Nicholas M Nighswander Discusses Kentucky Stand Your Ground Statute

Can You Stand Your Ground in Kentucky?

The George Zimmerman trial and not guilty verdict in Florida has generated all kinds of reaction both pro and con. Many question whether George Zimmerman should have retreated instead of following Trevon Martin, or just the opposite, whether there was no duty to retreat on the part of Trevon Martin when engaged by Mr. Zimmerman. What many of you may not know is that Kentucky has had a self-defense law similar to Florida’s since 2006 under the Justification Chapter of the Penal Code, KRS 503.055(3).

The statute states as follows:

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.

The Kentucky Supreme Court in Jones v. Commonwealth, 366 S.W.3d 376 (2011), reviewed a jury instruction granted the prosecution which stated that the victim had no duty to retreat and could use defensive force if he was on his own property and believed it necessary to defend himself. Appellant – Defendant Jones received a self-defense instruction but was found guilty but mentally ill because the jury was allowed to consider the “no duty to retreat” instruction on behalf of the victim. He received a twenty-five year prison sentence.

The facts of the case are these. Mr. Jones was a 65 year old retired navy veteran living in a trailer. At some time in 2006, Mr. Jones began thinking he was being poisoned by toxic chemicals. Over time, he took steps to protect himself by putting up barbed wire, among other things, and patrolling his property from the roof top of his trailer in a bullet proof vest with a weapon.

At some point, Mr. Jones began suspecting his neighbor Perry Warren was the one poisoning him. On March 3, 2008, Mr. Jones saw Mr. Warren driving home. Mr. Jones got in his truck armed with a hand gun and followed Mr. Warren to his home to ask him some questions about the chemicals. Mr. Jones got out of his truck on Mr. Warren’s property. Mr. Warren, armed with a .22 rifle, told Mr. Jones to leave. Mr. Jones said he just wanted to get things cleared up and said that then Mr. Warren started to back him up. Mr. Jones said he was leaving but wanted to talk. Mr. Jones said that the next thing he heard was a crack, saw Mr. Warren’s rifle, and decided to fire back. Mr. Jones shot back and Mr. Warren died at the scene from receiving five gun shots wounds. Mr. Warren had indeed fired his rifle several times.

Mr. Jones was indicted for murder. At his trial in 2009, the jury was instructed on murder, first degree manslaughter, reckless homicide, insanity, and guilty but mentally ill. The prosecution at the beginning of the trial tried to prevent Mr. Jones from using the defense of self-defense found in KRS 503.055(3), because Mr. Warren was on his own property when the shooting occurred. The trial court allowed Mr. Jones to claim self-defense and the prosecution to counter that Mr. Warren had no duty to retreat on his own property and could defend himself too. As a result, the no duty to retreat instruction was given as a applied to the victim and a guilty verdict rendered. Mr. Jones appealed as a matter of right.

The issue on appeal was whether the victim, through the prosecution, could assert there was no duty to retreat or was the self-defense instruction reserved only to the criminal defendant charged with a crime, in this case Mr. Jones. The Kentucky Supreme Court ruled that it was meant to apply to the conduct of the person who is subject to criminal prosecution as a result of the use of force, and not the victim of such force. As a result, Mr. Jones conviction was reversed for the erroneous instruction and given a new trial.

It does seem from this case decision that if the George Zimmerman case had occurred in Kentucky the result probably would have been the same, not guilty.

The link for this Kentucky Supreme Court Case follows.

http://opinions.kycourts.net/sc/2009-SC-000221-MR.pdf

This case is final and can be cited as legal authority.

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