dissenting.
Respectfully, I dissent.
Justice Combs has also dissented. I agree with Justice Combs’ dissent, Part II, outlining why the trial court committed reversible error in overruling the objection to Deputy Davenport’s testimony that the defendant had “said ... he got tired of him [Gene] whipping him and he settled it himself.” I agree with Justice Combs that “this surprise statement attributed to the defendant was seriously inconsistent with the prepared defense,” that there is a “glaringly significant difference” between this evidence and what the defense had been told regarding the appellant’s statements at the scene, and that failure to provide relief in the circumstances constituted error. This evidence shot right through the heart of the appellant’s claim of self-defense, and should have been suppressed when not properly disclosed in pretrial discovery.
Further, I agree with Justice Combs that this case should be reversed on failure to provide self-defense instructions adequate to the situation. KRS 503.050(2) specifies:
“The use of deadly physical force by a defendant upon another person is justifiable ... when the defendant believes that such force is necessary to protect himself against death [or] serious physical injury,....”
The jury was never told that the appellant is entitled to shoot his brother in self-defense if “such force is necessary to protect himself against death [or] serious physical injury.” The jury was never told that even if such belief was not objectively reasonable, a subjective belief reduces criminal liability to involuntary manslaughter or reckless homicide, depending on whether the belief was wanton or reckless. As explained in Shannon v. Commonwealth, Ky., 767 S.W.2d 548, 551 (1989):
“A subjective belief in the need for self-defense, which is objectively wanton or *407reckless, is a ‘circumstance’ falling within the definition of wanton or reckless behavior, punishable under Manslaughter II or Reckless Homicide, as the case may be.”
But here I must part company with Justice Combs. The Shannon opinion, which I drafted, was never intended to authorize trial courts to instruct Pn wanton murder in self-defense cases of this nature, which include both the claim of self-defense and a further claim that even though a lethal weapon was directed at the deceased, there was no intent to cause his death. On the contrary, proper instructions in such cases should be restricted to an intentional murder instruction qualified by a full explanation of self-defense as a justification. Under this regimen the jury may convict of intentional murder if they disbelieve the claim of self-defense, or acquit if they believe the defendant acted in self-defense and his belief in the need to so act was objectively reasonable, or convict of the lesser criminal homicide offenses of involuntary manslaughter or reckless homicide if the jury accepts as fact the defendant’s claim that he believed in the need for self-defense but further believes that such subjective belief was either wanton or reckless.
An instruction on wanton murder fits nowhere in this configuration. As explained in Shannon, supra at 551-52, and in the Commentary to the Penal Code, KRS 507.020, wanton murder is an entirely different type of criminal offense involving “conduct inferring a ‘knowing’ or ‘purposeful’ indifference that death will result.”
In fact situations such as the present one, if the jury believed the appellant, when he shot his brother, did not intend to cause his death but did not act in self-defense, it should convict him of first-degree manslaughter, KRS 507.030(l)(a):
“A person is guilty of manslaughter in the first degree when:
(a) With intent to cause serious physical injury to another person, he caused the death of such person....”
One sentence in Shannon has been taken out of context and has caused a serious miscarriage of justice in the present case, and in a number of cases tried since Shannon wherein the defendant killed with a lethal weapon in self-defense, but also claimed that he did not mean to kill. That sentence is:
“The imperfect justification [“the subjective belief in the need for self-defense [which] fails the objective standard of reasonableness”] calls for conviction on the lesser included offense of Manslaughter II or Reckless Homicide because of the wanton or reckless state of mind, but not for wanton murder.” [Emphasis original.] Id. at 552.
The intent in Shannon was to tell trial courts not to instruct on wanton murder in cases like the present one. But the Shannon case has been misconstrued as advising the opposite — to instruct on wanton murder, but omit self-defense. The result is what we see in this case.
I attempted, without success, to explain how Shannon is being misapplied in my dissenting opinion in Barbour v. Commonwealth, Ky., 824 S.W.2d 861, 865 (1992). Now I attempt, yet again, to explain this terrible mistake.
I take full responsibility for the opinion in Shannon being misapplied. In Shannon proof of guilt of intentional murder was overwhelming. There was no miscarriage of justice in convicting Shannon of wanton murder rather than intentional murder, albeit the instruction was erroneous. The conviction was affirmed, the opinion stating:
“Since the accused requested that the instructions include wanton murder, and there was ample evidence to convict him of murder, he cannot complain.” 767 S.W.2d at 552.
It was the combination of the opinion explaining that an erroneous, subjective belief in the need for self-defense does not call for an instruction on wanton murder, plus the holding that the conviction should be affirmed, that has caused the present confused state of affairs wherein wanton murder instructions are given where completely unjustified, as in the present case. *408Of course, convictions flow easily from this source because, as the prosecutor argued here, under the instruction as given the appellant’s version of what occurred would appear to convict him of wanton murder out of his own mouth.
Thus, while I agree with my colleague, Justice Combs, that the Shannon holding has caused serious injustice in this case and in a number of others, I submit that this is because the opinion in Shannon has been misunderstood and misapplied.
As stated in Sizemore’s brief:
“Appellant shot Gene. That he did not draw a bead on him does not diminish his specific intent to shoot him if that was necessary to stop him. Wanton murder does not include that kind of intention.”
In this case, if the Shannon opinion had been correctly applied, there would have been no instruction for wanton murder, and, of course, no conviction for it. Since the appellant has been found not guilty of intentional murder, he should be retried under instructions covering Manslaughter I, with self-defense fully explained, and providing for conviction of Manslaughter II or Reckless Homicide if the jury believed his claim of self-defense but further believed he was wanton or reckless in believing he needed to act in self-defense.
I attach as an Appendix to this Dissenting Opinion a schematic explaining the options under the Penal Code as it applies to this case.
APPENDIX
Sizemore said-three things:
1) He shot at his brother intentionally;
2) In self-defense;
3) And did not mean to kill him.
Under the Model Penal Code AND our statutes deriving from it, if the jury believes:
1) Sizemore did not actually believe he needed to shoot at his brother in self-defense, and he meant to kill him, it is Intentional Murder.
2) Sizemore believed he needed to shoot at his brother in self-defense, and such belief was reasonable, the shooting was justified and he should be Acquitted.
3) Sizemore actually believed he needed to shoot at his brother in self-defense, and he thereby caused his brother’s death, but his belief was wanton (or reckless), he is guilty of Manslaughter II (or Reckless Homicide) BUT NOT WANTON MURDER. Such belief is an incomplete justification which diminishes legal culpability. If the jury believes this was his state of mind, he cannot be convicted for Wanton Murder, which is the legal equivalent of Intentional Murder.
4) When Sizemore shot at his brother, he did not believe he needed to act in self-defense, but he did not mean to kill him. This is voluntary manslaughter; he is then guilty of Manslaughter I.
THERE IS NO PLACE IN THIS STRUCTURE OF POSSIBLE OFFENSES FOR A WANTON MURDER INSTRUCTION OR A WANTON MURDER CONVICTION.