         IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE ; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION .
                                                    RENDERED : APRIL 23, 2009
                                                                       ISO

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                              2007-SC-000280-MR

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FINLEY PERRY



                ON APPEAL FROM MCCREARY CIRCUIT COURT
                HONORABLE JERRY D . WINCHESTER, JUDGE
                            NO . 06-CR-00051



COMMONWEALTH OF KENTUCKY                                               APPELLEE



                  MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING


      Finley Perry appeals as a matter of right from an April 13, 2007 Amended

Judgment of the McCreary Circuit Court convicting him of murder . In accord

with an agreement between Perry and the Commonwealth, the Judgment also

sentences Perry to prison for twenty-five years . During the guilt phase of the

trial, the Commonwealth alleged, and the jury found, that on the morning of

February 16, 2006, Perry murdered Ernest Ridner by shooting him with a

shotgun at his (Ridner's) residence on Highway 896 in Parkers Lake, Kentucky,

in McCreary County . Perry contends that the trial court erred when it refused

to instruct the jury on extreme emotional disturbance and the lesser included

offense of first-degree manslaughter . Agreeing with the trial court that the

evidence did not support those instructions, we affirm .
                               RELEVANT FACTS

       The Commonwealth's proof included testimony by Bradley Ridner, Ernest

 Ridner's son, that on the morning of the shooting he was working outdoors not

 far from his father's residence and that at about 7 :15 am he saw Perry, with

whom he was familiar, arrive at and enter the residence . A short time later he

heard a gunshot and saw Perry exit the residence and drive away. He promptly

investigated and found his father lying face down on his living room floor with a

gunshot wound to his back . Bradley summoned emergency assistance, but the

elder Ridner was pronounced dead at the scene.

       The homicide investigation was assigned promptly to Detective Billy

Correll of the Kentucky State Police, and Detective Correll testified that he

broadcast to other police agencies a description of Perry and his red Mazda

pickup truck. Not long thereafter he received word from Kentucky State Police

Officer Aaron Beighle that Perry had been stopped northbound on Interstate 75

less than ten miles from the Ohio border and that he was being detained at the

Kenton County Detention Center. Detective Correll completed his investigation

at Ridner's residence and then drove to northern Kentucky where he

interviewed Perry and searched his truck The search revealed a 20-guage

shotgun, which ballistics testing later confirmed was the gun used to shoot

Ridner.

      Detective Correll's interview with Perry was recorded, and the video

recording was played for the jury . During the interview Perry admitted having
 shot Ridner and explained that he had been angered about five hours before

 the shooting, at about 2 :00 that morning, when he had gone to Ridner's

residence in hopes of buying some beer, but Ridner had refused to sell and had

instead threatened him with a gun and demanded that he "get. the hell out of

here." He also claimed that a week earlier Ridner had burned his (Perry's)

camper and bragged about it, and he further explained that he and Ridner had

been feuding for years and that Ridner had refused to sell him beer on other

occasions .

       The Commonwealth's proof also included testimony by two of Perry's

friends who had encountered him shortly before the shooting. Michael Hurd

and Eric Barnett each testified that Perry had approached him within about an

hour of the shooting and asked if he could borrow a gun with which to shoot

Ridner. Both testified that Perry's demeanor had been calm and seemingly

normal, although Barnett testified that Perry had smelled of alcohol and looked

as if he might have been up for some time . Perry, however, had not appeared

upset, and in fact had engaged in his usual bantering. Neither man loaned

Perry a gun, and both testified that they did not take either the gun request or

the threat seriously because Perry had made similar remarks many times

before .

       Perry did not testify in his defense, but his wife testified that in 2003

Perry had been diagnosed with cancer and that the illness had caused him to

lose his employment and rely on disability payments . Since then, she testified,
 his cancer had gone into remission, but nevertheless he had become

increasingly depressed and increasingly dependent on alcohol and prescription

pain medicine . Perry had left their house at about 11 :00 am the day prior to

the shooting and had not returned home that night. His wife did not know

where he had gone or what he had done during his absence . She left for work

at about 6 :00 the morning of the shooting, and it was apparently not long after

that that Perry had stopped by their house to pick up his shotgun .

      At the close of the Commonwealth's case and again after his wife's

testimony, Perry moved to have the murder charge dismissed and replaced with

a charge of first-degree manslaughter . He argued that the evidence of his

chronic despondency and his anger against Ridner compelled a finding that he

had shot Ridner under the influence of an extreme emotional disturbance

(EED) . When the trial court denied those motions, Perry submitted jury

instructions incorporating his EED claim, i.e., both a murder instruction

requiring acquittal on that charge unless the jury found that at the time of the

shooting he "was not acting under the influence of extreme emotional

disturbance for which there was reasonable explanation or excuse," and an

instruction on first-degree manslaughter as a lesser included offense. Because

in its view the evidence did not support an EED finding, the trial court rejected

those instructions and instead instructed the jury simply that it should find

Perry guilty of murder if and only if it believed beyond a reasonable doubt that

Perry shot Ridner and that "in so doing he caused the death of Ernest Ridner
intentionally." Perry contends that the trial court erred by rejecting his EED-

based instructions . We disagree.

                                  ANALYSIS

       The murder statute, KRS 507 .020, provides in pertinent part that a

person is guilty of murder when

            [w]ith intent to cause the death of another person, he
            causes the death of such person or of a third person ;
            except that in any prosecution 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 . However, nothing contained in this
            section shall constitute a defense to a prosecution for
            or preclude a conviction of manslaughter in the first
            degree or any other crime .

Under this statute, this Court has held, the absence of EED is an element of

murder, but it is an element that is presumed to be satisfied unless the proof

includes sufficient, non-speculative evidence of EED to call the presumption

into reasonable doubt. In that case the element must be reflected in the

inst ructions. Greene v. Commonwealth, 197 S .W.3d 76, 81 (Ky . 2006) (citing

Gall v. Commonwealth, 607 S .W.2d 109 (Ky. 1980)) ("[W]hen there is [sufficient

EED] evidence, the instruction should be included.") . In the absence of such

definitive, non-speculative EED evidence, however, an EED instruction is

inappropriate . Talbott v. Commonwealth, 968 S .W.2d 76 (Ky. 1998) .

      "Extreme emotional disturbance," we have held, means
             a temporary 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 . It is not a mental disease
             in itself, and an enraged, inflamed, or disturbed
             emotional state does not constitute an extreme
             emotional disturbance unless there is a reasonable
             explanation or excuse therefor, the reasonableness of
             which is to be determined from the viewpoint of a
             person in the defendant's situation under
             circumstances as defendant believed them to be .

McClellan v. Commonwealth, 715 S .W.2d 464, 468-69 (Ky. 1986) .

      EED mitigation is thus limited to cases involving enraged or inflamed

states of mind, a mind so emotionally disturbed as to overcome its judgment .

An EED instruction is not appropriate, therefore, unless there is evidence that

the defendant did in fact suffer an extreme emotional disturbance . Evidence of

mere hurt or anger is not enough. Talbott.

      Furthermore, although no longer requiring a "flash point" as was

required under the common law's "sudden heat of passion" mitigator, our law

still requires that the EED be traceable to a relatively sudden triggering event,

or events, the extreme emotional effect of which continues uninterrupted until

surfacing in the defendant's violent act. Benjamin v. Commonwealth , 266

S .W.3d 775 (Ky. 2008) . An EED instruction is thus inappropriate unless there

is evidence of such a triggering event or events . Chronic conditions, gradual

victimization from the defendant's environment, or depression followed by a

"downward spiral into heavy drug abuse," have been held not to satisfy the
 triggering event requirement. Halvorsen v. Commonwealth, 258 S .W.3d 1, 4

 (Ky. 2007) ; Foster v. Commonwealth, 827 S .W.2d 670 (Ky. 1991), Cecil v.

 Commonwealth, 888 S.W.2d 669 (Ky. 1994) .

       Finally, whereas the common law required that the defendant's

provocation be reasonable under the circumstances as they actually existed,

and thus did not offer mitigation to defendants who misperceived their

circumstances, our law now requires that the provocation be assessed from the

circumstances as the defendant perceived them to be, taking into account, if

relevant, idiosyncratic character traits and details of the defendant's situation

that have a bearing on his perceptions. Greene . Our law continues to require,

however, that the provoking circumstances, as perceived by the defendant, be

such as provide "a reasonable explanation or excuse" for the defendant's loss of

judgment and uncontrolled reaction. Id, Fields v. Commonwealth, 44 S .W.3d

355 (Ky. 2001) . Accordingly, we have rejected EED claims where the perceived

provocation was the victim's refusal of a drug dependant defendant's demand

for money or drugs, Caudill v. Commonwealth, 120 S.W .3d 635 (Ky. 2003), the

victim's resistance to the defendant's robbery attempt, Hodge v.

Commonwealth , 17 S .W .3d 824 (Ky. 2000), or the infant victim's crying and

thumb sucking, Schrimsher v. Commonwealth, 190 S .W.3d 318 (Ky. 2006) .

      In light of this precedent, we agree with the trial court that Perry was not

entitled to EED instructions. There was no evidence, in the first place, that

Perry suffered an extreme emotional disturbance . On the contrary, Hurd and
 Barnett testified that shortly before the shooting Perry was calm, coherent, and

 even capable of his usual joking. After the shooting, too, Perry's apparent

 attempt to flee from Kentucky suggests a mind fully engaged with its

 circumstances, not one overwhelmed by emotion. Perry's calm demeanor

during his interview with Detective Correll did not suggest an extreme

emotional disturbance, and although the interview included Perry's statements

that he was angry about Ridner's burning Perry's camper and his curt refusal

to sell Perry beer, mere anger, as noted above, is not sufficient to support EED

instructions . There was nothing in Perry's statement or elsewhere in the

evidence to suggest that his anger ever amounted to uncontrollable rage.

       Even had there been evidence of rage, moreover, we have held, as noted

above, that a victim's refusal of the defendant's demand for drugs or money

does not provide a "reasonable explanation or excuse" for a violent loss of self

control, and that holding applies with equal or greater force to a refusal to sell

the defendant beer . The week-old camper incident does not change that result,

for although property damage is a more significant insult than the refusal to

sell beer, there was no evidence that the camper was particularly valuable or

meaningful to Perry and thus no basis for believing that its destruction

reasonably explained or excused a violent outburst, particularly an outburst

delayed, as here, by a week-long cooling off period.

      Finally, again as noted above, Perry's depression and his increasing use

of alcohol and drugs, although potentially relevant to his perception of Ridner's
 acts, could not themselves be deemed triggering events of an EED. They were

 chronic conditions, not sources of a sudden upwelling of emotion. There was

 no evidence, moreover, that Perry misperceived Ridner's acts as more

 provoking than in fact they were. On the contrary, Perry's statements to

Detective Correll indicate that he perceived them as most people would, as an

act of vandalism in the case of the camper and as, at worst, a display of

contempt in the instances where Ridner refused to sell beer. Ridner's actions

made Perry angry, to be sure, but there was no evidence that they so enraged

or inflamed him as to overwhelm his judgment and cause him to act

uncontrollably .

                                 CONCLUSION

      The evidence, in sum, was that after years of feuding brought to a head

by the camper and beer incidents, Perry formed the intent to kill Ernest Ridner,

and in the early morning hours of February 16, 2006 he deliberately carried

out that intent. The record is devoid of evidence that Perry acted

uncontrollably under the influence of an extreme emotional disturbance, and

absent such evidence the trial court correctly refused Perry's tendered jury

instructions conditioning a murder verdict on the absence of EED and

authorizing a verdict of first-degree manslaughter . Accordingly, we affirm the

April 13, 2007 Amended Judgment of the McCreary Circuit Court

      All sitting. All concur.
COUNSEL FOR APPELLANT:

Lisa Bridges Clare
Shelly R. Fears
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane Suite 302
Frankfort, KY 40601-1133


COUNSEL FOR APPELLEE :

Jack Conway
Attorney General

Henry Albert Flores, Jr . ,
Assistant Attorney General
Office of Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort KY 40601-8204
