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Farmer v. Commonwealth8/20/1999
nother person." Reckless homicide and DUI require proof of wholly distinct and disparate elements. DUI does not require proof of a death of another person; reckless homicide does not require proof that a person was in physical custody of an automobile while intoxicated or while consuming alcohol. Analogously, in Justice v. Commonwealth, Ky., 987 S.W.2d 306 (1998), the Supreme Court, applying the "same elements" test, held that double jeopardy did not serve as a bar to the dual, simultaneous prosecution of DUI and first-degree assault (requiring proof that the defendant caused serious physical injury either intentionally or wantonly). We find no error in the trial court's denial of Farmer's motion to dismiss and of his motion for a directed verdict as to the charge of DUI premised on his double jeopardy argument.
The last issue raised by Farmer on appeal is whether the court committed reversible error by reading KRS 189A.010(1)(a)&(b) and KRS 189A.010(2)(a)&(b) to the jury. During voir dire, defense counsel questioned the jurors as to whether they knew the "legal limit" for DUI in Kentucky. One juror responded that he believed it was .08. Defense counsel then asked whether the other jurors agreed. Another juror then stated that the "legal limit" was .10 and made a reference to proposed legislation to lower the limit to .08. Defense counsel acknowledged that the juror was correct and pursued this line of questioning. The Commonwealth objected. The trial court read the two aforementioned statutes and their subsections to the jury. Neither the Commonwealth nor defense counsel objected. After the court finished reading the statutes to the jury, defense counsel proceeded to discuss the "legal limit" and the proposed legislative changes with the jury.
"Error on appeal cannot be considered in the absence of a proper objection to preserve that error for appellate review." Sherley v. Commonwealth, Ky., 889 S.W.2d 794, 796 (1994). The trial court must be given the opportunity to rule on the issue. Hunter v. Commonwealth, Ky., 560 S.W.2d 808 (1977). This issue was not preserved by a timely objection; defense counsel first raised its objection to the trial court's action in a post-trial motion without regard for the fact that it was defense counsel who had embarked upon this line of questioning. We find no error.
For the foregoing reasons, we affirm the judgment of the Madison Circuit Court.
ALL CONCUR.
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