concurrence">SCOTT, J.,

concurring:

Given the multitude of precedents written by this and previous Kentucky Supreme Courts, I must concur in Justice Venters’ opinion. In concurring, however, I must state my belief that the jury’s verdict in this case is another sad testimonial to the confusion generated by our self-defense statutes and instructions.

For this reason, I feel compelled to restate what I first said in 2005, to wit:

I believe [Janice Hasch’s] conviction is a sad testimonial to the confusing state *369of our self-defense statutes and instructions.

Because no one wants to be the one to say it, we have come to a point in our criminal jurisprudence where people innocent of murder are being convicted, yet guilty persons are getting lesser sentences. Simply because our homicide laws have become so complicated — their instructions so convoluted — that our juries of today, as intelligent as they are, cannot understand the sequence [, concepts,] and language of the instructions-nor can we at times.

Were the statutes upon which the instructions are based not so particularized[,] they should be held void for vagueness. The sad commentary however is that we should not have tinkered with our self-defense laws in the first place.

“[T]he Kentucky law of self-defense took shape in the early days of common law and changed very little thereafter. Under this law, a defendant charged with homicide was entitled to exoneration upon a showing that (1) he believed that the conduct of the victim posed an imminent threat of death or of serious bodily injury to him [or others]; (2) he believed that the use of deadly physical force was necessary to avert that threat; and (3) he had reasonable grounds to entertain the beliefs that compelled him to act.” William S. Cooper & Robert G. Lawson, Self-Defense in Kentucky A Need for Clarification or Revision, 76 Ky. L.J. 167, 170 (1987). [ (Emphasis added.) ]

Yet we made major changes to our self-defense laws with the adoption of the new Penal Code in 1974. Now we have not only self-defense — but also imperfect self-defense, along with a multitude of other defense rules and sub-rules; all of which, when mixed together in instructions with lesser included offenses of various relevant mental states, becomes incomprehensible to even the most educated. See KRS 503.050 through 503.120. With the inadequate training and time our juries have to deal with these instructions — [it’s] akin to expecting someone unfamiliar with computers to operate one at an expert level in one day. It is simply not working and our juries are guessing at the proper results, or more often, convicting of a lesser included offense, sometimes rightly — sometimes wrongfully — simply as a compromise to confusion.

“What is to be done? The status quo is obviously undesirable. Perhaps the Kentucky General Assembly should address the problem with new legislation. The cases suggest that the existing statutes may be too complicated to be functional and that legislative intervention is unavoidable. Assuming this to be true, there are at least four options deserving of consideration by the General Assembly. The first option is to restore the law to its existence prior to the adoption of the new Code.” William S. Cooper & Robert G. Lawson, Self-Defense in Kentucky A Need for Clarification or Revision, 76 Ky. L.J. 167, 194 (1987). I believe it must be restored.

The very first Section of our Constitutional Bill of Rights provides: “All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: First: The right of enjoying and defending their lives and liberties.”

The closing section of the Bill of Rights (Section 26) provides: “General powers subordinate to Bill of Rights-Laws contrary hereto are void. To guard against transgression of the high powers which we have delegated, We Declare that every thing in this Bill of *370Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this Constitution, shall be void.” The first part of Section 1 of our Bill of Rights first appeared in our current Constitution adopted in 1891. It was not set out in such a manner in the three previous Constitutions of 1792, 1799 and 1850. Thus, it was an express affirmation of the time that these rights were that important and would remain inviolate and no power was (or would be) granted under our Constitution to change them.

A careful perusal of the official report of the proceedings and debates in the convention held in Frankfort in September of 1890, discloses the distrust many of the delegates had for the “High Courts” and how they had construed (or misconstrued) language in previous Constitutions. It is reported the Honorable delegate from Pen[]dleton County, Mr. Leslie T. Applegate, argued to those assembled:

yet some of these principles are vital to the issues of the day. We have labored somewhat upon them and have altered them some. Why? Because the experience of time has shown that along in 1849 or in 1850, and even going back to 1792, they didn’t mean what the men who used them thought they meant; and while I have the profoundest respect for our courts, yet they have turned their forces upon it, and they have turned the light of reason upon it, and we have found that these expressions are deficient to protect men and their private rights, and for that reason we have enlarged upon the expressions here.... If you can ever use language so plain and specific that the courts will not sometime or another make a change in it, then I would like you to employ it, because this morning I [sat] down in the library and took down Barbour’s digest and found that that court has overruled itself more than 100 times in its history; then if they themselves cannot say what they mean and stick to it, how in the name of heaven can we use any language that will be always construed as we wish it and which they will stick to

Debates Constitutional Convention, 1890, Ky. Vol. I, Pg. 590-591.

The Honorable delegate from Todd County, Mr. H.G. Petrie, pointed out to those assembled:

[i]n thinking about it, it occurred to me that these judges who are giving this satisfactory interpretation of that clause of the Constitution will in a few years pass away from the honored seats they now occupy, and those seats will be filled by other judges. It will be, as it was said by the delegate from Pen[ jdleton, the same court but different judges. Who knows how they may view that section? They may conclude that the interpretation of the present judges is wrong. They may be unable to concur. They may say that the construction given that clause by some of the other judges way back yonder was the correct one; and then we would have the trouble again; so it seems to me if human language can be so arranged as to express really the thought intended to be conveyed by that ... section, that it ought to be done.

Ibid 625.

The Honorable Robert Rodes, the delegate from Warren County, echoed these arguments to those assembled:

I beg leave to call your attention to the fact that there have been judges in the history of the world who have *371laid stress upon particular words and did not hesitate to construe words or misconstrue them as they deem proper....

Ibid 776.

In his arguments at the convention, the able delegate from Warren County, Robert Rodes, [also] set out for those assembled and posterity, the structure and purpose of the very last Bill of Rights, Section 26:

let us now come and look at the last section. “To guard against transgression of the high powers which we have delegated, We Declare that everything in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this Constitution, shall be void.” That is to say, it is consecrated. This is no ordinary part of the Constitution, and if by any misfortune or inadvertence any other part of it comes into conflict "with the Bill of Rights, I apprehend there is not a court in the land that would not say that the Bill of Rights is paramount. It is sacred; they are set apart in a room or apartment by themselves and the mandate is, let no profane hand or foot come near it.

Ibid 443.

It is a certainty then that the framers of our current Constitution intended the people to retain their rights of defending-their lives and liberties based upon the standards that had been formulated for the preceding 182 years and that they tried — as best they could — to use words and structure that would withstand the ages, minds and eyes of time. These standards can be found in the decisions of the time and define the guidelines, in simple understandable terms, for a citizens’ right to self-defense and they are as binding upon this court as they are on the legislature.

“In dealing with the scope and breadth of the authority of the legislature ..., the courts without exception not only hold that a law-making body may not transgress the inhibitions contained in the Bill of Rights as incorporated in Constitutions, but also hold that when it is attempted, it is within the power of courts to so declare and hold enactments in violation of the Bill of Rights illegal and therefore void.” City of Louisville v. Kahn [Kuhn], 284 Ky. 684, 145 S.W.2d 851, 858 (Ky.1940).

Therefore, since the Constitution specifically gave the government no power to change the right of self-defense, our current statutes are unconstitutional— being outside the powers granted. I would further note that one who truly acts in self-defense, and is thereby acquitted of murder, could not be guilty of a lesser crime involving a wanton or reckless state of mind for the same act — as we now do. As a trial judge, I believed this and still do.

Society builds its prisons to hold people that are just [downright] mean; those who rob, cheat, steal and hurt people. Prisons are not built to incarcerate citizens who do what they are compelled to do by the love of life itself — risk their lives to defend their families and close ones. Such people are not a statistical threat to society — only to those who would do them harm. And according to our Constitution, framed in 1891, that’s not criminal conduct.

Though I submit some will see the truth in what I write today — many will recoil from the havoc its recognition might create [among the multitude of convictions since this change to the penal code in 1974]. We’ve come so far down this illogical road — [it’s] just too *372hard for many to go back — even when the Constitution — in the plain English of 1891, when it was written in — commands it.

Hopefully however, the Legislature will see this as a “wake-up call” and put us back where we should be [in future trials]....

Brown v. Com., 2002-SC-0739-MR, 2005 WL 923699 (Ky. Apr. 21, 2005) (Scott, J., dissenting).

I still believe this and I believe this conviction supports my belief as to the overwhelming confusion created by our self-defense statutes and instructions among our jurors today. Thus, I reluctantly concur.

' CUNNINGHAM and NOBLE, JJ., join.

Citation profile

Relationships

How this case has been treated — in progress