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King v. Commonwealth9/26/2002
e questioned jurors in open court as to what they had read or heard regarding publicity. She concedes that this issue is unpreserved but again seeks review pursuant to RCr 10.26.
This claim of error is completely without merit. During voir dire, the trial judge read the indictment to the prospective jurors and explained that the case to be heard involved a traffic fatality on U.S. 60. She also noted that King was alleged to have possessed marijuana and drug paraphernalia. The trial judge then questioned the prospective jurors about pretrial publicity, and two jurors indicated that they read something about the case. The information the two jurors provided in open court was the same information that the trial judge informed them about. Both jurors also indicated that they had not reached any conclusion regarding guilt or innocence based on what they read. Individual voir dire on pre-trial publicity is only required in death penalty cases. RCr 9.38; Woodall, supra. King was not death eligible. Clearly, no error occurred during the voir dire of the prospective jury panel by the trial judge.
V. Judicial Notice of Parole
Finally, King contends that it was reversible error for the trial judge to take judicial notice of parole eligibility. Not only is this issue unpreserved, cf. Myers v. Commonwealth, Ky., 42 S.W.3d 594 (2001), it is completely without merit. Abbott v. Commonwealth, Ky., 822 S.W.2d 417 (1992), which King relies on, specifically authorizes a trial judge to take judicial notice of parole eligibility guidelines. No error occurred.
King received a fair trial and due process on all issues.
The judgment of conviction and the sentence are affirmed.
Lambert, C.J., Graves, Johnstone and Wintersheimer, JJ., concur. Cooper, Keller and Stumbo, JJ., dissent because they believe the failure to give the reckless homicide instruction was not harmless error.
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