choice of evils defense in Kentucky

2023The court in Senay noted “the danger presented to the defendant must be compelling and imminent, constituting a set of circumstances which afford[] him little or no alternative other than the commission of the act which otherwise would be unlawful.” Id. -4- The choice of evils defense has been codified as KRS1 503.030, which provides, in part: Unless inconsistent with the ensuing sections of this code defining justifiable use of physical force or with some other provisions of law, conduct which would otherwise constitute an offense is justifiable when the defendant believes it to be necessary

2000In order for the choice of evils defense to be available, “it must be shown that defendant’s conduct was necessitated by a specific and imminent threat of injury to his person under circumstances which left him no reasonable and viable alternative, other than the violation of the law for which he stands charged.” Senay v. Commonwealth, Ky., 650 S.W.2d 259, 260 (1983).

2024A choice of evils instruction is only proper if the following requirements are met: (1) that the person believes the necessity of his action is mandated by his subjective value judgment (this must be weighed by the reasonableness standard); (2) that such action must be contemporaneous with the danger of injury sought to be avoided; (3) that the injury is imminent, requiring an immediate choice if to be avoided; and (4) that the danger or injury sought to be avoided must be greater than the penalty or offending charge occasioned by the action chosen by the party. -11- Beasley v. Commonwealth, 6

2011Relying on Beasley v. Commonwealth, 618 S.W.2d 179, 180 (Ky.App.1981) and Peak v. Commonwealth, 34 S.W.3d 80, 82 (Ky.App.2000), the Commonwealth maintains that the defendant has the burden of proving the choice of evils defense, not the Commonwealth.

2024It is the defendant’s “initial burden to produce evidence of a choice of evils defense.” LaPradd v. Commonwealth, 334 S.W.3d 88, 91 (Ky. 2011).

2024A choice of evils instruction is only proper if the following requirements are met: (1) that the person believes the necessity of his action is mandated by his subjective value judgment (this must be weighed by the reasonableness standard); (2) that such action must be contemporaneous with the danger of injury sought to be avoided; (3) that the injury is imminent, requiring an immediate choice if to be avoided; and (4) that the danger or injury sought to be avoided must be greater than the penalty or offending charge occasioned by the action chosen by the party. -11- Beasley v. Commonwealth, 6

2020The homeowner/felon is able to disarm the intruder and shoots him while defending himself and his home.” Under these facts, assuming the 17 Pennyrile Allied Cmty. Servs., Inc. v. Rogers, 459 S.W.3d 339, 343 (Ky. 2015). 18We also note that, in addition to the right to bear arms, many other constitutionally protected rights are taken away when an individual is convicted of a felony such as the right to hold office (Ky. Const. § 150), the right to vote (Ky. Const. § 145), and the right to serve on a jury (KRS 29A.080). 12 requirements of KRS 503.050 are met, the homeowner would most certainly be

2011Relying on Beasley v. Commonwealth, 618 S.W.2d 179, 180 (Ky.App.1981) and Peak v. Commonwealth, 34 S.W.3d 80, 82 (Ky.App.2000), the Commonwealth maintains that the defendant has the burden of proving the choice of evils defense, not the Commonwealth.

2011Because Peak could not show that the injury was imminent or that he did not have reasonable alternatives other than commission of the offense, the Court of Appeals concluded that “Peak lacked a sufficient evidentiary basis to either present a choice of evils defense or request such an instruction.” Id. *91 Given the express language of KRS 500.070 and KRS 503.020, we view the language in Beasley and Peak stating that the defendant has the burden to prove a choice of evils defense as a misstatement of the law.

2000See Duvall v. Commonwealth, Ky.App., 593 S.W.2d 884 (1980); (3) that the injury is imminent, requiring an immediate choice if to be avoided; and (4) that the danger or injury sought to be avoided must be greater than the penalty or offending charge occasioned by the action chosen by the party.