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Nicholson v. State6/6/2000
DATE OF JUDGMENT: 05/19/1999
TRIAL JUDGE: HON. JOSEPH H. LOPER JR.
COURT FROM WHICH APPEALED:WINSTON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT CONVICTED OF FELONY DUI: SENTENCED TO A TERM DISPOSITION: OF FOUR YEARS WITH THE MDOC, TWO YEARS SUSPENDED. FINED $2000.
DISPOSITION: AFFIRMED - 6/6/00
. Anthony Nicholson was found guilty of felony Driving Under the Influence (DUI) and sentenced to four years, with two years to serve, two years suspended, and placed on probation for two years. Aggrieved of this judgment and sentence Nicholson argues on appeal:
I. THE TRIAL COURT ERRED IN NOT ALLOWING THE DEFENSE TO EXAMINE THE JURY VENIRE WITH A HYPOTHETICAL QUESTION.
II. THE TRIAL JUDGE SHOWED BIAS AND SUCH BIAS PREJUDICED THE DEFENDANT.
III. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO STIPULATE TO THE VALIDITY OF DEFENDANT'S TWO PRIOR CONVICTIONS AND MOTION TO PRECLUDE THE STATE FROM REFERRING TO THE PRIOR CONVICTIONS.
IV. DEFENDANT'S READING FALLS WITHIN THE MARGIN OF ERROR OF THE INTOXILYZER 5000; THEREFORE, THE CHARGE OF DRIVING UNDER THE INFLUENCE SHOULD BE DISMISSED.
V. THE TRIAL COURT ERRED IN ADMITTING AFFIDAVITS INTO EVIDENCE.
VI. THE TRIAL COURT ERRED IN SENTENCING DEFENDANT AS A FELONY OFFENDER.
. Finding no reversible error, we affirm.
FACTS
. At around 3:00 a.m. on August 23, 1998, patrolman Tommy Clark with the Louisville Police Department spotted a Mustang drive through a stop sign. The vehicle went into another lane before straightening back. Clark pulled the Mustang over. This vehicle was driven by Nicholson. When Clark initiated conversation with Nicholson, he noticed the smell of intoxicants on his breath. Clark asked Nicholson to blow into the portable intoxilyzer to which Nicholson complied. The portable intoxilyzer registered a .08%, which gave Clark reason to transport Nicholson to the station. At the station, Nicholson took the Intoxilyzer 5000, and the machine registered Nicholson's blood alcohol content at .104%.
. Nicholson had twice before been convicted of misdemeanor DUI within five years of the present offense. Nicholson's prior convictions were presented to the jury during trial. After deliberations, the jury found Nicholson guilty of felony DUI.
LEGAL ANALYSIS
I.
THE TRIAL COURT ERRED IN NOT ALLOWING THE DEFENSE TO EXAMINE THE JURY VENIRE WITH A HYPOTHETICAL QUESTION.
. During voir dire of the jury venire the following transpired: By the Defense:If you were in a situation in a trial and you thought nine people were guilty and one person was not guilty. And in order-you had the option to either send them all to jail or let them all free. Now, who would you vote to let them all free?
(A juror raises his hand.)
By the Court: You are number nine; is that correct?
By the Defense:And who would vote to put all ten of them in jail even though one of them you felt was innocent? Who would vote that way?
By the Prosecution:Your Honor, I am going to object to the form of that question, Your Honor.
By the Court: I am going to sustain. I think that-I sustain the objection. That is a situation that would never occur. And they would not ever-a jury would never be asked to do anything but judge each person individually. They would never be in a situation like that. So I am-I think that is irrelevant. And also it is just hypothetical.
. The defense argues that the trial court abused its discr
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