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HomeMy WebLinkAbout98-0054 criminalCOMMONWEALTH VS. JEANNEE M. THOMPSON 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-0054 CRIMINAL CHARGE: DUI AFFIANT' PTL. MICHAEL COTTON IN RE: DEFENDANT'S POST-SENTENCE MOTION BEFORE HESS, J. ORDER AND NOW, this day of March, 1999, the motion of the defendant for a new trial is GRANTED. B Y THE COURT, Mary-Jo Mullen, Esquire Assistant District Attorney Kevi~,A. Hess, J. · / Elizabeth A. Hoffman, Esquire For the Defendant :rim COMMONWEALTH VS. JEANNEE M. THOMPSON IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-0054 CRIMINAL CHARGE: DUI AFFIANT' PTL. MICHAEL COTTON IN RE: DEFENDANT'S POST-SENTENCE MOTION BEFORE HESS, J. OPINION AND ORDER The defendant, Jeanee M. Thompson, was convicted of driving under the influence following a bench trial. The charge arose from an incident that occurred on August 30, 1997, when a witness observed the defendant strike two parked cars as she was leaving Scott's Bar in Dauphin County. The defendant drove in an erratic fashion until stopping on Glen Road in Cumberland County. Officers Kams and Hair of the West Shore Regional Police arrived on the scene and detained the defendant until Officer Cotton of East Pennsboro Police Department arrived. Officer Cotton observed about the defendant an odor of alcohol, slurred speech and glassy eyes. When asked to exit the vehicle, the defendant began to sway while standing and had to use the vehicle for support. Officer Cotton informed the defendant that she was being arrested for DUI. At that time, the defendant began to shout, among other things, that she was not drank, but that she had diabetes. This chores concerning her diabetic condition was played out repeatedly during the course of the evening. Meanwhile, the defendant refused to submit to a blood alcohol test. The defendant's erratic behavior and refusal to take a sobriety test was caught on videotape at the police station. On October 8, 1998, this court convicted defendant of driving under the influence and on 98-0054 CRIMINAL November 24, 1998 imposed a sentence of no less than ninety days nor more than twenty-three months incarceration. The defendant then filed a timely post-sentence motion alleging ineffective assistance of trial counsel in that her attorney had failed to utilize testimony of the defendant's physician, George Harhigh, D.O. to establish a defense. Attached to the motion was an affidavit from Dr. Harhigh wherein he consented to provide testimony relating to the defendant's diabetic condition and "the reasons which may have caused her to suffer an insulin reaction and appear intoxicated on the evening that she was arrested on charges of driving under the influence of alcohol.''~ Subsequently, a hearing was held in which Dr. Harhigh testified on behalf of the defendant. In order to prove ineffective assistance of counsel, a defendant must demonstrate that "(1) the underlying claim is of arguable merit; (2) counsel's action or inaction was not grounded on any reasonable basis designed to effectuate his client's interest; and (3) counsel's omission or commission so undermined the trial that the verdict is unreliable." Commonwealth v. Legg, 711 A.2d 430, 432-33 (Pa. 1998). For the following reasons, we believe that the defendant has established these contentions. First, the defendant's claim is of arguable merit. Dr. Harhigh's testimony at the hearing demonstrated that his testimony at trial was necessary to an effective defense based on defendant's allegations that she was suffering from an insulin reaction and was not under the influence of alcohol. Dr. Harhigh testified that he had treated numerous patients with diabetes I Affidavit of Dr. Harhigh, p. 1 98-0054 CRIMINAL and had treated the defendant for the past four or five years and was very familiar with the disease. He also stated that he had viewed the videotape of the police interview with the defendant on the evening of her arrest. After considering the defendant's statements during the police interview concerning her recent food intake, last insulin injection, and the stressful events occurring in her life, Dr. Harhigh opined that the defendant's erratic driving could well have been the result of an insulin shock reaction. In short, Dr. Harhigh's testimony could have raised questions as to whether the defendant was, in fact, under the influence of alcohol while operating a motor vehicle on the evening in question. Second, we believe that trial counsel's failure to have Dr. Harhigh testify on the defendant's behalf "was not grounded on any reasonable basis designed to effectuate his client's interest." Legg, 711 A.2d at 432-33. In other words, trial counsel did not have a reasonable basis for not presenting testimony from the defendant's physician concerning her diabetes. The defendant' s trial defense was based solely on her testimony that at the time of her arrest she had not eaten in a day, was under a tremendous amount of stress and was suffering from a hypoglycemic reaction, which occurs when the body's sugar level is too low. Although the defendant appeared conversant as to how diabetes affects her, medical testimony corroborating and expounding upon the testimony presented by the defendant would not only have been helpful, but necessary. Trial counsel's testimony at the hearing was that he had spoken with Dr. Harhigh on only one occasion. Dr. Harhigh expressed reluctance about testifying for reasons trial counsel could not remember. Trial counsel, however, never attempted to apprise him of the importance of his 98-0054 CRIMINAL testimony for the defense nor was the doctor provided other details of the case. While we understand that Dr. Harhigh was reluctant to come to court to testify, as is evidenced by his affidavit in which he states that he is willing "to provide testimony, through either a deposition or telephone conference...,''2 we believe more of an attempt should have made on the behalf of trial counsel's client and Dr. Harhigh's patient. In the end, Dr. Harhigh was, in fact, not averse to providing testimony concerning the defendant. Trial counsel's failure to make more than a minimal effort in persuading Dr. Harhigh to testify, given the importance of medical testimony to the defendant's case, lacked any reasonable basis to effectuate the interests of his client. Finally, we believe that the absence of Dr. Harhigh's testimony "so undermined the trial that the verdict is unreliable." L g, 711 A.2d at 433. To properly assess the credibility of the defendant's claim that she was suffering from an insulin shock reaction, medical testimony was important. Trial counsel did not provide the medical testimony necessary to his client's defense, thus eliminating a possibility that the outcome of the trial would have been different. ORDER AND NOW, this day of March, 1999, the motion of the defendant for a new trial is GRANTED. B Y THE COURT, Kevin,~. Hess, J. /' · · ,, / Affidavit of Dr. Harhigh, p. 1 98-0054 CRIMINAL Mary-Jo Mullen, Esquire Assistant District Attorney Elizabeth A. Hoffman, Esquire For the Defendant :rlm