Thompson v. Commonwealth11/23/2005
e should have been able to stop with 26 feet to spare, implying Appellant did not have normal reaction times, was far from a non-factor in the trial. We believe under the circumstances of this case, it was unreasonable for Appellant's counsel not to have either more prudently reviewed Officer Sims' calculations or to have hired an expert to at least help analyze, if not. rebut, his conclusions.
In measuring prejudice, the second prong of the Strickland test cited above, the inquiry is whether there is a reasonable probability that, but for counsel's error(s), the result of the proceeding would have been different. Strickland, 446 U.S. at 694(emphasis added); Bowling v. Commonwealth, 981 S.W.2d 545, 551 (Ky. 1998), cert denied, 527 U.S. 1026, 119 S.Ct. 2375, 144 L.Ed.2d 778 (1999). The Strickland Court defined reasonable probability as "a probability sufficient to undermine confidence in the outcome." Strickland, 446 U.S. at 694.
We find it important that the Strickland Court made clear that "reasonable probability" does not mean that counsel's deficient conduct more likely than not altered the verdict. In specific, the Court stated " he result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Id. This Court has also previously clarified a RCr 11.42 movant need not show that counsel's allegedly deficient performance would have compelled acquittal in order to meet the prejudice prong of Strickland. Norton v. Commonwealth, 63 S.W.3d 175, 177 (Ky. 2002).
Accordingly, because the Commonwealth utilized Officer Sims' calculations and conclusions to prove Appellant was reckless in causing the death of Autumn Roaden, we believe counsel's failure to discover and inform the jury that Officer Sims' damaging testimony was based on erroneous calculations that, if corrected, would have supported the defense, was prejudicial error.
Had the error been corrected at trial, the Commonwealth's witness would have had to admit, on the stand, Appellant could not have stopped in any event. Although we suppose it is possible that a jury could have been informed of Officer Sims' mistaken calculations and resulting erroneous conclusions and still have decided to convict and sentence as it did the Appellant, that is not the test. See Rompilla v. Beard, --- U.S. ---, 125 S.Ct. 2456, 2469, 162 L.Ed.2d 360 (2005). It goes without saying that the corrected testimony might well have influenced the jury's appraisal of Appellant's guilt or innocence or their recommended sentence. Id. Thus, the likelihood of a different result, if the error had been discovered and corrected by Appellant's counsel, is "sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
Under the circumstances of this case, we are not such men as can turn our heads from the grossly inaccurate scientific opinions testified to in this case, which indicated the Appellant could have stopped in time - when, with the corrected calculations, the evidence would have been, that he could not!
For the above stated reasons, we reverse and vacate the judgment of convictions and sentence in this case and remand this case back to the trial court for a new trial.
Lambert, C.J.; Cooper and Johnstone, JJ., concur.
Roach, J., dissents by separate opinion with Graves and Wintersheimer, JJ., joining that dissent.
DISSENTING OPINION BY JUSTICE ROACH
The majority opinion certainly states the proper test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for establishing
Page 1 2 3 4 5 6 Kentucky DUI Attorneys
DUI Lawyers
|