Commonwealth v. DeHaven , 929 S.W.2d 187 ( 1996 )

STEPHENS, Justice.

This appeal is from the Court of Appeals reversal of DeHaven’s conviction for first degree manslaughter. The issue is whether the error in jury instructions was prejudicial and therefore requires reversal of the conviction.

The Court of Appeals reversed the conviction based upon its finding that it was an error to instruct the jury on first degree manslaughter as there was no evidence of extreme emotional disturbance [EED], This error was compounded when the jury convicted DeHaven of first degree manslaughter, which is murder committed under the influence of EED. We agree that this error constitutes reversible error and, therefore, affirm the Court of Appeals decision.

Clayton DeHaven was convicted of first degree manslaughter for the death of his estranged wife, Juanita DeHaven. The couple were in the process of obtaining a divorce and resolving the custody of their son. De-Haven found Juanita’s body on Easter Sunday, 1989, when he returned their son to Juanita’s apartment. DeHaven maintains that he was not with Juanita on the previous Friday, the day of her death, and that she died of natural causes.

There was evidence presented from which a jury could have believed that DeHaven wanted to kill his wife, that he had threatened to kill her, that he was in fact with her when she was killed and that she had been deliberately and intentionally killed. There was also evidence presented concerning Juanita’s medical history and the possibility that she died from natural causes related to her health problems. The jury was instructed on both murder and first degree manslaughter. DeHaven was convicted of first degree manslaughter.

In the Court of Appeals, the Commonwealth maintained that the manslaughter instruction was proper. However, in light of our recent decisions in Cecil v. Commonwealth, Ky., 888 S.W.2d 669 (1994), and Morgan v. Commonwealth, Ky., 878 S.W.2d 18 (1994), the Commonwealth conceded that it was error to instruct on first degree manslaughter. Both Morgan and Cecil reaffirm the requirement of “some definite, nonspecu-lative evidence”, Morgan, supra, at 20, of “the. event which triggers the explosion of violence on the part of the defendant.” Cecil, supra, at 673 (citing Foster v. Commonwealth, Ky., 827 S.W.2d 670 (1992)). There was no such evidence offered; therefore, the instruction was not warranted.

The only issue before this Court is whether the error is prejudicial and therefore requires reversal of DeHaven’s conviction. The Commonwealth urges us to accept the proposition that the error was not prejudicial because the error conferred a benefit upon DeHaven. The benefit to DeHaven, according to the Commonwealth, is the conviction of first degree manslaughter, instead of murder, which carries a lighter penalty. We cannot accept this proposition.

It is a well settled principle that a jury conviction “under an erroneous instruction for a crime that was not proven by the testimony is conclusive that the giving of the instruction was prejudicial.” Johnston v. Commonwealth, 170 Ky. 766, 186 S.W. 665, 657 (1916); See also, Faerber v. Commonwealth, Ky., 452 S.W.2d 624 (1969). It is interesting to note that Johnston concerned an erroneous instruction, and subsequent conviction, on manslaughter when there was no evidence to support it. In this case all parties agree that the manslaughter instruction was erroneous, therefore, DeHaven’s conviction for that crime proves the error was prejudicial.

The Commonwealth further argues that we should not affirm as the reversal “leads to an absurd result and ... is completely unjustified by the facts of the case.” Smith v. Commonwealth, Ky., 737 S.W.2d 683, 688 (1987). The absurd result is that DeHaven will be released from prison and cannot be retried for the death of Juanita. The jury, by its verdict, found DeHaven not guilty of the murder of Juanita. See, Smith, supra, at 688. However, there was no evidence from which they could have found DeHaven guilty of first degree manslaughter. Therefore, reversal of this conviction is not an absurd result. Moreover, while DeHaven will be released from prison upon rendering of this opinion, he has served almost five years in prison.

For the foregoing reasons, the decision of the Court of Appeals is affirmed.

BAKER, LAMBERT and STUMBO, JJ., concur. WINTERSHEIMER, J., dissents in a separate dissenting opinion. GRAVES, J., and Special Justice EDWIN BAER join in this dissenting opinion. KING, J., not sitting.