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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE ; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.

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2007-SC-000061-MR

CORRECTED : SEPTEMBER 24, 2008 MODIFIED : JUNE 19, 2008 RENDERED : MARCH 20, 2008 NOT TO BE PUBLISHED

V.

ON APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE PAMELA GOODWINE, JUDGE NO. 05-CR-00533 APPELLEE

COMMONWEALTH OF KENTUCKY MEMORANDUM OPINION OF THE COURT AFFIRMING 1. Introduction

A Fayette County jury convicted Darius Frye of wanton murder.' In accordance with the jury's recommendation, he was sentenced to forty (40) years in prison . Appealing to this Court as a matter of right, Frye argues the circuit court erred by: (1) refusing to instruct on first-degree manslaughter based on extreme emotional disturbance ; (2) allowing the Commonwealth to impeach a witness using a transcript rather than recorded portions of the prior statement ; and (3) denying a motion for a mistrial based on the Commonwealth's closing argument. Finding no error, we affirm. 11. Factual Background Darius Frye obtained three to four grams of crack cocaine for one hundred dollars. He expected to profit up to four hundred dollars on resale . On the morning of
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' Kentucky Revised Statute (KRS) 507.020(1)(b) .
Kentucky Constitution

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