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Blakeman v. Commonwealth10/21/2004
THIS OPINIONIS DESIGNA TED "NOT TO BE PUBLISHED. " PURSUANT TO THE RULES OF CIVIL PROCED URE PROMULGATED BY THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS AUTHORITY INANY OTHER CASE INANY COURT OF THIS STATE.
NOT TO BE PUBLISHED
MEMORANDUM OPINION OF THE COURT AFFIRMING
This appeal is from a judgment based on a jury verdict that convicted Blakeman of second-degree assault, first-degree wanton endangerment, operating a motor vehicle under the influence of alcohol and as a first-degree persistent felony offender. He was sentenced to a total of forty years in prison.
The questions presented are whether it was error not to direct a verdict on the first-degree wanton endangerment charge; whether it was error to admit evidence of other bad acts and whether it was error not to grant a mistrial for the failure of the prosecution to comply with a discovery order regarding the blood test evidence.
Blakeman first entered a plea of not guilty, but decided to enter into a plea agreement for each of the four counts in exchange for a recommendation by the Commonwealth for a concurrent sentence of ten years. In accepting the guilty plea, the trial judge conducted an extensive colloquy and made findings that the plea was entered knowingly, intelligently and voluntarily. At his scheduled sentencing hearing, Blakeman withdrew his guilty plea, asserting that he had been misinformed about parole eligibility. The trial judge then confirmed that the defendant understood that if he withdrew the guilty plea he would be facing forty years if convicted at trial. The original guilty plea was entered in November 1999, the plea bargain occurred on February 8, 2000, the sentencing hearing on April 11, 2000, and the ultimate trial in November 2000.
On October 6, 1999, a serious traffic accident occurred at approximately 1 a.m. in Paris, Kentucky. Larry Tipton, a night foreman and head of security at a private company, overheard the traffic accident report on his police radio. Tipton, who had served for twelve years as a sergeant on the Paris Police Department, testified that he was aware of the seriousness of the traffic problem and volunteered to assist the police with traffic control. He was at the intersection directing traffic for approximately 40 minutes when Paris police officer Frakes joined him. Both Tipton and Officer Frakes had parked their cars with their emergency lights on so as to block traffic. The pair directed oncoming traffic for about the next 30 minutes without incident.
At approximately 2:15 a.m., Officer Perry and the mobile command center of the Paris police department arrived. The command center was a very large truck similar to an ambulance which stood over ten feet tall and was equipped with emergency gear. The command center was parked in between and slightly in front of the other cars. All the vehicles had emergency lights on. Within moments, Tipton heard another car coming up the road and told the officers that he would direct one last car and then turn the entire matter over to them. He walked to the intersection with a flashlight to flag the oncoming car. Tipton testified that he could not at first see the car, but he could only hear it. When he finally saw it, the car was not speeding, but was not slowing down. Tipton stated that he yelled, "He ain't going to stop!" He then "took off running for the ditch" on the side of the road. Tipton said if he didn't take off running, he felt "sure he [the driver] would have hit him." When he got up off of the ground, he heard the crash and saw that the car had rammed into the parked command center. He never saw or heard the c
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