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Battoe v. Commonwealth

8/25/2005

clusions as to the effects of the drugs on Appellant's judgment and perception.


Finally, we note that our prior decisions are replete with affirmances of convictions for wanton murder under circumstances similar to the case sub iudice. See Cook v. Commonwealth, 129 S.W.3d 351, 363 (Ky. 2004) (defendant was intoxicated, admitted his awareness of the risk of driving while intoxicated, and drove at a high rate of speed); Love v. Commonwealth, 55 S.W.3d 816, 827 (Ky. 2001) (defendant was intoxicated, drove at a high rate of speed, and failed to slow or attempt to stop upon seeing a police officer blocking the road); Esteg v. Commonwealth, 957 S.W.2d 191, 193 (Ky. 1997) (defendant was impaired by several prescription drugs, drove at a high rate of speed, crossed center line to pass another vehicle, and failed to return to the proper lane); Walden v. Commonwealth, 805 S.W.2d 102,105 (Ky. 1991) (defendant was intoxicated, drove at high rate of speed, lost control of his vehicle, and crossed center line), overruled on other grounds by Commonwealth v. Burge, 947 S.W.2d 805, 811 (Ky. 1996); Hamilton v. Commonwealth, 560 S.W.2d 539, 543 (Ky. 1977) (defendant was intoxicated, drove at high rate of speed, and failed to stop at a red light). See also Ramsey v. Commonwealth, 157 S.W.3d 194,196-98 (Ky. 2005) (driving while intoxicated, in an "irregular and unreasonable manner," and with a ten-year-old child as passenger was sufficient to support conviction of first-degree wanton endangerment). If the evidence in these prior cases was sufficient to support a finding of wantonness "under circumstances manifesting extreme indifference to human life" (the requisite mental state for wanton murder, KRS 507.020(1)(b), and first-degree wanton endangerment, KRS 508.060), then a fortiori, Appellant's intoxication, high rate of speed, erratic manner of driving, and failure to slow or stop his vehicle upon driving halfway into a ditch were sufficient to support the jury's finding of simple wantonness. We hold that Appellant was not entitled to a directed verdict of acquittal.


II. REQUEST FOR MISTRIAL DURING THE PENALTY PHASE


Appellant's next claim of error is predicated upon the following statement made by the prosecutor during his penalty phase opening statement:


What you're going to find out is that in 1996, this defendant, Mr. Battoe, was convicted of DUI, Third Offense, driving under the influence of pain medication.... That tells you that within five years of when he was convicted of that offense, he'd also been convicted two other times of DUI.... And I'm going to introduce all of those convictions for you in this case. Two of the DUls, I've got certified copies of two of the DUls.


Appellant's trial attorney presented no opening statement, and the prosecutor immediately moved to introduce into evidence two certified records of Appellant's prior convictions for driving under the influence (DUI): one dated September 12, 1994, and one dated March 4, 1997, which recited that it was Appellant's third DUI offense. The prosecutor did not introduce any evidence of a second DUI conviction before March 4, 1997. At this point, Appellant's trial counsel objected to the introduction of the March 4, 1997, conviction, based upon the fact that the Commonwealth was not introducing both of Appellant's prior DUI convictions. He also moved for a mistrial based upon the prosecutor's reference to "DUI, Third Offense," during his opening statement. The trial court overruled the objection and the motion for mistrial.


On appeal, Appellant claims only that the trial court erred in overruling his motion for mistrial; he does not assign as error the admission of the March 4, 1997, conviction

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