SAMUEL ODELL THACKER v. COMMONWEALTH OF KENTUCKY
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RENDERED: April 6, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1999-CA-002948-MR
SAMUEL ODELL THACKER
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE RON DANIELS, JUDGE
INDICTMENT NO. 97-CR-00150
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, EMBERTON and HUDDLESTON, Judges.
HUDDLESTON, Judge: Samuel Odell Thacker appeals from the denial of
his Kentucky Rule of Criminal Procedure (RCr) 11.42 motion to
vacate ten, five and thirty-year concurrent sentences after a jury
convicted
him
endangerment
of
and
first-degree
of
being
a
robbery,
first-degree
second-degree
persistent
wanton
felony
offender.
Thacker was accused of forcibly taking a purse from the
victim while the victim was attending a quilt show on the streets
of Paducah.
A Paducah police officer saw the incident and gave
chase to Thacker.
At one point during the chase, Thacker pointed
a gun at the pursuing police officer and threatened to shoot him.
Eventually, Thacker was apprehended after being found hiding under
a bridge.
The McCracken County grand jury returned an indictment
against Thacker charging him with first-degree robbery, firstdegree wanton endangerment, possession of a handgun by a convicted
felon
and
being
a
second-degree
persistent
felony
offender.
Thacker was convicted of all counts except for possession of a
handgun by a convicted felon1 and was sentenced to a total of
thirty years’ imprisonment.
conviction.2
The Supreme Court affirmed Thacker’s
Thacker then filed a motion pursuant to RCr 11.42 to
vacate, set aside or correct his sentence, which was denied by the
circuit court.
This appeal followed.
Thacker contends that he received ineffective assistance
of counsel as a result of several errors committed by his trial
counsel.
a
In order to establish ineffective assistance of counsel,
defendant
must
show
both
that
counsel’s
performance
was
deficient, and that the deficiency resulted in actual prejudice
affecting
the
outcome
of
the
proceeding.3
In
an
RCr
11.42
proceeding, the defendant “must do more than raise doubt about the
regularity of the proceedings under which he was convicted.
He
must establish convincingly that he has been deprived of some
1
This charge was severed from the trial.
2
See Thacker v. Commonwealth, 1998-SC-000048-MR (Unpublished
opinion rendered March 25, 1999).
3
See Strickland v. Washington, 466 U.S. 688, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984); see also Harper v. Commonwealth,
Ky., 978 S.W.2d 311, 314 (1998), cert. denied, ____ U.S. ____, 119
S. Ct. 1367, 143 L. Ed. 2d 527 (1999).
-2-
substantial right which would justify the extraordinary relief
afforded by this post-conviction proceeding.’”4
There is a strong
presumption that counsel’s conduct fell within the wide range of
reasonable
assistance
that
the
defendant
must
overcome.5
“A
defendant is not guaranteed errorless counsel, or counsel adjudged
ineffective by hindsight, but counsel reasonably likely to render
and rendering reasonably effective assistance.”6
First,
Thacker
alleges
it
was
error
for
his
trial
attorney to fail to request a hearing to determine whether a
jacket,
found
near
the
location
where
Thacker
was
arrested,
actually belonged to Thacker as the arresting officer claimed.
Thacker, however, does not tell us how the introduction of the
jacket harmed him.
We are aware of no hearing that Thacker’s counsel could
have
requested
to
establish
Thacker’s possession.
whether
the
jacket
had
been
in
Although Thacker contends that a Daubert7
hearing should have been conducted, it is apparent that Thacker
misunderstands the purpose of a Daubert hearing. A Daubert hearing
is conducted to determine the admissibility of scientific evidence,
4
Commonwealth v. Pelphrey, Ky., 998 S.W.2d 460, 462 (1999),
quoting Commonwealth v. Campbell, Ky., 415 S.W.2d 614, 616 (1967).
5
See Strickland, supra n. 3, at 689.
6
McQueen v. Commonwealth, Ky., 949 S.W.2d 70, 71 (1997).
7
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).
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such as DNA evidence.8
In this case, the introduction of the
jacket into evidence required no such hearing.
Also,
Thacker
contends
that
the
Commonwealth
was
required to produce the gun that he allegedly pointed at the
arresting officer in order to obtain a conviction for wanton
endangerment, and that his counsel should have requested a hearing
to raise this contention.
However, the Commonwealth was not
required to introduce the gun in order to obtain a conviction for
wanton endangerment.
The officer’s testimony that Thacker pointed
a gun at him was sufficient for the jury to find guilt beyond a
reasonable doubt.
Because the Commonwealth was not required to
produce the weapon pointed at the arresting officer, we do not find
that Thacker’s counsel rendered ineffective assistance by not
moving for a hearing.
Thacker next argues that his counsel erred by failing to
object to the alleged improper impaneling of the petit and grand
juries.
Thacker, an African-American, alleges that no African-
Americans were among those summoned for jury duty and that no
African-Americans served on the grand jury that indicted him or on
the petit jury that found him guilty.
Thacker claims that there
should have been an African-American juror in every phase of his
criminal proceeding and that the exclusion of African-Americans
from jury service is “common practice” in McCracken County.
Thacker attempts to establish a pattern of invidious
discrimination in the manner in which jurors are selected in
8
See, e.g., Johnson v. Commonwealth, Ky., 12 S.W.3d 258
(1999); Fugate v. Commonwealth, Ky., 993 S.W.2d 931 (1999).
-4-
McCracken County.
Thacker, however, fails to point to any direct
proof to create a prima facie case of underrepresentation.9
It is
not the duty of this Court to search the record when the appellant
fails to provide ample supportive references to the record.10
Nevertheless,
a
review
of
the
videotape
of
the
voir
dire
examination is inconclusive because the potential jury members
cannot be seen.
Also, no process exists by which this Court can
determine whether there were any African-Americans on the grand
jury. Thacker has failed to support his contention with supportive
references to the record and an independent review of the record by
this Court has produced no support for Thacker’s claim.
Thacker’s argument that McCracken County systematically
excludes African-Americans from its jury selection is indeed a
difficult claim to support.
The process for selecting jurors is
mandated by the Kentucky Rules of Administrative Procedure (AP)
Part II, section 3:
The selection of names of prospective jurors shall
be accomplished by computer, using the computer in the
Administrative Office of the Courts which contains a list
of the county registered voters and persons over the age
of eighteen (18) and holding valid drivers’ licenses
which were issued in the county.
The Administrative
Office of the Courts shall provide a randomized computer
9
See id. at 308 (wherein the appellant had provided
statistical data which was not sufficient to create a prima facie
case of discrimination in selection of the petit jury that
convicted him).
10
See Ventors v. Watts, Ky. App., 686 S.W.2d 833, 834-35
(1985).
-5-
list of prospective jurors.
The chief circuit judge or
his designee shall request said list a least annually.
The
list
shall
contain
a
given
number
of
names
as
requested by the chief circuit judge or designee.
The manner in which the petit and grand juries are then
selected from the computer generated list is provided in section 10
of Part II of the rules:
(1) To select a grand jury from a jury panel, the judge
or designee shall:
(a) Take identifying numbers from those assigned on the
randomized jury list;
(b) Deposit in a box numbered cards bearing the same
numbers as those assigned to the panel;
(c) Draw the required number of cards, dependent on the
number of jurors to be chosen, from the box and record
the number of each card as it is drawn.
(2) The persons whose numbers have been drawn shall
constitute the grand jury or petit jury as the case may
be, unless excused or removed by challenge.
The initial selection from the computer database of
eligible members of the community for jury duty is random.
The
process is further randomized by the drawing of numbered cards from
a box to select potential jurors or grand jurors for each session.
The burden is on Thacker to show that this process has somehow been
circumvented in McCracken County, which he has failed to do, and
that his counsel provided ineffective counsel by not objecting to
-6-
the alleged discrimination.
Given the procedure for selecting
jurors mandated in the rules and because Thacker has failed to
support his bare allegation, we find no error.
Thacker next argues that he was denied due process of law
and a fair trial when his trial counsel failed to object to the
introduction of false testimony during the trial.
Thacker claims
that the arresting officer was erroneously allowed to testify that
Thacker was the owner of the jacket found near where Thacker was
arrested.
Also, Thacker alleges that the arresting officer was
erroneously allowed to testify that Thacker pointed a gun at him,
a
gun
Thacker
claims
never
existed.
It
was
the
jury’s
responsibility to determine whether or not to believe the arresting
officer’s testimony.
The law is well settled that questions
regarding the credibility of witnesses are reserved to the jury.11
As the finder of fact, the jury had the right to believe or
disbelieve the evidence and draw reasonable inferences.12
Juries
determine the reliability of testimony.13
Although
Thacker
attempts
to
establish
ineffective
assistance of counsel by claiming that his trial counsel should
have objected to this testimony or rebutted it in some way, he
proffers
no
evidence
that
the
testimony
was
actually
false.
Thacker does not assert that there were additional witnesses that
should have been called or that there is some rule of evidence that
11
12
See Commonwealth v. Benham, Ky., 816 S.W.2d 186 (1991).
See Partin v. Commonwealth, Ky., 918 S.W.2d 219, 221
(1996).
13
See Eldred v. Commonwealth, Ky., 906 S.W.2d 694, 708
(1994).
-7-
would have been the basis for an objection.
issue of credibility.
Instead, it became an
The jury chose to believe the arresting
officer’s testimony that Thacker had pointed a gun at him while he
pursued Thacker and chose to believe that a gun did in fact exist,
although it was never found.
Also, the jury chose to believe that
the jacket belonged to Thacker.
The circuit did not err in
allowing this testimony and Thacker’s attorney did not render
ineffective assistance in failing to challenge it.
Thacker’s next argument is that there was insufficient
evidence presented at trial to convict him, thereby violating his
right to due process and a fair trial.
This issue was addressed by
the Supreme Court in Thacker’s direct appeal, where Thacker’s
conviction was affirmed. Because this issue was raised and decided
on direct appeal, it cannot be raised again in an RCr 11.42
motion.14
Lastly, Thacker argues that he was denied a fair trial
when the Commonwealth violated the Kentucky Rules of Evidence (KRE)
during his trial.
Specifically, Thacker contends that under KRE
401 and 403 the weapon that he pointed at the arresting officer
should have been produced.
RCr 11.42 provides a vehicle to attack
erroneous judgment for reasons not accessible by direct appeal.15
The alleged violation of the Rules of Evidence is an issue that was
accessible by direct appeal and should have been raised there.
Nevertheless,
as
we
have
noted,
Thacker’s
claim
that
the
14
See Stanford v. Commonwealth, Ky., 854 S.W.2d 742, 747
(1993); see also Hicks v. Commonwealth, Ky., 825 S.W.2d 280, 281
(1992).
15
See Gross v. Commonwealth, Ky., 648 S.W.2d 853, 856 (1983).
-8-
Commonwealth was required to produce the weapon in order to prove
that the crime took place is without merit.
The order denying Thacker’s RCr 11.42 motion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Samuel Odell Thacker, pro se
West Liberty, Kentucky
Albert B. Chandler, III
Attorney General of Kentucky
Anitria M. Franklin
Assistant Attorney General
Frankfort, Kentucky
-9-
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