JACKSON (MICHAEL) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: DECEMBER 5, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
APPEAL FROM FULTON CIRCUIT COURT
HONORABLE THOMAS R. LEWIS, JUDGE
ACTION NO. 01-CR-00032
COMMONWEALTH OF KENTUCKY
** ** ** ** **
BEFORE: MOORE AND THOMPSON, JUDGES; HENRY,1 SENIOR JUDGE.
HENRY, SENIOR JUDGE: Michael Jackson appeals from an order of the Fulton
Circuit Court denying his motion for post-conviction relief pursuant to Kentucky
Rules of Criminal Procedure (RCr) 11.42. Because the record of the trial
proceedings is not included in the record on appeal, we are constrained to affirm
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(b) of the Kentucky Constitution and KRS 21.580.
the judgment of the trial court pursuant to Commonwealth v. Thompson, 697
S.W.2d 143 (Ky. 1985).
FACTUAL AND PROCEDURAL BACKGROUND
Jackson was convicted in the Fulton Circuit Court of murder and firstdegree wanton endangerment. Jackson shot and killed the victim after he had been
told that the victim raped his 13 year-old sister. The wanton endangerment
conviction was based upon Jackson having pointed the murder weapon at the
victim’s girlfriend following the shooting.
Jackson was originally sentenced to life without parole for twenty-five
years on the murder conviction and one year imprisonment on the wanton
endangerment conviction, to run consecutively. On direct appeal the Supreme
Court vacated Jackson’s sentence because of an erroneous jury instruction and
remanded for a new sentencing phase. See Jackson v. Commonwealth, 2003 WL
22415621 (Ky. October 23, 2003). Upon remand and retrial of the sentencing
phase, Jackson was sentenced to forty-eight years imprisonment. On appeal, his
resentencing was affirmed by the Supreme Court. See Jackson v. Commonwealth,
2005 WL 3131591 (Ky. November 23, 2005).
On June 4, 2007, Jackson filed a motion for post-conviction relief
pursuant to RCr 11.42. On September 10, 2007, the trial court entered an order
denying Jackson’s motion. This appeal followed.
Before us Jackson contends that (1) the trial court abused its
discretion by summarily denying his request for post-conviction relief without
appointing post-conviction counsel and without conducting an evidentiary hearing;
(2) that the trail court erred at trial by failing to instruct the jury “in a manner
consistent with the presumption of guilt or innocence and burden of proof”; and (3)
that he was deprived of his right to effective assistance of counsel “when both of
his trial defense attorney’s [sic] proceeded in this capital case without the aide of
The record of the trial proceedings is not contained in the record on
appeal but, rather, the record before us commences with the filing of the present
RCr 11.42 motion. It is an appellant's duty to see that the record is complete on
appeal. Commonwealth, Dept. of Highways v. Richardson, 424 S.W.2d 601, 603
(Ky. 1968). “It is also reasonable to place upon appellant the duty to designate and
file a record sufficient to enable the court to pass on the alleged errors.” Burberry
v. Bridges, 427 S.W.2d 583, 585 (Ky. 1968). “[W]e have consistently and
repeatedly held that it is an appellant's responsibility to ensure that the record
contains all of the materials necessary for an appellate court to rule upon all the
issues raised.” Clark v. Commonwealth, 223 S.W.3d 90, 102 (Ky. 2007). When
the complete record is not before the appellate court, we are bound to assume that
the omitted record supports the decision of the trial court. Commonwealth v.
Thompson, 697 S.W.2d 143, 145 (Ky. 1985). We will not "engage in gratuitous
speculation ... based upon a silent record." Id
Without the trial record, we are unable to assess the arguments raised
by Jackson in this appeal. We accordingly are constrained to affirm the judgment
of the trial court.
For the foregoing reasons the judgment of the Fulton Circuit Court is
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Little Sandy Correctional Complex
Sandy Hook, Kentucky
Attorney General of Kentucky
Gregory C. Fuchs
Assistant Attorney General