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Sweat v. Commonwealth5/20/2005
v. Commonwealth, 943 S.W.2d 629 (Ky. 1997). However, in each of these cases, the Court found the error in admitting the statutory presumption harmless due to other admissible evidence of the defendant's intoxication. In this case, Dr. Shively testified based on his observations an hour after the accident that Sweat was acutely intoxicated. Other witnesses testified that they smelled alcohol on his breath and there were beer cans strewn around the scene of the crash. Sweat himself made various statements that were unhelpful to his defense, including telling a nurse in the emergency room that he did not remember the accident because he was asleep and claiming that someone else was driving the van. He also admitted to drinking five beers before the accident while claiming that, due to a seventeen-year history of drinking beer, it took a lot for him for him to become intoxicated and he did not feel drunk the night of the accident. Moreover, Sweat's denial that he was driving erratically was contradicted by witnesses who testified that they saw him speeding shortly before he lost control of his van. With all of the evidence pointing toward Sweat's intoxication, we are not persuaded that trial counsel's failure to object to one comment in Dr. Shively's testimony altered the outcome of the proceeding.
Sweat's second contention is that trial counsel did not present evidence that other factors might have contributed to the crash. He argues that counsel should have hired an expert in accident reconstructions to explore such factors as whether either or both vehicles were speeding, the effect of Noel driving into the setting sun, Noel's partial paralysis in his right leg which caused him to use a stick to help operate his truck, and any pre-crash defects present in either vehicle. Sweat hired an accident reconstruction expert who testified at the evidentiary hearing on his RCr 11.42 motion. This expert critiqued the accident reconstruction report of Trooper Robert Knifley, Jr., an expert employed by the Kentucky State Police. However, Sweat's expert did not perform his own retrospective reconstruction, and he also reviewed an incomplete copy of KSP's accident reconstruction report. Trooper Knifley testified at the evidentiary hearing and his testimony, coupled with a complete copy of his original report, rebutted many of the criticisms voiced by Sweat's expert. Finally, even Sweat admits that the accident occurred when his van went off the side of the road and he overcorrected, causing the back end to spin across the center line into oncoming traffic. The facts of this case simply do not support his assertion that a defense expert would have changed the jury's conclusion that Sweat's intoxication was to blame for the accident and, thus, the deaths of Noel and Tackett.
Sweat also argues that the cumulative effect of trial counsel's errors deprived him of a fair trial. We are in agreement with the trial court that trial counsel's conduct did not meet the two-prong test for ineffectiveness under Strickland. The only error, counsel's failure to object to the evidence of the statutory presumption regarding intoxication, was harmless. Therefore, no cumulative error exists.
For the foregoing reasons, the judgment of the Casey Circuit Court is affirmed.
ALL CONCUR.
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