RICKY W. PACE v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: January 19, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000137-MR
RICKY W. PACE
APPELLANT
APPEAL FROM HARLAN CIRCUIT COURT
HONORABLE RON JOHNSON, JUDGE
ACTION NO. 99-CR-00123
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE:
HUDDLESTON, KNOPF, AND MILLER, JUDGES.
MILLER, JUDGE:
Ricky W. Pace brings this appeal from a December
22, 1999, judgment of the Harlan Circuit Court.
We affirm in
part, reverse in part, and remand.
On June 8, 1999, appellant was arrested for DUI while
operating his all terrain vehicle (ATV) at Martin Fork Lake in
Harlan County, Kentucky.
On September 16, 1999, appellant was
indicted by the grand jury of Harlan Circuit Court upon the
offenses of: (1) driving under the influence (DUI) (Kentucky
Revised Statute (KRS) 189A.010), fourth offense in five years;
(2) driving on a license suspended for DUI (KRS 189A.090), second
offense; (3) operating an ATV on a highway (KRS 189.515(1)); and
(4) operating an ATV with no helmet (KRS 189.515(4)).
On November 3, 1999, appellant was tried before a jury
of the Harlan Circuit Court and found guilty on all charges.
Judgment was entered against appellant December 22, 1999, and he
was sentenced to imprisonment for a total of five years.
This
appeal follows.1
Appellant argues the trial court erred by allowing the
prosecutor to cross-examine appellant during the guilt phase of
the trial concerning his prior drunk driving convictions.
Specifically, appellant claims his prior DUI convictions were
inadmissible as “prior bad acts” under Kentucky Rules of Evidence
(KRE)404(b).
This issue was not properly preserved by
contemporaneous objection at trial.
As a result, appellant urges
this Court to consider the issue as “palpable error” under Ky. R.
Crim. P. (RCr) 10.26, which states:
A palpable error which affects the
substantial rights of a party may be
considered . . . by an appellate court on
appeal, even though insufficiently raised or
preserved for review, and appropriate relief
may be granted upon a determination that
manifest injustice has resulted from the
error.
It is well established that prior DUI convictions are
inadmissible in the guilt phase of a DUI trial.
See Commonwealth
v. Ramsey, Ky., 920 S.W.2d 526 (1996); O'Bryan v. Commonwealth,
1
In his brief, appellant concedes that his convictions of
driving on a license suspended for DUI, second offense, operating
an ATV on a highway, and operating an ATV with no helmet should
be affirmed.
-2-
Ky., 920 S.W.2d 529 (1996); Dedic v. Commonwealth, Ky., 920
S.W.2d 878 (1996).
KRS 189A.010(4) “merely recognizes that one
previously convicted of driving under the influence has the
status of a prior offender and can be penalized for having that
status.” See Ramsey, 920 S.W.2d 526, 528 quoting Commonwealth v.
Ball, Ky., 691 S.W.2d 207, 209 (1985).
As such, subsection (4)
is “nothing more than a sentencing statute with provision for
enhancing the penalty for subsequent offenders.”
See Ramsey, 920
S.W.2d 526, 528, quoting Clay v. Commonwealth, Ky., 818 S.W.2d
264, 265 (1991).
During the guilt phase of the trial, appellant was
cross-examined extensively concerning his prior DUI convictions:
Q.
Were you wearing a helmet?
A.
No.
Q.
Were you driving your ATV on the public
highway?
A.
Yeah.
Q.
Were you driving while your license was
suspended for DUI?
A.
Yeah.
Q.
And had you previously been convicted
of driving while your license was suspended
for DUI?
A.
Yeah.
Q.
Did you know that it was illegal for
you to driving an ATV while...
A.
I just wasn't thinking.
Q.
Okay, let me finish my question. Did
you know that it was illegal for you to drive
an ATV while your license was suspended for
DUI?
A.
Not on dirt roads it ain't, in the
mountains. I just wasn't thinking that day
when them kids...
Q.
You had a prior conviction for driving
your ATV while your license was suspended?
A.
No, ... I, yeah, I, let me tell you how
I got that.
Q.
Okay.
A.
My wife got me, I got drunk one night,
passed out, and she roused me up and put me
on it. I went right below where I live, off
-3-
in the creek. Mr. Thompson was the one who
arrested me for it.
Q.
And what were you charged with that
night?
A.
DUI.
Q.
Anything else?
A.
I didn't even know I was in the
[inaudible - possibly <world'?].
Q.(by Court): What did your wife do? Did you
say?
A.
Put me on a four wheeler and started it
and started and turned me loose for me to die
drunk.
Q.(By Court). Started it up? How far did you
go on that?
A.
Approximately about a hundred foot,
about a hundred-fifty foot over my drive into
the creek.
Q.(Comm.) And so that was all your wife's
fault, right?
A.
Yes. I had given her the keys and told
her to put them up and hide them and not let
me have them.
Q.
And that time you were charged with,
weren't you, with driving on a DUI suspended
license?
A.
(nods affirmatively)
Q.
For being on the ATV driving?
A.
Yeah. I pleaded guilty to it.
Q.
You were also charged with driving
without a helmet?
A.
The night I was arrested up by the
lake, Mr. Thompson arrested me, I had a pair
of safety glasses...[balance of appellant's
response dealing with belief that law
required only safety glasses not transcribed]
Q.
Now, you've been injured previously in
an all terrain vehicle wreck, is that
right?
A.
I've been injured two or three times...
Q.
On all terrain vehicle wrecks?
A.
Yeah.
Q.
Did these wrecks occur while you were
drunk?
A.
Uh Uh (negative)
Q.
Did any of these occur when you were
drunk?
A.
No, most of them were just climbing up
hills. (inaudible) it just rolled back on
you.
Q.
There was one of them in April of this
year where you were hospitalized because you
had an ATV wreck while you were drunk, wasn't
it?
-4-
A.
This year? Not this year I ain't.
When I wrecked below the house I had some
ribs that got cracked.
Q.
Okay, you were on your ATV that night?
A.
Yeah.
Q.
And you were drunk?
A.
Yeah, when (inaudible) started it for
me.
Q.
When was that?
A.
That was back, it seemed like April.
Q.
It was April of this year?
A.
Yeah.
Q.
That's what I just asked, right?
A.
Yeah, but I wasn't hospitalized. I
just went to the hospital, he took me from
the hospital to the jail.
Q.
You went to the hospital for treatment,
though?
A.
Yeah.
Q.
Bit [sic] they didn't keep you
overnight?
A.
Right.
(Appellant's brief, pp. 5-7.)
The above testimony deals almost
exclusively with appellant's past DUI convictions on an ATV.
In
the case at hand, appellant was charged with DUI on an ATV.
The
erroneously admitted evidence also concerned appellant's prior
DUI convictions on an ATV.
It is hard for this court to conceive
of any prior bad acts that would have had any greater prejudicial
effect on the jury.
Under Ramsey, such was clearly inadmissible
during the guilt phase of the trial.
Whereas the appellant refused an Intoxilyzer test and
allegedly field sobriety tests, there was no objective evidence
of intoxication.
As the jury's verdict hinged upon the perceived
credibility and veracity of the witnesses -- namely Trooper
Thompson and appellant -- we are of the opinion that appellant's
credibility was certainly impinged by the introduction of his
prior DUI convictions on an ATV.
In the absence of such
testimony, we believe there was a substantial possibility the
-5-
outcome of the trial would have been different.
See Jackson v
Commonwealth, Ky. App., 717 S.W.2d 511 (1986).
In sum, we believe admission of appellant's prior DUI
convictions on an ATV constitutes palpable error as set out in
RCr 10.26.
We affirm his convictions of driving on a license
suspended for DUI, second offense, operating an ATV on a highway,
and operating an ATV with no helmet and reverse his conviction of
DUI, fourth offense.
For the foregoing reasons, the judgment of the Harlan
Circuit Court is affirmed in part, reversed in part, and this
case is remanded for proceedings consistent with this opinion.
HUDDLESTON, JUDGE, CONCURS.
KNOPF, JUDGE, CONCURS IN PART AND DISSENTS IN PART.
KNOPF, JUDGE, CONCURRING IN PART AND DISSENTING IN
PART:
Respectfully, I dissent from the portion of the majority
opinion which reverses Pace’s conviction for driving under the
influence (DUI), fourth offense.
Prosecution of a defendant on
charges of DUI and operating a motor vehicle while licence is
suspended for DUI presents a number of difficulties.
Although
the prior DUI convictions are an element of the latter offense,
they are not admissible during the guilt phase of the DUI trial.
Commonwealth v. Ramsey, Ky., 920 S.W.2d 526 (1996); O’Bryan v.
Commonwealth, Ky., 920 S.W.2d 529 (1996); and Dedic v.
Commonwealth, Ky., 920 S.W.2d 878 (1996).
Thus, I agree with the
majority that it was error to allow the prosecutor to crossexamine Pace during the guilt phase of the trial regarding his
-6-
prior DUI convictions.
However, Pace failed to raise this
objection during the trial.
Furthermore, the evidence against
Pace, while not overwhelming, was significant.
Indeed, Pace
admitted that he had been drinking; but merely denied that he was
as intoxicated as Trooper Thompson had described.
Newcomb v. Commonwealth, Ky.
Based upon
App., 964 S.W.2d 228 (1998), I do
not agree with the majority opinion that the error affected
Pace’s substantial rights.
Accordingly, I would affirm the
conviction in all aspects.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Christopher F. Polk
Louisville, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Frankfort, Kentucky
Perry T. Ryan
Assistant Attorney General
Frankfort, Kentucky
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
