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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.
                                           6
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.
                                       7
      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,
                                         8
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

                                         9
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,
                                     10
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
                                       11
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.




                                        15
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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