isaacs, Jr.
Apparently,
during the afternoon and evening of February 16, 2001, the
couple consumed whiskey in their home and bickered.
The
bickering gradually became heated, escalated to physical
violence, and culminated when Colmore stabbed Isaacs in the
chest with a small knife.
The Commonwealth alleged that the
stabbing, as a result of which Isaac’s required emergency
medical assistance and a period of hospitalization, constituted
a criminal assault.
Colmore maintains that she acted in self
defense.
The Commonwealth’s proof included the knife, pictures
of a bloody towel, and the testimonies of an emergency medical
technician and the investigating police officer.
The technician
described Isaacs’s wound and his condition on the way to the
hospital.
The officer described the scene at the home when he
arrived, not long after the stabbing.
According to the officer,
Isaacs was lying face down on the floor.
There was blood on the
floor near his chest, and a towel had apparently been placed
over the wound.
Colmore, naked from the waist up, was stooped
next to Isaacs.
The officer believed that Colmore was
intoxicated.
He testified that her speech was slurred and that
she moved unsteadily.
He had her put a shirt on then asked her
what had happened.
2
She said, according to him, that Isaacs had begun
drinking whiskey and beer and smoking marijuana early in the
afternoon and that she had begun drinking whiskey that evening.
Isaacs had become intoxicated and argumentative, bickering with
her over his drinking, over a video game they played, and over
her daughter, who lived with them.
and abusive.
The bickering became loud
The couple yelled at each other, Isaacs threw a
pot of chili left over from dinner, Colmore pushed Isaacs,
Isaacs ripped Colmore’s shirt off and broke a necklace she was
wearing.
Colmore thereupon obtained her knife from the bedroom,
returned to the living room, and, when Isaacs again yelled and
came at her, she stabbed him.
At the close of the Commonwealth’s proof, Colmore
moved for a directed verdict on the ground that, contrary to RCr
9.60, the Commonwealth was attempting to rely on Colmore’s
uncorroborated confession.
Noting that there was ample
evidence—two eye witnesses of Isaacs’s wound and the knife—that
Isaacs had been stabbed, the trial court denied the motion.
Colmore testified that the officer’s account
misrepresented what she had told him and did not accurately
reflect the events of that night.
She denied having been
intoxicated and claimed that Isaacs, in a drunken rage, had
twice torn her shirt off and held her down with his hands around
her neck.
So frightened of him was she after the second choking
3
episode that she had lapsed into a state of shock.
She could
remember taking the knife from her bureau, carrying it to the
living room, and wanting Isaacs to leave her alone, but she
claimed to have no recollection of the stabbing.
Her daughter
had run to a neighbor’s house and called 911 while she had tried
to assist Isaacs.
When Colmore renewed her motion for a directed
verdict, she did so “on the same grounds” as her earlier motion,
apparently that is, on the ground that her confession was not
sufficiently corroborated.
On appeal, however, she contends
that the Commonwealth’s evidence did not rebut her claim of self
defense.
This claim of error was not preserved.
It is also
without merit.
As has often been observed, “[r]arely is a defendant
relying upon self-defense entitled to a directed verdict.
Only
in the unusual case in which the evidence conclusively
establishes justification and all of the elements of selfdefense are present is it proper to direct a verdict of not
guilty.”2
The officer in this case testified that Colmore had
said nothing to him on the night of the incident about Isaacs’s
choking her.
And though she did claim that Issacs had ripped
2
Barnes v. Commonwealth, Ky., 91 S.W.3d 564, 570 (2002)
(citing West v. Commonwealth, Ky., 780 S.W.2d 600 (1989)).
4
two shirts, the officer had found only one torn shirt at the
scene.
Two weeks later Colmore’s parents had brought a second
shirt to the police station and claimed that it was the missing
one.
The prosecutor maintained, however, that this second shirt
appeared to have been tattered deliberately and not in a
scuffle.
The credibility of Colmore’s account was thus for the
jury to determine.
Also for the jury to determine was whether
Colmore had faced an imminent threat of death or serious
physical injury when, even by her own account, before the
stabbing she had escaped from Isaacs to her bedroom and he had
not followed her.
Because a reasonable juror could conclude
that the stabbing was not justified, the trial court correctly
denied Colmore’s directed-verdict motions.
Colmore also contends that the trial court gave an
inaccurate jury instruction.
Jury instruction number one read
as follows:
You will find the Defendant, Tammy E.
Colmore guilty of Second-Degree Assault
under this Instruction if, and only if, you
believe from the evidence beyond a
reasonable doubt all of the following:
A. That in this county on or about February
16, 2001 and before the finding of the
Indictment herein, Tammy E. Colmore
intentionally caused a physical injury to
James M. Issacs, Jr. by stabbing him in the
chest with a knife, AND
5
B. That in so doing, Tammy E. Colmore was
not privileged to act in self-protection,
AND
C. That in so doing Tammy E. Colmore did
not believe that she was privileged to act
in self-protection.
Colmore maintains that part C. of this instruction inaccurately
suggests that Colmore’s right to defend herself depended not on
her perception of an imminent physical force but on her
awareness of the self-defense “privilege.”
We agree with Colmore that part C. of the instruction
is unnecessary.
The trial court included it apparently in an
attempt to emphasize that the need for self-defense is to be
assessed from the defendant’s point of view.
The standard self-
defense instruction (instruction number four in this case)
adequately makes that point.3
It also makes clear that it is the
defendant’s belief in the threat of force, not her belief in her
privilege, that is at issue.4
3
“Even though the Defendant, Tammy E. Colmore, might otherwise
be guilty of intentional Assault under Instruction No. 1, if at
the time she stabbed James M. Isaacs, Jr. with a knife, (if she
did so) she believed that James M. Isaacs, Jr. was then and
there about to use physical force upon her, she was privileged
to use such physical force against James M. Isaacs, Jr. as she
believed to be necessary in order to protect herself against it,
but including the right to use deadly physical force in so doing
only if she believed it to be necessary in order to protect
herself from death or serious physical injury at the hands of
James M. Isaacs, Jr.”
4
Cf. Commonwealth v. Hager, Ky,. 41 S.W.3d 828 (2001)
(providing an example of a self-defense instruction).
6
As Colmore concedes, her objection to instruction
number one was not preserved.
On the contrary, she told the
trial court that she had no objection to the instructions.
Although we agree with Colmore that instruction number one would
have been better without part C., the instructions as a whole
accurately reflect the evidence and the law.
We are not
persuaded that part C. is apt to have confused the jury or led
it to apply a wrong standard to Colmore’s defense.
Even if the
trial court erred in including part C., therefore, the
unpreserved error was not a palable one and so does not entitle
Colmore to relief.5
In sum, Colmore’s testimony did not compel her
acquittal, and the jury was adequately instructed with respect
to her claim of self defense.
Accordingly, we affirm the April
19, 2002, judgment of the Washington Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Lisa Clare
Assistant Public Advocate
Frankfort, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Ian G. Sonego
Assistant Attorney General
Frankfort, Kentucky
5
RCr 9.54; RCr 10.26; Commonwealth v. Wolford, Ky., 4
S.W.3d 534 (1999); Partin v. Commonwealth, Ky., 918 S.W.2d 219
(1996).
7
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