 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Thompson v. Commonwealth11/23/2005
uded eight-year-old girls ran approximately 7.69 feet per second. However, 11 feet per second is 43% faster than 7.69 feet per second, not 1.43%. The correct calculation is that 11 feet per second is 1.43% faster than 10.845 feet per second. Accordingly, the correct figure for the average speed of an eight-year-old girl under the purported study would have been 10.845 feet per second. However, the corrected calculations prove Appellant would not have been able to stop his motorcycle until some 40 feet afterthe point of impact.
On appeal, the mathematical error was not identified as such in the briefs, and this Court affirmed the conviction, despite Justice Cooper sua sponte pointing out the error in his dissenting opinion.
Appellant next filed a motion to vacate his sentence pursuant to RCr 11.42 arguing he received ineffective assistance of counsel because his defense attorney (1) did not retain the services of an expert to review and dispute Officer Sims' calculations; and/or (2) failed to discover the error on his own accord.
The trial court held an evidentiary hearing and overruled Appellant's motion. Specifically, the court found that Officer Sims' testimony was not the key to the trial. Instead, the court felt the most damaging evidence was the fact that Appellant left the scene of the accident. The trial judge stated the trial would have been fairer if Officer Sims' error had been corrected, but she believed Appellant would still have been convicted, and thus, she denied his RCr 11.42 motion. The Court of Appeals inferred from the trial court's finding that even if Appellant had shown his counsel's representation was deficient, he still failed to show any resulting prejudice and thus affirmed the trial court's ruling.
II. Appellant's RCr 11.42 Claim
Criminal Rule 11.42 does not authorize relief from judgment for mere errors of the trial court and " n order for the rule to be invoked there must be a violation of a constitutional right, a lack of jurisdiction, or such violation of statute as to make the judgment void and therefore subject to collateral attack." Tipton v. Commonwealth, 376 S.W.2d 290 (Ky. 1963).
Appellant claims he was denied effective assistance of counsel and due process of law when his counsel failed to retain an independent expert to review Officer Sims' accident reconstruction calculations, or in the alternative, to discover and refute, by his own accord, the mathematical error and resulting conclusion that Appellant should have been able to stop his motorcycle in time to avoid the collision with the victim.
We deem it necessary to point out RCr 11.42 motions are "limited to the issues that were not and could not be raised on direct appeal." Hodge v. Commonwealth, 116 S.W.3d 463, 467-68 (Ky. 2003)(internal citations omitted). "An issue raised and rejected on direct appeal may not be reconsidered in these proceedings by simply claiming that it amounts to ineffective assistance of counsel." Id at 468. Therefore, we will not address the issue of whether Officer Sims' testimony should or should not have been admitted into evidence, but only the question of whether Appellant's counsel's failure to discover and inform the jury of.Officer Sims' erroneous calculations and conclusions equates to ineffective assistance of counsel.
In order to establish his counsel was ineffective, Appellant must satisfy a two-part test:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that
Page 1 2 3 4 5 6 Kentucky DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|