Kenneth Krasovic v. State of Tennessee
M2016-02458-CCA-R3-PC
| Tenn. Crim. App. | Nov 14, 2017Background
- Kenneth Krasovic was convicted by a jury of reckless vehicular homicide and five counts of reckless endangerment after attempting to pass a pickup (Chevy S-10) on a blind hill and colliding with the oncoming Pontiac driven by Sandra Lockhart (resulting in her death).
- Crash occurred after dark on a two-lane highway in a no-passing zone; experts differed on speeds and whether the Chevy S-10 stopped at a nearby stop sign or pulled out into Krasovic’s path.
- State’s reconstructionist relied on an airbag module showing the Pontiac slowed from 63 to 55 mph pre-impact and estimated Krasovic at ~66 mph; he emphasized illegal passing as primary cause.
- Krasovic presented an expert who opined speeds were not reliably determinable from the impact and that a sudden emergency could have existed if the Chevy S-10 pulled out within ~100 feet.
- Krasovic did not testify at trial on counsel’s advice (trial judge conducted colloquy). Trial counsel argued sudden emergency and comparative causation; prosecutor emphasized lack of proof that the truck pulled out.
- Post-conviction petition claimed ineffective assistance: (1) inadequate expert development for a sudden-emergency theory, and (2) deficient advice not to testify. The post-conviction court denied relief; appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Counsel’s expert was inadequate and failed to develop sudden-emergency defense | Krasovic: trial expert didn’t interview him and testimony was “essentially useless”; counsel should have retained a better expert | State: trial counsel obtained a qualified expert who provided helpful testimony; no obligation to "shop around" for better testimony | No deficiency: expert testimony was favorable and within reasonable professional bounds |
| Advice not to testify | Krasovic: his testimony was necessary to prove the Chevy S-10 pulled out and to support sudden-emergency defense | State: counsel reasonably advised against testifying because prior violent convictions and damaging hospital statements would be admissible and Krasovic had credibility problems | No deficiency or prejudice: counsel’s advice was a reasonable strategic decision given impeachment risk and petitioner’s credibility issues |
| Failure to request sudden-emergency jury instruction | Krasovic: counsel failed to properly present the sudden-emergency theory | State: counsel argued the theory to the jury and relied on expert evidence; sudden emergency is a civil doctrine/factor rather than statutory criminal defense | No reversible deficiency: counsel advanced the theory through testimony and argument; post-conviction court credited strategy |
| Failure to object to prosecutor’s closing comments | (Raised below but not briefed on appeal) | State: issue waived on appeal | Waived; appellate brief did not develop argument |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes deficient performance and prejudice standard for ineffective assistance of counsel)
- Kendrick v. State, 454 S.W.3d 450 (appellate deference to post-conviction factual findings; mixed questions reviewed de novo)
- Moore v. State, 485 S.W.3d 411 (recognition of constitutional right to effective assistance in Tennessee)
- Felts v. State, 354 S.W.3d 266 (performance judged against range of competence demanded of criminal defense counsel)
- Baxter v. Rose, 523 S.W.2d 930 (standard that counsel must be within range of competence)
- Calvert v. State, 342 S.W.3d 477 (definition of reasonable probability to show prejudice)
- Goad v. State, 938 S.W.2d 363 (review standards for post-conviction findings and counsel strategy)
- Henley v. State, 960 S.W.2d 572 (counsel strategic choices not judged by hindsight)
- Bates v. State, 973 S.W.2d 615 (advice not to testify can be reasonable strategy given impeachment risk)