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COMMONWEALTH OF KENTUCKY APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2012-CA-001803-MR
BREATHITT CIRCUIT COURT NO. 05-CR-00043
DAVID MCKEE APPELLEE
OPINION OF THE COURT BY JUSTICE NOBLE
REVERSING
David McKee was convicted of wanton murder and fourth-degree assault
after a significant car wreck in which he was highly intoxicated and was alleged
to have crossed the center line, resulting in a head-on collision. The Court of
Appeals reversed the convictions after concluding that his trial counsel had
been ineffective in failing to conduct an independent investigation that "may"
have turned up a diagram of the accident scene that, in turn, "may" have
helped an accident reconstructionist show that McKee was not at fault. Also,
the attorney was found to be ineffective in failing to object to an emergency
medical report tending to show that the victim driver was not intoxicated,
despite some evidence otherwise, because it was "possible" that another result
could have obtained.
Because the Court of Appeals applied the ineffective-assistance prejudice
standard incorrectly, and because McKee failed to show a reasonable
probability of a different result absent his counsel's purported errors, this
Court reverses.
I. Background
On the evening of December 17, 2004, McKee was driving in Breathitt
County when his vehicle collided head on with a vehicle driven by Anthony
Wenrick. McKee was not injured, and Wenrick suffered only minor injuries.
Wenrick's wife, Michelle Wenrick, who was in the passenger seat, also did not
appear to be seriously hurt. But as it turned out, she suffered significant
internal injuries from which she died several hours later.
When police arrived at the scene, they smelled alcohol on McKee. They
administered field-sobriety tests, which McKee failed, and then took him to the
hospital for a blood test. That test showed that his blood-alcohol content was
.18, well above the legal driving limit. Witnesses in a car behind the Wenricks
stated that McKee had been driving without headlights and had crossed the
center line into the oncoming lane.
McKee was indicted for wanton murder, fourth-degree assault, and DUI.
His case first went to trial in 2005. Although his theory of the case was that
Wenrick had crossed the center line and caused the accident, his counsel put
on no direct proof of this and McKee did not testify. Nor did his counsel
impeach Wenrick with medical evidence of the man's own blood-alcohol
content and possible intoxication, although the Commonwealth introduced this
2
evidence and addressed it, showing largely that it did not evince intoxication on
Wenrick's part.' McKee was convicted and sentenced to 20 years in prison.
This Court affirmed his conviction on direct appeal. See McKee v.
Commonwealth, 2005-SC-000954-MR, 2007 WL 1536852 (Ky. May 24, 2007).
McKee challenged his conviction under Criminal Rule 11.42, claiming
that his trial counsel was ineffective for having failed to present a real defense
to the charges, including "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," and "that
1 As noted in McKee's first appeal, Wenrick's medical records included several
references to "acute alcohol intoxication," and stated in one place that his "[Nlood
alcohol level was 0.4." McKee v. Commonwealth, 2005-SC-000954-MR, 2007 WL
1536852, at *2 (Ky. May 24, 2007). Another portion of the records, a lab report,
clarified that his blood-alcohol content was "ALC 0.4H" with the units listed as
"mg/d." An expert testified that many hospitals report blood-alcohol levels in
"milligrams per deciliter," whereas forensic labs use "grams per 100 milliliters," and to
convert the former to the latter, one must divide the number by 1000. (This can be
accomplished by simply moving the decimal three spaces to the left.) In his closing,
the Commonwealth's Attorney noted that several pages of Wenrick's medical records
had an incorrect Social Security number, suggesting perhaps that the noted "acute
alcohol intoxication" pertained to someone else, and that the hospital may have been
using the "milligrams per deciliter" measurement for Wenrick's blood-alcohol level,
which would equate to a negligible .0004 under the usual method used in courts. On
the direct appeal, we agreed that this was an appropriate argument, especially in light
of the lab report showing a measurement in "mg/d," which we stated "indicates that
the hospital may have, in fact, used the milligrams per deciliter standard." Id. at *3
(emphasis added)..
In retrospect, it is difficult to see how the hospital could have been using any
other standard or units of measurement. Although the usual abbreviation of or symbol
for deciliter is "dL" or "dl," there can be little question what the hospital's abbreviation
of "mg/d" means, given the context. Indeed, the abbreviation d would otherwise mean
"day" as used in the metric system (e.g., "1 d," meaning "one day"), which would not
make sense in context. Moreover, the lab appears to have omitted the last character of
the abbreviation dl because there was insufficient space; other, similar units were
included for other measures, such as "g/dl," suggesting the system that printed the
lab report only included four spaces for units of measurement, which explains why the
alcohol concentration is listed as mg/d.
3
defense counsel failed to hire an accident reconstructionist even though
[McKee] maintained he did not cross the center line as was stated in the police
report." McKee v. Commonwealth, 2008-CA-001478-MR, 2009 WL 3786274, at
*1 (Ky. App. Nov. 13, 2009). The trial court denied his motion, but the Court of
Appeals reversed, concluding that defense counsel had been ineffective on both
fronts, and remanded for a new trial.
McKee had different counsel for his second trial. His new counsel hired
an accident reconstructionist, Dennis McWilliams, to examine the accident
scene. McWilliams was unable to reconstruct the accident because of a lack of
information about the accident scene. He testified at trial that he had not seen
the scene until several years after the accident, and thus was unable to obtain
information about the accident directly. He noted specifically that he had no
information about skidmarks or the debris field (both of which could have been
useful in determining the point of impact) or the headlamps of the vehicles
(which could have been useful in determining whether they were on at the time
of impact).
This lack of information was explained in part by the testimony of Elvis
Noble, the police officer who first responded to the accident scene. At that time,
Mrs. Wenrick was still alive, and did not appear seriously harmed. The officer
thus approached the wreck as a simple traffic accident, rather than a criminal
investigation, and prepared only an accident report. As a result, he did not
contact the Kentucky State Police to have an accident reconstruction done, and
he did not do one himself because he was not trained to do so. Because the
matter was treated as a mere traffic accident, the scene was not documented
4
very well, with only a few photographs being taken that night before the
vehicles were removed and no measurements being taken of the distances
between the vehicles or their exact locations.
The next day, after learning of Mrs. Wenrick's death, the officer returned
to the scene and made a rough sketch of the roadway, which he used to
generate a diagram showing the final resting place of the vehicles 2 in his
accident report. This diagram was not provided to the Commonwealth's
Attorney and thus was not provided to defense counsel, despite an open-file
discovery policy. Indeed, the diagram's existence was unknown to both counsel
until the officer mentioned it on cross-examination when asked about his
return to the accident scene the next day. 3
As part of the retrial, defense counsel presented evidence of Wenrick's
possible intoxication. He also elicited testimony from McWilliams, who
primarily described the reconstruction process and information that would be
needed for such a process. McWilliams testified that he was unable to do a
reconstruction or offer an opinion about the point of impact because of the lack
of information available to him.
McKee was again convicted. This time, he was sentenced to 25 years in
prison. The murder and assault convictions and sentence were also affirmed on
2 A copy of this report was not made part of the record, but based on
discussions of it at a bench conference, it appears to have also shown an estimated
point of impact, although Officer Noble testified that he believed he had only shown
the final resting places of the cars.
3In his testimony at the first trial, the officer made several references to
preparing an accident report, but he did not refer to a diagram at that time.
5
direct appeal, though the DUI conviction was vacated. See McKee v.
Commonwealth, 2011-SC-000243-MR, 2012 WL 1478779 (Ky. Apr. 26, 2012).
McKee challenged his remaining convictions, again under Criminal Rule
11.42. Again, he was unsuccessful at the trial court, which denied his motion
without an evidentiary hearing, concluding that he could not demonstrate
prejudice.
And, again, McKee was successful at the Court of Appeals, which vacated
his convictions and remanded for yet another trial. This time, the court
concluded that McKee's counsel had been ineffective in failing to conduct his
own investigation into the accident scene and instead relying on the
Commonwealth's open-file policy, and in failing to object to the introduction of
an emergency medical report.
The claimed failure to investigate centered on the diagram showing final
resting places of the vehicles drawn by Officer Noble. 4 The Court of Appeals
concluded that had McKee's counsel investigated the matter independently,
such as by interviewing the officer, he "may have discovered this document
earlier and been able to provide it to the [reconstruction] expert." The court
noted (incorrectly) that although there was no testimony from a defense
accident reconstructionist at the second trial, one had previously been
employed to examine the scene of the accident and that the diagram of the
scene "may certainly have been of assistance to him in rendering an expert
4 The Court of Appeals' opinion also refers to photographs of the scene that
were not included in the Commonwealth's file, but the court's opinion does not refer to
them again.
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opinion in this matter." Because the diagram might have been useful to an
expert, the court concluded, there was "a reasonable probability that but for
counsel's errors the result of the proceeding would have been different." The
court qualified this conclusion by stating:
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.
The second finding of ineffective assistance related to a report by
emergency medical personnel concerning Wenrick, which was admitted without
calling the person who made the report. The report in question was used to
counter McKee's claim that Wenrick had been intoxicated the night of the
crash. The Commonwealth, after having admitted the records in question,
stated in closing that intoxicated persons have bloodshot eyes and that the
medical report did not show that Wenrick had bloodshot eyes.
The Court of Appeals concluded that McKee's counsel had been
ineffective in failing to object to the emergency medical report because its
admission violated McKee's confrontation rights under Crawford v. Washington,
541 U.S. 36 (2005), and Davis v. Washington, 547 U.S. 813 (2006), both of
which bar the admission of testimonial hearsay unless the declarant (here, the
emergency medical worker) was both unavailable to testify and the defendant
had a prior opportunity for cross-examination. The court also concluded that
McKee was prejudiced by this failure because it was "possible" that the result
of the proceeding would have been different.
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The Commonwealth sought discretionary review, which this Court
granted.
II. Analysis
A. Ineffective Assistance Generally
Claims of ineffective assistance of counsel are evaluated under the two-
part standard of Strickland v. Washington, 466 U.S. 668, 687 (1984), adopted
by this Court in Gall v. Commonwealth, 702 S.W.2d 37 (1985).
Strickland first requires that a defendant "must show that counsel's
performance was deficient." 466 U.S. at 687. This is done by "showing that
counsel made errors so serious that counsel was not functioning as the
`counsel' guaranteed the defendant by the Sixth Amendment," id., or "that
counsel's representation fell below an objective standard of reasonableness." Id.
at 688. But this review is "highly deferential" to trial counsel, and thus a "court
must indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy." Id. at 689 (internal quotation
marks omitted). A defendant is not guaranteed errorless counsel or counsel
that can be judged ineffective only by hindsight, but rather counsel rendering
reasonably effective assistance at the time of trial. Id.; see also Haight v.
Commonwealth, 41 S.W.3d 436, 442 (Ky. 2001).
Next, the defendant "must show that the deficient performance
prejudiced the defense." Strickland, 466 U.S. at 687. "This requires showing
that counsel's errors were so serious as to deprive the defendant of a fair trial,
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atrial whose result is reliable." Id. To make this showing, "[t]he defendant
must show that 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 a probability sufficient to undermine confidence in the
outcome." Id. at 694. A reviewing court must consider the totality of the
evidence before the jury and assess the overall performance of counsel
throughout the case to determine whether the specifically complained-of acts
or omissions are prejudicial and overcome the presumption that counsel
rendered reasonable professional assistance. Id. at 695; see also Foley v.
Commonwealth, 17 S.W.3d 878, 884 (Ky. 2000).
Finally, "[u]nless a defendant makes both showings, it cannot be said
that the conviction ... resulted from a breakdown in the adversary process that
renders the result unreliable." Strickland 466 U.S. at 687. With this standard
in mind, we turn to the two claims of ineffective assistance in this case.
B. The failure to independently investigate and discover the accident
diagram did not prejudice McKee.
As noted above, the Court of Appeals concluded that defense counsel's
reliance on the Commonwealth's Attorney's open-file policy and failure to
independently investigate the scene was ineffective assistance of counsel that
prejudiced McKee. We need not address whether this was ineffective assistance
because, even if it was, it did not prejudice McKee, and thus cannot require
reversal of his convictions.
First, although the Court of Appeals stated the Strickland prejudice
standard correctly, it applied it incorrectly. As noted above, prejudice occurs
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when "there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different." 466 U.S. at 694.
But the Court of Appeals essentially concluded that reversal was required
because there was a reasonable probability that the result might have been
different. The Strickland standard is not so rigid as to require a reviewing court
to conclude that the result actually would have been different absent the error;
indeed, that would make for an impossibly high bar. Instead, it requires only a
reasonable probability of a different outcome. Thus, uncertainty about the
effect of the error is built into the standard.
But the Court of Appeals further lowered the bar by finding a reasonable
probability of a different result where the attorney, had he independently
investigated, "may" have discovered the diagram, which "may certainly have
been of assistance to [the reconstruction expert] in rendering an expert opinion
in this matter." The court even noted that, it "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." But if the document would not have been helpful to the expert, how
can McKee have been prejudiced by his counsel's failure to find it?
The Court of Appeals answered this by stating: "Nevertheless, we cannot
conclude with reasonable probability that such would not have been the case
had counsel conducted an investigation." But this inverts the required review
and essentially places the burden on the Commonwealth to show that the
defendant was not prejudiced by defense counsel's error. But under Strickland,
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the burden of showing prejudice is on the defendant. Simply put, the Court of
Appeals diluted the Strickland standard and allowed too much uncertainty
about the effect of defense counsel's purported error.
This leads to the second point: McKee did not show that he was
prejudiced. At best, he was able to show that an accident reconstructionist
might have found the diagram useful. But such speculation is insufficient to
show prejudice.
It is not at all clear that the accident reconstructionist never saw the
diagram. The diagram came to light on the first day of trial when Officer Noble
was cross-examined and explained that he had included his diagram as part of
the accident report that is drafted whenever police respond to a traffic accident.
He did not have a copy of the report, which was at the police station and not
part of his criminal file, and a copy of it had not been provided to the
Commonwealth. A short recess was taken during which copies of this report
were obtained. Defense counsel even asked for an additional recess to review
the report before proceeding with further cross-examination, and failing that,
asked that the report be excluded from evidence. The trial court denied the
recess, but allowed the officer to be recalled at a later time. The trial court
excluded the diagram itself.
Importantly, however, the reconstructionist did not testify until the
following day. Thus, there was an opportunity for him to be shown the diagram
by defense counsel before testifying.
And the accident reconstructionist's own testimony undercuts the
claimed prejudice. McKee's theory is that the diagram, which at the very least
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showed the final position of the two cars, could have been used to reconstruct
the accident. Although that information would no doubt be useful, as attested
to by the expert, it would not appear to be sufficient by itself to allow a full
reconstruction. Indeed, the reconstructionist testified specifically he was
unable to do a reconstruction because he lacked adequate information
generally, including information about the pre-impact positions of the car, such
as the location of skidmarks and any debris field resulting from the collision,
which would not have been disclosed by the diagram. Thus, the diagram alone
would not have allowed a full reconstruction of the accident.
And additional investigation by defense counsel could not have turned
up such information because it was never collected. As Officer Noble testified,
he initially treated the accident as just that (aside from arresting McKee for
DUI), and intended only to fill out an accident report. It was only after Mrs.
Wenrick died hours later that the need to conduct a full criminal investigation
manifested. And by then it was too late to collect much of the needed data, as
the cars had already been removed from the scene and the other easily lost
physical data, such as location of the debris field, had not been documented.
At best, independent investigation by defense counsel might have had
some effect on the trial in this case. But such speculation falls short of the
showing of prejudice required by Strickland.
C. The failure to object to the EMS report was not reversible ineffective
assistance of counsel.
The Court of Appeals also concluded that defense counsel's failure to
object to the introduction of an emergency medical report stating that
12
Wenrick's pupils were normal with no mention of bloodshot eyes, and on which
the Commonwealth's Attorney later relied as evidence that Wenrick was not
intoxicated, was ineffective assistance of counsel because the admission of the
report violated McKee's right of confrontation under Crawford v. Washington,
541 U.S. 36 (2005), and Davis v. Washington, 547 U.S. 813 (2006). The court
also concluded that McKee was prejudiced by this because the other proof as to
Wenrick's state of intoxication was in conflict.
First, it is not clear that this was an error by counsel. Crawford and
Davis bar only testimonial hearsay. Although the Supreme Court has not
articulated an all-encompassing test for what constitutes a testimonial
statement, it has suggested that the core concern is with statements that either
consist of actual testimony at a prior trial, are otherwise made under oath, or
are made in circumstances that resemble the sort of examination that would
occur at trial. Thus, statements are testimonial if made in prior testimony or in
a police interrogation, Crawford, 541 U.S. at 68, outside the emergency setting,
Davis, 547 U.S. at 822. This extends to statements made to "persons who are
not police officers, but who may be regarded as agents of law enforcement."
Hartsfield v. Commonwealth, 277 S.W.3d 239, 244 (Ky. 2009). This category
includes medical personnel, such as sexual assault nurse examiners, "acting in
cooperation with or for the police" in the course of an investigation. Id. But it
does not extend to all medical personnel. And even then the concern is with
statements made to the person acting on behalf of the police, not statements
made by the medical personnel as part of diagnosis or treatment.
13
Here, the supposedly testimonial statements were those made by
emergency medical personnel describing Wenrick's physical condition soon
after the wreck. Although those statements may run afoul of the hearsay rules,
they do not violate the Confrontation Clause because they are not testimonial.
Crawford, 541 U.S. at 51 (noting "that not all hearsay implicates the Sixth
Amendment's core concern"). Indeed, if that were the case, then all statements
in medical records would run afoul of the right to confront witnesses, and
clearly that is not the case. So while it is arguable that counsel failed to
properly object to hearsay, that hearsay does not present a Crawford issue.
Regardless, McKee has not shown reversible ineffective assistance of
counsel because the admission and use of the emergency medical records was
not prejudicial. As with the accident diagram discussed above, the Court of
Appeals misapplied the prejudice standard, concluding that it was "possible"
that the result of the trial would have been different had defense counsel
objected. But prejudice under Strickland requires showing a reasonable
probability that the result of the trial would have been different, not a mere
possibility. Cf. Strickler v. Greene, 527 U.S. 263, 291 (1999) (distinguishing
between "reasonable possibility" and "reasonable probability," albeit in the
context of a Brady violation).
And it is that higher standard of a reasonable probability of a different
result that McKee failed to achieve. Although Wenrick's medical records were
inconsistent as to whether he was intoxicated, mentioning "acute alcohol
intoxication" while also noting a very low blood alcohol concentration (.0004,
under the standard normally used in legal proceedings), the emergency medical
14
report was simply not the last straw on this issue. This Court cannot say that
there was a reasonable probability of a different result if defense counsel had
successfully objected to the emergency medical report, even assuming that the
failure to do so was an error by his counsel.
HI. Conclusion
In finding reversible ineffective assistance of counsel in defense counsel's
handling of the investigation and accident diagram, and the emergency medical
report, the Court of Appeals applied the Strickland standard incorrectly. In
both instances, the court speculated about the possibility of a different result,
rather than finding a reasonable probability of a different result. Having
reviewed the record, this Court concludes that there was not such a reasonable
probability. For that reason, the judgment of the Court of Appeals is reversed.
All sitting. All concur.
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COUNSEL FOR APPELLANT:
Andy Beshear
Attorney General
David Wayne Barr
Assistant Attorney General
Office of the Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
COUNSEL FOR APPELLEE:
Melinda Brooke Buchanan
Assistant Public Advocate
Department of Public Advocacy
200 Fair Oaks Lane, Suite 501
Frankfort, Kentucky 40601
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