# Brown v. Commonwealth

> Kentucky Supreme Court · December 19, 1996 · 934 S.W.2d 242

URL: https://www.frixlaw.com/law-library/cases/9665116

## Case

- **Full name:** Bobby Chester BROWN, Appellant, v. COMMONWEALTH of Kentucky, Appellee
- **Court:** Kentucky Supreme Court
- **Decided:** December 19, 1996
- **Citations:** 934 S.W.2d 242; 1996 WL 554515
- **Precedential status:** Published
- **Opinion:** Concurrence by Furkin
- **Judges:** Stumbo, Stephens, Baker, Lambert, Wintersheimer, Graves, Furkin, King
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Questioned by Keeling v. Commonwealth, 2012 Ky. LEXIS 160 (2012).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9665116

## How later opinions describe it (automated extraction)

- noting longtime precedent that lay witnesses can testify as to a defendant’s sanity when “ ‘by association and observation [they] have had an opportunity to form an opinion as to the sanity of a person’ ”
- noting longtime precedent that lay witnesses can testify as to a defendant's sanity when "'by association and observation [they] have had an opportunity to form an opinion as to the sanity of a person'"
- describing cross-examination as “the primary means by which trial counsel can attempt to persuade jurors of the weight or significance to be attached to the testimony of the witnesses” (quotation omitted)

## Opinion text

SCOTT FURKIN,
Special Justice, concurring.
I concur that the record in this case does not support reversal of Appellant’s convictions. Nevertheless, Appellant makes some compelling points as to the constitutional infirmities of the guilty but mentally ill (“GBMI”) statutes, not the least of which is the concern that jurors are too easily lured *250 into returning a GBMI verdict — in lieu of an acquittal based on the insanity defense — by the illusory promise of treatment during incarceration.
The trial court cannot be faulted for instructing this jury that Appellant would receive treatment if found GBMI since KRS 504.150(1) does indeed mandate treatment. However, because the legislature has consistently failed to provide adequate funding, the reality is that treatment for those found GBMI is uncertain if not nonexistent. Thus, as the majority opinion notes, the dispositional instruction proffered by Appellant is more accurate; and the constitutionality and effectiveness of the GBMI statutes depend, at least in part, upon how the jury is instructed. As Justice Leibson observed in his dissent in Mitchell v. Commonwealth, Ky., 781 S.W.2d 510, 513 (1990), “[w]e cannot expect the jury to render a ‘true verdict’ if they are misled or confused_”
For this reason, I would hold that in all future eases where it is requested, a disposi-tional instruction which specifies that treatment will be provided during incarceration only if available and deemed necessary shall be given until such time as the legislature commits adequate resources for treatment of those found GBMI. Perhaps this would ameliorate somewhat the potential inequity of a statutory scheme whose present application is aptly described by the majority opinion as “a method of punishment which appears to be nothing more that a charade, cloaked in a verdict ... which amounts to nothing more than an oxymoronic term of art.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9665116. Public record. Not legal advice.