IMPOR7'ANT NOTICE NOT TO BE PUBLISHED OPINION

Transcription

1 IMPOR7'ANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINIONIS DESIGNA TED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR (4) (c), THIS OPINION ISNOT TO BE PUBLISHED AND SHALL NOTBE CITED OR USED ASAUTHORITYINANY OTHER CASE INANY COURT OF THIS STA TE.

2 ,*ixyrqmp 0-10urf of RENDERED : AUGUST 21, 2003 NOT TO BE PUBLISHED r SC-0448-MR CHARLES "BLAINE" DAILEY Doa7 APPELLANT V APPEAL FROM CARTER CIRCUIT COURT HONORABLE SAMUEL C. LONG, JUDGE 2000-CR-0034 COMMONWEALTH OF KENTUCKY APPELLEE MEMORANDUM OPINION OF THE COURT AFFIRMING Appellant, Charles Blaine Dailey, was convicted of murder by a Carter County jury and received a sentence of twenty years in prison. His appeal comes before this Court as a matter of right. Ky. Const. 110(2)(b). Appellant claims that the trial judge's failure to instruct the jury sua sponte on first-degree manslaughter with the mitigating factor of extreme emotional disturbance (EED) was palpable error. We disagree and affirm the conviction. Sometime between March 23 and 24, 2000, Appellant's wife, Sue Dailey, revealed to her husband that the victim, Muriel Jack Boggs, had raped her on three occasions and had threatened to kill her and the Daileys' daughter if she ever told anyone about these incidents. Appellant became incensed and tore apart their trailer in reaction to this information. Sue then left to visit her family in Ohio.

3 On the afternoon of March 27, 2000, the victim visited Appellant at his home. Appellant confronted the victim with his wife's story. The victim became upset and attempted to leave, but Appellant told him to stay until Sue returned so the three of them could discuss the situation. Again the victim protested and went to his truck. Appellant called out for the victim to remain, but the victim proceeded to start the engine. At this time, Appellant produced a rifle from behind the trailer door and fired repeatedly into the truck's cabin. After this, the truck began to roll in reverse. Appellant again called out for the victim to stop the truck. There was no response. Appellant then used a second rifle to fire two shots through the truck's rear windows. Thereafter, Appellant drove the truck deep into the woods with the victim's body still inside. When the body was discovered two days later, Appellant denied any knowledge of the victim's death or the circumstances surrounding it. After a search of his premises, Appellant retracted his denial and stated that he thought the victim, who was a professional race car driver, was leaving to kill his wife and daughter by running them off the only direct route leading to Appellant's property. At trial, Appellant testified on his own behalf claiming that the killing was in defense of his wife and child. The jury received seven instructions including intentional murder, reckless homicide, second-degree manslaughter, the defense of others, and the imperfect defense of others. The jury rejected Appellant's defense of others theory and found him guilty of murder. On appeal, Appellant argues that the trial court erred by failing to give, on its own motion, an instruction on first-degree manslaughter with the mitigating factor of EED. Appellant concedes in his brief that the failure to instruct the jury on EED was not properly preserved for appellate review. RCr 9.54(2). RCr 9.54(2) states that no party

4 may assign as error the giving or the failure to give an instruction, unless that party's position has been fairly and adequately presented to the court. Commonwealth v. Varney, Ky., 690 S.W.2d 758, 759 (1985). Instead, Appellant relies on RCr for preservation claiming that it was palpable error for the trial judge not to instruct the jury on this issue sua sponte. Under RCr 10.26, a palpable error which affects the substantial rights of a party may be reviewed even if not preserved if it is determined that a manifest injustice has occurred. Cash v. Commonwealth, Ky., 892 S.W.2d 292, 295 (1995). Appellant's theory of the case is that the killing was justified on the grounds that it was necessary to protect his wife and child. Under the instructions, protection of others was a complete defense to the murder charge, as well as a partial defense. A necessary implication of Appellant's argument regarding the trial court's "failure" to instruct on EED is that defense counsel erred in "failing" to request the instruction in the first place. In other words, it can hardly be an error for the trial court to fail to give an instruction the defense did not want as a matter of strategy, unless the strategy itself was constitutionally deficient. Defense counsel error is far from apparent in this case. Given Appellant's protection of others defense, defense counsel may well have declined to request an instruction on EED because it conflicted with this defense. But all we can do is speculate on this issue because the record before us does not include any discussion between the trial court and defense counsel regarding the jury instructions. On this record, we cannot determine whether defense counsel overlooked the issue of EED or whether it was avoided as a matter of trial strategy. See Humphrey v. Commonwealth, Ky., 962 S.W.2d 870, 872 (1998). Thus, since we cannot decide

5 the issue of ineffective assistance of counsel, without a sufficient record, the question of trial error is beyond our reach. Accordingly, we are unconvinced that the failure to instruct the jury sua sponte on first-degree manslaughter with the mitigating factor of EED resulted in manifest injustice. For the foregoing reasons, the judgment of the Carter Circuit Court is affirmed. All concur. COUNSEL FOR APPELLANT : Shelly R. Fears Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 302 Frankfort, KY COUNSEL FOR APPELLEE : A. B. Chandler, III Attorney General of Kentucky Perry T. Ryan Assistant Attorney General 1024 Capital Center Drive Frankfort, KY