JAMES E. BURDUE v. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 22, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002526-MR
JAMES E. BURDUE
APPELLANT
APPEAL FROM MCCREARY CIRCUIT COURT
HONORABLE JERRY D. WINCHESTER, JUDGE
ACTION NO. 03-CR-00015
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART
AND REMANDING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
James E. Burdue has appealed from the final
judgment of the McCreary Circuit Court entered on November 19,
2003, which pursuant to a jury verdict convicted him of
manslaughter in the first degree1 and sentenced him to prison for
14 years.
Having concluded (1) that the indictment was not
defective; (2) that the trial court did not abuse its discretion
by denying Burdue a continuance on the day of trial; but (3)
1
Kentucky Revised Statutes (KRS) 507.030.
that the jury instructions were erroneous to the substantial
prejudice of Burdue as they did not contain the whole law of the
case, we affirm in part, reverse in part, and remand for a new
trial.
On February 24, 2003, Burdue was indicted by a
McCreary County grand jury for the murder of Timothy C. Ridner
(a.k.a. Emo Ridner).
A jury trial was scheduled for October 21,
2003; but on October 17, 2003, Burdue filed a motion for a
continuance based on the Commonwealth’s failure to provide a
copy of the ballistics report.
Burdue’s trial had originally
been scheduled for May 29, 2003, but it had been continued at
the request of the Commonwealth.2
Apparently, the ballistics
report was completed on October 17, 2003, received by the
Commonwealth on October 20, 2003, and sent to Burdue’s counsel
by facsimile machine that same day.
Following a hearing prior
to the start of the trial on October 21, 2003, the trial court
denied the motion for a continuance.
At the jury trial held on October 21 and 22, 2003, the
evidence showed there had been a great deal of animosity between
Burdue and Ridner and their families for several years.
The
Commonwealth presented evidence that on or about February 10,
2003, Burdue was inside his mobile home with his girlfriend,
Sioux Hutchinson, and her brother, William “B.J.” Hutchinson,
2
The Commonwealth stated in its motion that “there are pending lab reports
that are not ready which are vital in this matter.”
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when B.J. noticed a vehicle parked in the “turn around” adjacent
to Burdue’s property.3
B.J. testified that he yelled to Burdue
that someone was “messing with the vehicles.”4
Burdue took a .25
caliber pistol from his nightstand and ran out of his mobile
home.5
When Burdue reached the vehicles, Ridner was trying to
get into the passenger side of his cousin’s, Danny Ridner’s,
vehicle.6
Burdue grabbed Ridner by the hood of his sweatshirt
and pulled him out of the car.
Burdue testified that when he
spun Ridner around, he saw what he thought was a gun in Ridner’s
hand, so he pulled the .25 caliber pistol from his waistband and
the gun accidentally fired toward the ground.
to flee from the scene on foot.
Ridner then began
Burdue stated that Ridner
stopped about 25 feet7 away; and as Ridner turned toward Burdue,
Burdue saw a gun in Ridner’s hand.
Burdue stated that he fired
3
Apparently, the driveway to Burdue’s mobile home included a wide area
similar to a cul-de-sac.
4
Specifically, Ridner was “messing” with B.J.’s mother’s Ford Explorer.
5
In Burdue’s original taped statement, he claimed he carried a .22 caliber
rifle out of the mobile home and that this was the only firearm discharged
during the incident on February 10, 2003. However, Burdue admitted that his
original statement was false, both under oath and in a taped statement to
Detective Ronnie Meadows. During these subsequent statements, Burdue claimed
he was carrying a .25 caliber pistol and B.J. was carrying a .22 rifle during
the incident.
6
Danny Ridner (a.k.a. Dino) testified that neither he nor Emo had a gun with
them and that they had no intention of harming Burdue, his family, or any of
their property. He claimed he had merely parked his car at the turn around
so he and Emo could smoke some marijuana before he took Emo to pick up a
refrigerator.
7
No one estimated the distance in footage. However, Burdue’s counsel stood
in the courtroom near the rail approximately 25 feet from the witness stand
when Burdue told him he was at the correct distance.
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the second shot toward Ridner and Ridner once again began to run
away from him.8
Burdue stated that he saw Ridner throw something
into the field as he ran away.9
Ridner’s body was discovered the next morning near a
road approximately one and one half miles from where the
altercation occurred.
Ridner had suffered two gunshot wounds,
the first was a flesh wound near his right knee, the other was
an entry wound through his back.
Ridner’s body was sent to the
Kentucky State Police crime lab where an autopsy was performed.
The medical examiner, Dr. Gregory James Davis, testified that
Ridner’s death was caused by the gunshot wound to his back,
fired from an indeterminate range.10
A .25 caliber bullet was
recovered from Ridner’s body; however, the ballistics report was
inconclusive as to whether the bullet had been fired from
Burdue’s pistol.
After the trial court denied Burdue’s motion for a
directed verdict of acquittal, Burdue requested the trial court
8
B.J. also claimed he fired two shots from the .22 caliber rifle he was
carrying at some point during the altercation between Burdue and Ridner.
9
The Kentucky State Police found a toy gun in the vicinity of the location
where the incident occurred. There was no testimony concerning the origin of
the toy gun.
10
Dr. Davis testified that the fatal bullet entered Ridner’s body through the
skin; perforated the 11th intercostal space, the space between the 11th and
12th rib; the bullet then went through Ridner’s diaphragm; perforated his
stomach; went through the apex of his heart; then went through the fifth
front intercostal space, the space between the fifth and sixth rib; and
finally came to rest in the soft tissue just underneath Ridner’s skin.
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to instruct the jury on murder,11 wanton murder,12 manslaughter in
the first degree,13 manslaughter in the second degree,14 reckless
homicide,15 self-protection,16 protection of another,17 and
imperfect self-protection.18
The trial court refused to give any
instruction other than murder and manslaughter in the first
degree with the element of self-protection in both instructions.
The jury found Burdue guilty of manslaughter in the first
degree.
On October 29, 2003, Burdue filed a motion for a new
trial and a judgment notwithstanding the verdict.
Burdue
claimed the trial court abused its discretion by not granting
his motion for a continuance based on the fact that the
Commonwealth had not submitted the ballistics report “through
discovery in a reasonable time before trial” thereby denying
Burdue the time he needed to obtain an expert witness.
Burdue
also claimed the trial court erred when it denied him a jury
instruction on self-protection and refused to instruct on any
11
KRS 507.020.
12
KRS 507.020(1)(b). (Obviously, since Burdue was acquitted of murder, he
has abandoned his claim for a wanton murder instruction.)
13
KRS 507.030.
14
KRS 507.040.
15
KRS 507.050.
16
KRS 503.050.
17
KRS 503.070.
18
KRS 503.120.
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lesser-included offenses for murder other than manslaughter in
the first degree.
The trial court summarily denied Burdue’s
motion on November 17, 2003, and entered the final judgment and
sentence on November 19, 2003.
This appeal followed.
SUFFICIENCY OF THE INDICTMENT
Burdue claims the indictment from the McCreary Circuit
Court was defective because it failed to allege a mens rea, and
therefore, failed to state an offense.
The original indictment
charged as follows:
On or about the 10th day of February, 2003,
in McCreary County, Kentucky, the above
named defendant, JAMES BURDUE, committed
the offense of Murder by shooting Timothy
Ridner with a gun and causing his death.
The indictment also correctly cited KRS 507.020 as the statute
authorizing the charged offense.
Burdue asserts that the
indictment was insufficient to establish subject matter
jurisdiction because the charge did not describe every element
of the offense, i.e., “whether Ridner’s death was caused
intentionally, wantonly, wantonly under circumstances
manifesting extreme indifference to human life, recklessly,
negligently or accidentally.”19
We disagree.
Before the adoption of the present Rules of Criminal
Procedure, our highest Court held that an indictment under KRS
19
Kentucky does not authorize a criminal offense for negligently or
accidentally causing a death.
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435.150 was not sufficient if it merely alleged that the charged
offense was “‘otherwise than according to law,’” without
specifically stating the facts and underlying circumstances of
the arrest.20
However, the current Rules of Criminal Procedure
provide for a notice pleading, and an indictment is considered
sufficient if it fairly informs the defendant of the nature of
the crime with which he is charged,21 without detailing the
essential factual elements.22
“All that is necessary to ‘charge
an offense,’ as required by RCr 8.18,23 is to name the offense.”24
20
Finch v. Commonwealth, 419 S.W.2d 146, 147 (Ky. 1967).
21
RCr 6.10 states, in relevant part, as follows:
(1)
The indictment or information shall contain a caption
setting forth the name of the court and the names of the
parties, and the caption shall be a part of the
indictment or information.
(2)
The indictment or information shall contain, and shall
be sufficient if it contains, a plain, concise and
definite statement of the essential facts constituting
the specific offense with which the defendant is
charged.
22
Finch, 419 S.W.2d at 147.
23
RCr 8.18 states as follows:
Defenses and objections based on defects in the
institution of the prosecution or in the indictment or
information other than that it fails to show
jurisdiction in the court or to charge an offense may be
raised only by motion before trial. The motion shall
include all such defenses and objections then available
to the defendant. Failure to present any such defense
or objection as herein provided constitutes a waiver
thereof, but the court for cause shown may grant relief
from the waiver. Lack of jurisdiction or the failure of
the indictment or information to charge an offense shall
be noticed by the court at any time during the
proceedings.
24
Thomas v. Commonwealth, 931 S.W.2d 446, 449 (Ky. 1996).
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In Brown v. Commonwealth,25 our Supreme Court
determined that an indictment stating that the defendants
“‘murdered Bryant Victor Dudley,’” was undeniably “loose, but
not invalid.”
Despite the fact that the indictment did not
specify the manner or means by which the murder was allegedly
committed, it was nevertheless a valid indictment.
The Court in
Finch stated that “if the defendant needs information concerning
the details of the charge against him to enable him to prepare
his defense he should be supplied them through a requested bill
of particulars, rather than that a requirement be made that
every indictment set forth all details of the charge.”26
Thus, the indictment in this case was not defective
simply because it did not state the mens rea for the charged
offense.
The indictment set forth the nature of the charge and
was not misleading.27
“The purpose for an indictment is merely
to inform an accused individual of the essential facts of the
charge against him so he will be able to prepare a defense.”28
In this case the indictment was sufficiently detailed to be
valid, and Burdue is entitled to no relief on this issue.
25
555 S.W.2d 252, 257-58 (Ky. 1977).
26
Finch, 419 S.W.2d at 147.
27
Salinas v. Commonwealth, 84 S.W.3d 913, 916 (Ky. 2002).
28
Malone v. Commonwealth, 30 S.W.3d 180, 182 (Ky. 2000).
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DENIAL OF A CONTINUANCE
Burdue also claims the trial court erred in denying
his motion for a continuance.
Burdue asserts that since the
Commonwealth only provided the ballistics report the day before
his trial, the defense had little or no time to prepare an
adequate defense to this report, and the trial court’s denial of
a continuance violated his right to due process.
It is well-settled in Kentucky that the decision to
grant a motion for a continuance is within the discretion of the
trial court.29
A trial court’s decision whether to grant a
continuance will stand unless it appears to this Court that
there is a “clear abuse of judicial discretion such as to deny
the accused substantial justice.”30
In exercising its discretion
to allow or to reject a continuance, the trial court should
consider the following factors:
(1)
The length of the delay;
(2)
Whether there have been any previous
continuances;
(3)
The inconvenience to the litigants,
witnesses, counsel, and the court;
(4)
Whether the delay is purposeful or
caused by the accused;
29
Hunter v. Commonwealth, 869 S.W.2d 719, 720-21 (Ky. 1994) (citing Morris v.
Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1616-17, 75 L.Ed.2d 610 (1983);
and Crawford v. Commonwealth, 824 S.W.2d 847, 850-51 (Ky. 1992)).
30
Hunter, 869 S.W.2d at 721 (citing Brashear v. Commonwealth, 328 S.W.2d 418,
419 (Ky. 1959); and Williams v. Commonwealth, 644 S.W.2d 335, 336 (Ky.
1982)).
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(5)
The availability of competent counsel,
if at issue;
(6)
The complexity of the case; and
(7)
Whether denying the continuance would
lead to any identifiable prejudice.31
Under some circumstances, the facts surrounding the case may be
so clear and decisive that denying the motion to continue would
be an abuse of discretion by the trial court.32
However, we find
no such abuse in this case.
Burdue received a copy of the two-page ballistics
report on October 20, 2003, the day before trial.
Burdue had
previously filed a motion for a continuance on October 17, 2003,
stating that he had not received a copy of the ballistics report
and thus did not have adequate time to prepare his case for
trial.
The trial court heard the motion on October 21, 2003,
the morning the trial was scheduled to begin.
Counsel for
Burdue stated that he was not prepared to proceed because he had
not received the ballistics report in sufficient time to prepare
a defense.
However, counsel did not state the amount of time he
would require to prepare his defense nor did he specify what
prejudice he would suffer without a continuance.
Based on
Burdue’s failure to establish a specific purpose for a
31
Eldred v. Commonwealth, 906 S.W.2d 694, 699 (Ky. 1994) (citing Snodgrass v.
Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991)).
32
Hunter, 869 S.W.2d at 721, 723.
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continuance, his failure to indicate what prejudice he would
suffer if the motion was denied, and his failure to specify the
length of time he needed for the continuance, we conclude the
trial court did not abuse its discretion in denying Burdue’s
motion for a continuance.
Hence, we affirm on this issue.
JURY INSTRUCTIONS
The most significant issue on appeal, and the one that
we agree requires a new trial, involves the trial court’s error
in refusing to give an instruction on manslaughter in the second
degree and in not instructing the jury on imperfect selfprotection.
Burdue argues the trial court, in addition to
instructing the jury on murder and manslaughter in the first
degree, should have instructed the jury on wanton murder,
manslaughter in the second degree, reckless homicide, selfprotection, protection of another, and imperfect selfprotection.
Obviously, since Burdue was acquitted of murder, an
instruction on wanton murder is not now appropriate.
However,
we agree with Burdue that the jury should have been instructed
on manslaughter in the second degree, both as a lesser-included
offense of murder and manslaughter in the first degree and as
imperfect self-protection for murder and manslaughter in the
first degree.
In Kentucky it is well-established that “it is the
duty of the trial judge to prepare and give instructions on the
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whole law of the case . . . [including] instructions applicable
to every state of the case deducible or supported to any extent
by the testimony.”33
It is fundamental in a criminal case that
the trial court give instructions that place the duty of
determining the merits of any lawful defense the accused may
have in the jury’s hands.34
An instruction for a lesser-included
offense is required only if, considering the totality of the
evidence, a reasonable jury could acquit the defendant of the
greater offense and yet believe, beyond a reasonable doubt, that
he is guilty of the lesser offense.35
Thus, it is the trial
court’s duty to instruct the jury on every possible offense
supported by the evidence.
After denying Burdue’s motion for a directed verdict
of acquittal, the trial court indicated that it would instruct
the jury on murder and manslaughter in the first degree.
Burdue
objected to these instructions and argued that since there was
evidence which showed he did not intend to injure or to kill
Ridner and that he feared for his life and the lives of his
family, the jury should also be instructed on wanton murder,
33
Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999) (citing Kentucky
Rules of Criminal Procedure (RCr) 9.54(1); and Kelly v. Commonwealth, 267
S.W.2d 536, 539 (Ky. 1954)).
34
Sanborn v. Commonwealth, 754 S.W.2d 534, 550 (Ky. 1988) (citing Curtis v.
Commonwealth, 169 Ky. 727, 184 S.W. 1105, 1107 (1916)).
35
Taylor, 995 S.W.2d at 362 (citing Skinner v. Commonwealth, 864 S.W.2d 290
(Ky. 1993); and Luttrell v. Commonwealth, 554 S.W.2d 75 (Ky. 1977)).
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manslaughter in the second degree, reckless homicide, selfprotection, protection of another, and imperfect selfprotection.
The trial court overruled Burdue’s objections to
the instructions and instructed the jury on murder, manslaughter
in the first degree, and self-protection without defining the
term.
The jury instructions provided, in relevant part, as
follows:
INSTRUCTION NO.1
MURDER
You will find the Defendant guilty of
Murder 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 10, 2003, and before the
finding of the Indictment herein, he
killed Timothy Ridner by shooting him
with a gun;36
AND
B.
That in so doing, he was not privileged
to act in self-protection.37
INSTRUCTION NO. 2
FIRST-DEGREE MANSLAUGHTER
36
Noticeably, this instruction failed to include the mens rea of
“intentionally,” but since Burdue was acquitted of murder, this unpreserved,
palpable error was harmless.
37
As we noted previously, self-protection was not defined.
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If you do not find the Defendant guilty
of Murder under Instruction No. 1, you will
find the Defendant guilty of First-Degree
Manslaughter 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
10, 2003, and before the finding of the
Indictment herein, he killed Timothy
Ridner by shooting him with a gun;
AND
B.
That in so doing, he did not intend to
kill Timothy Ridner, but intended to
cause serious physical injury to
Timothy Ridner;
AND
C.
That in so doing, he was not privileged
to act in self-protection.
INSTRUCTION NO. 3
DEFINITIONS
Intentionally--A person acts intentionally
with respect to a result or to conduct when
his conscious objective is to cause that
result or to engage in that conduct.
Serious Physical Injury--Means physical injury
which creates a substantial risk of death, or
which causes serious and prolonged
disfigurement, prolonged impairment of health,
or prolonged loss or impairment of the function
of any bodily organ.
INSTRUCTION NO. 4
REASONABLE DOUBT
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The law presumes a Defendant to be
innocent of a crime and the Indictment shall
not be considered as evidence or as having any
weight against him. You shall find the
Defendant not guilty unless you are satisfied
from the evidence alone and beyond a reasonable
doubt that he is guilty. If upon the whole
case you have a reasonable doubt that he is
guilty, you shall find him not guilty.
The above instructions have two major flaws relevant to this
appeal.
First, they failed to instruct the jury on every
offense warranted by the evidence presented, and second they
failed to properly define self-protection.
KRS 507.020 provides, in relevant part, as follows:
(1)
A person is guilty of murder when:
(a)
With intent to cause the death of
another person, he causes the
death of such person or of a third
person; except that in any
prosecution a person shall not be
guilty under this subsection if he
acted under the influence of
extreme emotional disturbance for
which there was a reasonable
explanation or excuse, the
reasonableness of which is to be
determined from the viewpoint of a
person in the defendant’s
situation under the circumstances
as the defendant believed them to
be. . . .38
KRS 507.030(1) provides that “[a] person is guilty of
manslaughter in the first degree when: (a) With intent to cause
serious physical injury to another person, he causes the death
38
There was no evidence to support an extreme emotional disturbance
instruction, and Burdue did not request it.
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of such person or of a third person[.]”
KRS 507.040(1) provides
that “[a] person is guilty of manslaughter in the second degree
when he wantonly causes the death of another person . . . .”
KRS 501.020(3) provides:
A person acts wantonly with respect to a
result or to a circumstance described by a
statute defining an offense when he is aware
of and consciously disregards a substantial
and unjustifiable risk that the result will
occur or that the circumstance exists. The
risk must be of such nature and degree that
disregard thereof constitutes a gross
deviation from the standard of conduct that
a reasonable person would observe in the
situation. A person who creates such a risk
but is unaware thereof solely by reason of
voluntary intoxication also acts wantonly
with respect thereto.
KRS 507.050(1) provides that “[a] person is guilty of reckless
homicide when, with recklessness he causes the death of another
person.”
KRS 501.020(4) provides:
A person acts recklessly with respect to a
result or to a circumstance described by a
statute defining an offense when he fails to
perceive a substantial and unjustifiable
risk that the result will occur or that the
circumstance exits. The risk must be of
such nature and degree that failure to
perceive it constitutes a gross deviation
from the standard of care that a reasonable
person would observe in the situation.
Thus, while a reasonable jury could have inferred from
the evidence that Burdue intended to cause Ridner’s death
(murder) or intended to cause him serious physical injury and
caused his death (manslaughter in the first degree), there was
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also evidence that Burdue did not intend to injure anyone.
Burdue repeatedly testified that he “never meant to hurt that
boy.”
Burdue claimed he fired the first shot accidentally when
he pulled the hammer back.
According to Burdue, this first
“accidental” shot was the cause of the flesh wound near Ridner’s
knee.
Burdue then claimed Ridner began to run away from him,
but stopped and turned around, at which time Burdue claimed to
have seen the profile of a gun in Ridner’s hand.
Burdue
testified that he then pointed his gun in the direction of
Ridner and fired a second shot with the intention of scaring
Ridner, but not injuring him.
caused the fatal wound.
This second shot apparently
Burdue argues that since he testified
that he did not intend to injure Ridner, but merely to scare
him, if the jury believed he lacked the requisite intent to
cause serious physical injury or death to Ridner, it could not
find him guilty of murder or manslaughter in the first degree,
but only of one of the lesser-included offenses of manslaughter
in the second degree or reckless homicide.
We agree in part.
Based on Burdue’s testimony that in firing the second
shot he raised his gun, leveled his forehead, and fired in the
direction of Ridner, we conclude that, unless he was found to
have acted properly in self-protection, at a minimum a
reasonable jury would find that that Burdue was aware of and
consciously disregarded a substantial and unjustifiable risk
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that his actions would likely cause Ridner’s death and that
Burdue’s actions constituted a gross deviation from the standard
of conduct that a reasonable person would observe in the
situation.
Thus, if the jury had been instructed on
manslaughter in the second degree, unless it found he acted
properly in self-protection, a reasonable jury could not have
acquitted Burdue of that charge; and therefore, Burdue was not
entitled to an instruction on reckless homicide.
However, since
there is a substantial possibility that if the jury had been
instructed on manslaughter in the second degree it would have
acquitted Burdue of manslaughter in the first degree, but
instead found him guilty of the lesser-included offense of
manslaughter in the second degree, the trial court’s failure to
give an instruction on manslaughter in the second degree
constituted reversible error.
Our holding recognizes that a
reasonable jury could choose to believe Burdue fired the shot in
the direction of Ridner because he feared for his own safety and
he was attempting to scare Ridner away; or it could find that
Burdue intended to fire the gun near Ridner without fearing for
his own safety, but merely to scare Ridner.
Such a finding by
the jury would result in Burdue not being entitled to the
defenses of self-protection or imperfect self-protection.
However, a finding by the jury that Burdue shot Ridner while
trying to scare him would result in Burdue being found guilty of
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manslaughter in the second degree for his wanton conduct in
causing Ridner’s death.
Burdue also claims the trial court erred by not
instructing the jury on self-protection, protection of another,
and imperfect self-protection.
In fact, in the instructions for
both murder and manslaughter in the first degree, the jury was
required to find that Burdue “was not privileged to act in selfprotection.”
However, “self-protection” was not defined by the
instructions.
KRS 503.050 provides as follows:
(1)
The use of physical force by a defendant
upon another person is justifiable when
the defendant believes that such force is
necessary to protect himself against the
use or imminent use of unlawful physical
force by the other person.
In Estep v. Commonwealth,39 our Supreme Court stated that “[o]nce
a defendant produces evidence that he acted in self-protection,
the burden of proof as to that issue shifts to the Commonwealth
and is assigned by including as an element of the instruction on
the offense ‘that he was not privileged to act in selfprotection.’”
In this case, evidence was presented to establish that
Burdue and Ridner had a history of confrontations between them.
Burdue stated that on one prior occasion, he discovered bullet
39
64 S.W.3d 805, 811 (Ky. 2002).
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holes on the back side of his mobile home, allegedly caused by
Ridner.
He also claimed that Ridner had threatened to kill him
on several other occasions.
Burdue testified that he feared for
his life when he saw Ridner stop and turn around holding what
appeared to him to be a gun.
Burdue testified that it was at
that time he fired the second shot because he was afraid that
Ridner would shoot him.
Based on this testimony, a reasonable
jury could have chosen to believe Burdue shot Ridner while
acting in self-defense.
Thus, Burdue was entitled to a self-
protection instruction; and on remand that instruction should
follow the specimen instruction as set forth in Commonwealth v.
Hager.40
As to Burdue’s claim that he was entitled to an
instruction for the protection of another, we conclude that
there was no evidence that any other person was endangered by
Ridner’s actions.41
Thus, the trial court properly denied this
instruction.
40
41 S.W.3d 828 (Ky. 2001). As to the trial court’s failure to couch the
“self-protection” instruction in definitional terms, while it may not have
been a palpable error, it is an error that must be corrected at the new
trial. “[T]he self-protection instruction is couched in definitional terms.”
Palmore, Kentucky Instructions to Juries, § 10.01 Comment (5th ed. 1990).
Cf. Holland v. Commonwealth, 114 S.W.3d 792, 804-05 (Ky. 2003) (holding that
“the trial court’s failure to define the terms utilized in that instruction
in a manner that allowed the jury to evaluate properly Appellant’s
involuntary intoxication defense entitles Appellant to a new trial under
proper instructions”).
41
Williams v. Commonwealth, 276 Ky. 754, 759, 125 S.W.2d 221 (1939).
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As to Burdue’s claim of imperfect self-protection,
Kentucky courts have recognized the defense of imperfect selfdefense as codified in KRS 503.120,42 in Commonwealth v. Higgs,43
Hager, supra,44 and Elliott v. Commonwealth.45
The Court in Higgs
held that “[e]ven if a defendant is mistaken in his subjective
belief, he is still entitled to the defense of self-protection,
subject only to the wanton or reckless belief qualification
described in KRS 503.120(1).”46
The Court in Elliott stated,
“[i]f the charged offense is intentional murder or first-degree
manslaughter, a wantonly held belief in the need for selfprotection reduces the offense to second-degree manslaughter and
42
KRS 503.120(1) provides as follows:
When the defendant believes that the use
of force upon or toward the person of another
is necessary for any of the purposes for which
such belief would establish a justification
under KRS 503.050 to 503.110 but the defendant
is wanton or reckless in believing the use of
any force, or the degree of force used, to be
necessary or in acquiring or failing to acquire
any knowledge or belief which is material to
the justifiability of his use of force, the
justification afforded by those sections is
unavailable in a prosecution for an offense for
which wantonness or recklessness, as the case
may be, suffices to establish culpability.
43
59 S.W.3d 866 (Ky. 2001).
44
41 S.W.3d at 828.
45
976 S.W.2d 416 (Ky. 1998).
46
Higgs, 59 S.W.3d at 890.
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a recklessly held belief reduces the offense to reckless
homicide.”47
The Supreme Court in Hager stated:
[A] mistaken belief in the need to act in selfprotection does not affect the privilege to act
in self-protection unless the mistaken belief
is so unreasonably held as to rise to the level
of wantonness or recklessness with respect to
the circumstance then being encountered by the
defendant [citation omitted].
[KRS 503.120(1)] first recognizes that
all KRS 503 justifications, including selfprotection, are premised upon a defendant’s
actual subjective belief in the need for the
conduct constituting the justification and
not on the objective reasonableness of that
belief. Secondly, the statute recognizes
that a defendant may be mistaken in his
belief and that the mistaken belief, itself,
may be so unreasonably held as to constitute
wantonness or recklessness with respect to
the circumstance then being encountered. If
so, the statute provides that the
justification, e.g., self-protection, is
unavailable as a defense to an offense
having the mens rea element of wantonness,
e.g., second-degree manslaughter, or
recklessness, e.g., reckless homicide, “as
the case may be” [citations omitted].
Thus, while a wantonly held belief in the need
to act in self-protection is a defense to an
offense having the mens rea element of intent,
it supplies the element of wantonness necessary
to convict of second-degree manslaughter; and
while a recklessly held belief in the need to
act in self-protection is a defense to an
offense requiring either intent or wantonness,
it supplies the element of recklessness
necessary to convict of reckless homicide. . .
. Specifically, murder or first-degree
47
976 S.W.2d at 420, n.3.
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manslaughter is reduced to second-degree
manslaughter by a wantonly held belief or to
reckless homicide by a recklessly held belief.48
Similar to our previous discussion, Burdue’s belief in
the need to use self-protection could not be found to have been
merely recklessly held, but it could be found to have been
wantonly held.
Thus, we conclude that it was reversible error
for the trial court to refuse to instruct the jury on imperfect
self-protection as to a wantonly held belief for the need to use
self-protection, and we reverse and remand for a new trial.
When the jury is instructed at the new trial, the instruction on
imperfect self-protection should be limited to a wantonly held
belief for the need to use self-protection, but otherwise it
should be consistent with Hagar.
For the foregoing reasons, the final judgment of the
McCreary Circuit Court is affirmed in part and reversed in part,
and this matter is remanded for a new trial consistent with this
Opinion.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT FOR
APPELLANT:
Julia K. Pearson
Frankfort, Kentucky
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Attorney General
Dennis W. Shepherd
Assistant Attorney General
Frankfort, Kentucky
48
Hager, 41 S.W.2d at 842.
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ORAL ARGUMENT FOR APPELLEE:
Dennis W. Shepherd
Assistant Attorney General
Frankfort, Kentucky
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