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King v. Commonwealth9/26/2002
NOT TO BE PUBLISHED
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This appeal is from a judgment based on a jury verdict which convicted King of wanton murder. She was sentenced to a total of twenty-four years in prison.
The questions presented are whether King was entitled to an instruction on reckless homicide; whether King received a fair and impartial sentencing phase trial; whether the closing argument of the prosecutor was prejudicial error; whether the trial judge properly voir dired the prospective jury; and whether the trial judge correctly took judicial notice of parole eligibility.
King was traveling eastbound on U.S. 60 in Clark County when her automobile crossed the center line and collided head-on with a car approaching in the opposite direction. The driver of the other car, a twenty-four-year-old college student who had just left her family's home to go to work, was killed.
A preliminary breath test administered at the scene and a blood test performed at the hospital an hour later indicated that King had a blood alcohol level of.280. An open beer bottle was recovered from inside King's car and marijuana and rolling papers were recovered from her person.
At trial, King testified that the night before the accident she drank most of a fifth of whiskey and smoked marijuana. She stated that the morning of the accident she had two or three more drinks. King also admitted possessing marijuana and rolling papers. Despite these admissions, King claimed that the collision occurred not because of any alcohol or drug impairment but because she sneezed a couple times.
The jury convicted King of wanton murder, possession of marijuana and possession of drug paraphernalia. Initially, the jury recommended she receive a fifty-year sentence on the wanton murder charge and twelve months and a $500 fine on each of the possession charges. However, while reviewing the record in consideration of the motion by King for a new trial, the trial judge realized that the jury had been given incorrect minimum parole eligibility guidelines during the sentencing phase. To remedy this, the trial judge set aside the sentencing verdict of the jury on the murder charge and recalled the original jury for a new sentencing phase. Thereafter, the jury recommended a twenty-four-year sentence on the wanton murder charge. This appeal followed.
I. Instructions
King argues that reversible error occurred when the trial judge failed to instruct the jury on reckless homicide. The trial judge instructed the jury on wanton murder and second-degree manslaughter but denied King an instruction on reckless homicide. "In most cases, evidence that the defendant was acting wantonly will also afford an inference that he was acting recklessly, requiring that the jury also be instructed on reckless homicide as a lesser included offense." 1 Cooper, Kentucky Instructions to Juries (Criminal) §3.28 Comment (3d ed. 1993). "Evidence that a criminal defendant was driving under the influence is sufficient to prove reckless conduct." Commonwealth v. Runion, Ky.App., 873 S.W.2d 583 (1993).
After careful review of the record, we must agree with King that she was entitled to an instruction on reckless homicide. At trial, there was no direct testimony from King that she perceived the risk in driving under the influence but was determined to do it anyway. Although the claim by King that her sneezing was the sole cause of the collision was tantamount to a complete defense, the evidence presented by the Commonwealth raised a jury question as to whether the conduct of King was wanton or reckless. The error in failing to instruct o
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