Commonwealth v. Higgs

59 S.W.3d 886, 2001 Ky. LEXIS 197, 2001 WL 1485759
CourtKentucky Supreme Court
DecidedNovember 21, 2001
Docket1998-SC-0673-DG, 1999-SC-0590-DG
StatusPublished
Cited by16 cases

This text of 59 S.W.3d 886 (Commonwealth v. Higgs) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Higgs, 59 S.W.3d 886, 2001 Ky. LEXIS 197, 2001 WL 1485759 (Ky. 2001).

Opinions

COOPER, Justice.

Appellee/Cross-Appellant Christopher Ray Higgs was convicted in the Jefferson Circuit Court of manslaughter in the second degree and sentenced to ten years in prison. The Court of Appeals reversed and remanded for a new trial, finding error in (1) the jury instruction on the defense of self-protection; (2) the admission during the guilt phase of the trial of evidence of the victim’s good character for peacefulness; and (3) the admission during the penalty phase of evidence regarding good time credit and credit for time served prior to trial. The Court of Appeals found no error in (4) the admission of evidence of a specific instance of misconduct during the Commonwealth’s cross-examination of Appellee’s father, Jacob Higgs. We now affirm as to issue (4), reverse as to issues (1), (2) and (3), and reinstate the judgment of the Jefferson Circuit Court.

Appellee admitted killing his former employer, Charles Endicott, but claimed he did so in self-defense. Appellee worked at Endicott’s trucking company in Charles-town, Indiana, from the time he left high school in 1994 until he voluntarily quit his employment in July 1995. In October 1995, [888]*888Appellee stole a .380 Beretta handgun from the glove compartment of Endieott’s pickup truck and traded it to his brother-in-law for a .25 caliber semiautomatic pistol. Appellee claimed at trial that he stole the Beretta because he was afraid Endi-cott would use it to shoot him; however, he admitted that he also stole a television and a videocassette recorder from Endi-cott’s Indiana farm. Endicott suspected Appellee had stolen the Beretta, and there was substantial evidence at trial that Endi-cott had threatened to assault or kill Ap-pellee if he could but find him. Bill Brewer, another Endicott employee, suspected that Appellee had also burglarized his residence and stolen a shotgun.

On November 3, 1995, Endicott and Brewer learned that Appellee was living in an apartment off Cane Run Road in Jefferson County, Kentucky. They proceeded to the apartment and confronted Appel-lee who admitted stealing the Beretta. Appellee claimed the gun was in the possession of his father, Jacob Higgs. After an unsuccessful attempt to contact Jacob Higgs by telephone, Endicott announced that the three would proceed to Mr. Higgs’s residence to retrieve the Beretta. According to Appellee, Endicott and Brewer grabbed him by his arms and alternately led, carried, and dragged him to Brewer’s pickup truck, and that Endicott forcibly shoved him into the truck’s passenger compartment. Endicott then entered the passenger side of the truck and Brewer the driver’s side, so that Appellee was trapped between the two. Brewer drove to a nearby convenience store to purchase cigarettes. According to Appel-lee, while Brewer was in the store, Endi-cott threatened to take him to Charles-town, beat him, then kill him; and that Endicott then struck him in the sternum with his fist. Appellee then produced the .25 caliber semiautomatic handgun from under his shirt and placed the muzzle to Endicott’s head. When Endicott reached for the gun, Appellee fired the fatal shot.

I. SELF-PROTECTION INSTRUCTION.

The Court of Appeals held that the jury was improperly instructed to apply an objective standard in determining Appellee’s right to use deadly physical force in self-protection against kidnapping. KRS 503.050(2). We agree, but find the error to have been harmless because it did not affect the ultimate verdict of the jury. RCr 9.24; Skaggs v. Commonwealth, Ky., 803 S.W.2d 573, 575 (1990), cert. denied, 502 U.S. 844, 112 S.Ct. 140, 116 L.Ed.2d 106 (1991).

Instruction No. 1 was the instruction on murder, and Instruction No. 2 was the instruction on manslaughter in the first degree. The jury rendered specific verdicts finding Appellee not guilty of those offenses. Under Instruction No. 3, the jury could have found Appellee guilty of manslaughter in the second degree if he killed Endicott and “[t]hat in so doing, he was acting wantonly.” Under Instruction No. 4, Appellee could have been found guilty of reckless homicide if he killed Endicott and “[t]hat in so doing, he was acting recklessly.” Instruction No. 5, the instruction on self-protection, provided in words and figures as follows:

Even though the defendant might otherwise be guilty of Murder under Instruction No. 1, or Manslaughter in the First Degree under Instruction No. 2, if at the time the defendant killed Mr. Endicott (if he did so), he believed that Mr. Endicott was about to use unlawful physical force upon him, he was privileged to use such physical force against Mr. Endicott as he believed to be necessary in order to protect himself against it, but including the right to use deadly physical force in so doing [889]*889only if he believed it to be necessary in order to protect himself from death, serious physical injury or being kidnapped. But, if the defendant was being unlawfully restrained under circumstances which constituted either Unlawful Imprisonment in the First Degree or Unlawful Imprisonment in the Second Degree then the defendant was not privileged to use deadly physical force.
The above instruction is subject to the following qualification:
Regardless of what the defendant then believed, if you believe from the evidence beyond a reasonable doubt the following:
(a) That it was not in fact necessary for him to use any physical force against Mr. Endicott in order to protect himself, or, if it was, he used more than was actually necessary:
AND
(b) That his belief to the contrary and the action he took against Mr. Endicott in reliance upon that belief amounted to:
(1) Reckless conduct, then he was not so privileged, and you will find him guilty of Reckless Homicide under Instruction No. 4;
OR
(2) Wanton conduct, then he was not so privileged and you will find him guilty of Manslaughter in the Second Degree under Instruction No. 3.

(Emphasis added.) Instruction No. 6, the “definitions” instruction, included the statutory definitions of wantonly, KRS 501 .020(3), recklessly, KRS 501.020(4), and restrain, KRS 509.010(2), and defined kidnapping and unlawful imprisonment in the first and second degrees in accordance with the statutory elements of those offenses. KRS 509.040; KRS 509.020; KRS 509.030.

This case was tried prior to our decision in Elliott v. Commonwealth, Ky., 976 S.W.2d 416 (1998), and neither Instruction No.

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Commonwealth v. Higgs
59 S.W.3d 886 (Kentucky Supreme Court, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
59 S.W.3d 886, 2001 Ky. LEXIS 197, 2001 WL 1485759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-higgs-ky-2001.