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Battoe v. Commonwealth8/25/2005
now complains of the following definitions of "wantonly" and "recklessly":
(a) "Wantonly" - A person acts wantonly with respect to a result or to a circumstance when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. _A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto.
...
(d) "Recklessly" - A person acts recklessly with respect to a result or to a circumstance when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
(Emphasis added.) Because only the definition of "wantonly" contained a reference to intoxication, Appellant claims that these instructions led the jurors to believe that a finding of any level of intoxication necessitated a finding of wantonness. Appellant concedes that these instructions reflected the statutory definitions of "wantonly," KRS 501.020(3), and "recklessly," KRS 501.020(4), yet contends that they violated his constitutional right to a jury trial.
In fact, the instructions given by the trial court are identical to the statutory definitions of "wantonly" and "recklessly" in all material respects. As such, Appellant is essentially asking this Court to rule on the constitutionality of KRS 501.020(3) and (4). A party challenging the constitutionality of a statute is required to serve a copy of the document first raising the challenge upon the Attorney General before judgment is entered. KRS 418.075(1); CR 24.03. This notice requirement is mandatory and will be strictly enforced. Maney v. Mary Chiles Hosp., 785 S.W.2d 480, 482 (Ky. 1990). It applies with equal force in civil and criminal cases. Jacobs v. Commonwealth, 947 S.W.2d 416, 419 (Ky. App. 1997). Because Appellant did not comply with the notice requirement in this case, we decline to address this issue.
D. Penalty Phase Opening Statement and Closing Argument
Appellant's final claim of error arises out of the Commonwealth's penalty phase opening statement and closing argument. During his opening statement, the prosecutor made the following assertion to the jury:
I'm going to ask onto give him ten years on each rconvictionl, and I'm going to ask you to run those consecutively for forty years, so that the judge knows that's what you recommend. When it comes to sentencing, the judge will have to reduce that sentence to twenty years by operation of law. [Appellant] can't be required to serve more than twenty years because he's been convicted of C felonies.... But I want the judge to do that. I want you to recommend the maximum.
(Emphasis added.). During his closing argument, defense counsel also told the jury, "any number over twenty will be reduced to twenty." The prosecutor then stated the following during the Commonwealth's penalty phase closing argument:
I'm going to ask that you send the message that you don't want him getting out in four years, you don't want him driving the streets in four years, and the way to do that is to give him the maximum and to run them consecutively. The judge will lower it, but that's not your job. I'm asking you to give him the maximum and ask that they run consecutively, so tha
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