Opinion
NO. 2016-CA-000573-MR
03-31-2017
CODY WILLIAMS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Michael J. Curtis Ashland, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Julie Scott Jernigan Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LAWRENCE CIRCUIT COURT
HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 15-CR-00107 OPINION
AFFIRMING
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BEFORE: COMBS, DIXON, AND J. LAMBERT, JUDGES. LAMBERT, J., JUDGE: Cody Williams appeals from a final judgment entered pursuant to a jury verdict finding him guilty of first-degree assault, first-degree wanton endangerment, and second-degree wanton endangerment in violation of Kentucky Revised Statutes (KRS) 508.010, 508.060, and 508.070, respectively. On appeal, Williams argues that the trial court erred in failing to give certain jury instructions. We find this error is unpreserved for review and affirm.
On August 14, 2015, Williams and his ex-wife were involved in a domestic dispute that later escalated into a shoot-out among Williams, his father-in-law, and two other men. The father-in-law was wounded, but his injuries were not life-threatening. Williams surrendered that evening after the police traced his cell phone and found him in a nearby motel.
On October 9, 2015, a Lawrence County grand jury returned an indictment against Williams, charging him with the three felonies listed above. After a two-day trial, commencing on February 24, 2016, Williams was found guilty as charged and sentenced to a total of ten-years' imprisonment.
Williams argues on appeal that the trial court erred by not instructing the jury on his right to use force to defend his property (KRS 503.080) and that he did not have a duty to retreat prior to using deadly force (KRS 503.050). At trial, Williams did not request that the court give these instructions nor object to the instructions given by the trial court; therefore, this issue is waived and cannot be reviewed.
Kentucky Rule of Criminal Procedure (RCr) 9.54(2) states:
No party may assign as error the giving or the failure to give an instruction unless the party's position has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection.RCr 9.54(2) precludes any appellate review unless the instructions at issue were first presented to the trial court. Thornton v. Commonwealth, 421 S.W.3d 372, 375-76 (Ky. 2013). This also includes palpable error review pursuant to RCr 10.26. "Appellant's claim of error—the failure to give a specific instruction rather than a flaw in an instruction otherwise properly given—falls squarely within the requirements of RCr 9.54(2)." 421 S.W.3d at 376. "Although palpable error under RCr 10.26 may be available for certain kinds of instructional error, . . . we . . . conclude RCr 9.54(2) bars palpable error review for unpreserved claims that the trial court erred in the giving or the failure to give a specific instruction." Martin v. Commonwealth, 409 S.W.3d 340, 345 (Ky. 2013).
Because Williams did not present this issue to the trial court, the alleged error is unpreserved for our review. Accordingly, we must affirm the judgment on appeal.
ALL CONCUR. BRIEFS FOR APPELLANT: Michael J. Curtis
Ashland, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Julie Scott Jernigan
Assistant Attorney General
Frankfort, Kentucky