dissenting.
I respectfully dissent.
KRS 508.040(1) provides:
In any prosecution under KRS 508.010, 508.020, or 508.030 in which intentionally causing physical injury or serious physical injury is an element of the offense, 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.
Emphasis added. There is no ambiguity in the statutory language, and it is clear beyond doubt that the issue of extreme emotional disturbance may be raised only by the defense for purposes of mitigation. In this case, the defense made no effort to establish or to rely upon extreme emotional disturbance, but offered instead the completely different defense of self-protection.
Moreover, KRS 507.020(l)(a) provides, in part:
... a person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.
Emphasis added. Under this statute, evidence of extreme emotional disturbance is as a matter of law never sufficient unless it includes evidence of the defendant’s perception of the circumstances. In the present case, no such evidence was forthcoming.
Under both KRS 508.040 and KRS 507.-020(l)(a), it was obvious error for the trial court to instruct on extreme emotional disturbance over the defendant’s objection. The prejudice is equally apparent, as the jury was given — and chose — an unlawful compromise between a conviction on the charged offense and an acquittal based upon the defense of self-protection.
Criminal law is statutory law. This Court possesses no authority to re-write unambiguous statutes, nor to create law beyond the scope of the penal code. But that is what we are attempting today, and we are sorely wrong.
STEPHENS, C.J., joins in this dissent.