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Thompson v. Commonwealth11/23/2005
the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)(emphasis added); accord Moore v. Commonwealth, 983 S.W.2d 479, 482 (Ky. 1998).
Therefore, we must first evaluate counsel's performance for errors, keeping in mind " he proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688. "The performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Id.
Appellant bears a heavy responsibility since a court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001). We are aware that Appellant is not "guaranteed errorless counsel, or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance." McQueen v. Commonwealth, 949 S.W.2d 70 (Ky. 1997).
Appellant's counsel testified at the RCr 11.42 hearing that he reviewed Officer Sims' calculations and chose not to hire an opposing expert because Appellant had consistently conveyed to him, as well as testified, that he never saw Autumn before hitting her. Therefore, counsel believed at the time that the braking distance and the running speed of children were non-factors in the trial. This contrasts with Officer Sims' testimony that the impact site would have been visible from 444 feet away.
Thus, we believe since trial counsel's only defense was that the accident was unavoidable, and counsel was aware the prosecution intended to introduce expert testimony establishing the accident was in fact avoidable with normal reaction times, it was unreasonable not to attempt in some way to contest this evidence or at least, ensure its reliability. For one thing, jurors are undoubtedly greatly influenced by the testimony of someone deemed an "expert". This is especially true if the only countervailing testimony comes from the defendant, the sole person with a strong motive to lie (if the truth would deem him guilty of the crime charged). The Appellant's testimony in this case - that the accident was unavoidable - should not have been relied on as being of equal weight to rebut Officer Sims' supposedly scientific accident reconstruction testimony to the contrary.
We are not saying that in all cases an attorney must hire a rebutting expert witness to avoid being deemed ineffective. What is determinative in this case is that the damning expert testimony was clearly erroneous. The error was of such a nature that a non-mathematical expert discovered it on simple review of the calculations. And the fact that no other attorney, or judge, discovered the error until the case reached this Court on direct appeal does not excuse the error. It is the job of Appellant's counsel, and his counsel solely, to represent the interests of his client. Put simply, no one knew of the error because Appellant's counsel did not make them aware.
The Commonwealth then was able to use Officer Sims' erroneous calculations to turn circumstantial evidence of Appellant's intoxication (possibly after the accident) into certain evidence of intoxication at the time of the accident. They argued a combination of Appellant's intoxication and speed amounted to reckless behavior. Thus, because Appellant's level of intoxication was crucial in analyzing whether his behavior should be deemed reckless, Officer Sims' conclusion that h
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