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Adams v. Commonwealth11/5/2004
a bar to appellant's conviction for Fleeing or Evading Police in the first degree, because appellant's actions definitely created a substantial risk of serious physical injury or death. Therefore, appellant's counsel was correct not to pursue this futile defense.
Next, appellant's claim that his counsel was ineffective for failing to test blood found on the rear door of the car does not establish ineffective assistance. We find no particular mention at trial of blood on the rear door of the car. The testimony of the investigating officer was that when he approached the wrecked car no one was in the vehicle. He testified there was blood on the driver's seat of the vehicle and on the steering wheel. He stated that from there he observed a trail of blood into the back seat and out the passenger window. He suspected the driver had crawled into the back seat and out the window. The Commonwealth introduced a photograph of the front seat of the wrecked vehicle in which the blood was visible.
The officer's testimony only supported a theory that the blood came from a single source, that being the driver who was injured at the wheel of the car. Appellant had suffered a head injury from the impact. There was no evidence of a separate source of blood that counsel should have investigated.
All the evidence pointed to the blood in the car being appellant's. We do not believe appellant has shown that counsel did not adequately investigate. Counsel did cross-examine the officer as to whether the blood was ever tested, to which he responded in the negative.
Moreover, the presence or absence of another's blood in the car would not prove the whole of appellant's defense. The trial court aptly ruled on this subject, "Simply having the blood tested would not prove that he was being robbed and forced to drive in that manner." Appellant could not show a reasonable probability that he would have been acquitted if it was shown merely that someone else was in the car with him.
Finally, appellant also makes a vague claim that his counsel failed to call "mitigating" witnesses, other than his sister, at the sentencing phase of his trial. He does not name these witnesses or explain why this prejudiced him. Appellant cannot demonstrate that it would have made any difference if counsel had called additional witnesses in mitigation at trial. Therefore, he has not shown his attorney was ineffective.
For the foregoing reasons, we affirm the order of the Christian Circuit court which denied appellant's RCr 11.42 motion to vacate.
ALL CONCUR.
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