Holland v. Commonwealth , 114 S.W.3d 792 ( 2003 )

WINTERSHEIMER, Justice,

Dissenting.

I respectfully dissent from the majority opinion because the circuit judge did not abuse his discretion in refusing to give an instruction on extreme emotional disturbance.

KRS 507.020(l)(a) provides that the defense of extreme emotional disturbance be a reasonable explanation or excuse, the reasonableness of which is to be determined from the defendant’s point of view under the circumstances as the defendant believed them to be. I do not believe that the defendant has provided any reasonable explanation or excuse for her behavior. For extreme emotional disturbance to apply, the actor must be acting “uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes.” McClellan v. Commonwealth, Ky., 715 S.W.2d 464 (1986). See also Hudson v. Commonwealth, Ky., 979 S.W.2d 106 (1998). In this case, the pronouncements of Fields v. Commonwealth, Ky., 44 S.W.3d 355 (2001), Spears v. Commonwealth, Ky., 30 S.W.3d 152 (2000) and Springer v. Commonwealth, Ky., 998 S.W.2d 439 (1999), do not apply.

Evidence of hurt or anger is insufficient to prove extreme emotional distress. Talbott v. Commonwealth, Ky., 968 S.W.2d 76 (1998). The events in the defendant’s life prior to the day of the shooting cannot constitute any part of the alleged triggering events. The fact that she picked up a new weapon from a firearms dealer several days before the shooting erodes her defense of EED. The events prior to Saturday, June 22, 1996, do not support the giving of an EED instruction because those events were interrupted by the events of the Saturday in question. The evidence before the trial judge supported the denial of an EED instruction.

In addition, the instructions in regard to involuntary intoxication are sufficient and reversal is not required.

I would affirm the convictions in all respects.