MCKEE (DAVID) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 13, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001478-MR
DAVID MCKEE
v.
APPELLANT
APPEAL FROM BREATHITT CIRCUIT COURT
HONORABLE FRANK ALLEN FLETCHER, JUDGE
ACTION NO. 05-CR-00043
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
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BEFORE: CLAYTON, DIXON AND THOMPSON, JUDGES.
DIXON, JUDGE: Appellant, David McKee, appeals from an order of the Breathitt
Circuit Court denying his motion for post-conviction relief pursuant to RCr 11.42.
For the reasons set forth herein, we reverse the trial court’s order and remand this
matter for a new trial.
In January 2005, Appellant was indicted on charges of wanton
murder, fourth-degree assault, and operating a vehicle under the influence of
alcohol. The charges stemmed from an accident in Breathitt County wherein
Appellant’s vehicle collided with a vehicle driven by Anthony Wenrick.
Wenrick’s wife, Michelle Wenrick, died as a result of her injuries.
Following a trial on October 12-13, 2005, a jury convicted Appellant
on all charges, and recommended a sentence of twenty years’ imprisonment. The
trial court entered judgment accordingly. In an unpublished opinion, the Kentucky
Supreme Court affirmed Appellant’s convictions and sentence on direct appeal.
McKee v. Commonwealth, 2005-SC-000954-MR (May 24, 2007).
On March 19, 2008, Appellant filed a pro se RCr 11.42 motion
alleging ineffective assistance of counsel. Following the appointment of counsel
and an evidentiary hearing, the trial court denied his motion for relief. This appeal
ensued.
Appellant argues on appeal that his trial counsel rendered ineffective
assistance of counsel by failing to present any defense to the charges. Specifically,
Appellant points out that despite evidence that Wenrick may have also been
intoxicated at the time of the accident, defense counsel neither cross-examined
Wenrick nor presented any medical testimony concerning the medical records
indicating that Wenrick had alcohol in his system. Further, Appellant points out
that defense counsel failed to hire an accident reconstructionist even though
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Appellant maintained he did not cross the center line as was stated in the police
report.
An ineffective assistance of counsel claim involves a de novo, twostep inquiry of law and fact. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). A reviewing court must first determine whether
counsel’s representation was so deficient that it “fell below an objective standard
of reasonableness.” Id. at 688, 104 S.Ct. at 2064. If so, the question then becomes
whether the substandard performance was so prejudicial as to deny Appellant a fair
trial and reasonable result. Id. at 692. “Counsel is constitutionally ineffective only
if performance below professional standards caused the defendant to lose what he
otherwise would probably have won.” United States v. Morrow, 977 F.2d 222, 229
(6th Cir. 1992), cert. denied, 508 U.S. 975 (1993). Thus, the critical issue is not
whether counsel made errors, but whether counsel was so “manifestly ineffective
that defeat was snatched from the hands of probable victory.” Id.
In considering ineffective assistance, the reviewing court must focus
on the totality of evidence before the trial court or jury and assess the overall
performance of counsel throughout the case in order to determine whether the
alleged acts or omissions overcome the presumption that counsel rendered
reasonable professional assistance. Strickland; see also Kimmelman v. Morrison,
477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 302 (1986). A defendant is not
guaranteed errorless counsel, or counsel judged ineffective by hindsight, but
counsel likely to render reasonably effective assistance. McQueen v.
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Commonwealth, 949 S.W.2d 70 (Ky. 1997), cert. denied, 521 U.S. 1130 (1997).
The Supreme Court in Strickland noted that a court must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
The defense theory of the case was that Wenrick was intoxicated at
the time of the accident and therefore was also at fault for the collision. Wenrick’s
medical records from the night of the accident contain a notation in four separate
places indicating “acute alcohol intoxication.” Further, both Anthony and
Michelle Wenrick’s blood results indicated some level of alcohol in their systems.
It was the Commonwealth, in fact, that introduced Wenrick’s medical records, but
then immediately presented testimony from Brent Benning, a chemist with the
Kentucky State Police Crime Lab, who testified that although forensic crime labs
measure blood alcohol concentration in terms of “grams per 100 milliliters,” some
hospitals measure results by “milligrams per deciliter.” Under the first
measurement, Wenrick’s blood alcohol level would have been .4, whereas under
the second standard it would have only been .0004.
Thereafter, Wenrick took the stand and unequivocally denied that
either he or his wife had consumed alcohol on the night of the accident. Finally,
the Commonwealth pointed out that two pages of the medical records contained a
social security number that did not belong to Wenrick thereby implying that test
results were for someone else.
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Despite the conflicting evidence, defense counsel chose not to present
any medical testimony concerning the blood alcohol results or the repeated
diagnoses of “acute alcohol intoxication” contained in Wenrick’s medical records.
Furthermore, during cross-examination, defense counsel asked Wenrick only one
question - when was the last time he had consumed alcohol. Wenrick responded
that he did not know because his wife “did not allow it.” Yet, using either blood
alcohol measurement, the evidence irrefutably demonstrated that both Wenricks
had some level of alcohol in their systems.
The trial court concluded that defense counsel’s reference during
closing arguments to Wenrick’s possible intoxication, as well as the fact that the
records themselves were introduced, were sufficient to establish effective
assistance of counsel. We disagree. Clearly, there was a legitimate issue of pivotal
fact as to whether Wenrick was intoxicated at the time of the accident. Defense
counsel’s complete failure to present any evidence or effectively cross-examine
Wenrick about his alcohol level at the time of the accident, critical to Appellant’s
defense, fell below the objective standard of reasonableness. As a result, we are
compelled to conclude that but for counsel’s deficient performance, there is a
reasonable probability that the outcome of the trial would have been different.
Strickland.
Appellant next claims that defense counsel was ineffective for failing
to hire an accident reconstructionist. The record indicates that because police did
not realize the extent of Michelle Wenrick’s injuries at the time of the accident,
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they did not perform an accident reconstruction. At trial, the Commonwealth
introduced evidence to show that Appellant crossed the center line and collided
with the Wenrick’s vehicle. Nevertheless, despite Appellant’s insistence that he
did not cross the center line, defense counsel presented no evidence and did not
permit Appellant to testify.
`
During the RCr 11.42 hearing, the trial court noted that even though
there were no skid marks on the road, there were gouge lines on the side where the
Wenrick’s vehicle was located. However, the only photographs that were
introduced were those of the Wenricks’ vehicle. Defense counsel admitted during
the hearing that he did not take any pictures or even view Appellant’s vehicle.
Given Appellant’s insistence that he did not cross the center line and the fact that
there was no reconstruction completed by the police, we are of the opinion that
defense counsel had a duty to conduct some investigation into the cause of the
accident rather than merely capitulating to the Commonwealth’s theory of the case.
In an RCr 11.42 proceeding, the movant has the burden to establish
convincingly that he was deprived of some substantial right which would justify
the extraordinary relief afforded by the post-conviction proceeding. Dorton v.
Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968). In this case, there is no doubt
that Appellant was intoxicated at the time in question and that he was a
contributing factor to the collision that took Michelle Wenrick’s life. However,
reviewing the evidence as a whole, we must conclude that the alleged acts or
omissions overcome the presumption that defense counsel rendered reasonably
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professional assistance. Strickland v. Washington; Kimmelman v. Morrison. And
but for the deficient performance, there is a reasonable probability that Appellant
would not have been convicted of wanton murder. As such, Appellant has
demonstrated that he is entitled to a new trial.
The order of the Breathitt Circuit Court denying Appellant postconviction relief pursuant to RCr 11.42 is reversed. This matter is remanded to the
trial court for a new trial in accordance with this opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Heather McGregor
LaGrange, Kentucky
Jack Conway
Attorney General of Kentucky
David W. Barr
Assistant Attorney General
Frankfort, Kentucky
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