concurring.
Respectfully, I concur in results only.
Because of the state of the record, this is a rather bizarre case. Initially, Elmore appealed his conviction for assault under extreme emotional disturbance “on the grounds that the trial court, over his objection, gave an instruction on the mitigating defense of assault under extreme emotional disturbance as provided by KRS 508.040 even though he was indicted on the charges of assault in the first degree ... and the instruction (on assault under extreme emotional disturbance) was only requested by the Commonwealth.” His direct appeal was rejected without reaching the merits, the Kentucky Court of Appeals stating:
“From our reading of the record, however, we find neither a specific objection to the instruction nor a motion for a new trial that afforded the trial court an opportunity to pass on the particular error now alleged on appeal.” CR 87-CA-2789-MR and 88-CA-1433-MR, rendered June 23, 1989, not to be published.
Apparently this decision on initial appeal disposing of the case on grounds of procedural default was flat wrong: the record reflects trial counsel made an objection to the giving of an instruction on assault under extreme emotional disturbance, and the Court of Appeals should have addressed the merits of Elmore’s claim that this instruction was improper. This is a RCr 11.42 collateral attack on the judgment which was upheld on direct appeal; the trial court has found that “defense counsel, at trial, did preserve the error [emphasis added],” and the Court of Appeals has sustained that finding.
If correct in his contention that giving the instruction was error, surely Elmore should be entitled to collaterally attack the procedural error in failing to address the issue on direct appeal, and thus to attack the judgment upon which he is now incarcerated. A fundamental error of this nature deprives one of due process just as surely as counsel’s failure to object (had it occurred) would deprive of the right to counsel. There would be cause and prejudice under the standard of Strickland v. Washington 466 U.S. 668, 104 S.Ct. 2052, *18680 L.Ed.2d 674 (1984), and the Majority Opinion herein would be incorrect in stating that the procedural default “was not prejudicial under the standard of Strickland v. Washington.”
However, the threshold question is whether there is any merit to the claim of error: even if defense preserved the claim of error by appropriate objection at trial to giving an instruction on assault under extreme emotional disturbance, the appellant cannot successfully attack the procedure by which it was affirmed if there was no error in giving the instruction.
Because I agree with the Majority Opinion that the instruction was appropriately given, I concur in the results of this case.
If the state of the evidence supports the giving of an instruction covering a lesser included offense, neither the Commonwealth nor the defendant has any right to control whether the instruction shall be given. Indeed, when appropriate, the trial court may instruct on a lesser included offense when neither side has requested it. Cf. Trimble v. Commonwealth, Ky., 447 S.W.2d 348 (1969); Vick v. Commonwealth, 236 Ky. 436, 33 S.W.2d 297 (1930).
The trial court should instruct on every state of the law supported by the evidence, regardless of the “trial strategy” of either prosecutor or defendant, if it is a lesser included offense. The indictment necessarily puts the defendant on notice that every offense lesser included within the charge is also charged, if supported by the evidence. This is the general rule. KRS 508.040 states “the defendant may establish [‘extreme emotional disturbance’] in mitigation,” but the particular way in which the element of “extreme emotional defense” is structured in KRS Chapter 508, which covers “Assault and Related Offenses,” does not change the general rule.
The impact of extreme emotional disturbance as it relates to assault is structured differently in KRS Chapter 508 from the structure used in describing its impact on criminal homicide in KRS Chapter 507, but it has a parallel effect. In both instances extreme emotional disturbance is a mitigating factor reducing the level of the offense, but nevertheless an essential element of the reduced offense. In the same way that this element, when present, reduces intentional murder to Manslaughter I, when present it reduces Assault I or Assault II to a Class D felony. It may well be that, unlike the present case, the usual situation is one where it serves the objectives of the defense rather than the Commonwealth for such an instruction to be given, but neither side can control the giving or denying of an instruction as a matter of trial tactics. It simply does not matter which side presents the evidence which justifies the giving of the instruction, so long as the evidence supports it:
“... and it is the duty of the trial court to instruct on such defense whether it be supported by evidence presented by the accused, or introduced on behalf of the Commonwealth.” Vick v. Commonwealth, supra, 33 S.W.2d at 299.
The state of the facts here is very similar to Engler v. Commonwealth, Ky., 627 S.W.2d 582 (1982), wherein we held assault under extreme emotional disturbance should have been instructed on as a lesser included offense. The language in Engler states that “under KRS 508.040 the defendant has the burden of proving extreme emotional disturbance,” but that does not change the result. Id. at 583. When it comes time for the giving of instructions, the question is not who had the burden of proof, but whether there is proof to justify a particular result.
The Commentary to KRS 508.040, Assault Under Extreme Emotional Disturbance, states:
“The purpose of this statute is to provide the same type of mitigating, degree-reducing factor in the law of assault as exists in the law of homicide.”
This means that, notwithstanding the language in KRS 508.040 stating “the defendant may establish in mitigation that he acted under the influence of extreme emotional disturbance, as defined in subsection (l)(a) of KRS 507.020,” when it comes to instructing on this offense as a lesser included offense, the sole question is whether the evidence justifies the instruction.
There is no merit to the claim of lack of evidence to support instructing on extreme *187emotional disturbance. Although the defendant claims he acted in self-defense, there was ample evidence from which the jury could infer he acted from uncontrollable rage.
Therefore, I concur in the Majority Opinion.