GEORGE LAPRADD, JR. V. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED : MARCH 24, 2011
TO BE PUBLISHED
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GEORGE LAPRADD, JR.
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2007-CA-001205-MR
JEFFERSON CIRCUIT COURT NO . 06-CR-001356
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE SCHRODER
REVERSING AND REMANDING
The issue in this criminal appeal is the burden of proof and how the jury
is to be instructed when a choice of evils defense is raised pursuant to KRS
503 .030. Because the jury instructions improperly failed to place the burden
of proof on the Commonwealth to show that the defendant was not privileged to
take the action he did pursuant to a choice of evils, we reverse the conviction
for possession of a handgun by a convicted felon and PFO II, and remand for
further proceedings .
On March 20, 2006, police officers observed George LaPradd and other
individuals standing around a stolen vehicle . Upon seeing the police, LaPradd
began walking away from the car. When LaPradd was stopped and searched, a
loaded handgun was discovered in his pocket. LaPradd was thereafter indicted
for possession of a handgun by a convicted felon, carrying a concealed deadly
weapon, and for being a persistent felony offender in the second degree ("PFO
During the trial, LaPradd admitted possessing the handgun, but testified
that he picked up the gun to prevent teenagers around the car from obtaining
it and using it against him or others at the scene . At the close of trial, defense
counsel sought a jury instruction on the misdemeanor offense of carrying a
concealed deadly weapon, but the trial court refused and stated that it was
essentially issuing a directed verdict of acquittal on the charge.
Defense counsel also requested an instruction on the defense of choice of
evils pursuant to KRS 503.030. LaPradd argued that the instruction should be
included as an element of the offense of possession of a handgun by a
convicted felon, because the Commonwealth had the burden to prove that the
defense was not available to him. Although the trial court issued a choice of
evils instruction, the instruction was not included as an element in the
possession of a handgun by a convicted felon instruction, but was given under
a separate instruction. The separate instruction, Instruction No . 2, read as
Even though the defendant might otherwise be guilty
of Possession of a Handgun by a Convicted Felon
under Instruction No. 1, you shall find him not guilty
under that Instruction if at the time he possessed the
firearm, he believed:
(a) that his action in picking the gun up from the
ground was necessary to avoid being shot, or to
prevent someone else, including the police officers,
from being shot AND
(b) that he had no reasonable, viable alternative
then he was privileged to take such action as he
believed necessary to protect himself and others,
including the police officers, from being shot
(c) if you believe from the evidence beyond a
reasonable doubt that the Defendant, by his own
conduct, brought about the situation requiring
to choose the course which he took, then this
defense of Choice of Evils is not available to him.
LaPradd was found guilty of possession of a handgun by a convicted
felon . LaPradd thereafter waived jury sentencing, pled guilty to the PFO 11, and
accepted an enhanced sentence of twelve. years' imprisonment .
On appeal to the Court of Appeals, LaPradd argued that the trial court
erred in failing to include the choice of evils instruction as an element of the
possession of a handgun instruction. LaPradd maintained that the choice of
evils instruction as given - in a separate instruction with no reference to it in
the preceding instruction on the elements of the possession of a handgun
offense - erroneously put the burden of proof on LaPradd to prove that he was
to the defense . The Court of Appeals affirmed, agreeing that LaPradd
was entitled to a choice of evils instruction, but ruling that the instruction as
given was correct because it did not shift 'the burden of proof away from the
Commonwealth and followed the choice of evils instruction provided in I
Cooper, Kentucky Instructions to Juries (Criminal) § 11 .28 (rev. 4th ed. 1999)
(hereinafter "Cooper's Instructions") . We granted discretionary review to
address the arguments regarding the instruction on a choice of evils defense .
The choice of evils defense is included in KRS Chapter 503, General
Principles of Justification, and is defined in KRS 503.030(l) as follows :
Unless inconsistent with the ensuing sections of this
code defining justifiable use of physical force or with
some other provisions of law, conduct which would
otherwise constitute an offense is justifiable when the
defendant believes it to be necessary to avoid an
imminent public or private injury greater than the
injury which is sought to be prevented by the statute
defining the offense charged, except that no
justification can . exist under this section for an
KRS 503 .020 makes clear that, "[i]n any prosecution for an offense,
justification, as defined in this chapter, is a defense."
KRS 500 .070 establishes the burden of proof in criminal cases as follows:
The Commonwealth has the burden of proving
every element of the case beyond a reasonable doubt,
except as provided in subsection (3) . This provision,
however, does not require disproof of any element that
is entitled a "defense," as that term is used in this
code, unless the evidence tending to support the
defense is of such probative force that in the absence
of countervailing evidence the defendant would be
entitled to a directed verdict of acquittal.
No court can require notice of a defense prior to
trial time .
The defendant has the burden of proving an
element of a case only if the statute which contains
that element provides that the defendant may prove
such element in exculpation of his conduct.
Regarding the burden of proof in a case where a defense under KRS
Chapter 503 is asserted, the Court in Commonwealth v. Hager stated:
Once evidence is introduced which justifies an
instruction on self-protection or any other justification
defined in KRS [Chhapter 503, the Commonwealth has
the burden to disprove it beyond a reasonable doubt,
and its absence becomes an element of the offense.
KRS 500.070(1), (3), and 1974 Commentary thereto;
Brown u. Commonwealth, Ky., 555 S .W.2d 252, 257
(1977) . The burden of proof is assigned by including as
an element of the instruction on the offense "that he
was not privileged to act in self-protection." E.g., 1
Cooper, Kentucky Instructions to Juries (Criminal),
3.21 (4th ed . Anderson 1993) .
41 S .W.3d 828, 833 n. I (Ky. 2001) .
The Court in Brown u. Commonwealth distinguished the affirmative
defenses, where the Commonwealth has the burden of proof to negate the
defense, from the exculpation defenses (e.g.., insanity), where the defendant has
the burden to prove the defense and the absence of the defense is not an
element of the offense. 555 S.W.2d 252, 257; see KRS 500 .070 and 1 Cooper,
Kentucky Instructions to Juries (Criminal) § 1 .03 (rev. 4th ed. 1999) .
Relying on Beasley u. Commonwealth, 618 S.W.2d 179, 180 (Ky. App.
1981) and Peak u. Commonwealth, 34 S.W. 3d 80, 82 (Ky. App . 2000), the
Commonwealth maintains that the defendant has the burden of proving the
choice of evils defense, not the Commonwealth . In Beasley, the appellant
likewise argued that he was entitled to an instruction on the choice of evils .
618 S.W.2d at 180. In affirming the lower court, the Court of Appeals stated,
without any citation of authority, "It is also to be noted that since `choice of
evils' is a defense it is incumbent upon the defendant to bear the burden of
proving this defense." Id. In Peak, a subsequent case where the appellant
likewise argued he was improperly denied an instruction on the choice of evils,
the Court of Appeals parroted the aforementioned language from Beasley, when
it stated, "A defendant bears the burden of proving a choice of evils defense . . .
." 34 S.W.3d at 82. Because Peak could not show that the injury was
imminent or that he did not have reasonable alternatives other than
commission of the offense, the Court of Appeals concluded that "Peak lacked a
sufficient evidentiary basis to either present a choice of evils defense or request
such an instruction." Id.
Given the express language of KRS 500.070 and KRS 503 .020, we view
the language in Beasley and Peak stating that the defendant has the burden to
prove a choice of evils defense as a misstatement of the law. In such a case,
the defendant has the initial burden to produce evidence of a choice of evils
defense . Once such evidence is proffered, the burden of proof is then on the
Commonwealth to disprove the defense beyond a reasonable doubt. Hager, 41
S.W.3d at 833 n. l . Accordingly, Beasley and Peak are overruled to the extent
they hold otherwise .
Turning to the choice of evils instruction in the instant case, Instruction
No . 2, the Court of Appeals noted that the instruction was substantially
patterned after the choice of evils instruction provided in 1 Cooper, Kentucky
Instructions to Juries (Criminal) § 11 .28 (rev. 4th ed . 1999) . While it is true
that the instruction appears to be patterned after the recommended choice of
evils instruction in Cooper's Instructions, the problem is that the choice of evils
defense was not included in the instructions as an element of the offense to
which it was alleged as a defense - possession of a handgun by a convicted
felon. Instruction No. 1, which contained the elements of possession of a
handgun by a convicted felon, made no mention of the choice of evils defense,
nor did it refer in any manner to Instruction No . 2 . In fact, the end of the
instruction stated, "If you find the defendant, GEORGE LAPRADD JR., guilty
under this instruction, you shall say so by your verdict and no more."
When instructing on an offense, where the absence of a justification or
defense is to be instructed upon as an element of the offense, Cooper's
Instructions recommends that the following language be added to the
instruction on the elements of the offense : "That in so doing, the Defendant
was not privileged to act in self-protection. (Or insert other appropriate
justification or defense .)" 1 Cooper, Kentucky Instructions to Juries (Criminal) §
3.32 (rev. 4th ed. 1999) . No such language was contained in the instruction on
possession of a handgun by a convicted felon in the present case.
Because the instructions on the elements of the possession of a handgun
offense did not incorporate- LaPradd's choice of evils defense, we must reverse
the conviction and remand for a new trial. See Harper u. Commonwealth, 43
S.W.3d 261, 263-64 (Ky. 2001) . On retrial, we direct the parties to the
specimen recommended instructions in Commonwealth v. Hager, 41 S .W.3d at
544-47, relating to self-protection, since choice of evils and self-protection are
both justification "defenses" within the meaning of KRS 500 .070 . KRS
The second argument raised in LaPradd's brief is that the trial court
erred in not instructing the jury on the carrying a concealed deadly weapon
charge . At oral argument, LaPradd's appellate counsel waived the issue,
expressing that he no longer sought the relief requested in his brief.
For the foregoing reasons, the judgment of the Court of Appeals is
reversed and the case remanded to the lower court for retrial or further
proceedings consistent with this opinion.
All sitting. All concur.
COUNSEL FOR APPELLANT :
Bruce P. Hackett
Daniel T. Goyette
Louisville Metro Public Defender
Public Defender Advocacy Plaza
717-719 West Jefferson St.
Louisville, KY 40202
COUNSEL FOR APPELLEE :
Joshua D. Farley
Assistant Attorney General
Attorney General's Office
Office Of Criminal Appeals
1024 Capital Center Dr.
Frankfort, KY 40601-8204