Should Kentuckys new Self Defense law be held retroactive to a shooting that occurred prior to the adoption of the new law?

 LawReader Analysis by Senior Editor Stan Billingsley:

Update: By Luke E. Saladin  Ky. Post staff reporter

A Covington man charged with homicide may not use as his defense a new state law that extends broader powers of self-protection to private citizens, a judge ruled on Monday.

Jury selection in the case of Adam Justin Walters, 20, will begin today, a day after Kenton Circuit Judge Greg Bartlett decided that Walters’ lawyer can’t employ a new law, which some call the “castle doctrine,” and others call the “make my day” law.

The statute, passed by the 2006 General Assembly, gives individuals greater leeway to use deadly force if they perceive their lives to be in danger.

Walters is charged with first-degree manslaughter in connection with the stabbing death of 18-year-old Matthew Maltaner on Feb. 9, but Walters’ lawyer says his client was acting in self-defense, which is why he wanted to use the new law.

The problem for Walters is that the law did not take effect until July, five months after the stabbing.

Bartlett said in some cases a defendant who committed a crime may be tried under a new law, but only if that statute mitigates or reduces the punishment for the crime, rather than changing what constitutes a crime.

“The amendment goes to the substance of the defense, rather than the penalty,” Bartlett said.

Sponsored by Sens. Damon Thayer, R-Georgetown, and Dick Roeding, R-Lakeside Park, the law states that a person has the presumption of an imminent fear of death or bodily harm if another person is trying to break into his car or home, and thus may use deadly force to protect himself, the law states. It says the person has no duty to retreat.

Walters’ attorney, Jim Norris of the Kenton-Campbell Public Advocate’s Office, and Assistant Kenton Commonwealth Attorney Jim Redwine, who is prosecuting, said the case would come down to the use of excessive force – or lack thereof.

“We’re moving on,” Norris said Monday.

Police say Walters and Maltaner, of Erlanger, got into an argument while on East 19th Street in Covington, and Walters pulled a knife and stabbed Maltaner.

Walters had just left his job at the White Castle on 12th Street and was riding with a friend to the Taco Bell on Fourth Street when Maltaner started following him.

The two had had words previously over Walters’ supposed comments to Maltaner’s girlfriend, Norris said.

When Walters’ car pulled up in front of his house on 19th Street, Maltaner pulled up alongside and blocked him in. Words led to actions, and Maltaner opened Walters’ car door and started pulling him out, Norris said.

Walters then stabbed Maltaner with a small pocket knife in the heart, police said.

Maltaner died early the next morning.
For reference see below:  THE NEW 2006 STATUTE KRS 503.050,  KRS 503.055 is new for 2006 and did not previously exist. The old version of KRS 505.050.  

See LawReader.com  Digest resources for members at:  RETROACTIVE APPLICATION OF STATUTES, RULES OF PROCEDURE, COURT RULINGS 

    This issue will be decided shortly in a Kenton County Court.  The Commonwealth has argued in its motions before the court that the law should not be applied retroactice, and the defendant should not be able to assert this defense.  The new law holds that a defendant has no duty to withdraw from his attacker prior to using deadly force under certain factual situations.

    Kentucky law would at first blush appear to be confused on this issue, however once one breaks this issue down, the answer may well be settled by reference to Justice v. Commonwealth, 987 SW2d. 306, 12/17/1998. and consideration must be given to In Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987) which is cited in the Justice case below.

    There is a great deal of case law that holds a law should not be applied retroactively unless the statute clearly expresses an intent to make it retroactive.  
See: Commonwealth of Kentucky Dept. of Agriculture v. Vinson, No. 1999-SC-0570-DG (Ky. 11/16/2000).

“Kentucky law prohibits the amended version of a statute from being applied retroactively to events which occurred prior to the effective date of the amendment unless the amendment expressly provides for retroactive application.?

But that same case  (Commonwealth of Ky. Dept. of Agriculture v. Vinson) recognizes a distinction that is important:

“A retrospective law, in a legal sense, is one which takes away or impairs vested rights acquired under existing laws, or which creates a new obligation and imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.

(LawReader Note: this decision mentions situations that reduce the rights of a defendant and do not refer to new rights that favor the defendant.)

Therefore, despite the existence of some contrary authority, remedial statutes, or statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of such rights, do not normally come within the legal conception of a retrospective law, or the general rule against the retrospective operation of statutes. “

Also Vinson  goes on to say:

“Remedial legislation implies an intention to reform or extend existing rights, and has for its purpose the promotion of justice and the advancement of public welfare and of important and beneficial public objects. The term applies to a statute giving a party a remedy where he had none, or a different one, before.

Another common use of the term “remedial statute” is to distinguish it from a statute conferring a substantive right.

Both definitions of a remedial statute were approved by the Kentucky Court of Appeals in Kentucky Insurance Guarantv Association v. Conco, Inc., Ky.App., 882 S.W.2d 129 (1994). In Conco, a worker was injured in October 1984, while employed by Conco, Inc. The company had workers’ compensation insurance with a carrier later adjudged to be insolvent, with the result being that KIGA assumed coverage. At the time of the insolvency, KIGA’s coverage was limited by statute to $50,000. In 1990, the statute was amended to remove the cap from KIGA’s coverage of workers’ compensation claims. Based on the holding in Peabody, supra, the Court of Appeals held that the amendment removing the cap was remedial legislation which had retroactive application. Conco, supra, at 130.

Further, the Court of Appeals in Conco, affirmed a basic concept of statutory interpretation as set out in KRS 446.080(l), that “all statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the Legislature.” Conco. supra, at 130.?

     In the above cited Justice case, issued in 1998, the Ky. Supreme Court once again changed the case law regarding double jeopardy back to the Burge standard.

“Having determined that retrospective application of Burge does not violate due process, we further conclude that retrospective application is proper.

 In Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987), the United States Supreme Court held “that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Id. at 328, 93 L. Ed. 2d at 661. The Griffith Court gave two important reasons for this holding.

First, it is a settled principle that this Court adjudicates only “cases” and “controversies.” Unlike a legislature, we do not promulgate new rules of constitutional criminal procedure on a broad basis. Rather, the nature of judicial review requires that we adjudicate specific cases, and each case usually becomes the vehicle for announcement of a new rule. But after we have decided a new rule in the case selected, the integrity of judicial review requires that we apply that rule to all similar cases pending on direct review. . . .

Second, selective application of new rules violates the principle of treating similarly situated defendants the same. . . . The problem with not applying new rules is “the actual inequity that results when the Court chooses which of many similarly situated defendants should be the chance beneficiary” of a new rule.

Id. at 322-23, 93 L. Ed. 2d at 658-59 (emphasis in original and internal citations omitted). Both of these reasons favor retrospective application of Burge.

First, the proposition that the integrity of judicial review favors retrospective application of Burge is inherent in the argument itself. Next, it is just as inequitable to single out a particular defendant from all similarly situated defendants for application of a new rule that works to that defendant’s detriment, as it is to single out a particular defendant for application of a rule that works to that defendant’s benefit.

Finally, the traditional reason for not giving retrospective application to a new rule is not a concern in this case. As explained by the Griffith Court, “reliance by law enforcement authorities on the old standards and effect on the administration of Justice of a retroactive application of the new rule” virtually compelled a finding that the new rule was not retroactive. 479 U.S. at 324-25, 93 L. Ed. 2d at 659. Double jeopardy concerns come into play only after investigation, interrogation, and arrest. They have little or no bearing on the day-to-day activities of law enforcement personnel. Further, the administration of Justice actually benefits from retrospective application of Burge. One of the main reasons we returned to the “same elements” test was because “application of the ‘same conduct’ analysis beyond Blockburger has created confusion and is ‘unstable in application.’” Burge, 947 S.W.2d at 881, quoting Dixon, 509 U.S. at 709, 125 L. Ed. 2d at 576.?

    The courts have explained that if a new statute increases the penalty after the crime has been committed, or made an act a crime which at the time of its commission was not a crime, than it is substantive law and should not be applied retroactively.  This would be ex post facto legislation.  However, the Justice case points out that a remedial statute that deals with procedure and rules or which recognizes new rights in favor of the defendant may be applied retroactively.

    The new self-defense statute is said by some authorities to only codify and repeat other theories of self-defense and in essence they claim it is not new law at all.  If this is correct, than the rule against applying the new law retroactively would clearly not apply to prevent the retroactive application of this new “defense? to a criminal act.
Footnotes:

THE NEW 2006 STATUTE:

503.050 Use of physical force in self-protection — Admissibility of evidence of prior
acts of domestic violence and abuse.
(1) The use of physical force by a defendant upon another person is justifiable when the
defendant believes that such force is necessary to protect himself against the use or
imminent use of unlawful physical force by the other person.

NO CHANGE FROM Old Section (1): (1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.

(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055.

CHANGE IN SECTION (2) Old Section (2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, or sexual intercourse compelled by force or threat.

(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.

N0 CHANGE IN SECTION (3) (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.
THE FOLLOWING SECTION (4) of KRS 503.030 IS NEWLY ADDED TO THE 2006 STATUTE:

(4) A person does not have a duty to retreat prior to the use of deadly physical force.

Effective: July 12, 2006
History: Amended 2006 Ky. Acts ch. 192, sec. 3, effective July 12, 2006. — Amended 1992 Ky. Acts ch. 173, sec. 2, effective July 14, 1992. — Created 1974 Ky. Acts ch. 406, sec. 30, effective January 1, 1975.

The Pre-2006 Statute:
503.050
Use of physical force in self-protection — Admissibility of evidence of prior acts of domestic violence and abuse.
(1) The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.
(2) The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, or sexual intercourse compelled by force or threat.
(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.
Effective: July 14, 1992
History: Amended 1992 Ky. Acts ch. 173, sec. 2, effective July 14, 1992. — Created
1974 Ky. Acts ch. 406, sec. 30, effective January 1, 1975.
 
The following statute KRS 503.055 is new for 2006 and did not previously exist:
503.055 Use of defensive force regarding dwelling, residence, or occupied vehicle –Exceptions.

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if that person had removed or was
attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
(2) The presumption set forth in subsection (1) of this section does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person;
(b) The person sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of the person against whom the defensive force is used;
(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a peace officer, as defined in KRS 446.010, who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties, and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a peace officer.
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm
to himself or herself or another or to prevent the commission of a felony involving the use of force.
(4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
Effective: July 12, 2006
History: Created 2006 Ky. Acts ch. 192, sec. 2, effective July 12, 2006.
         A review of whether or not the rights granted by the new Ky. self defense law actually created new substantive law may be analyzed by reviewing the then pre-existing right of self-defense:

KY     Estep v. Commonwealth, 64 S.W.3d 805 (Ky. 01/17/2002)

 [26]    If at the time the defendant killed George Jackson (if he did so), he believed that George Jackson was about to use physical force upon him, he was privileged to use such physical force against George Jackson 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 only if he believed it to be necessary in order to protect himself from death or serious physical injury at the hands of George Jackson, subject to this qualification:
[27]    If you believe from the evidence beyond a reasonable doubt that the Defendant was mistaken in his belief that it was necessary to use physical force against George Jackson in self-protection, or in his belief in the degree of force necessary to protect himself,
[28]     AND
[29]    A. That when he killed George Jackson (if he did so), he failed to perceive a substantial and unjustifiable risk that he was mistaken in that belief, and that his failure to perceive that risk constituted a gross deviation from the standard of care that a reasonable person would have observed in the same situation, then you will find him guilty of Reckless Homicide under Instruction No. 1.
                          I. SELF-PROTECTION INSTRUCTION.

KY     Commonwealth v. Higgs, 59 S.W.3d 886 (Ky. 11/21/2001)
[15]    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; Skaaas v. Commonwealth, KY., 803 S.W.2d 573, 575 (1990) cert. denied, 502 U.S. 844 (1991).
[16]    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 “[tlhat in so doing, he was acting recklessly." Instruction No. 5, the instruction on self-protection, provided in words and figures as follows:
[17]    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 only 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.
[18]    The above instruction is subject to the following qualification:
[19]    Regardless of what the defendant then believed, if you believe from the evidence beyond a reasonable doubt the following:
[20]    (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:
[21]     AND
[22]    (b) That his belief to the contrary and the action he took against Mr. Endicott in reliance upon that belief amounted to:
[23]    (1) Reckless conduct, then he was not so privileged, and you will find him guilty of Reckless Homicide under Instruction No. 4;
[24]     OR
[25]    (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.)
[26]    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.
[27]    This case was tried prior to our decision in Elliott v. Commonwealth, KY., 976 S.W.2d 416 (1998) and neither Instruction No. 3, manslaughter in the second degree, nor Instruction No. 4, reckless homicide, included the absence of the right to act in self-protection as an element of the offense. Shannon v. Commonwealth, Ky., 767 S.W.2d 548, 551-53 (1988) (“Shannon. Part II”), overruled, Elliott. supra, at 422. Appellee did not preserve this issue for review; nor did he object to the fact that paragraph (b) of the mistaken belief qualification in the self-protection instruction incorrectly predicated his guilt of manslaughter in the second degree or reckless homicide partially upon the existence of a wanton or reckless & committed in self-protection, whereas KRS 503.120(l) applies only to a wanton or reckless belief in the need to so act. Shannon, supra, at 548-51 (“Shannon, Part I”); Elliott. supra, at 420-21. Appellee’s only claim of error with respect to Instruction No. 5 is that, although the instruction correctly predicated his right to use deadly physical force on his belief that such was necessary to protect himself from kidnapping, the instruction incorrectly provided that he could not use deadly physical force in self-protection if, in fact, he was not being kidnapped, but only unlawfully imprisoned. In other words, if the jury believed Appellee was not actually being (or about to be) kidnapped, as that offense is defined in KRS 509.040, but was only being (or about to be) unlawfully imprisoned, as defined in KRS 509.020 and KRS 509.030, then he was not authorized to use deadly physical force in self-protection regardless of what he, himself, believed.
[28]    The “focus of the penal code is on the defendant’s actual subjective belief in the need for self-protection and not on the objective reasonableness of that belief.” Commonwealth v. Hager, KY., 41 S.W.3d 828, 836 (2001) (quoting Elliott, supra, at 419). Even if a defendant is mistaken in his subjective belief, he is still entitled to the defense of self-protection, subject only to the wanton or reckless belief qualification described in KRS 503.120(l). The error here is similar to that which occurred in Hager when the jury was instructed to determine whether the defendant was “mistaken in his need” for self-protection instead of whether he was “mistaken in his belief” in the need for self-protection. Hager. supra, at 831.

 

 

 

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