WORLEY V. COMMONWEALTH
CRIMINAL: KRS 503.085 Not retroatively applied regarding using force against another and permitted defenses
2007-CA-000175
TO BE PUBLISHED: AFFIRMING
PANEL: ACREE PRESIDING; DIXON, TAYLOR CONCUR
WHITLEY COUNTY
DATE RENDERED: 7/3/2008
CA affirmed Worley’s conviction and 18 year sentence for first-degree manslaughter. Worley was indicted for the offense of murder. After the offense, but before his trial, the General Assembly enacted KRS 503.085 which provided that an individual who used force against another, as permitted by one of several specific statutes, was immune from prosecution. At trial, Defendant told the jury that, as he was backing away from victim, the butt of the gun bumped against a parked car causing an accidental discharge. The Kentucky Supreme Court has previously determined that self-defense and accident are mutually exclusive defenses. Grimes v. McAnulty, 957 S.W.2d 223, 227 (Ky. 1997)(“A defendant who affirmatively asserts the defense of accident cannot also claim self-protection.”). Thus, the trial court correctly found that Worley’s defense at trial did not entitle him to claim legal justification such as would confer immunity from prosecution under KRS 503.085. KRS 503.085 did not apply to this case. KRS 446.080(3) explicitly states, “No statute shall be construed to be retroactive, unless expressly so declared.”
Worley was not entitled to a missing evidence instruction despite the fact the police lost the shotgun involved in the incident. Before a defendant can assert a due process right to a missing evidence instruction, he must show that “the potentially exculpatory nature of the evidence was apparent at the time it was lost or destroyed.” Even if we accepted that the Commonwealth acted in bad faith, Worley would still not be entitled to dismissal or a missing evidence instruction because the shotgun’s exculpatory potential was not readily apparent. Worley has failed to show an abuse of the trial court’s discretion in refusing to admit the victim’s juvenile court records.
