Pace v. Commonwealth

561 S.W.2d 664, 1978 Ky. LEXIS 329

• Court: Kentucky Supreme Court
• Decided: January 31, 1978
• Status: Published

Opinions

CLAYTON, Justice.

The appellant, Lanorma Wooster Pace, was indicted for murder in the Harlan Circuit Court in connection with the March 1976 shooting death of her husband, Charles Pace. A jury of her peers found Lanorma guilty of the lesser included offense of first-degree manslaughter and sentenced her to 20 years’ imprisonment, the maximum penalty for that crime. See KRS 507.030, 532.-060(2)(b).

Lanorma contends here, among other things, that the trial court erred by failing to instruct the jury on the law of self-defense. We agree, and for that reason reverse her conviction for a new trial.

The circumstances surrounding the shooting are not in dispute. On March 12, 1976, Charles Pace was pronounced dead on arrival at the Appalachian Regional Hospital in Harlan County. He had been shot in the bathroom of his home in nearby Mary Alice, Kentucky. An examination of the body revealed that death resulted from a .25-cal-iber bullet which entered the left upper chest and penetrated the heart.

Lanorma admitted shooting her husband. The only contention at trial was whether the shooting was intentional and without justification, as the Commonwealth argued, or whether the gun discharged accidentally during an altercation, as contended by La-norma.

In its attempt to prove that Lanorma deliberately killed Charles, the prosecution relied primarily on the following evidence. The Commonwealth proved by Willard Pace, Charles’ father, that Lanorma had threatened Charles prior to the shooting. According to Mr. Pace, upon visiting his son’s house on the day before the homicide, he found Lanorma cleaning up a broken glass. When asked how the glass had broken, Lanorma stated that she had thrown it at Charles during an argument and that “If he keeps on, I’m going to kill him.”

In addition, the Commonwealth proved by Kentucky State Police Detective Danny Castle and Harlan County Coroner Dr. Phillip Begley that Lanorma had changed her story about the shooting when interviewed at the hospital on the day in question. Detective Castle and Dr. Begley both testified that Lanorma initially told them Charles had shot himself. When Detective Castle told Lanorma he did not believe her, however, Lanorma admitted it was she who had shot her husband, but insisted the shooting was accidental. According to both Detective Castle and Dr. Begley, Lanorma’s second version of the incident was that she and Charles had engaged in another argument on the morning of March 12; that upon Charles’ early return from work, he lay down on the couch and told Lanorma to get him the pistol which was lying on the end table; that Lanorma grabbed the gun and ran to the bathroom, but before she could lock the door Charles pushed it open, slapped her, and tried to wrest the weapon from her; and that the gun accidentally fired when Lanorma’s hand hit the wall during the ensuing struggle.

Finally, the Commonwealth proved by Detective Castle that when he visited La-norma in the county jail on the day following the incident she told him, “I killed him, why don’t they go ahead and try me. I don’t give a goddamn what they do to me.”

Lanorma took the stand in her own defense. She admitted threatening Charles previous to the day of the shooting, and also admitted shooting him. However, she denied that the killing was intentional, relating instead the same story about an accidental shooting she had finally told Detective Castle and Dr. Begley at the hospital. When asked to explain why she had given two different accounts of the shooting while at the hospital, Lanorma stated she had originally lied about Charles’ having shot himself because she was upset and afraid her five-year old daughter might be taken from her if she told the truth.

At the close of all the evidence, the trial court instructed the jury on murder, manslaughter, and reckless homicide. Defense counsel requested that the jury be instructed on self-protection as well, and tendered an instruction setting forth the controlling law on that subject; but the trial court refused to give the requested instruction, making instead only a fleeting reference to self-protection in its general instructions. From the general instruction on first-degree manslaughter:

FIRST DEGREE MANSLAUGHTER; INSTRUCTION NO. II

If you do not find the defendant guilty under Instruction No. I, you will find her guilty under this instruction if, and only if, you believe beyond a reasonable doubt all of the following:

(a) That in this county on or about the 12th day of March, 1976, and before the finding of the indictment herein, she killed Charles Harrison Pace by shooting him with a pistol;

AND

(b)(i) She intended to cause Charles Harrison Pace’s death;

OR

(ii) She was acting with the intention of causing serious physical injury to Charles Harrison Pace;

AND

(c) That in so doing she was not privileged to act in self protection.

. (emphasis added).

It is true, as the Commonwealth argues, that the defenses of accident and self-protection are inherently contradictory: an accidental shooting results from an involuntary act, while a shooting accomplished in self-defense results from a voluntary act. The mere fact that these defenses are inconsistent, however, should not preclude a jury from considering both theories under appropriate circumstances.

In Gatliff v. Commonwealth, 32 Ky.L. Rep. 1063, 107 S.W. 739 (1908), one Gilreath was shot and killed by the defendant, a county marshal, who had been sent to arrest him. The evidence for the prosecution reflected that the defendant killed Gilreath deliberately and without justification. According to the defendant, however, Gilreath had resisted arrest and assaulted the defendant, making it necessary for him to draw his pistol and strike Gilreath with it in an attempt to beat him off. During the struggle which followed, the gun unaccountably went off and Gilreath was killed.

In considering these facts, this court stated:

. the court, under the evidence in this case, should have awarded an instruction as to the right of self-defense. It is true the defendant in his testimony rested his defense wholly upon the accidental discharge of the pistol; but his testimony shows, in addition, that while he did not rely upon self-defense in bar of the indictment, if what he said was true, the deceased was making a violent assault upon him at the time of the killing — that he had the marshal by the throat, and was choking him, and refused to release his grasp upon the officer’s throat upon demand to do so. Now, it may have been that the defendant made a false statement as to the accidental discharge of the pistol, being moved thereto by fear of the result of the trial, and believing that his chances of acquittal were more favorable by saying that the pistol was accidentally discharged than by testifying that he killed the deceased in self-defense. The mere fact that the accused rested his defense on false or mistaken testimony did not deprive him of any defense which he might have truthfully made. It was the duty of the court to give an instruction upon every phase of the homicide which had a substantial basis in the evidence, leaving to the jury to say, if conflicting theories were presented, which was true. Id. 107 S.W. at 740.

Although Gatliff was decided some years ago, the principle for which it stands is just as sound today as it ever was. No matter what technical defense is asserted by an accused at trial, the jury is always free to disbelieve such evidence as relates to this defense and to believe instead any remaining evidence from which an exoneration of the crime might be inferred. Cf. Glover v. Commonwealth, 260 Ky. 48, 88 S.W .2d 881 (1935); Wireman v. Commonwealth, 211 Ky. 495, 277 S.W. 822 (1925).¹

Unlike our brother Jones, we do not find Maiden v. Commonwealth, 203 Ky. 446, 262 S.W. 588 (1924), and similar cases cited in his dissenting opinion to be incompatible with this position. As we view the problem, the real question which must be answered in cases of this type is not whether the theory asserted by the accused at trial is logically consistent with the defense of self-protection, but is rather whether there was sufficient evidence of an attack on the accused to justify submission of an instruction on self-protection.² In the cited cases, a close examination of the facts reveals absolutely no evidence in any of them of a struggle or other circumstance from which a jury might have inferred that the defendant was under attack at the time of the shooting; consequently, the determination by this court in each case that an instruction on self-defense was unjustified, was entirely proper.

There was such evidence in the case at bar. Although Lanorma did testify that the pistol discharged accidentally, she also stated that it did so as she and Charles were scuffling over the gun, and that the reason she ran to the bathroom in the first place was her fear that Charles was going to kill her and her daughter:

Before he went to work we were in a big fight and when he came home he wanted me to go to the store and get some stuff and I wouldn’t do it so he wanted me to — I was sitting on the couch and he put his head in my lap and said to give him the gun off the end table and I asked him why. He said he wanted to kill me and my little girl and I took off running so nobody wouldn’t get hurt or anything.

Q Where did you run to?

A I run to the bathroom. I was trying to shut the door when he come in.

Q Did you succeed in closing him off in the door?

A No. He pushed it open before I got it shut.

Q And what happened to you?

A We were fighting over the gun. He was trying to take it from me. I hit my hand on the wall. Well, I was trying to throw the gun in another room to keep him from getting it hoping me and my little girl could get out the back way, and when I did, I hit the wall and that’s when I turned by hand to look at it, that’s when the gun went off.

This testimony, together with the testimony of Detective Castle and Dr. Begley, sufficiently injected the issue of self-defense into the case. Even though the jury did not believe that the shooting was accidental, but believed instead that Lanorma shot Charles intentionally, it might nevertheless have concluded that such action was justified had it been given the opportunity to do so.

The insertion by the trial court of the phrase “and that in so doing she was not privileged to act in self-protection” in the general instructions was not adequate in this regard. In fact, the inclusion of this clause as a means of straddling the fence on this issue was error in and of itself. If, on the one hand, the trial court believed that Lanorma was not entitled to an instruction on self-protection, it should not have mentioned self-protection at all. By doing so, the trial court added nothing to the general instructions: a killing which is intentional and unlawful could not be in self-defense; the two qualities are mutually exclusive. If, on the other hand, the trial court was of the opinion that Lanorma was entitled to an instruction on self-protection, it should have submitted a separate instruction completely defining the law on the subject. By failing to do so, the trial court improperly left it up to the jury to determine the law. Commonwealth v. Cook, 86 Ky. 663, 7 S.W. 155 (1888); see also 1 Palmore, Kentucky Instructions to Juries § 1.07; for examples see §§ 10.01 et seq. (1975).

The judgment is reversed and the cause is remanded for a new trial consistent with this opinion.

PALMORE, C. J., and LUKOWSKY and STERNBERG, JJ., concur. JONES, REED and STEPHENSON, JJ., dissent.

Separate opinions by PALMORE, C. J., concurring, and JONES and STEPHENSON, JJ., dissenting.

1 . In both Glover and Wireman it was held, under situations the converse of that in the instant case, that a defendant may be entitled to an affirmative instruction on accidental killing even though he testifies that he acted in self-defense. While we have since held that affirmative instructions on accidental killing are not necessary in homicide cases, Dolan v. Commonwealth, Ky., 468 S.W.2d 277 (1971); Dennis v. Commonwealth, Ky., 464 S.W.2d 253 (1971), the reasoning underlying these decisions is the same as that in Gatliff. See also Pennington v. Commonwealth, Ky., 344 S.W.2d 407 (1961) (alibi defense).

2 . Whether there was sufficient evidence at trial to raise the affirmative defense of self-protection is, of course, a question of law to be decided by this court. Cf. Jewell v. Commonwealth, Ky., 549 S.W.2d 807 (1977).