FROM ROWAN CIRCUIT COURT HONORABLE BETH LEWIS MAZE, JUDGE
ACTION NO. 16-CR-00062
FOR APPELLANT: Karen Shuff Maurer Department of Public
Advocacy Frankfort, Kentucky.
FOR APPELLEE: Andy Beshear Attorney General of Kentucky
Gregory C. Fuchs Assistant Attorney General Frankfort,
BEFORE: COMBS, DIXON, AND MAZE, JUDGES.
Randolph instigated a prison melee and was subsequently
convicted in the Rowan Circuit Court of fourth-degree
assault, third-degree assault, and being a first-degree
persistent felony offender. He contends the jury should have
been instructed on the self-protection defense. We hold the
evidence at trial did not support a self-protection
instruction and affirm Randolph's conviction.
morning of April 3, 2016, cell 170 of the Rowan County
Detention Center was at maximum capacity: sixteen inmates,
including Randolph, were housed inside, some sleeping on bunk
beds, others sleeping on the floor. It was so cramped inside
the cell that the inmates barely had any room to walk, and
the only part that remained unoccupied was next to the
bathroom. Later that morning, Sgt. Jeff Riley, a deputy
jailer, placed a seventeenth inmate, William Elks, in cell
170. Randolph complained about another inmate occupying the
already crowded cell. Sgt. Riley's response is disputed.
Sgt. Riley testified that he informed Randolph that inmates
did not get to choose who resided in the cell. Fellow
residents of cell 170 testified that Sgt. Riley opined that
Randolph was "a bitch." In any event,
Randolph's reaction is undisputed: He said "fuck
it!" and began punching Elks in the head. Sgt. Riley
then entered the cell to stop Randolph's attacks and both
men sustained injuries in the ensuing fracas.
was indicted for fourth-degree assault for the attack on
Elks, third-degree assault for punching Sgt. Riley, and with
being a first-degree persistent felony offender. At the
subsequent trial, Sgt. Riley testified that he initially
attempted to pull Randolph off Elks, but Randolph resisted
and began throwing punches. Sgt. Riley explained that it was
the jail's policy to immediately separate fighting
inmates and place them in isolation to prevent further injury
to inmates and staff. The jury was also shown a video
recording of the incident. However, neither party cites to
this recording in their briefs, and we are unable to locate
it in the record.
and another inmate, Todd Caudill, testified that Randolph and
Sgt. Riley each attempted to punch one another, but both
conceded that Sgt. Riley attempted to pull Randolph off Elks
before any punches were thrown. Neither inmate was certain
which man threw the first punch. After watching the video of
the incident, Elks opined that it "kinda looked"
like Sgt. Riley was the aggressor.
the conclusion of proof, Randolph moved for a self-protection
instruction. The trial court denied the motion, finding
Randolph was not entitled to use physical force in
self-defense because he was the initial aggressor. The jury
found Randolph guilty on all counts, and he was sentenced to
a total of twelve years' imprisonment. This appeal
defendant has a right to have every issue of fact raised by
the evidence and material to his defense submitted to the
jury on proper instructions." Taylor v.
Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999). This is
requires that the trial court provide instructions applicable
to every state of the case, including affirmative defenses,
"covered by the indictment and deducible from or
supported to any extent by the testimony." Lee v.
Commonwealth, 329 S.W.2d 57, 60 (Ky. 1959).
508.025(1)(a)(1), a person is guilty of third-degree assault
when he or she "intentionally causes or attempts to
cause physical injury to . . . [a] state, county, city, or
federal peace officer[.]" A defendant charged under the
statute may assert any defense, such as self-defense, that
may be available. Covington v. Commonwealth, 849
S.W.2d 560, 562 (Ky. App. 1992). The use of physical force is
available as a defense "when the defendant believes that
such force is necessary to protect himself against the use or
imminent use of unlawful physical force by the other
person." KRS 503.050(1). However, self-defense may not
be invoked when the defendant "with the intention of