Opinion
NO. 2012-CA-001803-MR
04-18-2014
DAVID MCKEE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: David McKee, Pro Se Central City, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky David W. Barr Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BREATHITT CIRCUIT COURT
HONORABLE FRANK ALLEN FLETCHER, JUDGE
ACTION NO. 05-CR-00043
OPINION
REVERSING AND REMANDING
BEFORE: CAPERTON, TAYLOR, AND THOMPSON, JUDGES. CAPERTON, JUDGE: The Appellant, David McKee, appeals the denial of his motion for relief pursuant to Kentucky Rules of Criminal Procedure (RCr) 11.42, following his conviction for wanton murder and fourth-degree assault, for which he was sentenced to twenty-five years imprisonment. Upon review of the record, the arguments of the parties, and the applicable law, we reverse and remand this matter for additional proceedings.
On January 21, 2005, McKee was indicted by the Breathitt County Grand Jury, and was charged with one count of operating a motor vehicle while under the influence of an intoxicant, and one count of wanton murder. Thereafter, on March 18, 2005, a second indictment was returned, charging McKee with one count of assault in the fourth degree. The basis of those charges was the Commonwealth's allegation that McKee was driving his vehicle while under the influence of an intoxicant, on the wrong side of the road, in the dark, with the headlights turned off, when he struck another vehicle, killing one of the passengers. McKee's defense below was that Anthony Wenrick, who was driving the other vehicle, was also intoxicated, and that his intoxication caused the collision, as Wenrick also crossed the center line and drove onto McKee's side of the road.
In its opinion of May 24, 2007, our Kentucky Supreme Court found the facts of this case to be as follows:
On December 17, 2004, Anthony and Michelle Wenrick, along with Michelle Wenrick's daughter, Stephanie Moore, traveled from Nicholasville to Jackson to visit Michelle's brother who was in the hospital. Upon leaving the hospital that evening, the Wenricks decided to visit Michelle's mother in Morgan County. The Wenricks allowed Stephanie to ride in a minivan with Michelle's two nieces and decided to follow the van because her nieces claimed to know the way. After traveling along Kentucky 30 for some distance, Michelle's niece pulled over and told the Wenricks that she was lost. TheMcKee v. Commonwealth, 2007 WL 1536852 (Ky. 2007).
Wenricks had a map so they decided to take the lead with the van following behind them. The Wenricks began traveling when Anthony, who was driving, spotted an oncoming vehicle about 100 yards away in their lane without its headlights on. Anthony testified that both cars were traveling approximately 50 mph and that the oncoming vehicle was traveling nearly in the shoulder of his lane. Anthony attempted to avoid the car and veer left, but the two vehicles collided head-on. The Wenrick's Toyota went airborne, flipped and ultimately came to rest on its hood. Anthony and Michelle were removed from the vehicle with the jaws of life and taken to the Kentucky River Medical Center in Jackson. Anthony suffered minor injuries. Michelle was flown to University of Kentucky Medical Center where she later died of her injuries.
Sergeant Elvis Noble of the Jackson Police Department responded to the accident at approximately 7:38 p.m. When Noble arrived on the scene, he observed a male and a female conversing with each other in an overturned Toyota. Sergeant Noble testified that he did not request that the state police perform an accident reconstruction because he did not believe it to be a fatal accident at the time. While the EMS and the fire department were working to get the Wenricks out of their vehicle, Sergeant Noble approached the other vehicle. Upon establishing that the driver, David McKee, was not injured, Sergeant Noble asked McKee to perform a field sobriety test. McKee failed the test, so he was arrested. Sergeant Noble thereupon took McKee to the hospital to have a blood sample taken. McKee's blood alcohol level was determined to be 0.18 grams per 100 milliliter.
McKee was indicted on charges of Wanton Murder, Fourth-Degree Assault, and Operating a Vehicle Under the Influence of Alcohol. A jury trial was held on October 12-13, 2005. The defense offered no evidence at trial. McKee was found guilty on all counts. Thereafter, McKee agreed to a sentence of twenty (20) years and was ultimately sentenced in accordance with this agreement.
On March 19, 2008, McKee filed a motion for relief pursuant to RCr 11.42. Therein, he argued that his counsel was ineffective for not hiring an accident reconstruction expert, and for failing to cross-examine or directly impeach Wenrick with hospital records which allegedly showed that Wenrick was also acutely intoxicated.
On July 1, 2008, the trial court entered a judgment finding that McKee had failed to carry his burden of proving ineffective assistance of counsel. McKee appealed, and on November 13, 2009, this Court entered an order reversing the trial court, finding that counsel was ineffective in his cross-examination of Wenrick and for failing to present testimony of an accident reconstruction expert as part of McKee's defense.
In so finding, we noted that the record indicated that because police did not realize the extent of Michelle Wenrick's injuries at the time of the accident, 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 McKee's vehicle. Given McKee's insistence that he did not cross the center line and the fact that there was no reconstruction completed by the police, this Court found 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.
A second trial was subsequently held. During that trial, evidence was introduced to establish McKee's blood alcohol level at the time of the accident, and eyewitness testimony indicated that McKee was operating his automobile at night, with the lights turned off, and was driving on the wrong side of the road. The jury also saw medical records which the Commonwealth asserts incorrectly suggested that Wenrick was "acutely intoxicated" with a blood alcohol level of ".40." The jury also heard testimony from Wenrick, who denied drinking alcohol on the night of the accident. Following the second trial, McKee was again found guilty of wanton murder, DUI, and fourth-degree assault, for which he received an increased sentence of twenty-five years' imprisonment.
McKee appealed that sentence as well, filing a second RCr 11.42 petition on September 5, 2012. Therein, McKee raised three claims of ineffectiveness, namely, failure to move for a change of venue, failure to independently investigate the case by improper reliance upon the Commonwealth's open file discovery, and failure to make a Confrontation Clause objection to ambulance and medical records relative to Anthony Wenrick. The Commonwealth did not file a response, and in a judgment rendered on September 25, 2012, the trial court entered an order denying the petition. Therein, the court held that:
There appears no evidence in the record that the Defendant was prejudiced by hearing the case in Breathitt Circuit Court venue. The alleged collision occurred on November 17, 2004, and any prior publicity, if any, had subsided [before the April 2011 retrial]. Defendant states that counsel relied upon open file provided by the prosecution and failed to independently investigate important facts about the case. It is the Court's understanding that an accident reconstructionist was employed to view the scene of the wreck, as well as, the attorney for the defendant having met the accident reconstructionist at the alleged location of the December 17, 2004, wreck with the Defendant (sic) present, as well.It is from that order that McKee now appeals to this Court.
Defendant indicates counsel failed to object to closing argument and information from the ambulance EMS report. The record indicates other substantial incriminating evidence and the error, if alleged, does not seem to indicate that the defendant was prejudiced in this matter.
Prior to addressing McKee's arguments on appeal, we note that an ineffective assistance of counsel claim is assessed under the Strickland two-prong test. As set out in Bowling v. Commonwealth, 80 S.W.3d 405 (Ky. 2002):
The Strickland standard sets forth a two-prong test for ineffective assistance of counsel:Bowling at 411-412 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)).
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show that 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.
To show prejudice, the defendant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is the probability sufficient to undermine the confidence in the outcome.
In Martin v. Commonwealth, 207 S.W.3d 1, 4 (Ky. 2006), our Kentucky Supreme Court stated that "Strickland articulated a requirement of reasonable likelihood of a different result but stopped short of outcome determination[.]" Further, Brewster v. Commonwealth, 723 S.W.2d 863, 864 (Ky. App. 1986), stated that "[t]he underlying question to be answered is whether trial counsel's conduct has so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." The standard for assessing counsel's performance is whether the alleged acts or omissions were outside the wide range of prevailing professional norms based on an objective standard of reasonableness. Strickland at 688-89, 104 S.Ct. at 2065.
A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. Additionally, a court's review of counsel's performance must be highly deferential. Id., 466 U.S. at 689, 104 S.Ct. at 2065. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. Hence, the defendant must overcome the presumption that counsel provided a reasonable trial strategy. Id. Moreover, the court is free to determine the question of prejudice before determining whether counsel's performance was deficient. Brewster at 864-865.
In asserting an ineffective assistance of counsel claim, the burden is on the movant to overcome a strong presumption that counsel's performance was constitutionally sufficient. Strickland at 689, 104 S.Ct. at 2065; Commonwealth v. Pelfrey, 998 S.W.2d 460, 463 (Ky. 1999). When an evidentiary hearing is held in an RCr 11.42 proceeding, RCr 11.42(6) requires the trial court to make findings on the material issues of fact which we review under a clearly erroneous standard. Kentucky Rules of Civil Procedure (CR) 52.01. Recognition must be given to the trial court's superior position to judge the credibility of the witnesses and the weight to accord their testimony. McQueen v. Commonwealth, 721 S.W.2d 699, 698 (Ky. 1986). Whether an RCr 11.42 movant is entitled to an evidentiary hearing is determined under a two-part test. First, the movant must show that the "alleged error is such that the movant is entitled to relief under the rule." Hodge v. Commonwealth, 68 S.W.3d 338, 342 (Ky. 2001). In other words, the court must assume that the factual allegations in the motion are true, then determine whether there " 'has been a violation of a constitutional right, a lack of jurisdiction, or such a violation of a statute as to make the judgment void and therefore subject to collateral attack.' " Id. (quoting Lay v. Commonwealth, 506 S.W.2d 507, 508 (Ky. 1974)). "If that answer is yes, then an evidentiary hearing on a defendant's RCr 11.42 motion on that issue is only required when the motion raises 'an issue of fact that cannot be determined on the face of the record.' " Id. (quoting Stanford v. Commonwealth, 854 S.W.2d 742, 743-44 (Ky. 1993)). To do this, the court must "examin[e] whether the record refuted the allegations raised" (and not "whether the record supported the allegations, which is the incorrect test"). Id. With these standards in mind, we turn to the arguments presented by the parties.
As his first basis for appeal, McKee argues that he received ineffective assistance of counsel because his counsel failed to move the trial court for a change of venue. McKee essentially argues that counsel should have moved for a change of venue in light of the considerable media coverage of the case, and because the jurors knew the police officers involved at the scene of the accident. Thus, McKee asserts that he was prejudiced by a jury panel that consisted of individuals who had a predetermined opinion of his guilt in light of the media coverage in the community.
The Commonwealth disagrees, and argues that McKee has provided no evidence to support these allegations, and offered no evidence to indicate that the jury pool was tainted by media coverage, other than to point out that one potential juror stated that McKee was "guilty according to the paper." However, the Commonwealth points out that this juror was excused for cause. Accordingly, the Commonwealth argues that the trial court correctly found that McKee failed to establish ineffective assistance of counsel, as he did not provide specific facts to support his allegations. Moreover, the Commonwealth argues that in light of the fact that the accident at issue occurred on December 17, 2004, any prior publicity would have subsided by the time of the trial. Upon review of the record and applicable law, we agree.
See T.R. IV, p. 34.
RCr 11.42(2) is clear that a petition for relief "state specifically the grounds on which the sentence is being challenged and the facts on which the movant relies in support of such grounds." Indeed, our Kentucky Supreme Court has held that allegations unsupported by specific facts do not warrant relief pursuant to RCr 11.42. Sanders v. Commonwealth, 89 S.W.3d 380, 385 (Ky. 2002), overruled on other grounds by Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009). Sub judice, McKee has made only a nonspecific allegation of negative pretrial publicity. He did not submit copies of any articles, television, or radio broadcasts, nor did he quote any such media. Accordingly, we believe the trial court properly dismissed McKee's claim for relief on this ground.
As his second basis for appeal, McKee argues that the trial court abused its discretion in failing to find that his counsel was ineffective in his investigation of this case by relying on the Commonwealth's open file policy. In support of that argument, McKee argues that accident reconstruction was essential to his defense. While acknowledging that his counsel did hire an accident reconstructionist for the second trial, he asserts that his counsel relied upon the Commonwealth's open file for information instead of conducting an independent investigation to assist with a meaningful reconstruction of the accident scene. McKee asserts that if counsel had conducted an independent investigation, he would have discovered that Officer Elvis Noble, who responded to the scene on the night of the accident, had photographs of the accident which were not in the open file and also possessed a "final drawing" of the accident scene which included the final resting place of the vehicles as well as the point of impact.
A review of the record reveals that both the Commonwealth and McKee's counsel were unaware of the existence of this drawing until Noble brought it with him to trial. McKee also asserts that proper pretrial investigation would have also included an interview of Detective Scotty Sandlin, who was at the scene taking photographs on the night of the accident.
The Commonwealth disagrees, and notes that upon retrial McKee was awarded fees to retain an accident reconstruction expert and notes that he did not present testimony from one during trial. The Commonwealth argues that this does not mean that counsel was ineffective, and asserts instead that the expert could have concluded that the facts did not support McKee's version of events and that, accordingly, counsel's decision not to call the expert was sound trial strategy. Upon review of the record, we disagree.
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. App. 1968). Our review of the record reveals that during the course of Officer Elvis Noble's testimony below, the parties learned that he had drawn a diagram of the accident scene which included the final resting place of the vehicles as well as the point of impact. As noted by the court, an accident reconstructionist was employed to view the scene of the accident and met McKee's counsel at the location of the accident on December 17, 2004, at which time McKee was also present. However, at that time, the accident reconstructionist did not have the aforementioned diagram which may certainly have been of assistance to him in rendering an expert opinion in this matter.
Upon review, it is our opinion that had counsel conducted a more thorough investigation prior to trial, including interviewing Officer Noble, he may have discovered this document earlier and been able to provide it to the expert, thus creating a reasonable probability that but for counsel's errors the result of the proceeding would have been different. Strickland , 466 U.S. at 694, 104 S.Ct. at 2068. We certainly cannot say for certain whether this document would have been provided had counsel investigated nor whether the document, had it been provided, would have enabled the expert to render a definitive opinion that may have changed the course of the trial in this matter. Nevertheless, we cannot conclude with reasonable probability that such would not have been the case had counsel conducted an investigation. Accordingly, we believe that reversal on these grounds is appropriate.
Having so found, we now turn to McKee's final argument, in which he asserts that he was prejudiced by counsel's failure to object to the Commonwealth's closing argument. As noted, part of McKee's defense theory below was that Wenrick was intoxicated at the time of the accident. He asserts that medical records submitted from the night of the accident indicate in four separate places "acute alcohol intoxication," on the part of Anthony Wenrick, and that blood tests revealed that both Anthony and Michelle Wenrick had been consuming alcohol on the evening of the accident.
As previously noted herein, McKee previously filed an RCr 11.42 motion in this matter, wherein he alleged that his counsel was ineffective for not cross-examining or directly impeaching Anthony Wenrick with his hospital records showing "acute intoxication" when Wenrick claimed that he had not been drinking on the night of the accident. In an opinion rendered on November 13, 2009, this Court agreed that this failure amounted to ineffective assistance of counsel, and stated as follows:
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.
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.
As part of its case, the Commonwealth introduced an E.M.S. report relative to Anthony Wenrick. McKee asserts that the report supported the argument that Wenrick was not intoxicated at the time of the accident. McKee argues that this violated his rights under the Confrontation Clause because during the course of closing arguments the prosecution utilized the E.M.S. report to counter the claim of alcohol intoxication. The Commonwealth pointed out specifically that intoxicated individuals have bloodshot eyes and that there were no findings in the E.M.S. report to indicate such was the case. McKee now asserts that the introduction of this report and the subsequent discussion during closing argument was in error because at no time were any E.M.S. medical personnel called to the stand and that, essentially, the Commonwealth was testifying on their behalf. Accordingly, McKee argues that his counsel rendered ineffective assistance by failing to object to the report.
In response, the Commonwealth argues that even if the introduction of the report at issue was in error, McKee has failed to show prejudice under Strickland. The Commonwealth argues that overwhelming evidence of McKee's guilt existed, including that he was operating his motor vehicle with a .18 BAC, and that he was driving on the wrong side of the road without using his headlights. It thus asserts that the EMS report simply did not make the difference between conviction and acquittal, and that McKee has failed to establish that but for counsel's error the result of the proceeding would have been different.
In addressing the arguments of the parties on this issue, we note that it is well established that attorneys, including prosecutors, are afforded great latitude in making their closing arguments. Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987). When the alleged misconduct occurs during closing arguments, "we must determine whether the conduct was of such an 'egregious' nature as to deny the accused his constitutional right of due process of law." Id. at 411-12. On appeal, we focus on the overall fairness of the trial. Id.
Upon review of the record and the applicable law, we are in agreement that defense counsel should have objected to the Commonwealth's introduction of this report when admitted without calling the E.M.S. personnel to provide testimony concerning their observations of the Wenricks after the accident at the time the report was made. In both Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the Supreme Court held that the Confrontation Clause bars the admission into evidence of testimonial hearsay " 'unless [the declarant] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.' " Davis v. Washington, 547 U.S. at 821, 126 S.Ct. at 2273 (quoting from Crawford v. Washington, supra ). The bar applies regardless of whether the evidence would otherwise be admissible pursuant to an exception to the hearsay rule. Turner v. Commonwealth, 248 S.W.3d 543 (Ky. 2008). Sub judice, the introduction of the E.M.S. report specifically countered the defense theory of the case which depended, at least in large part, on whether the Wenricks were intoxicated on the night of the accident.
The Commonwealth might have considered introduction of the E.M.S. report(s) pursuant to the Kentucky Revised Statutes or the Kentucky Rules of Evidence, more specifically KRS 422.300 to 422.330; KRS 216B.105; KRE 803(6), (7); KRE 902 (10), (11), or any other applicable statute or rule.
Moreover, the discussion of this report in front of the jury, without affording McKee the opportunity for cross-examination, was certainly prejudicial to the defense he was attempting to assert. Certainly, the inferences drawn by the Commonwealth from the record during the course of closing argument served to bolster the Commonwealth's otherwise testimonial evidence in support of its argument that Wenrick was not intoxicated at the time of the accident. This is especially so in light of the fact that the testimonial evidence on the issue of Wenrick's intoxication was conflicting. In light of these facts, we believe it possible that but for counsel's error in failing to object to the introduction of the report and subsequent discussion of same during closing argument, the result of the proceeding might have been different. Strickland, supra. Accordingly, we believe reversal is appropriate, and a new trial warranted.
This is particularly so when the information contained in this report is considered in conjunction with the fact that the diagram of Officer Nobles was not admitted into evidence. Certainly, if an expert accident reconstructionist were to view the diagram at issue and determine in conjunction with a review of other available evidence that the point of impact was on the defendant's side of the road, then this fact in conjunction with the issue of Wenrick's possible intoxication might certainly have affected the opinion of jurors. Accordingly, we believe that remand for an evidentiary hearing is necessary to assess this issue for the reasons previously set forth herein.
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Wherefore, for the foregoing reasons, we hereby reverse the September 25, 2012, judgment of the Breathitt Circuit Court denying McKee's RCr 11.42 motion without an evidentiary hearing, and remand this matter additional proceedings consistent with the opinion contained herein.
THOMPSON, JUDGE, CONCURS IN RESULT ONLY.
TAYLOR, JUDGE, DISSENTS AND WILL NOT FILE SEPARATE OPINION. BRIEFS FOR APPELLANT: David McKee, Pro Se
Central City, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
David W. Barr
Assistant Attorney General
Frankfort, Kentucky
McKee v. Commonwealth, 2009 WL 3786274 (Ky. App. 2009).