# IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION THIS OPINIONIS DESIGNATED"NOTTOBE PUBLISHED ." PURSUANT TOTHE RULES OF CIVIL PROCEDURE PROMULGATEDBY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TOBE PUBLISHEDANDSHALL NOT BE CITED OR USEDAS BINDING PRECEDENT IN , ANY OTHER CASE INANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDEREDAFTERJANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NOPUBLISHED OPINIONTHAT WOULDADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FORCONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION INTHE FILED DOCUMENT ANDA COPY OF THE ENTIRE DECISIONSHALL BE TENDEREDAT,~ONGWITHTHE DOCUMENT TOTHE COURT ANDALL PARTIES TOTHE ACTION

.V

. RENDERED : JUNE 17, 2010 NOT TOBE PUBLISHED 

### ,$ixyrrzttr Courf of

~ :e~eztfixrkV 2009-SC-000014-MR JAMEY COPE APPELLANT

ONAPPEAL FROM

MADISONCIRCUIT COURT HONORABLE JEAN CHENAULT LOGUE, JUDGE

NO . 08-CR-00008 COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM

OPINION OF THE COURT AFFIRMING Jamey Cope's night of revelry turned into 

### a night ofviolence when he kicked out awindow

to enter the apartment he shared with Debra Sloan, who had locked him

out, and then sliced Sloan's forehead with a knife and punched her in the face. Fromthe criminal charges against Cope arising out of those events, a circuit court jury convicted him of one count of first-degree assault, one count of second-degree wanton endangerment, and of beinga seconddegree persistent felony offender (PFO 2) . Cope filed this appeal claiming that the trial court erred by refusing to give an extreme emotional disturbance (EED) instruction to thejury. We disagree.I . FACTUALAND PROCEDURAL HISTORY . Cope, Sloan, and others, including Sloan's daughter, Christina Massengale, drank at a local bar. After returning home, Cope went upstairs to another apartment to visit his former girlfriend. Sloan becamejealous and called Cope to tell him to come home or she would lock him out. Sloan then locked the door and toldMassengale to call the police if Cope came home. When Cope arrived home and kicked the locked door, Massengale called 911 . Cope then kicked out a window to gain entrance to the apartment. Cope grabbed the phone fromMassengale and destroyed it. Massengale fled to fetch her brother. Once outside, Massengale flagged down an officer who had been dispatched in response to her 911 call . Meanwhile, inside their apartment, Cope called Sloan names and threatened to kill her. Cope cut Sloan's face over her eye with a knife, jabbed the knife at Sloan's head, and punched her in the face. While trying to defend herself against the knife attack, Sloan cut her hands by grabbing the knife blade. When police entered the apartment, Sloan and Cope were in a bedroom behind a closed door. Officers' repeated efforts to pry open the door were largely unsuccessful ; although, at one point, they were able to open the door slightly and saw

Cope brandishing a knife in a downward direction toward Sloan. At one point, an officer sprayed pepper spray into the bedroom . At another point, Cope swung the knife in the officers' direction.Officers eventually splintered the door and entered the bedroom . According to their trial testimony, Cope was combative and resisted arrest. One of the officers shocked Cope with a stun gun, but Cope recovered and resumed the fight. An officer then delivered several blows to Cope's leg to get "pain compliance" fromCope. Even after the officers finally handcuffed him, Cope remained combative and threatened to kick out the windows of the police cruiser. At the police station, Cope stated that he and Sloan had gotten into an argument and that she had threatened to kill herself. As a result of the fracas, Sloan suffered a fracture of the orbital floor of her eye socket, which required surgical repair. Sloan also suffered knife wounds to her forehead and hands. One hand required a surgical repair of damaged nerves. The grandjury indicted Cope on one count of first-degree assault for "intentionally causing serious physical injury" to Sloan by cutting her with a knife; two counts of first-degree wanton endangerment for his actions directed at the police officer; and one count of beinga PFO2. All charges resulted in a jury trial . At the conclusion of the evidence at trial, the trial court instructed thejury on the lesser-included offenses of second-degree assault and fourthdegree assault but refused Cope's request for an EED instruction. Thejury found Cope guilty of first-degree assault and one count of second-degree wanton endangerment but acquitted Cope on the other count of first-degree wanton endangerment . Thejury also found Cope guilty of being a PFO2.Thejury recommended that Cope be sentenced to twentyyears'

imprisonment on the assault conviction and twelve months' incarceration (and a $500fine) for the misdemeanor wanton endangerment conviction. Thejury recommended enhancement of Cope's assault penalty to thirty years' imprisonment as a result of his PFO2conviction. The trial court sentenced Cope in accordance with thejury's recommendation,) after which Cope filed this appeal as a matter of right.2II . ANALYSIS. The only issue before us is whether the trial court erred by refusing to give Cope's requested EED instruction to mitigate the assault charge. In order to decide whether an EEDinstruction was appropriate in this case, we must first examine both the relevant statutes and our EED precedent. As it pertains to this case, KRS 508.010(1)(a) provides that a person commits first-degree assault by "intentionally causing] serious physical injury to another person by means of a deadly weapon or a dangerous instrument . . . ." Because first-degree assault is an intentional offense, EEDis potentially applicable because of KRS 508 .040(1), which provides that "(i]n any prosecution under KRS 508.010, 508.020 or 508.030 in which intentionally causing physical injury or serious physical injury is an element of the offense, the defendant may establish in mitigation that he acted under the influence of extreme emotional disturbance, as defined in subsection (1) (a) of

a By operation of law, the sentence for the misdemeanor wanton endangerment conviction must run concurrently with the sentence for the felony assault conviction. Kentucky Revised Statutes (KRS) 532. 1 10(l)(a) . Ky. Const . § 110( 2)(b) .KRS 507.020." Although it pertains specifically to the offense of murder,

KRS 507.020(1) (a) provides, in relevant part, that a person is not guilty "if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined fromthe viewpoint of a person in the defendant's situation under the circumstances as the defendant believed themto be." Afinding that a defendant acted under the influence of EEDdoes not entitle that defendant to an outright acquittal . But a finding that a defendant acted under EEDis important because it reduces the punishment a defendant may receive. In the case at hand, if Cope had been found to be acting under EED, his first-degree assault conviction, which normally is a Class Bfelony, 3 would have been reduced to a Class Dfelony.4 In practicality, this means that Cope's possible sentence would have been reduced froma range of ten to twenty years' imprisonment to a range of one to five years' imprisonment. 5 EEDis a curious mix of the objective and the subjective. Under the terms of KRS 507.020(1), there must be a "reasonable explanation or excuse"

The authorized maximum terms of imprisonment for felonies are: (a) For a Class A felony, not less than twenty (20) years nor more than fifty (50) years, or life imprisonment ; (b) For a Class Bfelony, not less than ten (10) years nor more than twenty (20) years; (c) For a Class Cfelony, not less than five (5) years nor more than ten (10) years; and (d) For a Class Dfelony, not less than one (1) year nor more than five (5) years. 3 KRS 508.010(2) . 4 KRS 508.040(2)(a) . 5 KRS 532.060(2) provides as follows:for the presence of EED, which connotes an objective standard;6 but the same

statutory subsection adds a subjective element when it provides that the reasonableness "is determined fromthe viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be." 7 Cope asserts that this duality creates a "vexing problem" because it is unclear "[w]hat, as a matter of law, is the threshold level of reasonableness that a defendant must meet, and . . . what objective standard [must] . . . a trial court or a reviewing court [use] to determine whether the defendant's claimof EEDpasses that threshold level[ .]" We disagree with Cope's assertion because we believe our precedent provides ample guidance about when an EED instruction is appropriate. We have defined EEDas being"a temporary state of mind so enraged, inflamed, or disturbed as to overcome one'sjudgment, and to cause one to act uncontrollably fromthe impelling force of the extreme emotional disturbance rather than fromevil or malicious purposes."8 But we have stressed that "[t]here must be some definitive, non-speculative evidence to support an EED instruction."9 So in order to receive an EEDinstruction, a defendant must

6

s 9 Fields v

. Commonwealth, 44 S.W .3d 355, 358 (Ky. 2001) ("Reasonableness is ordinarily an objective evaluation . . . .") . Id. ("the description of EEDin KRS 507.020(1)(a) recites a subjective test in that the reasonableness of the explanation or excuse is determined fromthe viewpoint of a person in the defendant's situation under the circumstances as the defendant believed themto be.") (internal quotation marks and emphasis omitted) . McClellan v. Commonwealth, 715 S.W .2d 464, 468-69 (Ky. 1986) . Hudson v . Commonwealth, 979S.W .2d 106, 109 (Ky. 1998) . Accord Henley v. Commonwealth, 621 S.W .2d 906, 909 (Ky

. 1981) ("In those cases considered by 6present evidence that establishes adequate provocation, or a triggering event. to

Moreover, the provocation leading to the triggering event must be continuous and uninterrupted. The provocation need not necessarily be contemporaneous with the triggering event, and the courts should look to whether there was a sufficient "cooling-off period" that rendered the response unreasonable or the provocation inadequate." On appeal, we will look to the evidence presented at trial to determine whether a trial court erred in failing to give an EEDinstruction. 12 An EED instruction is proper only when the evidence demonstrates that "the impelling force of the extreme emotional disturbance rather than . . . evil or malicious purposes" caused the defendant to be in "a temporary state of mind so enraged, inflamed, or disturbed" that hisjudgment was overcome, thereby causinga loss of control . 13 Using those guidelines, we turn to the evidence in this case. Taken in a light most favorable to him, the evidence Cope relies upon in support of his EEDclaimgenerally is as follows:

" Cope snorted morphine and drank heavily in the hours before the assault;

this court involving the necessity of an extreme emotional disturbance instruction, we have uniformly required some definitive, nonspeculative evidence.") . Fields, 44 S.W

.3d at 359. Benjamin v. Commonwealth, 266 S.W .3d 775, 782-83 (Ky. 2008) . See generally Greene v. Commonwealth, 197 S.W .3d 76, 82 (Ky. 2006) . See McClellan, 715 S.W .2d at 468-69 (defining EED and providing guidance on properjury instructions on EED) ." Sloan carried through on her threat to lock Cope out of the apartment

they shared;

" Cope believed Sloan's son, with whom he did not get along, was on his way to their apartment;

" Sloan insinuated that Cope would be sent tojail ; and

" Sloan allegedly threatened to kill herself and raised a knife as if to do so. Of course, not every defendant is entitled to an EEDinstruction. In order to be entitled to an instruction, there must be "definitive, nonspeculative" evidence of the existence of EED . 14 In other words, like any other instruction, there must first be a proper evidentiary basis for an EED instruction to be given, even under the subjective approach mandated by the statute. 15 So we reject Cope's argument, which he admits is contrary to precedent, that a court "errswhen it makes a preliminary determination that the defendant's claimof EEDis `beyond belief' or subjectively unreasonable and then keeps that factual determination fromthejury by failing to give a requested EEDinstruction." To the contrary, a court must refuse to give an EEDinstruction if there is no evidence sufficient to support it. 16 Of course, in

14 15

16 Hudson, 979 S.W

.2dat 109

. See, e .g., Houston v

. Commonwealth, 975 S.W .2d 925, 929 (Ky. 1998) ("Although a trial judge has aduty to prepare and give instructions on the whole law of the case, including anylesser included offenses which are supported by the evidence, that duty does not require an instruction on a theory with no evidentiary foundation.") (internal citation omitted) . See, e .g., Caudill v. Commonwealth, 120S.W .3d 635, 668 (Ky. 2003) ("even viewing the circumstances fromCaudill's drug dependent point ofview, White's mere resistance to her demand for moneywas not `a reasonable explanation or excuse' for Caudill to become so enraged, inflamed or disturbed as to be entitled to the 8determining if the evidence warrants an EED instruction, a court must view

the evidence in the manner most favorable to the defendant. 17 An EED instruction, accordingly, must only be given if there is a proper evidentiary basis for it. We rely on our precedent and reject, therefore, Cope's contention that anyclaimof EED, no matter how outlandish or ridiculous, automatically entitles a defendant to an EED instruction. However, if an EED instruction is given, thejury must determine whether a defendant acted under EED . 18 We must then determine if the evidence presented a question for thejury about whether Cope suffered fromEEDat the time he assaulted Sloan. We may quickly reject some of Cope's alleged bases for an EEDinstruction

17

18 defense of EED

.") ; Scrimsher v

. Commonwealth, 190 S.W .3d 318, 333 (Ky. 2006) ("No reasonable person would consider the ordinary stresses of childrearing, specifically an infant's crying and thumb-sucking, a reasonable explanation for a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably fromthe impelling force of the extreme emotional disturbance rather than from evil or malicious purposes.") (internal quotation marks omitted) ; Hudson, 979S.W .2d at 108-09 ("Assuming arguendo that Ms. Thompson [sic] actions - verbal and physical abuse, talking to the `crackhead,' etc. - were sufficient to inflame Hudson's mind or to overcome his judgment, it is beyond belief that those actions, in and of themselves, establish fromHudson's point of view, a reasonable explanation or excuse for strangling the unconscious and bleeding Ms. Thompson to death.") ; Neal v. Commonwealth, 95 S.W .3d 843, 850 (Ky. 2003) ("The evidence did not justify an instruction on first-degree manslaughter with a mitigating instruction regarding extreme emotional disturbance. Neal alleges that because Strong testified that the victim had come on to Neal in a sexual way that Neal was entitled to the instructions. After this alleged occurrence, Neal left, planned the robbery, and returned to carry it out. It is incredible to believe that Neal was so enraged and disturbed as to act uncontrollably and then came back sometime later to rob the victim . There was no substantive evidence that this robbery and murder were perpetrated as a result of EED . The trial judge properly denied the requested instruction.") . Thomas v. Commonwealth, 170 S.W .3d 343, 347 (Ky. 2005) ("Because the issue is whether there was evidence to warrant an instruction on assault under extreme emotional disturbance, we must consider the evidence in the light most favorable toAppellant .") . See, e .g., Benjamin, 266 S.W .3d at 782 ("if evidence . . . has been established, which puts the existence of EEDin dispute . . . the existence of EED becomes a question for thejury.") .because, even viewing the circumstances fromhis point of view, they do not

provide a reasonable explanation or excuse for himto have become so enraged, inflamed, or disturbed as to be entitled to an EEDinstruction. First, voluntary intoxication or substance abuse is an insufficient basis to mandate an EED instruction. 19 Second, anger does not entitle a defendant to an EED instruction.20 Also, neither Cope's fear of encountering someone with whom

he apparently was not on good terms, nor Sloan's locking the apparently intoxicated Cope out of their apartment, nor her insinuation that Cope would be taken tojail for his actions, are so inflaming or disturbing as to, even fromCope's point ofview, cause Cope to lose control over his actions. In fact, as will be discussed later, Cope testified that, essentially, he was able to control his actions. What we are left with is whether Cope was entitled to an EED instruction because of his contention that Sloan threatened suicide and raised a knife in a manner consistent with carrying out that threat. Under the facts of this case, no EEDinstruction was required. Perhaps, one could argue, Sloan's alleged threat to commit suicide - a threat she denied making, but we must viewthe evidence in a light most favorable to Cope for purposes of reviewing his claimthat he was entitled to an EED instruction -- and the wielding of an instrument readily capable of carrying out that threat could theoretically have been a triggering event for

19 20 Caudill, 120S.W

.3d at 668("a drug dependency or the effects of substance abuse, standing alone, does not authorize instructions on EED. . . ."). Talbott v

. Commonwealth, 968S.W .2d 76, 85 (Ky. 1998) ("Evidence of mere `hurt' or `anger' is insufficient to prove extreme emotional disturbance.") . 1 0EEDpurposes. But in the case at hand, Cope has not pointed to any act he

undertook that, even fromhis point ofview, could reasonably be seen as being aimed at thwarting Sloan's suicidal threat. Cope did not dispute the Commonwealth's assertions in its brief that Cope claimed self-defense as the reason he assaulted Sloan. In other words, although he claims now that Sloan raised a knife as if to commit suicide, Cope testified that he punched Sloan because he believed she was going to attack him with the knife. Also, Cope testified that he was compliant with the police, which logically denotes a person who is able to control his actions, not a person who is uncontrollably inflamed. In other words, Cope's testimony failed to show how, even fromhis point of view, he was so inflamed or enraged by Sloan's allegedsuicidal threat as to have created ajury issue about whether he was suffering fromEED . As the Commonwealth notes, Cope's "own testimony supports the fact that he was in control of his actions at all times. Therefore, the trial court's refusal to give an EEDinstruction did not violate his rights . . . ."

21 III . CONCLUSION. For the foregoing reasons, we affirmthejudgment of the trial court. All sitting

. All concur.

Unfortunately, the video record provided to us did not enable us to view Cope's testimony. But, importantly, Cope's reply brief takes issue only with the legal significance of his testimony -- not with the Commonwealth's factual recitations of his trial testimony (i. e., his claims regarding Sloan's suicidal ideation, his having acted in self-defense, and his having been compliant with the police) .COUNSEL FORAPPELLANT : JamesaJ. Drake Assistant Public Advocate Department of Public Advocacy 100Fair Oaks Lane, Suite 301 Frankfort, Kentucky 40601 COUNSEL FORAPPELLEE: Jack Conway Attorney General of Kentucky Joshua D

. Farley Assistant Attorney General Attorney General's Office Office of Criminal Appeals 1024 Capital Center Drive Frankfort, Kentucky 40601-8204