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Sweat v. Commonwealth5/20/2005
AFFIRMING
BEFORE: MINTON AND TACKETT, JUDGES; HUDDLESTON, SENIOR JUDGE.
Herschel Sweat, Jr. appeals from an order of the Casey Circuit Court denying his request for relief pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42. Sweat alleges that his trial counsel rendered ineffective assistance when he failed to object to the introduction of the statutory presumption regarding intoxication in a wanton murder case where Sweat was allegedly driving while intoxicated. In addition, he claims error in trial counsel's failure to explore other causes which may have contributed to the crash. While we agree that it was error for the Commonwealth to introduce evidence of the statutory presumption regarding intoxication, such error was harmless in light of the other evidence offered. Thus, the trial court's order is affirmed.
On August 7, 1996, Sweat was involved in an automobile accident resulting in the deaths of two people. It is uncontested that Sweat's van crossed the center line and struck the truck driven by Raymond Noel, killing Noel and his passenger, Tommy Tackett. Further, Sweat admitted that he had consumed five beers in the period before the accident. He was charged with wanton murder; however, the trial court also instructed the jury on second-degree manslaughter and reckless homicide. At trial, Sweat's defense was that he had taken his eyes off the road momentarily to adjust the volume of his stereo, driven off the edge of the road and overcorrected, causing his van to cross the center line. He claimed a long history of drinking beer had caused him to develop a tolerance and that he did not feel intoxicated on the night in question. The jury found him guilty of two counts of second-degree manslaughter and he was sentenced to ten years' imprisonment on each count. After the Kentucky Supreme Court affirmed the twenty-year sentence on direct appeal, Sweat filed an RCr 11.42 motion, alleging ineffective assistance of trial counsel. The trial court denied the motion, and this appeal follows.
Sweat argues that his trial counsel was ineffective for failing to object when the Commonwealth introduced evidence of the statutory presumption regarding intoxication. In order to prove ineffective assistance, Sweat must demonstrate that his counsel made serious errors which prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The evidence Sweat now complains of was introduced during the testimony of Dr. Shively, who treated his injuries at the Taylor County Hospital. Shively examined Sweat an hour after the accident and testified that he was acutely intoxicated and would have been even more intoxicated at the time of the accident. Sweat had blood drawn at the hospital, and a test was performed to determine his blood alcohol level. Shively testified that Sweat's blood alcohol level was .192 and that at .10 a person was considered intoxicated under the statutory presumption. His trial counsel failed to object to this testimony and, on direct appeal, the Kentucky Supreme Court determined that the issue was not subject to review under the palpable error rule, RCr 10.26.
Under the version of Kentucky Revised Statute (KRS) 189A.010 in effect at the time of Sweat's accident, having a blood alcohol level of .10 gave rise to the presumption that a person was intoxicated for purposes of prosecution for driving under the influence. Sweat correctly points out that evidence of the statutory presumption regarding intoxication is inadmissible in a murder prosecution resulting from an automobile accident. Overstreet v. Commonwealth, 222 S.W.2d 178 (Ky. 1975); Walden v. Commonwealth, 895 S.W.2d 102 (Ky. 1991); Cormney
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