22 N. Ky. L. Rev. 435 (1994-1995)
Wanton Murder, Self-Defense, and Jury Instructions: Shannon v. Commonwealth Is Revisited; But Does It Remain

handle is hein.journals/nkenlr22 and id is 443 raw text is: WANTON MURDER, SELF-DEFENSE, AND JURY INSTRUCTIONS: SHANNON V. COMMONWEALTH IS REVISITED; BUT DOES IT REMAIN? by James G. Hodge, Jr.* I. INTRODUCTION On March 24, 1994, the Kentucky Supreme Court handed down its decision in McGinnis v. Commonwealth and a compan- ion case, Terry v. Commonwealth.1 Through extended discussion, Justice Leibson crafted an opinion for the majority which ably re-defined what the court termed the Shannon problem.2 This multi-faceted dilemma of criminal law originated from the Ken- tucky Supreme Court's prior decision in Shannon v. Common- wealth.3 The gist of the problem concerns giving a jury instruc- tion for wanton murder where evidence of self-defense, which was wanton in nature, was presented.' The problem stems from the inconsistent mental states of wanton murder, which is sim- ply another form of murder and not a separate offense, and acts of self-defense performed in an intentional manner.5 Yet, there is more at work in these two companion cases than exposing the judicial confusion resulting from what Justice Leibson identified as the post-decision misapplication of the * James G. Hodge, Jr. practices privately in Louisville, Kentucky and is also admitted to practice in South Carolina. B.S., The College of Charleston; J.D., Salmon P. Chase College of Law, Northern Kentucky University. 1. McGinnis v. Commonwealth, 875 S.W.2d 518 (Ky. 1994). 2. Id. at 520. 3. Shannon v. Commonwealth, 767 S.W.2d 548 (Ky. 1988). 4. McGinnis, 875 S.W.2d at 521. A person acts wantonly when: [One) is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and, degree that disregard thereof constitutes a gross devia- tion from the standard of conduct that a reasonable person would observe in the situation. KY. REV. STAT. ANN. § 501.020(3) (Michie/Bobbs-Merrill 1990). 5. A person acts intentionally when one's conscious objective is to cause that result or to engage in that conduct. KY. REV. STAT. ANN. § 501.020(1) (Michie/Bobbs- Merrill 1990). 435

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