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Thompson v. Commonwealth11/23/2005
REVERSING AND REMANDING
This case comes to us on discretionary review of the Court of Appeals' opinion affirming the judgment of the Fayette Circuit Court, which denied Appellant's claim for RCr 11.42 relief. We granted review to determine whether the lower court erred in finding the Appellant did not receive ineffective assistance of counsel, and thus was not entitled to a new trial. After reviewing the record, we reverse the Court of Appeals, vacate Appellant's convictions and sentence, and remand this case back to the trial court for a new trial.
I. Facts
This case involves a tragic motorcycle accident that killed eight-year old Autumn Roaden. Appellant was driving his motorcycle in a residential neighborhood in Lexington, Kentucky, when Autumn and her twelve-year old brother, Kyle, ran from their house out into the street chasing after their escaped puppy. Appellant struck and killed young Autumn. He claimed at trial that the accident was unavoidable in that he never saw the child before impact. There was disputed evidence as to whether cars were parked in the area at the time of the accident.
Evidence at trial showed Appellant's blood alcohol level was. 10 approximately three hours after the accident. Appellant's explanation was he had consumed alcohol after the accident, but had only had a "swig" of beer some hours before the accident. Urine tests performed after the accident showed traces of marijuana, pain reliever and anti-depressant medication. Blood test results confirmed no presence of drugs in Appellant's blood, but a trace of marijuana. Appellant admitted though, that he was taking his pain and anti-depressant medication as prescribed. Additionally, witness testimony confirmed Appellant fled the scene of the accident and originally lied to the police about his involvement before finally admitting he was the driver of the motorcycle.
Officer Paul Sims was an investigating officer the night of the accident. He also performed an accident reconstruction of the scene and testified at trial regarding his findings. In his assessment, Officer Sims utilized an English study averaging the running speed of eight-year-old boys. Sims adjusted the calculations from the study to estimate the number of feet per second traveled by eight-year old girls (running), and divided this number into the distance from the curb to the scuff-mark, which police took to be the point of impact. From this, Sims testified to his conclusion that Autumn had been in the roadway 3.38 seconds prior to impact.
Using Appellant's estimated speed of 46 miles per hour, Sims calculated Appellant was some 230 feet away from the point of impact when Autumn first entered the roadway. Therefore, he concluded Appellant would have had 137 feet within which to stop and avoid impact. Sims reiterated this conclusion by testifying Appellant should have been able to stop with some 26 feet to spare.
Based on this and other evidence introduced at trial, Appellant was convicted of reckless homicide and being a persistent felony offender in the first degree. He was sentenced to the maximum, twenty years. Only after the trial was it discovered that Officer Sims had made a crucial mathematical error in his calculations regarding the accident. Officer Sims had misplaced a decimal point, which resulted in an inaccurate calculation of the average running speed for eight-year-old girls.
According to Officer Sims, the English study had reported the average running speed of an eight-year-old boy was 11 feet per second and that an eight-year old boy ran 1.31 % to 1.55% faster than eight-year-old girls. He divided 11 by the midpoint range, 1.43%, and concl
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