Barker v. Commonwealth, 2009-SC-794 (June 16, 2011) (published)-
The Supreme Court found palpable error due to the erroneous wording of the provocation qualifier of a self-defense instruction. A defendant forfeits his right to the defense of self-protection when (1) the defendant had the intention of causing serious physical injury to the victim; and (2) the defendant must actually provoke the victim to use physical force. In this case, the provocation qualifier failed to include the element requiring the defendant to provoke the victim with the intent to cause death or serious physical injury to him.
The instruction given -
Provided, however, that if you believe from the evidence beyond a reasonable doubt that Adam Anthony Barker provoked Zachary Scarpellini and/or Shawn Reilly to use or attempt to use physical force upon the defendant, Adam Anthony Barker, and that they did so with the intention of causing death or serious physical injury to Adam Anthony Barker, then the defense of self-protection is not available to him.
The Kentucky Supreme Court -
The instruction given in this case is fatally flawed because it fails to properly set out the elements of the statute. It lacks the statutory element requiring Appellant to provoke the victim with the intent to cause death or serious physical injury to him . Instead, the instruction requires that Zachary Scarpellini and/or Shawn Reilly have the intent to cause death or serious physical injury to Appellant. The provocation exception, under KRS 503.060(2), is concerned with the defendant's state of mind, not the victim's.
Contributed by Shannon Smith
