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Battoe v. Commonwealth

8/25/2005



THIS OPINIONIS DESIGNA TED "NOT TO BE PUBLISHED. " PURSUANT TO THE RULES OF CIVIL PROCED URE PROIVIULGA TED BY THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOTBE CITED OR USED AS AUTHORITY INANY OTHER CASE INANY COURT OF THIS STATE.


NOT TO BE PUBLISHED


MEMORANDUM OPINION OF THE COURT


AFFIRMING


On the evening of March 16, 2001, Appellant, Jerry Don Battoe, was driving in McCracken County in the direction of Paducah when his automobile left the road and struck a tree, killing one of his passengers and injuring each of his four other passengers. Appellant was subsequently convicted by a McCracken Circuit Court jury of one count of manslaughter in the second degree, KRS 507.040, three counts of assault in the second degree, KRS 508.020, one count of wanton endangerment in the second degree, KRS 508.070, and one count of owning/operating a motor vehicle without insurance, KRS 304.39-080, and sentenced to a total of twenty years in prison. He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting six claims of reversible error, viz: (1) overruling his motion for directed verdict of acquittal; (2) overruling his motion for a mistrial after the prosecutor failed to introduce evidence supporting a portion of his penalty phase opening statement; (3) improperly restricting the voir dire questions asked by defense counsel; (4) permitting the prosecutor to ask a witness a question regarding Appellant's prior marijuana use without having provided pretrial notice; (5) rendering prejudicial guilt phase instructions; and (6) permitting the prosecutor to urge the jury to recommend a sentence greater than the statutory maximum. Finding no error, we affirm.


I. SUFFICIENCY OF THE EVIDENCE


Appellant claims that the evidence adduced at his trial was insufficient to establish that he acted wantonly, and thus that the trial court erred in overruling his motion for a directed verdict of acquittal on each of the manslaughter, assault, and wanton endangerment charges. On a motion for a directed verdict of acquittal, all fair and reasonable inferences must be drawn in the Commonwealth's favor. Commonwealth v. Benham, 816 S.W.2d 186,187 (Ky. 1991). On appellate review, we determine whether, under the evidence viewed as a whole, it would be clearly unreasonable for a jury to find the defendant guilty. Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky. 1983).


Appellant departed his residence in McCracken County at approximately 9:00 p.m. on the evening in question. At the time, Appellant had five passengers in his automobile William Lofty, Kayla Battoe, Cara Bartholomew, Natasha Lofty, and Ted Purvis. According to each of the four surviving passengers, Appellant began to exceed the 55 miles per hour speed limit soon after the trip began. Purvis testified that Appellant began driving at 60 to 65 miles per hour and then increased his speed. Natasha Lofty estimated Appellant's ultimate speed at a rate between 85 and 90 miles per hour. Kayla Battoe, Appellant's daughter, testified that she looked at the automobile's speedometer and noticed that Appellant was driving between 75 and 80 miles per hour. Bartholomew stated that when she looked at the speedometer, the automobile was traveling at approximately 65 miles per hour. In addition to speeding, Appellant drove erratically, swerving back and forth. At one point, the wheels of Appellant's automobile veered off the right side of the road, into the gravel alongside the road. Because of his manner of driving, each of Appellant's passengers asked him to slow down. Further, Bartholomew and Natasha Lofty asked Appellant to stop the car so that one of t

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