TRACY D. WILSON v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED:
February 13, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-00761-MR
TRACY D. WILSON
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 87-CR-001182
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
*
BEFORE:
*
*
*
*
ABRAMSON, GARDNER and JOHNSON, Judges.
JOHNSON, JUDGE:
Tracy Wilson (Wilson) appeals from an order
entered by the Jefferson Circuit Court on February 20, 1996, that
denied his motion to vacate or set aside his sentence and his
motion for an evidentiary hearing made pursuant to Kentucky Rules
of Criminal Procedure (RCr) 11.42.
Having found no error, we
affirm.
During the months of March, April, May and June of 1987,
Wilson and three co-defendants committed a series of robberies of
convenience stores and fast-food restaurants in Jefferson County,
Kentucky.
On August 5, 1987, a grand jury returned a twenty-five
(25) count indictment against Wilson and three co-defendants that
listed the names of several of the robbery victims and also listed
other robbery victims merely as "an employee of Taco Bell",
"an
employee of Convenient Food Mart", and "a customer of Sav-A-Step".
Wilson entered an Alford guilty plea1 to nine counts of robbery in
the first degree in violation of Kentucky Revised Statutes (KRS)
515.020 and one count of wanton endangerment in the first degree in
violation of KRS 508.060.
Judgment was entered on February 10,
1988, and the trial court sentenced Wilson to prison for fifteen
(15) years based upon the Commonwealth's recommendation of fifteen
(15) years on each robbery count, and one year on the wanton
endangerment count, with all ten counts to run concurrently for a
total of fifteen (15) years in prison.
On February 12, 1996, Wilson, pro se, filed motions for
post-conviction relief pursuant to RCr 11.42.
Wilson alleged that
the indictment was deficient because it failed to specifically name
the employees and customers who were robbed and because it was
based
upon
uncorroborated
statements
from
his
co-defendants.
Wilson also alleged that his trial counsel was ineffective for
failing to discover these alleged insufficiencies. On February 16,
1996, the trial court granted the motion to proceed in forma
pauperis by writing "Granted" on the motion.
However, the trial
court denied the motion to vacate or set aside the sentence and the
motion for a full evidentiary hearing by writing "Denied" on those
motions.
This appeal followed.
Wilson makes four arguments on appeal:
(1) that the
indictment charged no offense because it failed to name a robbery
1
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27
L.Ed.2d 167 (1970).
-2-
victim by name; (2) that the indictment was improperly based upon
uncorroborated statements of his co-defendants; (3) that trial
counsel rendered ineffective assistance in failing to properly
investigate the case and raise the alleged indictment errors; and
(4) that the trial court erred in denying the motion for a full
evidentiary hearing.
Wilson's first argument is that six of twenty-five counts
of the indictment failed to charge an offense because they did not
refer to the robbery victim by name.
Wilson contends that since
counts three, four, nine, ten, thirteen, fourteen and fifteen of
the indictment mention the victims as "an employee . . ." or as "a
customer . . .", he is entitled to relief pursuant to Stark v.
Commonwealth, Ky., 828 S.W. 2d 603 (1992).
ment
stated
that
the
offense
was
In Stark, the indict-
committed
"upon
Moby
Dick
Restaurant" and, in other counts, upon 4-Star Video, Hardees
Restaurant and Spalding Cleaners.
The Supreme Court of Kentucky
held that only a person can be the victim of a robbery and that the
reference to a business as a victim was not sufficient.
Id. at
606. The Commonwealth argues that Thomas v. Commonwealth, Ky., 931
S.W.2d
446
(1996),
which
Wilson's claim of error.
overruled
Stark,
is
dispositive
of
In Thomas, the Supreme Court stated that
"if the defense needs details to adequately prepare, the defense
'should be supplied them through a requested bill of particulars,
rather than that a requirement be made that every indictment set
forth all details of the charge.'"
Id. at 450, quoting Finch v.
Commonwealth, Ky., 419 S.W.2d 146, 147 (1967).
-3-
Our review of the indictment herein leads us to conclude
that the indictment did not fail to name a person who was robbed.
Simply because the indictment failed to designate a specific person
as the victim by providing his or her name does not mean that it
failed to designate a person.
necessarily a person.
"An employee" or "a customer" is
Wilson was not entitled to relief.
The second issue that Wilson raises is whether the
uncorroborated testimony of his co-defendants was sufficient to
support the grand jury indictment.
However, "[t]he legality and
sufficiency of evidence heard by a grand jury is not subject to
review in this Court."
Harrell v. Commonwealth, Ky., 328 S.W.2d
531, 532 (1959), citing Rice V. Commonwealth, Ky., 288 S.W.2d 635
(1956).
As explained in the United States Supreme Court case of
Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 408,
100 L.Ed. 397 (1956), and quoted in Rice,
Petitioner urges that this Court should
exercise its power to supervise the administration of justice in federal courts and
establish a rule permitting defendants to
challenge indictments on the ground that they
are not supported by adequate or competent
evidence. No persuasive reasons are advanced
for establishing such a rule.
It would run
counter to the whole history of the grand jury
institution, in which laymen conduct their
inquiries unfettered by technical rules.
Neither justice nor the concept of a fair
trial requires such a change. In a trial on
the merits, defendants are entitled to a
strict observance of all the rules designed to
bring about a fair verdict.
Rice, 288 S.W.2d at 638.
Thus, Wilson's argument regarding the
alleged insufficiency of the evidence before the grand jury is
without merit.
-4-
Next,
we
address
Wilson's
ineffective assistance of counsel.
claim
that
he
received
Wilson alleges that his trial
counsel rendered ineffective assistance by not recognizing and
acting upon the alleged deficiency in the indictment. To show that
counsel's assistance was ineffective, Wilson must prove that (1)
counsel's performance was deficient, and (2) that the deficient
performance prejudiced his defense.
Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Accord Gall v.
Commonwealth, Ky., 702 S.W.2d 37 (1985); cert. denied, 478 U.S.
1010, 106 S.Ct. 3311, 92 L.Ed.2d 724 (1986).
"In the absence of a
showing
counsel
that
some
alternative
action
compelled a mistrial or a dismissal . . .
will rarely be shown."
S.W.2d 742, 743 (1986).
by
would
have
ineffective assistance
Robbins v. Commonwealth, Ky.App., 719
Since there was no error in the indictment
for counsel to discover, obviously trial counsel's assistance could
not be deemed to be ineffective.
As his final argument, Wilson claims that the trial court
erred by denying him an evidentiary hearing.
Sparks v. Common-
wealth, Ky.App., 721 S.W.2d 726, 727 (1986), states as follows:
Where, as here, the trial court denies a
motion for an evidentiary hearing on the
merits of allegations raised in a motion
pursuant to RCr 11.42, our review is limited
to whether the motion "on its face states
grounds that are not conclusively refuted by
the record and which, if true, would invalidate the conviction." Lewis v. Commonwealth,
Ky., 411 S.W.2d 321, 322 (1967).
Where the
movant's allegations are refuted on the face
of the record as a whole, no evidentiary
hearing is required.
Hopewell v. Commonwealth, Ky.App., 687 S.W.2d 153, 154 (1985).
-5-
The arguments Wilson made in his motion are refuted on the face of
the record; and therefore, no evidentiary hearing was required.
The order of the
Jefferson Circuit Court denying Wilson
RCr 11.42 relief is affirmed.
ALL CONCUR.
-6-
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Tracy D. Wilson, Pro Se
LaGrange, KY
Hon. A.B. Chandler, III
Attorney General
Hon. Karen Quinn
Assistant Attorney General
Frankfort, KY
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
