Eversole v. Commonwealth

LUKOWSKY, Justice,

dissenting.

In my view, the trial court erred when it refused to give the tendered instruction on the lesser included offense of third-degree burglary. This offense is the basic burglary crime. KRS 511.040. Under the circumstances of this case this is the offense of which Eversole and Pelfrey were guilty unless the jury unanimously believed beyond a reasonable doubt that the Commonwealth proved a critical element which differentiates first-degree burglary from third-degree burglary, to wit, that the offense occurred at night. KRS 511.020(l)(b). Night means the period between thirty minutes after sunset and thirty minutes before sunrise. KRS 511.010(3).

Sunset and sunrise are scientific terms which bear no real relationship to simplistic concepts such as light and dark. The astronomical definition of the time of setting or rising of a body, such as the sun, is the instant when the upper edge of the observable disk (upper limb) is exactly ninety degrees away from the observer’s zenith, on the astronomical horizon. No evidence was introduced to establish the time at which these natural phenomena occurred on the date of the burglary. The experience of everyday life provides no precise answer to so sophisticated a question. The trial court did not exercise its right to take judicial notice of these occurrences by making an immediate and accurate determination by resort to readily accessible and indisputable sources, such as meteorological reports in newspapers and astronomical tables in almanacs and advise the jury that on the date in question the time of sunset was 6:47 P.M. and of sunrise was 8:01 A.M. Lawson, Kentucky Evidence Law Handbook, Section 1.00 (A)(ii).

The testimony of the occupants of the dwelling established that the burglary occurred at sometime between 7:45 A.M., the time at which they left the dwelling unattended, and 9:00 P.M., the time at which they returned to the dwelling, and that they did not come into contact with the burglars. Eversole’s confession estimates the time of the offense at “about 9:00 P.M.” Pelfrey’s confession estimates the time of the offense at “about 9:30 or 10:00” P.M. A reasonable juror who believed the occupants could doubt that the burglary occurred at night, i. e. between 7:17 P.M. and 9:00 P.M. Under these circumstances the instruction on the lesser included offense must be given. Luttrell v. Commonwealth, Ky., 554 S.W.2d 75 (1977); Muse v. Commonwealth, Ky., 551 S.W.2d 564 (1977).

I would reverse the burglary convictions and remand the case for a new trial on those charges.

I am authorized to state that PALMORE, C. J., and REED, J., join in this dissent.