dissenting.
Respectfully, I dissent. We should vacate the judgment, reverse and remand because the trial court erred in failing to instruct on Manslaughter I (KRS 507.030) as a lesser included offense for the jury to consider along with the murder charge. An instruction under KRS 507.030 is warranted when there is evidence from which to infer the appellant “act[ed] under the influence of extreme emotional disturbance [EED], as defined in subsection (l)(a) of KRS 507.020.” There was ample evidence here to so infer, and this requires an instruction permitting the jury to find this appellant was guilty of Manslaughter I (KRS 507.030), a Class B felony, rather than Murder (KRS 507.020), which requires the absence of EED.
EED is defined in KRS 507.020 by stating an accused shall “not be guilty” of murder “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.” KRS 507.020(l)(a). Thus, since the adoption of the Penal Code in 1974, “reasonableness” is to be decided using a subjective standard, “a person in the defendant’s situation under the circumstances as the defendant believed them to be,” rather than from the view of an objectively reasonable person. Our Court has overlooked this critical difference in nu*677merous cases, and continues to perpetuate this error. Our Court has continued to equate EED with killing under sudden heat of passion, despite the explanation in the Commentary to the Penal Code:
“The most significant change brought about by [KRS 507.030] subsection (l)(b) is an abandonment of the common law requirement [to reduce murder to manslaughter] that the killing occur in ‘sudden heat of passion’ upon ‘adequate provocation.’ ... [M]itigation is not restricted to circumstances which would constitute provocation ‘in the ordinary meaning of the term,’ ... [I]t is possible for any event, or even words, to arouse extreme mental or emotional disturbance, as that phrase is used here.”
The evidence of the appellant’s existing mental disorder, pushing her to the brink of a homicidal act in circumstances a normal person would not view as provocation, was a factor for the jury to weigh under an appropriate instruction on EED reducing Murder to Manslaughter I. It was a vital part of the equation. Yet, under the instructions it was not a factor. The appellant’s mental disorder, when added to the appellant’s testimony that the victim interfered with her access to the friend to whom she was obsessively attached, called her a name and jumped at her, required instructions on EED and Manslaughter I as a lesser included offense to the murder charge. While these circumstances would not be a sufficient triggering event for an ordinary, reasonable person, Ms. Cecil was clearly not an ordinary person. It was for the jury to determine whether, from the viewpoint of a person in Ms. Cecil’s situation under circumstances as Ms. Cecil believed them to be, there was a reasonable explanation for her misconduct.
The Majority fails to appreciate that under the Penal Code EED is not a defense but simply a circumstance in “mitigation” (Commentary to KRS 507.030, quoted supra). If it were a defense it would be covered by KRS Chapter 503 (“General Principles of Justification”) rather than KRS Chapter 507 (“Criminal Homicide”). Nor is it an alternative description of legal insanity as covered by KRS Chapter 504 (“Responsibility”). Insanity requires a finding that “as a result of mental illness or retardation, [the defendant] lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirement of law.” KRS 504.020(1). EED requires no such finding. Proof of insanity acquits a defendant, and this covers temporary insanity (or irresistible impulse) as well as longstanding insanity.
It is quite certain from the Commentary regarding EED in KRS Chapter 507, and from the Model Penal Code of the American Law Institute from which it derives, that mental dysfunction not amounting to insanity is part of the concept in assessing EED. The question is one of diminished culpability, not insanity, when assessing whether the criminal homicide is Murder or the lesser offense of Voluntary Manslaughter. Mental disorder not amounting to insanity is relevant for the jury to consider in deciding whether the accused, acting from a combination of mental dysfunction and a triggering event as the accused perceived it, is not guilty of the greater offense of murder.
In Commonwealth v. McClellan, Ky., 715 S.W.2d 464 (1986), our Court reduced the EED concept to the legal equivalent of temporary insanity or irresistible impulse. McClellan requires for EED that a jury find a “state of mind so enraged, inflamed, or disturbed as to overcome one’s judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes.” Id. at 468-69. Emphasis added. The Penal Code section on EED does not require an “uncontrollable” act to the exclusion of “evil or malicious purposes.” This is a gloss the court has added to the statute to return to the common law’s sudden heat of passion. Rather, the Penal Code recognizes that a combination of significantly distorted mental perception and malice diminishes the degree of culpability. This is a case of irrational malice easily triggered to a homicidal act, and EED fits the case. The drafters of the Penal Code have written EED into the Penal Code as an element reducing murder to manslaughter, and we have written it out. No jury reading and applying the McClellan definition of EED *678literally could apply it in any circumstance where it did not believe the accused acted from irresistible impulse, where the accused would have killed with a policeman at her elbow, but this is not the function for EED the Penal Code intended.
Manslaughter I is less culpable than Murder but it is, nevertheless, a serious crime, a Class B 'felony punishable by ten to twenty years in the penitentiary. To say a jury could reasonably infer in the circumstances presented that the appellant’s culpable mental state was less serious than intentional, premeditated murder is not to depreciate the seriousness of her actions, or to suggest she should go unpunished. It is but to recognize the difference the Penal Code intends between Murder, a capital offense and the most heinous of crimes, and a situation involving the combination of mental disorder and malice, malice totally unjustified and inexcusable from the viewpoint of a normal person but less culpable than murder for a person emotionally disturbed.
I continue to disagree with the McClellan definition of extreme emotional disturbance for the reasons stated in my dissents in McClellan v. Commonwealth, Ky., 715 S.W.2d 464 (1986); Dean v. Commonwealth, Ky., 777 S.W.2d 900 (1989); Holbrook v. Commonwealth, Ky., 813 S.W.2d 811 (1991); and Bowling v. Commonwealth, Ky., 873 S.W.2d 175 (1994). However, even given the McClellan definition of extreme emotional disturbance, to be consistent with McClellan, this case should be reversed. In circumstances very similar to the present case, our Court held that, while the evidence of EED was not compelling, McClellan’s conviction was reversed because the evidence was sufficient to justify instructing on this mental state. If McClellan was entitled to an instruction on first-degree manslaughter, so is Cecil.
The evidence of the appellant’s mental disorder was sufficient to permit a jury finding of “guilty but mentally ill,” and the jury so found. Surely the jury should have been permitted to consider the next step: whether in her demented and enraged mental state she reacted to a sudden, antagonistic confrontation in a manner which qualifies as criminal homicide but less culpable than intentional murder.
The Majority makes much of the evidence from Dr. Noonan that, in his opinion, the appellant would not have killed the victim had there been a policeman at her elbow.1 While this evidence might be decisive if the question was whether to permit the jury to find the appellant not guilty by reason of insanity, surely it should not prevent an instruction permitting the jury to find EED was a contributing factor reducing the degree ..of the offense from murder to manslaughter.
Here the instructions left the jury with only two alternatives, convict the appellant of murder or turn her loose. No reasonable jury would give the slightest consideration to the latter alternative, although a properly instructed jury, given her emotionally disturbed state, may well have considered her less culpable than an intentional murderer.
This case should be reversed and remanded for a new trial permitting the jury to consider the element of EED and the offense of voluntary manslaughter as well as murder. We should rewrite the instruction on EED propounded in McClellan to properly explain its function.
STEPHENS, C.J., and STUMBO, J., join.
. I question whether the expert should have been permitted to thus testify as to his opinion of the accused’s "actual mental attitude" at the time she pulled the trigger. Does it invade the fact-finding function of the jury? Dyer v. Commonwealth, Ky., 816 S.W.2d 647, 652 (1991).