Thacker v. Commonwealth
194 S.W.3d 287
Ky.
2006
Check Treatment

*1 trial, days before the Commonwealth THACKER, Appellant, O. Shawn prohibit petition filed this for a writ conducting trial. trial court bench kind of interference precisely This is KENTUCKY, OF COMMONWEALTH have held war- with trial dockets we Appellee. of a writ. rants the denial Now, majority holds of this Court No. 2003-SC-0430-MR. that, legal Appeals’ the Court of while Kentucky. Court of correct, rea- analysis is “there is sufficient appearance that at his initial son to believe 15, 2006. June trial,” and “the requested Davis offered his clear is that Davis implication trial after reconsider-

motion for a bench proceed ing the wisdom his decision fact, jury.” there is no reason before to assume that the trial court did sua sponte by jury for trial on the set the case a criminal

assumption that by jury always prefer would a trial over by judge. proof, trial I do not Absent believe that “sufficient reason to believe” prove implication”

and “clear suffices Circuit abused its Jefferson Court denying discretion writ. so, But even if that were not 29A.270(1) discre- gives the defendant the petty.

tion as to whether offense with charged or she is shall tried Because, majori- by judge jury. as the 9.26(1) holds, ty opinion ap- RCr offenses, ply to petty the Commonwealth standing preclude simply is without waiving right defendant from to trial by jury permitting or the trial court from

him to Compare do so. Commonwealth

Johnson, (Ky.1995)

(Commonwealth right has the to demand by jury capital sentencing phase trial trial).

Accordingly, I dissent and would affirm and the Court the Jefferson Circuit Court Appeals respects. in all *2 information from Bullitt Euva D. Ad- state 65. The May, Department Public Frankfort, vocacy, Appellant. across local County also broadcast Shortly after Bullitt police radio. Stumbo, Attorney General, D. Gregory County a black robbery, Appellant and Attorney Perry Ryan, T. Assistant Gener- *3 driving male north on apprehended were General, al, Attorney Office Criminal interstate 65. Division, Frankfort, Appellate for Appel- lee. arrest, a revolver During Appellant’s and cash found in the miscellaneous were GRAVES, Justice. transported vehicle. was Appellant Thacker, Appellant, Shawn was sen- Department Bullitt where County Sheriffs twenty years imprisonment tenced to in videotape foregoing to the he confessed on by with connection his convictions a Har- confession, crimes. After officers in Robbery din Circuit the First of the brought parking Miller to lot Degree, by Possession of a Firearm a Con- inside a car Department police Sheriffs Felon, Felony victed and Persistent Of- Appellant with tinted windows. in Degree. fender Appellant First handcuffs, brought in Miller out where appeals now to this Court as matter of person identified him as who robbed 110(2)(b). Ky. § right. Const. her. stated that she was certain be- She September Appellant On en- his recognized cause she t-shirt. Exxon/Stuckey’s tered Food- near Station Interstate Appellant charged mart/Service and subsequently Elizabethtown, Kentucky. Appellant set forth convicted crimes approached the counter sales with a assign- now asserts five Appellant above. clerk, sleeve of crackers. As the sales requests ments of error which he Miller, began process pur- Nora his herein, relief. the reasons set forth For chase, Appellant stated, you “while have we affirm. your drawer me all open, give the mon- ey.” me,” Miller replied, “Excuse and I. gun

then looked to see a down on error, In his Appellant assignment Appel- counter. She saw had gun rested on its side lant his for first using alleges that conviction partially hand to public degree robbery conceal must be because vacated view. The pointed toward the not convict him of each and body. mid-section Miller’s every pursuant element of the crime Apprendi Jersey, v. New 530 U.S. emptied register Miller the cash and 2348, 147 L.Ed.2d and S.Ct. money. left Appellant with the Miller saw Gaudin, United States person” away. “a black drive (1995). L.Ed.2d 444 Those S.Ct. telephoned police provided Miller cases that criminal must hold convictions description the robber which was broad- rest determination police cast across local radio. Within the every of each ele- guilty hours, next two robbed a Shell crime with he is ment of the County. Bullitt The clerk Station sales charged. supra, Apprendi, County police in Bullitt told Gaudin, 510, 115 2348; supra, at males, black, one white and one were driv- Apprendi, the Unit- recognized supra, li- S.Ct. 2310. In ing an Oldsmobile with simply: plate northward inter- ed States Court held cense number conviction, prior years fact of a sentence between five and ten im- “Other than the penalty prisonment. fact that increases the for a prescribed statutory definitions for the KRS 500.080 lists the jury, maximum must be submitted to a “deadly weapon,” including “any term proved beyond a reasonable doubt.” Id. at shot, readily capable from which a 490,120 S.Ct. 2348. physi- death or other serious Robbery 515.020 forth in the sets injury, may discharged.” Appellant cal be as Degree, pertinent part, First follows: claims that the of whether or A the first “deadly weapon” is an essen- when, in of commit- degree the course that must submitted to the tial element *4 theft, ting he uses or threatens the im- to jury. Appellant asks this Court over- an- physical mediate use of force turn Hicks v. accomplish other with intent to Hicks, held, (Ky.1977). In this Court ... the theft and when he armed [i]s necessary should never be in the in- “[i]t deadly weapon. with a ‘deadly weap- the structions to define word added). (Emphasis The trial court in this particular on.’ the instrument is Whether following case submitted the instruction a should be deter- or is not regarding Degree Robbery1 First to the mined the court as a matter of law.” jury: It that of the essential is clear one You will find the Defendant Appellant’s degree elements of rob First-Degree Robbery under this In- deadly a bery charge being is armed with if, if, only you struction believe from of two weapon. This element consists the evidence a reasonable doubt (1) whether the defendant was questions: following: all of the (2) object question, armed with the in county A. That in this on or about object deadly weapon. whether that is a 10, 2001, and September before the question a inquiry pure The first involves herein, finding of the indictment he inquiry, fact. whether an The second Stuckey’s in currency stole the deadly weapon, requires an Plaza; Heartland Travel application to fact. Pursuant to of the law doing in B. That the course of so Hicks, jury only per the this case was theft, accomplish to the he with intent purely ques mitted to decide the factual the immediate use used or threatened tion, the sec judge while the trial decided Miller; force Nora application the inquiry, ond which involved AND Appellant argues to facts. that law so, he C. That when he determination from withholding legal armed with a 22-caliber revolver. set is error. For the reasons added).

(Emphasis below, agree. forth we a B felo- First-Degree Robbery is Class Supreme Court ny possible and carries a sentence between The United States only a By rejected has the idea that twenty years imprisonment. ten contrast, components the factual Second-Degree Robbery, required to decide Gaudin, supra, at armed of essential elements. require a defendant Gaudin, 511-515, In possible 115 S.Ct. 2310. deadly weapon, with a carries (Criminal) Kentucky instructions to Juries 1. The instruction was in exact accordance (4th 1993). wording Cooper, § ed. Anderson recommended in 1 6.14 with includes a held should definition a firearm Supreme legal Court that the have entitled to the entire jury’s decide left to determina- handgun, and element, including application essential tion the whether fact. To avoid conflict with Unit law to Davis, v. handgun); the case was State ed precedent States Court (1998) 455, 481 349 N.C. 506 S.E.2d Apprendi, compelled Gaudin and arewe similarly); (holding Murray, Strickler so, doing Hicks. reiter overrule we (an 452 S.E.2d Va. “judge ate permitted must be Virginia jury example of instruction on on the to insist instruct law and robbery). follow instructions.” argues The Commonwealth (citing Gaudin, supra, at S.Ct. erroneous, even if the instruction was States, Sparf United requires harmless error. RCr 9.24 us (1895)). Thus, 39 L.Ed. 343 disregard any error or defect read: proper jury may have does not affect sub proceeding so, he did armed C. That when rights parties. stantial The test for deadly weapon, 22- with a to wit: there is any harmless error whether revolver. caliber *5 possibility that the outcome of substantial deadly law, a matter D. As a have without the case would been different weapon is defined include presence the that error. Common readily weapon shot, from which a McIntosh, 43, wealth v. 45 capable death or other injury, may (Ky.1983). The States serious be dis- United charged. Court has held that an erroneous instruction that omits an essential element minor, Although change may the this seem subject of the offense to harmless-error instruction ensures that ultimate- the States, 527 analysis. Neder v. U.S. United ly the determines essential elements of the (1999). 1, 1827, 119 144 L.Ed.2d 35 offense, and acts in the accordance with not outcome of the We do believe that the law. in other jurisdictions Courts have had would have been different case approach instructing taken a similar instructed, properly as there is juries robbery. their on v. e.g., People See Runnion, little doubt that the would have found Cal.App.4th 852, 856, 30 36 Cal. (the Rptr.2d deadly weapo 203 trial 22-caliber revolver to a (Cal.Ct.App.1994) a be properly court was instructed the n.2 The error harmless. 219, Appellant though put (Ky.1976) (extending

2. Even forth S.W.2d 220-221 brief, argument holding robbery this in his we note that the in Merritt to the modem also, statute); Commonwealth, regard- Shegog deadly weapon case was a see this (evidence operability. (Ky.2004) S.W.3d purposes less of its of first suf- For degree support degree robbery, gun’s ficient to conviction of first operability is imma- merely where referenced deadly terial to the it is a whether Commonwealth, gun, the fact that he had a but never dis- weapon. Helpenstine v. victims). (“Whether played or showed it to (Ky.1978) S.W.2d relevant.”). operable handgun legisla- is not As The dissent’s contention that 515.020, long standing interpretation defined within the KRS comments to of this ture’s deadly by judicial phrase changed it is intended fiat if should First, by authority op- convince the user to the victim that it is as lacks or substance. since Commonwealth, erability is not an ele- such. Merritt (Ky.1965) (any degree robbery, Apprendi and pistol, includ- of first its kind of ment ing toy, degree robbery simply implicated in this progeny a falls within the are not in- (a statute); Kennedy v. stance. Id. 120 S.Ct. at 2356 defen- II. was not entitled to directed verdict of acquittal. Next, Appellant argues that the Com- present monwealth failed evi- sufficient possession

dence to sustain a conviction for III. of a Appel- firearm convicted felon. Appellant trial claims court argues lant that the revolver in this case by allowing erred the Commonwealth to missing pin designed which is use two concurrent probated sentences as cylinder, hold the and raises doubts as to for separate pur- two convictions PFO gun’s operability missing due to this poses. Appellant’s prior convictions which such, pin. Appellant As claims that formed for his the basis PFO conviction revolver was not a “firearm” under KRS burglary degree are: the second 527.010(4) 527.040. KRS sets forth the $300, receiving property stolen over “any weapon definition of “firearm” as (2) trafficking in parts. stolen vehicle The expel projectile by which will the action first two crimes occurred November an explosion.” Appellant probated received a do not believe that We this issue year five sentence on each count to run review, properly preserved Ap for as concurrently. The second occurred pellant’s motion for directed verdict on June received specify ground as a basis for relief. year sentence, probated years. for five 50.01; CR see also Potts v. Common Appellant’s probation on his first convic- wealth, (Ky.2005) revoked, despite tion was not his reoffense (a mere motion for directed verdict with such, in 1999. As claims out stating specific ground relief is 532.080(4) treats all the convictions *6 inadequate preserve the issue on re effectively as one conviction because he view). Nevertheless, we believe that there “concurrent or con- uninterrupted served support was sufficient evidence to Appel secutive terms” for all three offenses. We review, lant’s conviction. “On appellate disagree. is, the test of a directed verdict if under Hinton, In Commonwealth v. whole, clearly the evidence as a it would be (Ky.1984), S.W.2d 388 was guilt, only unreasonable for a to find previous convicted of three felonies then the defendant is entitled to a directed Appellant. The same manner as defen acquittal.” verdict of Commonwealth probated dant’s first felonies were sen Benham, (Ky.1991). concurrently. trial, tences which ran While Kenny At Russell of the Bullitt Coun a third probation, the defendant committed ty Department Sheriffs testified that fire, felony The Court held that the offense. gun despite missing cylinder could from the third conviction did not The free to believe Mr. sentence pin. was into the sentence for the first two testimony, clearly merge Russell’s and it was not convictions, Appellant despite unreasonable for them to do so. the fact that these sen- discharging juty readily capable dant is entitled to “a determination that that it was of Thus, element of the crime guilty every Appellant [he] shot. to indicate added). charged”) (emphasis with which he is anything other entitled to an instruction Second, perceptual it is a distortion to cate- being degree robbeiy by means of than first gorize deadly weapons are those would under- armed with deemed, fact, “inoperable" “dan- after the as intent, policy, purpose of KRS mine the gerous The case instruments.” this 515.020. clearly intended to convince the victim guilty-beyond-a-reason- con- uninterrupted served as verdict tences were able-doubt, whether Appellant argues that his secutive terms. of guilty-beyond-a-reason- verdict same may be from Hin- distinguished situation would rendered able-doubt have been revoked probation because his was not ton utterly constitutional error is absent the third the time he was sentenced for the at object, no so meaningless. There is do not distinction conviction. We find this scru- upon which harmless-error speak, any consequence. Appellant began to be appellate tiny operate. can The most con- serving his sentence on the first two court can conclude is that a would being sen- charged before victions guilty be- surely petitioner have conviction, on the third and for this tenced found that the yond a reasonable doubt—not reason, the third conviction beyond jury’s finding actual sentence, merge previous regard- with surely doubt not have reasonable would probation or not less whether absent constitutional revoked. different

enough. That is not error.

IV. Louisiana, Sullivan 2078, 2082, 124 L.Ed.2d 182 113 S.Ct. alleges court the trial (1993). Sullivan, was de- As by allowing abused its discretion the vic- to a on the right by jury nied the trial County of crimes in Bullitt tims committed robbery degree. offense of the first testify sentencing hearing. Ap- merit, argument is and he pellant’s without de- in the second Conviction authority cites to no as support. (“robbery 2nd”), felony, gree a Class C to find a reasonable

requires a V. committing in the course of doubt theft, the defendant used or threatened Lastly, Appellant claims use of physical the immediate force trial court erred refusing suppress accomplish with another intent to the victim’s “show-up” identification Robbery in the theft. KRS 515.030. him. or not evaluating Without whether 1st”), B degree (“robbery a Class an error in regard, there was we will *7 find those iden- felony, requires jury to any simply regard state in this error additionally and to find be- tical elements certainly Ap would be harmless because ag- three yond a reasonable doubt one of pellant robbery. confessed to the factors, i.e., that the defendant gravating Accordingly, the sentence judgment and (a) any person physical injury caused the Hardin Circuit are affirmed. Court (b) crime; participant not a in the who is (c) deadly weapon; armed with a or LAMBERT, C.J., GRAVES, ROACH, dangerous or threatened to use a used SCOTT, WINTERSHEIMER, J.J., and any not a instrument who is concur. 515.020(1). in the participant crime. KRS COOPER, J., in separate dissents not force use JOHNSTONE, J., joins. opinion which victim, and victim was upon the COOPER, Justice, dissenting. injured. contains physically KRS 500.080 to this following pertinent definitions ... there has no verdict Since been case: meaning Amend- within of the Sixth any

ment, premise entire means Chapman “Dangerous instrument” instrument, article, simply being no ... or substance review is absent. There 294

which, Arizona, dant.”)-, 584, Ring under the circumstances in which 536 U.S. used, used, 2428, 2443, 122 attempted to be or S.Ct. 153 L.Ed.2d 556 (2002) (Because used, “aggravating oper readily capable threatened to be factors equivalent ate as the functional of an ele causing physical inju- death or serious offense, greater

ment of a the Sixth requires they Amendment be found (4) “Deadly weapon” any means (citation jury.”) quotation and omit following: ted); Apprendi Jersey, v. New 530 U.S. 2348, 2362-63, 120 S.Ct. 147 (b) shot, Any weapon from which a (2000) (“Other L.Ed.2d 435 than the fact of readily capable producing death or conviction, prior fact that increases physical injury, may other serious penalty beyond pre discharged .... statutory scribed maximum must be sub convicted of 1st jury, to a proved beyond mitted under an read as follows: doubt.”). Further, reasonable “the charac of a fact terization or circumstance as 5 INSTRUCTION NO. ‘sentencing ‘element’ or as a factor’ is not determinative of the ‘who de FIRST-DEGREE ROBBERY cides,’ judge jury.” Ring, at You will find the Defendant of 604-05, (citing 122 Apprendi, S.Ct. at 2441 in- First-Degree Robbery under 2363-64). 530 120 at U.S. if, if, only you struction believe from Thus, I agree that Hicks v. Common the evidence a reasonable doubt wealth, (Ky.1977), must be S.W.2d following: all of the (as overruled must Commonwealth v. county A. That in this on or about Potts, (Ky.1994); Hel September and before the find- penstine v. herein,

ing of the Indictment he stole 415, (Ky.1978); Little v. Common currency Stuckey’s in the Heart- wealth, (Ky.1977); S.W.2d Plaza; land Travel Hammond, Commonwealth (Ky.App.1982)). B. That in doing the course of so theft, accomplish with intent to I agree also that the error would have used or threatened the immediate use of if been harmless the evidence had Miller; physical force Nora “overwhelming” that the .22 caliber revolv- AND shot, “weapon er was a from which a readi- so, That he did he was C. when ly capable death or other *8 armed with a .22-caliber revolver. physical injury, may serious be dis- 500.080(4). v. by majority opinion, charged.” As held the the trial KRS See Neder States, 1, 16, deciding court erred in as a matter of law 119 S.Ct. United (1999) (error was, fact, in a 144 L.Ed.2d 35 in that the .22 caliber revolver jury that it must find deadly weapon. Blakely Washington, failing v. to instruct 296, 303,124 2531, 2537, 159 that beyond 542 a reasonable doubt misstate- U.S. (2004) (“[T]he in in in ‘statutory L.Ed.2d maxi ments tax return and affidavit filed 403 were “material” purposes support application mum’ for is the maxi loan Apprendi may impose solely deemed harmless error because evidence judge mum sentence a Here, overwhelming). materiality the on the basis the in facts reflected pin defective because the jury by verdict or admitted the the revolver was defen 295 jury the under that cylinder place proper in to instruct revolving that holds the Thus, missing. theory. when the is firing position, in its natural upright held a is entitled to new Finally, Appellant out, cylinder making firing would fall the of the trial court’s failure trial because County deputy A Bullitt sher- impossible. a on 2nd as instruct the despite missing cylin- iff that the testified in the included offense the event lesser However, gun fire. pin, der the could to find a reasonable jury failed admitted that he did not test-fire the .22 caliber revolv- doubt that the defective to see if it would do so. Under this evi- deadly duty It is the weapon. er was a dence, the could have believed well in a criminal case to instruct the trial court “weapon .22 was not a the revolver case, law of the RCr on the whole shot, readily capable pro- from which 9.54(1), requires and this rule instructions in- ducing physical death or other serious every of the case deduc- applicable to state jury, may discharged,” thus was not a be by supported ible from or extent deadly weapon. Commonwealth, testimony. Webb v. Commonwealth, Although Kennedy v. 226, v. (Ky.1995); 904 228 Reed S.W.2d (Ky.1976), pur- 544 S.W.2d Commonwealth, (Ky. 822 carry forward into the code port penal 1987). right A to have defendant has the common law notion that “an by the evidence every issue of fact raised if it is intended the user and material to the defense submitted such,” to convince the victim that it is v. proper Hayes on instructions. Blakely, Ring, and Apprendi would now Commonwealth, (Ky. S.W.2d theory. require instruction on that 1993). He is entitled to an instruction fact, In theory was never discussed at has, any lawful defense that he Slaven I the trial level. believe that the scenarios Commonwealth, (Ky. S.W.2d Kennedy judice the case sub 1997), is including the defense that he properly aggra- more fall within the third guilty of a lesser included offense of i.e., 515.020(l)(c), vating factor in KRS includ- charged. “Although lesser or use “use[d] threatened] immediate ed offense is not a defense within dangerous any per- of a instrument upon meaning technical of those terms as used son not a participant who is in the crime.” code, is, princi- penal it fact added.) (Emphasis A gun is not a ple, against higher charge.” defense “deadly weapon” not one because Id.; Commonwealth, see also Brown v. shot, “from readily capable An (Ky.1977). S.W.2d physical death or other serious required if on a lesser included offense is injury, may discharged” be could still be a jury to ra- permit the evidence would which, “[djangerous ... under instrument tionally find used, the circumstances in which it is at- offense, guilty of the lesser primary but used, tempted to or threatened to be Wolford, 4 offense. Commonwealth used, readily causing capable death (Ky.1999) (citing Smith v. 500.080(3). injury.” serious (Ky. fact, did not to shoot threaten 1987)). *9 Miller; only laid the .22 revolver on the a lawful to instruct the counter, Failure Miller took to be a threat defense is not harmless error. Mondie demanding mon- since was also Commonwealth, fact, ey. In 158 S.W.3d Appellant could have used (failure Miller, on de- (Ky.2005) and it would have instruct bludgeon against burglary re protection fense of BAILEY, Appellant Joshua W. reversal);

quired Nichols v. Common wealth, (Ky.2004) 142 S.W.Sd (failure voluntary to instruct on intoxi Kentucky, COMMONWEALTH to intentional assault was

cation as defense Appellee. prejudicial deprived because of lesser included offenses of wanton or No. 2003-SC-0935-DG. degree); fourth Ed reckless assault Commonwealth, Kentucky. Court of wards v. (“The (Ky.1968) not affirma court did June 2006. tively encompass instruct the so as to to so theory of defense. The failure .... circum instruct was error

stances shown this case the defendant to an instruction was entitled affirmative cit within the rationale of the authorities ed, judgment of and we must reverse the for the failure of the court to so

conviction jury.”); Evitts v. instruct Common wealth, Ky. 799- (1935) (“We that, repeatedly have held offense, an accused admits the or where offense, elements of the but re essential amounting lies facts circumstances crime, to an he is entitled avoidance theory his to a concrete instruction case, general and mere opinion are of the is not sufficient.... We give the failure of the court defendant’s concrete instruction on the theory sufficiently preju of this case was reversal.”); require

dicial to Sebastian v. (Ky. (“We App.1979) conclude that Sebastian to an instruction on was at least entitled entrapment. defense of Failure constitutes revers give such an instruction error.”). ible I dissent. Accordingly, JOHNSTONE, J., joins.