Roy Edward Tucker v. Commonwealth of Kentucky
530 S.W.3d 413
| Ky. | 2017Background
- On Feb. 11, 2015 two nearby dwellings in Melbourne, KY (the Vances and the Turpens) were burglarized; victims reported stolen firearms and other property.
- Neighbor George Crawford called 911 and photographed three men carrying items from the Vances' house into a sedan; police stopped and arrested the three occupants minutes later: Hardy (driver), Tucker (front passenger), Conyers (rear seat).
- Police seized guns, a starter pistol, jewelry, a money clip engraved “Vance,” cash, and other items from the car; victims identified many items as theirs and photographs showed ransacked homes.
- All three defendants were tried jointly, convicted of two counts of first-degree burglary, and sentenced as first-degree persistent felony offenders (PFOs) to concurrent 20-year terms; appeals were consolidated.
- Defendants raised overlapping claims: (1) trial court should have declared a mistrial due to juror/witness contacts after day one; (2) first-degree burglary instructions were improper (armed/deadly-weapon/complicity issues) and receiving-stolen-property is a lesser-included offense; plus individual claims: Hardy sought a voluntary-intoxication instruction; Conyers challenged use of a 2004 felony for PFO sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper submission of first-degree burglary (armed/deadly weapon element) | Commonwealth: weapons found in car and in passenger area furnished evidence defendants were armed; Wilburn controls that operability need not be proved beyond class of weapon | Defendants: no evidence they had access to or knew about operable firearms; cite Wilson narrow exception and argue weapons not "deadly" without proof of operability | Court: Affirmed instructions; Wilson exception inapplicable (guns were accessible/handled); Wilburn governs "deadly weapon" classification without ballistic proof; sufficient circumstantial evidence of access and possession |
| Complicity theory ( mens rea for aggravated offense ) | Commonwealth: complicity mens rea is intent to promote basic offense; accomplice can be liable for degree actually committed | Defendants: must know principal was armed to be guilty of first-degree burglary by complicity | Held: Kentucky law (Smith) requires intent to promote the basic offense only; accomplice is liable for the degree the principal actually commits without separate intent to promote aggravated conduct |
| Receiving stolen property as lesser-included to burglary | Defendants: requested instruction on receiving stolen property as a lesser offense | Commonwealth/Trial court: receiving requires different elements (possession/knowledge); not an included offense under KRS 505.020(2) given burglary's distinct elements | Court: Denial of instruction proper. Receiving is not a statutory lesser-included of burglary here; convictions could coexist and jury had other lesser options |
| Juror and witness misconduct / mistrial (elevator encounter, KRE 615 breaches) | Defendants: juror contact with witness Crawford and witness conversations created prejudice and appearance of unfairness; moved for mistrial | Commonwealth/Trial court: events were inadvertent/minor; court fully inquired, admonished jurors, excluded limited newly influenced testimony and allowed impeachment/cross-exam | Held: No abuse of discretion. The court’s inquiry and remedies addressed risks; no reasonable probability that brief contacts or limited out-of-court talk affected verdict |
| Voluntary intoxication instruction (Hardy) | Hardy: evidence (prescription pills, dash-cam showing slow movement, alleged urination) warranted instruction that intoxication could negate mens rea | Commonwealth: evidence did not show intoxication so severe that Hardy did not know what he was doing; officer observed normal driving and cooperation | Held: Court affirmed denial. Mere drunkenness/medication is insufficient; no evidence Hardy was so impaired he lacked awareness |
| PFO sentencing — status of 2004 trafficking conviction (Conyers) | Conyers: a 2011 statute narrowed school-zone enhancement from yards to feet; his 2004 trafficking would no longer be a felony under amended law and should be excluded for PFO purposes | Commonwealth: conviction was a felony when entered and remains a prior felony; KRS 532.080 looks to prior conviction status at time of conviction | Held: Court rejected retroactive reclassification. 2004 conviction counts for PFO; KRS 446.110 exception does not apply because the judgment was pronounced before amendment. |
Key Cases Cited
- Wilson v. Commonwealth, 438 S.W.3d 345 (Ky. 2014) (discussing when theft of a firearm during burglary establishes the ‘‘armed’’ element and recognizing a narrow exception where access was implausible)
- Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010) (plurality) (statutory definition of "deadly weapon" satisfied by weapons from which a shot capable of death could be discharged without requiring proof the weapon was fired)
- Smith v. Commonwealth, 370 S.W.3d 871 (Ky. 2012) (complicity mens rea requires intent to promote the basic offense; accomplice liable for degree the principal commits)
- Riley v. Commonwealth, 91 S.W.3d 560 (Ky. 2002) (possession of stolen property found in defendant’s possession after breaking and entering makes a submissible burglary case)
- Hudson v. Commonwealth, 202 S.W.3d 17 (Ky. 2006) (KRS 505.020(2) governs lesser-included offenses; court discusses elements test)
- Hall v. Commonwealth, 337 S.W.3d 595 (Ky. 2011) (addresses lesser-included instruction doctrine and when trial courts may give instructions supported by evidence)
- Jackson v. Virginia, 443 U.S. 307 (1979) (government must prove each element of crime beyond reasonable doubt)
- Remmer v. United States, 347 U.S. 227 (1954) (third-party contacts with jurors raise duty to inquire into juror impartiality)
- Sheppard v. Maxwell, 384 U.S. 333 (1966) (right to trial by an impartial jury and protection from outside influences)