DAVIDSON V. COMMONWEALTH
CRIMINAL – Palpable Error; Crimes (Fists as dangerous weapon in assault)
2004-CA-000974
MINTON
PUBLISHED AFFIRMING IN PART, AND REMANDING IN PART
Date: 2/3/2006
Reversed the second degree assault conviction for a palpable error in the jury instruction that allowed the jury to find that defendant Davidson’s hands were dangerous instruments as he used them to strike the victim.
Only an error resulting from an action taken by the court, as opposed to an act or omission of the parties or their counsel, may be considered as palpable error. The prejudice caused by palpable error must be “more egregious than that occurring in reversible error[.]”
A palpable error must be so grave in nature that the failure to correct it would seriously affect the fairness of the proceedings.
Relief should be granted only if, upon the consideration of the case as a whole, there exists a substantial possibility that the result in the trial court would have been different but for the error.
KRS 500.080(3) specifies that a part of the human body, such as a fist, cannot be a dangerous instrument unless the use of that part of the human body directly results in a serious physical injury. Therefore, the defendant’s fists could not be a dangerous instrument because they did not directly result in serious physical injury to the victim.
