COMMONWEALTH OF KENTUCKY V. TERESA FAY VINCENT
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RENDERED: MARCH 21,2002
TO BE PUBLISHED
COMMONWEALTH O F
ON TRANSFER FROM COURT OF APPEALS
2000-CA-1134-MR
JEFFERSON CIRCUIT COURT
HONORABLE JOHN WOODS POTTER, JUDGE
1998-CR-2329
V.
APPELLEE
TERESA FAY VINCENT
OPINION OF THE COURT BY JUSTICE JOHNSTONE
REVERSING AND REMANDING
Appellant, Teresa Fay Vincent, was convicted of murder and sentenced to
twenty-five years’ imprisonment. The sole issue on appeal is whether the domestic
violence exemption of KRS 533.060(l) exempts Vincent from the terms of the violent
offender statute of KRS 439.3401. We hold that it does not and reverse the trial court
on this issue.
On September 9, 1998, Vincent shot and killed her ex-husband, Bryan
Hitchcock. According to Vincent, she went to Hitchcock’s home because she caught
him in a lie and wanted to talk with him about it. She went armed with a handgun.
Hitchcock was not home, but his roommate, Donald Lawery, was. Lawery let Vincent in
to wait for Hitchcock. While waiting for Hitchcock to return, Vincent scrolled through
Hitchcock’s caller i.d. and found Sheila Salzman’s number listed there. Salzman was
Hitchcock’s girlfriend. Vincent then called Salzman and left the message, “You have
something of mine we need to discuss.”
When Hitchcock returned, Vincent questioned him about a trip he was planning
to take to Florida and asked if she could go with him. Hitchcock told her that she could
not go. The two argued and Vincent started to cry. During the argument, Vincent found
a card sticking out of Hitchcock’s luggage. She removed the card and discovered that it
was signed, “Love Bryan.” This discovery upset her further. At this point, Vincent’s
testimony differs from Lawery’s testimony.
According to Lawery, Vincent sat down on a couch and began playing with
Hitchcock’s camera. After Vincent dropped the camera on the floor, Hitchcock reached
down to pick it up. As he did so, Lawery testified that Vincent pulled the handgun from
her purse and shot Hitchcock.
According to Vincent, the handgun fell out of her coat and slipped in between the
cushions of the couch. As she retrieved the gun from the couch, Hitchcock asked her
what she had. Vincent showed him the gun and said, “This.” Vincent testified that she
accidently pulled the trigger while showing Hitchcock the gun. The resulting fatal shot
hit Hitchcock in the chest.
After Vincent was convicted, the trial court held a hearing to determine whether
Vincent was a victim of domestic violence for the purposes of KRS 439.3401 and KRS
533.060. Vincent presented sufficient evidence to support a finding that she had been
a victim of domestic abuse and that Hitchcock was the victimizer. This is not in dispute.
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What is in dispute is what is required to show that one is entitled to the domestic
violence exemption of KRS 439.3401(5).
Vincent argues that the exemption potentially applies to any defendant who
commits a violent offense against a person who, contemporaneously or previously,
committed acts of domestic violence against the defendant. That is, Vincent argues
that the application of the exemption turns on a person’s status as a victim of domestic
violence. The Commonwealth argues that the exemption only applies when the
domestic violence is involved in the underlying offense. In other words, the
Commonwealth argues that there has to be a connection between the defendants
violent offense at issue and the history of domestic violence between the defendant and
the victim. The plain language of the statute supports the Commonwealth’s argument.
KRS 439.3401(3) states that a person, “who has been convicted of a capital
offense or Class A felony with a sentence of a term of years or Class B felony who is a
violent offender’ shall not be released on probation or parole until he has served at
least eighty-five percent (85%) of the sentence imposed.” KRS 439.3401(5) creates an
exemption to this requirement:
This section shall not apply to a person who has been determined by a
court to have been a victim of domestic violence or abuse pursuant to
KRS 533.060 with reaard to the offenses involvina the death of the victim
or serious ohvsical iniurv to the victim. The provisions of this subsection
shall not extend to rape in the first degree or sodomy in the first degree by
the defendant.
‘“Miolent offender means any person who has been convicted of or pled guilty
to the commission of a capital offense, Class A felony, or Class B felony involving the
death of the victim or serious physical injury to a victim, or rape in the first degree or
sodomy in the first degree of the victim.” KRS 439.3401(l).
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(Emphasis added). The phrase “with regard to the offenses involving the death of the
victim or serious physical injury to the victim” dictates that there be some connection or
relationship between the domestic violence suffered by the defendant and the
underlying offense committed by the defendant.
“Regard” means “an aspect to be taken into consideration or significant to matter
in auestion.” Webster’s Third, 1911 (1966) (emphasis
added). “Regard” is synonymous with “respect,” which means “to have regard or
reference to : to relate to : be concerned with . . . .” u at 1934. Thus, the statute
requires that there be a relationship between the domestic violence or abuse and the
underlying offense. Proof of history of domestic violence between the defendant and
the victim is not, by itself, sufficient to trigger the statute’s parole exemption. If the
General Assembly had so intended, it could have said so. See c.f. S.C. Code Ann. §
16-25-90,
which expressly provides that a defendant who commits an offense against a
household member is eligible for parole after serving 25 percent of her sentence when
the defendant shows that the household member has a history of inflicting domestic
violence upon the defendant.
“[Plarole is a matter of legislative grace and . . . the general assembly may
impose such limitations, restrictions and conditions as it deems best for society.”
Willard v. Ferquson, Ky., 358 S.W.2d 516 (1962). As such, it is not for this Court to
determine the wisdom of the General Assembly’s exercise of its power in this area.
Vincent argues that the construction of the statute we adopt here is not rational in light
of KRS 533.060(l), which states in pertinent part:
When a person has been convicted of an offense or has entered a plea of
guilty to an offense classified as a Class A, B, or C felony and the
commission of the offense involved the use of a weapon from which a
shot or projectile may be discharged that is readily capable of producing
death or other serious physical injury, the person shall not be eligible for
probation, shock probation, or conditional discharge, except when the
person establishes that the person against whom the weapon was used
had previously or was then engaged in an act or acts of domestic violence
and abuse as defined in KRS 403.720 against either the person convicted
or a family member as defined in KRS 403.720 of the person convicted.
This statute creates - for defendants who are also victims of domestic violence
- an unconditional exception to the statute’s general eligibility requirements for
probation, shock probation, or conditional discharge. Unlike the parole exemption of
KRS 439.3401(5), application of the probation exception of KRS 533.060(l) turns on
the defendant’s status as a victim of domestic violence. The probation exception does
not require the defendant to show any connection between the commission of an
offense and the history or occurrence of domestic violence between a defendant and a
violent crime victim. Because the probation exception applies to defendants who
committed a violent offense, Vincent argues that it is just not reasonable that the
General Assembly meant to limit the exemption for parole eliaibility to those defendants
whose violent crime is somehow connected or related to the history or occurrence of
domestic violence between the defendant and the victim.
Probation, like parole, is purely a matter of legislative grace. White v.
Commonwealth, Ky. App., 611 S.W.2d 529, 531 (1980). Whether the distinction - for
defendants who are also victims of domestic violence - between the exception for
probation eligibility set forth in KRS 533.060(l) and the exemption for parole eligibility
set forth in KRS 439.3401(5) is reasonable or logical is not for us to decide. Nor can it
affect our construction of what the General Assembly clearly states in KRS
439.3401(5), i.e., that in order to be eligible for the exemption, a defendant, who is also
the victim of domestic violence, must establish a connection or relationship between the
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domestic violence and the violent offense for which the defendant stands convicted.
See Land v. Commonwealth, Ky., 986 S.W.2d 440, 442 (1999) (“Parole is simply a
privilege and the denial of such has no constitutional implications.“).
Finally, in Sprinaer v. Commonwealth, Ky., 998 S.W.2d 439 (1999), we
compared KRS 533.060 with KRS 439.3401 and concluded:
Thus, the legislature determined, for whatever reason, that the exemption
from the probation or conditional discharge restrictions in KRS 533.060(l)
applies whether the domestic violence and abuse occurred previous to the
offense or at the time the offense was committed; but the exemption from
the parole restrictions in KRS 439.3401 applies only if the domestic
violence and abuse was “involved” in the offense.
Id. at 457.
At the time we decided Sprinaer, KRS 439.3401(2) and (3) only restricted parole
eligibility. The 2000 General Assembly amended KRS 439.3401(2) and (3) so that the
stricter “involved” requirement applies to probation as well as parole eligibility for violent
offenders. 2000 Ky. Acts, Ch. 401 § 8. Apparently, the General Assembly had
Soringer in mind when it amended KRS 439.3401(2) and (3). This is a strong indication
that the General Assembly intended to adopt Springer’s interpretation of “involved”
contained in KRS 439.3401(5). See, m, Falender v. Hankins, 296 Ky. 396, 177
S.W.2d 382, 383 (1944) (It is a “well-settled rule of statutory construction, that when a
statute or clause, or provision thereof, has been construed by the court of last resort of
a state, and the statute has been substantially re-enacted, the Legislature will be
deemed to have adopted such construction. . . .‘I).
Vincent offered absolutely no evidence that connected the shooting with the
history of domestic violence between Hitchcock and her. Vincent’s version of the
events was that the shooting was accidental. The Commonwealth’s eyewitness
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testified that the shooting was deliberate and unprovoked. While we cannot state
definitively what is necessary to show that a defendant is eligible for the domestic
violence or abuse exception of KRS 439.3401(5), we can state and do hold that a prior
history of domestic violence between a violent crime victim and the criminal defendant
who perpetrated the violent offense does not, in and of itself, make the defendant
eligible for the parole exemption of KRS 439.3401(5).
For the foregoing reasons, the judgment of the Jefferson Circuit Court is
reversed and this case is remanded for re-sentencing in conformance with this opinion.
Lambert, C.J.; Cooper, Graves, and Wintersheimer, JJ., concur. Keller, J.,
dissents by separate opinion, with Stumbo, J., joining that dissent.
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COUNSEL FOR APPELLANT:
A. B. Chandler ill
Attorney General of Kentucky
Capitol Building
Frankfort, KY 40601
Brian Patrick Butler
Commonwealth Attorney’s Office
514 W. Liberty Street
Louisville, KY 40202
COUNSEL FOR APPELLEE:
Daniel T. Goyette
Chief Public Defender
Bruce P. Hackett
Deputy Appellate Defender
Office of the Jefferson District Public Defender
200 Advocacy Plaza
719 West Jefferson Street
Louisville, KY 40202
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RENDERED: MARCH 21,2002
TO BE PUBLISHED
2000-SC-0449-TG
COMMONWEALTH OF KENTUCKY
V.
APPELLANT
ON TRANSFER FROM COURT OF APPEALS
2000-CA-1134-MR
JEFFERSON CIRCUIT COURT
HONORABLE JOHN WOODS POTTER, JUDGE
98-CR-2329
APPELLEE
TERESA FAY VINCENT
DISSENTING OPINION BY JUSTICE KELLER
I respectfully dissent from the majority’s opinion because I do not believe that
“with regard to the offenses involving the death of the victim or serious physical injury to
the victim”’ - the relevant language in KRS 439.3401(5) - operates “clearly,“2 or in
“plain language”3 - or, for that matter, at a// - to limit the scope of the domestic
violence exemption to crimes “involving” present acts of domestic violence. In my
opinion, the majority misinterprets the grammatical role of the “with regard to . . . ”
language in KRS 439.3401(5).
Instead of narrowing the scope of the exemption by
creating a hurdle relating to the timing of the abuse, this language merely limits the
‘KRS 439.3401(5).
*Majority Opinion at - S.W.3d -, - (2003 (Slip Op. at 5).
3!&. at - (Slip Op. at 3).
applicability of the domestic violence exemption to those violent offenses in which a
victim is killed or seriously physically injured. Thus, I dissent from the majority’s holding
that “a prior history of domestic violence between a violent crime victim and the criminal
defendant who perpetrated the violent offense does not, in and of itself, make the
defendant eligible for the parole exemption of KRS 439.3401(3),“4 and I would affirm
the trial court’s determination that Appellee qualifies for the KRS 439.3401(5) domestic
violence exemption from KRS 439.3401’s “violent offender” limitations.
In my opinion, a proper interpretation of the KRS 439.3401(5) domestic violence
exemption must begin with a consideration of both the current and prior KRS
439.3401(l) definitions of “violent offender.”
Subsection (1) currently reads:
As used in this section, “violent offender” means any
person who has been convicted of or pled guilty to the
commission of a capital offense, Class A felony, or Class B
felony involving the death of the victim or serious physical
injury to a victim, or rape in the first degree or sodomy in the
first degree of the victim. The court shall designate in its
judgment if the victim suffered death or serious physical
injury.
The KRS 439.3401(l)
statutory definition thus provides for two categories of violent
offenders: (1) persons who commit “a capital offense, Class A felony, or Class B felony
where the elements of the offense or the judgment of the court demonstrate that the
offense involved death or serious physical injury to the victim”;5 and (2) persons who
commit the offenses of First Degree Rape’ and First Degree Sodomy.7
41d. at - (Slip Op. at 7).
5501 KAR I:030 $3(l)(b).
6KRS 510.040.
7KRS 510.070.
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The “involving
the death of the victim or serious physical injury to a victim” language clarifies that
persons who commit Class A or Class B felonies are violent offenders only under
specified circumstances.’ Undoubtedly, there is a degree of overlap between the two
categories of violent offenses because certain First Degree Rape and First Degree
Sodomy crimes will also come within the first category.g
However, the statute’s
separate enunciation of those crimes clarifies that all convictions for First Degree Rape
and First Degree Sodomy constitute violent offenses even when the conduct - i.e.,
rape or sodomy resulting from forcible compulsion or the victim’s incapacity’o -
‘While all of Kentucky’s capital offenses, by definition, involve the death of the
victim, B KRS 507.020 (Murder); KRS 509.040 (Capital Kidnapping); KRS 527.200
(Capital First Degree Use of a Weapon of Mass Destruction), and will therefore be
violent offenses whenever committed, the same generalization is not true as to Class A
felonies and Class B felonies. a, m KRS 218A.1432 (Manufacturing
Methamphetamine); KRS 250.489 (Possession of Anydrous Ammonia in Unapproved
Container); KRS 250.4892 (Tampering with Anhydrous Ammonia Equipment); KRS
514.030 (Theft by Unlawful Taking); KRS 514.110 (Receiving Stolen Property); KRS
154A.990(3) (Cheating or Attempting to Cheat the Lottery); KRS 434.144 (Filing an
Illegal Lien); KRS 436.026 (Sale or Transfer of a Viable Aborted Child for Use in
Experimentation); KRS 513.020 (First Degree Arson). The qualifying language in KRS
430.3401(l), thus constitutes a rational decision by the legislature to limit the definition
of violent offenses to crimes “involving the death of the victim or serious physical injury
to a victim” - in other words, crimes commonly thought of as “violent.” I submit that
this is the reason that KRS 4393401(l) requires trial judges to designate in the
judgment whether the victim was killed or suffered serious physical injury.
9See KRS 510.040(2) (“Rape in the first degree is a Class B felony unless the
victim . . . receives a serious physical injury in which case it is a Class A felony.“); KRS
510.070(2) (“Sodomy in the first degree is a Class B felony unless the victim . . . suffers
a serious physical injury in which case it is a Class A felony.“).
‘O&g KRS 510.040(l):
A person is guilty of rape in the first degree when:
He engages in sexual intercourse with another person
(a)
by forcible compulsion; or
He engages in sexual intercourse with another person
(b)
who is incapable of consent because he:
1.
Is physically helpless; or
(continued. ..)
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although undoubtedly traumatic for the victim, might not involve serious physical injury
as that term is defined in the Kentucky Penal Code.”
The current language of KRS 439.3401(l),
however, is the result of an
amendment by the 1998 General Assembly.‘* Previously, and at the time the KRS
439.3407(5)
domestic violence exempfion was adopted, the subsection defining “violent
offender” read slightly differently and far less clearly because the subsection referenced
I’(. . .continued)
2.
Is less than twelve (12) years old.
A; KRS 510.070(l).
“KRS 500.080(15) (“‘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.“).
12a 1998 Ky. Acts ch. 606, $77 (effective July 15, 1998). The amendment to
KRS 439.3401 was part of House Bill 455 (“the Omnibus Crime Bill”). Although not part
of the original bill filed, an amendment to KRS 439.3401(l) was proposed as part of the
first House Committee Substitute to HB 455. That amendment would have made a
substantive change regarding First Degree Rape and First Degree Sodomy and violent
offender status:
As used in this section, “violent offender” means any
person who has been convicted of or pled guilty to the
commission of a capital offense, Class A felony, or Class B
felony involving the death of the victim or serious physical
jniurv to a victim, or rape in the first degree or sodomy in
the first degree of the victim bv forcible compulsion m
The court shall
desianate in its iudament if the victim suffered death or
Serious physical iniury. or. in the case of rape or
sodomy. forcible compulsion.
A second House Committee Substitute deleted the “forcible compulsion” language, and
the language now contained at KRS 439.3401(l) represents the amendments in the
final version of HB 455.
the rape and sodomy crimes in the middle of the language concerning death or serious
physical injury to the victim:
As used in this section, “violent offender” means any
person who has been convicted of or pled guilty to the
commission of a capital offense, Class A felony, or Class B
felony involving the death of the victim, or rape in the first
degree or sodomy in the first degree of the victim, or serious
physical injury to a victim. The court shall designate in its
judgment if the victim suffered death or serious physical
injury.13
While the prior language of KRS 439.3401(l) did not differ substantively from the
current version - all Class A First Degree Rape and First Degree Sodomy offenses of
a child under twelve (12) years of age as well as all Class B First Degree Rape and
First Degree Sodomy offenses were violent offenses even under the prior version - I
believe the confusing configuration of language explains the purpose of the “with regard
to the offenses involving the death of the victim or serious physical injury to the victim”
language in KRS 439.3401(5).
KRS 439.3401(5) reads:
This section shall not apply to a person who has been
determined by a court to have been a victim of domestic
violence or abuse pursuant to KRS 533.060 with regard to
the offenses involving the death of the victim or serious
physical injury to the victim. The provisions of this
subsection shall not extend to rape in the first degree or
sodomy in the first degree by the defendant.
After defining “regard,” the majority states “the statute requires that there be a
relation between the domestic violence or abuse and the underlying offense.“14
The
majority thus apparently believes that the language “with regard to the offenses
131986 Ky. Acts ch. 358 §I (effective July 15, 1986) (amended by 1998 Ky. Acts
ch.606, §77 (effective July 15, 1998)) (emphasis added).
14Majority Opinion at - S.W.3d -, - (Slip Op. at 4).
involving the death of the victim or serious physical injury to the victim” modifies and
qualifies “domestic violence or abuse” and not the immediately preceding phrase
“pursuant to KRS 533.060” - i.e., as if the first sentence actually read:
This section shall not apply to a person who has been
determined by a Court to have been a victim of domestic
violence or abuse with regard to the offenses involving
the death of the victim or serious physical injury to the
victim pursuant to KRS 533.060. t
This, of course, interprets the relevant language as a dangling modifier which - in
sharp contrast to the majority’s belief in the General Assembly’s clarity” - is inherently
ambiguous, if not the anthesis of writing clarity:
The position of the words in a sentence is the principal
means of showing their relationship. Confusion and
ambiguity result when words are badly placed. The writer
must, therefore, bring together the words and groups of
words that are related in thought and keep apart those that
are not so related.
...
Interposing a phrase or clause . . . interrupts the flow of
the main clause . . . .
. ‘Modifiers should come, if possible, next to the word they
modify. If several expressions modify the same word, they
should be arranged so that no wrong relation is suggested.
...
‘Yn some ways, it appears that the majorii interprets the first sentence of KRS
439.3401(5) as if “pursuant to KRS 533.060” is the phrase which is out of place - i.e.,
as if the sentence actually read:
This section shall not apply to a person who has been
determined by a court, pursuant to KRS 533.060, to have
been a victim of domestic violence and abuse 7
tWSSBM6 with regard to the offenses involving the death
of the victim or serious physical injury to the victim.
“See w notes 2-3 and surrounding text.
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Note . . . how swiftly meaning departs when words are
wrongfully juxtaposed.”
I, too, see the “with regard to . . . ” language as a dangling modifier,18 but I
believe it modifies the verb in the first part of the sentence - i.e., as if the sentence
actually read:
This sentence shall not apply, with regard to the
offenses involving the death of the victim or serious
physical injury to the victim, to a person who has been
determined by a court to have been a victim of domestic
violence or abuse pursuant to KRS 533.060. v
As I interpret the sentence, I believe the General Assembly - in the face of a
convoluted subsection (1) definition of “violent offender”” - intended to remove all
doubt that the exemption was not available to persons who are violent offenders as a
result of their commission of First Degree Rape or First Degree Sodomy crimes. At the
time the legislature enacted the subsection (5) domestic violence exception, subsection
(1) defined a violent offender as a person who committed a capital offense, Class A
felony, or Class B felony involving: (1) death of the victim; (2) rape in the first degree or
sodomy in the first degree; or (3) serious physical injury to a victim. Because of the
possible intersection between the categories - Class A First Degree Rape and
Sodomy offenses where the victim was also seriously physically injured - and the
confusing manner in which those categories were defined, the legislature included
17William Strunk, Jr. and E.B. White, The Elements of Style (3ti Ed.), 28-31 (Allyn
& Bacon, 1979).
‘*I note that other Justices on this Court have previously noted the difficulties in
construing KRS 439.3401 because of its grammatical quirkiness. See Huff v.
Commonwealth, KY., 763 S.W.2d 106, 112-113 n. 2 (Leibson, J., dissenting).
19$& supra note 13 and surrounding text.
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qualifying language in both sentences of subsection (5). Under my construction, while
no violent offender could qualify for the exemption “with respect to” his or her
commission of First Degree Rape or First Degree Sodomy, he or she would qualify for
the exemption “with respect to” other violent offenses (involving death of or serious
physical injury to a victim) “pursuant to KRS 533.060” - in other words, by
demonstrating that the person against whom the offense was committed “had
previously or was then engaged in an act or acts of domestic violence as defined in
KRS 403.720 . . . .“*O Appellee qualifies for the exemption under this interpretation.
In defense of its interpretation, the majority states: “Proof of history of domestic
violence between the defendant and the victim is not, by itself, sufficient to trigger the
statute’s parole exemption. If the General Assembly had so intended, it could have said
so.“*’ This is, of course, a double-edged sword which only illustrates the ambiguity in
KRS 439.3401(5).
If the General Assembly intended for this language to mean that the
exemption was available only to those defendants who commit their crimes in the direct
context of an abusive situation, it could have said so - at the very least by placing
language intended to create such a qualification in the proper place in the sentence.
The majority’s construction raises other questions as well. First, if the General
Assembly intended for the “with regard to” language to limit the scope of the exemption,
why did it use the plural, “the offenses” instead of the singular, “an offense” or “one or
more of the offenses”? “The,” when used before a plural noun, denotes “particular
*OKRS
533.060 (emphasis added).
**Majority Opinion at - S.W.3d -, - (Slip Op. at 4) (emphasis added).
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specified persons or things.“** Does this mean that a domestic violence victim who, in
the midst of an abusive situation, commits a single offense of First Degree
Manslaughter is not eligible for the exemption? In order for the first sentence of KRS
439.3401(5) to mean what the majority construes it to mean, the reader must not only
rearrange the words, but also substitute the singular for the plural - i.e., as if the
sentence actually read:
This section shall not apply to a person who has been
determined by a Court to have been a victim of domestic
violence or abuse with regard to [an offense] ttreaffenses
involving the death of the victim or serious physical
injury to the victim pursuant to KRS 533.060. N
Second, why does KRS 439.3401(5) indicate that the judicial determination as to
a defendant’s qualification for the exemption be made “pursuant to KRS 533.060” if the
determination itself is so radically different from KRS 533.060? KRS 533.060(l) states
that trial courts may not grant probation or conditional discharge to defendants who
have used a firearm in connection with certain offenses, but contains a domestic
violence exemption broader than the one the majority interprets in KRS 439.3401(5).*”
If the determination is to be made “pursuant to KRS 533.060,” but not really pursuant to
KRS 533.060 because the judge has to ignore the “had previously . . . engaged in an
act or acts of domestic violence and abuse . . . r’24 language, the General Assembly
could have “said so” by explicitly stating the differences between the KRS 439.3401(5)
determination and the KRS 533.060 determination.
**American Heriiage Dictionary of the English Language (1969) at 1333.
23See infra notes 32 and surrounding text.
24KRS 533.060.
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The majority is comfortable side-stepping the incongruities between its
construction of KRS 439.3401(5) and other legislative changes which were “part of a
package of legislation intended to improve the plight of battered spouses[,]“25
finds the language of KRS 439.3401(5)
legislative intent.26
because it
to be a clear, unambiguous expression of
I, however, believe a broader examination of legislative intent is
necessary in this case precisely because the position of the “with regard to . . . ”
language creates doubts about what that language modifies - and, therefore, what
KRS 439.3401(5)
means - which are only magnified by the more-than-viable
alternative construction of this language urged in this dissent. In cases of statutory
construction, “the primary rule is to ascertain and give effect to the intention of the
Legislature.“27
While we need not turn to rules of statutory interpretation when the
language itself is explicit, when it is not - as is the case here - a reviewing court must
turn to rules of construction to ascertain legislative intent.28
One rule of statutory interpretation is that courts should seek to harmonize
statutes which are in pari matetia - especially when they are part of the same
25Grimes&, KY., 957 S.W.2d 223, 229 (1997) (Cooper, J. dissenting).
*“a Reaional Jail Authority v. Tackett KY., 770 S.W.2d 225, 229 (1989)
(“Where there is no ambiguity in a statute there is no need to resort to the rules of
statutory construction in interpreting it. The words of the statute are simply accorded
their commonly understood meaning.“).
27s, 289 Ky. 682, 160 S.W.2d 10, 12 (1942).
*‘See Bs 293 Ky. 592,169 S.W.2d 833,835
k,
(1943) (“[IIf the language is ambiguous or doubtful, other circumstances must be taken
into consideration to arrive, as nearly as possible, at the legislative intent.” (emphasis
added)).
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legislative enactment. *’ The legislation which added the subsection (5) domestic
violence exemption to KRS 439.34013’ also: (1) authorized a defendant claiming selfprotection to introduce evidence of a “prior act of domestic violence and abuse”31 in
support of a claim of self-defense; (2) exempted a victim of a previous act or acts of
domestic violence and abuse from the restrictions against probation, shock probation,
or conditional discharge for the use of a firearm;32 and, perhaps most significantly, (3)
ical Examiners, KY.,
29 * 310 S.W.2d
c n m
ti
783, 784 (1953); 1,304
i r f v. L * i ‘vill
KY., 207,200
S.W.2d 200 (1947) (“[Sltatutes in pari materia are not to be considered as isolated
fragments of law, but as a whole or as a part of a connected system, unless a different
purpose is clearly shown.” (emphasis added)).
301992 Ky. Acts ch. 173, §4 (effective July 15, 1992).
31KRS 503.050(3) (“Any evidence presented by the defendant to establish the
existence of a prior act or acts of domestic violence and abuse as defined in KRS
403.720 by the person against whom the defendant is charged with employing physical
force shall be admissible under this section.” (emphasis added)). Although the
constitutionality of this provision is debatable, B Q’Brvan v. Hedaesoeth, KY., 892
S.W.2d 571, 576 (1995) this provision, and a change by the same legislature to the
definition of “imminent” contained at KRS 503.010(3), provide strong evidence that the
General Assembly recognized, and made allowances for, the fact that victims of past
acts of domestic violence or abuse may respond differently to a given situation than a
person who had not been subject to such abuse. This Court recognized this possibility
in Commonwealth v. Rose, KY., 725 S.W.2d 588, 590-591 (1987) (“[Expert testimony
concerning battered wife syndrome] might be of assistance to the jury as trier of fact
because it tends to explain why a person suffering from the syndrome would not leave
her mate and would be driven by fear of continuing episodes of increased aggression
against herself to perceive certain conduct was necessary in her self-defense, even
though another person not suffering from such a condition might believe or behave
differently.” (emphasis added)).
32See KRS 533.060(l):
When a person has been convicted of an offense or has
entered a plea of guilty to an offense classified as a Class A,
B, or C felony and the commission of the offense involved
the use of a weapon from which a shot or projectile may be
discharged that is readily capable of producing death or
other serious physical injury, the person shall not be eligible
(continued...)
-ll-
allowed a violent offender convicted prior to the effective date of the enactment to be
exempted from KRS 439.3401 parole restrictions if the offender “come[s] within the
definitions of KRS 503.050 and 533.060 . . . as the victim of domestic violence and
abuse. . . . “33
While the majority dismisses the incongruity between its construction of
KRS 439.3401(5)
and the other provisions of the same act because it sees the meaning
of the “with regard to . . . ” language as crystal clear - i.e., the legislature could treat
violent offenders differently; the legislature did treat violent offenders differently; end of
stoq?
- I see the incongruity as strong evidence that the General Assembly did not
32(. . .continued)
for probation, shock probation, or conditional discharge,
except when the person establishes that the person against
whom the weapon was used had previously or was then
engaged in an act or acts of domestic violence and abuse as
defined in KRS 403.720 against either the person convicted
or a family member as defined in KRS 403.720 of the
person convicted. If the person convicted claims to be
exempt from this statute because that person was the victim
of domestic violence and abuse as defined in KRS 403.720,
the trial judge shall conduct a hearing and make findings to
determine the validity of the claim and applicability of this
exemption. The findings of the court shall be noted in the
final judgment.
33KRS 439 3402(l) (“Any violent offender as defined in KRS 439.3401 who was
convicted prior to’July 14, 1992, who claims to come within the definitions of KRS
503.050 and 533.060 and the purview of this section as the victim of domestic violence
and abuse may be exempt from KRS 439.3401 under the conditions set forth in this
section.“).
340r perhaps not quite the end of the story. The majority opinion also suggests a
secondary rationale for its holding - that, regardless of the 1992 General Assembly’s
intent with respect to the “with regard to . . . ” language in KRS 439.3401(5), the 2000
General Assembly’s amendments to KRS 439.3401 (adding the words “or probation” in
two (2) other subsections) adopted a construction of the subsection (5) language
lth,
suggested in SDrinaer KY., 998 S.W.2d 439,457 (1999). Of course,
this analysis not only overlooks the difficulty of ascertaining legislative intent from a
(continued.. .)
-12-
intend for the “with regard to” language to operate as the majority interprets it. In
particular, I see nothing approaching clear proof of the legislature’s intent to allow
currently incamerated
violent offenders to take advantage of a domestic violence
exemption by demonstrating that they had been a victim of past acts of domestic
violence at the hand of the person against whom they committed the violent offense,
but deny the same opportunity to defendants convicted after July 15, 1992.
In j,” our predecessor court noted another rule
of statutory construction: “Doubts in the construction of a penal statute will be resolved
in favor of lenity and against a construction that would produce extremely harsh or
incongruous results . . . .‘I% In my opinion, today’s majority’s interpretation of the scope
of KRS 439.3401(5)
produces severely incongruous results.
34( . ..continued)
subsequent legislative enactment by a differenf General Assembly, M Guffev v. Cann,
KY., 766 S.W.2d 55 (1989); Green River a i n t o n ,
W i a District Health Dept
KY., 7 6 4
S.W.2d 475 (1989) but also is inconsistent with the majority’s’belief that KRS
439.3401(5) is clear on its face and can be interpreted without resorting to rules of
statutory construction. Additionally, while the 2000 Amendments to KRS
439.3401(2)&(3) have eliminated one incongruity that, under Sorinaer and today’s
majority’s interpretation of KRS 439.3401(5), apparently existed between 1992 and
2000 (certain individuals were apparently eligible for probation, but, if not probated,
could not be paroled until they served fifty percent (50%) (and later, eighty-five percent
(85%)) of their sentences) substantial incongruities remain. In my opinion, the other
provisions of the legislative act creating the KRS 439.3401(5) domestic violence
exemption provide the strongest evidence of the General Assembly’s intent. The
General Assembly’s 2000 Amendments to KRS 439.3401(2)&(3) do not demonstrate
that the legislature endorsed the Springer interpretation, and, in the process, turned its
back to the concerns that initially prompted this legislation.
35Ky., 350 S.W.2d 465 (1961).
36151,at 4 6 7 . See& n k I
n
ili
m, KY., 893 S.W.2d 493, 500 (1998) (“A statute should not be interpreted to bring
about an absurd or unreasonable result.“).
-13-
While the incongruities, standing alone, would lead me to seriously question the
majority’s construction, I am deeply troubled that, as a practical matter, the majority’s
interpretation of KRS 439.3401(5)
all-but-erases the exemption’s availability. The
legislation which added the KRS 439.3401(5)
domestic violence exemption
progressively recognized that victims of domestic violence and abuse who commit
crimes against their abusers should be treated differently from other offenders because
the abuse they have suffered is relevant to their culpability. By limiting the KRS
430.3401(5)
domestic violence exemption to situations where a domestic violence
victim commits a violent offense contemporaneously with the abusive situation, this
Court interprets the exemption virtually out of existence. If someone is committing acts
of domestic violence against a person, and that person kills or seriously physically
injures his or her attacker, he or she will seldom be a violent offender because he or
she is likely either: (1) privileged to act in self-protection;37
or, even if the domestic
violence victim’s belief in his or her need to use deadly force - or the amount of force
necessary -- is erroneous, (2) guilty of some crime other than a violent offense?
The
majority’s construction of KRS 439.3401(5) thus strips it of any real meaning, and I find
that construction erroneous.
For the reasons outlined above, I believe the trial court properly interpreted the
KRS 439.3401(5)
exemption for victims of domestic violence to include past victims of
domestic violence, and I would affirm the trial court’s determination that Appellee
qualifies for the KRS 439.4301(5)
exemption.
“‘a KRS 503.050(l)&(2).
38E.g., in a homicide case, Second Degree Manslaughter or Reckless Homicide
and, in an assault case, Second or Fourth Degree Assault. $& KRS 503.120;
Commonwealth, KY., 41 S.W.3d 828, 841-844 (2001).
-14-
Stumbo, J., joins this dissent.
-15
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