HOPKINS (WILLIAM) VS. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: JULY 29, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001614-MR
WILLIAM HOPKINS
v.
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 03-CR-00100
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, KELLER, AND MOORE, JUDGES.
MOORE, JUDGE: William Hopkins, proceeding pro se, appeals the Pike Circuit
Court’s order denying his RCr1 11.42 motion for post-conviction relief. After a
careful review of the record, we affirm.
Following a jury trial, Hopkins was convicted of murder and firstdegree robbery. He was sentenced to serve a total of thirty-five years of
1
Kentucky Rule of Criminal Procedure.
imprisonment. Hopkins appealed, and the Kentucky Supreme Court affirmed the
judgment against him. See Hopkins v. Commonwealth, No. 2004-SC-0687-MR,
2006 WL 1360889, *1 (Ky. May 18, 2006) (unpublished).
Hopkins filed an RCr 11.42 motion in the circuit court, raising two
claims of the ineffective assistance of trial counsel and one claim concerning the
cumulative effect of the errors. The court entered an initial order finding no merit
to Hopkins’s claim that he received the ineffective assistance of counsel regarding
the introduction of allegedly gruesome photographs. In that order, the court stated
it would hold an evidentiary hearing concerning Hopkins’s claim that he received
the ineffective assistance of counsel due to counsel’s failure to request a change of
venue because the court found that that issue could not be resolved on the face of
the record.
Following the evidentiary hearing, the court denied Hopkins’s RCr
11.42 motion. Hopkins now appeals, raising the same claims that he asserted in
the circuit court.
In a motion brought under RCr 11.42, “[t]he movant has the burden of
establishing convincingly that he or she was deprived of some substantial right
which would justify the extraordinary relief provided by [a] post-conviction
proceeding. . . . A reviewing court must always defer to the determination of facts
and witness credibility made by the circuit judge.” Simmons v. Commonwealth,
191 S.W.3d 557, 561 (Ky. 2006), overruled on other grounds by Leonard v.
-2-
Commonwealth, 279 S.W.3d 151, 159 (Ky. 2009). An RCr 11.42 motion is
“limited to issues that were not and could not be raised on direct appeal.” Id.
ANALYSIS
A. INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO FAILURE TO
MOVE FOR A CHANGE OF VENUE
Hopkins first asserts that he received the ineffective assistance of
counsel due to counsel’s failure to request a change of venue. Hopkins alleges that
in this case,
for over 18 months[,] the news media profiled the case on
numerous occasions in [an] attempt to keep the case in
the public[ʼ]s eye. In addition, the victim[ʼ]s family
posted reward posters all over the Pike County area,
offering to pay for information that would lead to an
arrest and conviction of the person[s] responsible for the
robbery and shooting death of Charles “Coco”
Thompson. At the start of the proceedings, even before
the jury had been picked, and three days into the trial, the
victim[ʼ]s family wore buttons, in the hallways and
[c]ourtroom alike, that displayed a picture of Charles
“Coco” Thompson; with the phrase “[S]upport [C]oco[.]”
All the potential jury members that were seated in the
courtroom observed this.
(Capitalization changed).
To prove that he received the ineffective assistance of counsel, thus
warranting a reversal of his conviction, Hopkins must show that: (1) counsel’s
performance was deficient, in that it fell outside “the wide range of reasonable
professional assistance”; and (2) this deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687, 689, 104 S. Ct. 2052, 80 L.Ed.2d 674
(1984).
-3-
On direct appeal in the present case, the Kentucky Supreme Court
noted that in the trial court, defense counsel “asked the court to . . . do individual
voir dire as to pretrial publicity. . . . [T]he court agreed to do so.” Hopkins, No.
2004-SC-0687-MR, 2006 WL 1360889, at *8 (Ky. May 18, 2006) (unpublished).
The Court also found that during voir dire, defense counsel requested a
continuance to “revamp” her general voir dire questions, but her request was
denied. However, when she requested the continuance, she stated the following:
“The court . . . has pursued individual voir dire and gone through those things
which we did anticipate today. And I have no quarrel with that with the court.”
Hopkins, No. 2004-SC-0687-MR, 2006 WL 1360889, at *10 (Ky. May 18, 2006)
(unpublished).
Thus, the court did conduct the individual voir dire regarding pretrial
publicity that counsel requested, and counsel had no issue with it. Because counsel
was obviously aware that there may be issues with pretrial publicity, it was
presumably part of counsel’s strategy to not request a change of venue, and she had
no issue following the individual voir dire of the jurors. Hopkins is unable to show
that counsel rendered ineffective assistance by failing to request one. See
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (“[A] court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial
strategy.” (internal quotation marks)).
-4-
Moreover, even if counsel’s actions were not considered to be trial
strategy, Hopkins nevertheless has failed to show that the result of his trial likely
would have been different if counsel had requested a change of venue.
The amount of publicity alone is not the determining
factor for a change of venue and the mere fact that jurors
may have heard, talked, or read about a case is not
sufficient to sustain the motion. The issue is whether
public opinion is so aroused as to preclude a fair trial.
Foley v. Commonwealth, 942 S.W.2d 876, 881 (Ky. 1996) (internal citations
omitted). In Foley, the Court held on direct appeal that the trial court had not
abused its discretion in denying Foley’s motion for a change of venue because
“[t]here was no showing that the media accounts had persuaded the prospective
jurors to the extent of prejudgment.” Id.
Likewise, in the present case, Hopkins has not shown that the pretrial
publicity and buttons worn by the victim’s family persuaded the prospective jurors
to prejudge the case, particularly considering that the jurors were subjected to
individual voir dire regarding pretrial publicity. Thus, Hopkins cannot show that a
change of venue would have been warranted, even if counsel had requested it, and
that the result of his trial likely would have been different as a result.
Consequently, this claim lacks merit.
B. INEFFECTIVE ASSISTANCE OF COUNSEL REGARDING
INTRODUCTION OF PHOTOGRAPHS
-5-
Next, Hopkins contends that he received the ineffective assistance of
trial counsel when counsel failed to object to the introduction of gruesome
photographs. In reviewing this claim, the circuit court held as follows:
[I]f trial counsel had moved to exclude the “gruesome
photos,” the Court would have overruled that objection.
The general rule is that a photograph, otherwise
admissible, does not become inadmissible simply
because it is gruesome and the crime is heinous. Funk v.
Commonwealth, 842 S.W.2d 476, 479 (Ky. 1992). Were
the rule otherwise, the Commonwealth would be
precluded from proving the commission of a crime that is
by nature heinous and repulsive. Adkins v.
Commonwealth, 96 S.W.3d 779, 794 (Ky. 2003) [(citing]
Salisbury v. Commonwealth, 417 S.W.2d 244, 246 (Ky.
1967)[)].
The Commonwealth notes that “trial counsel did in fact file a Motion
to Exclude Gruesome and/or Cumulative Photographs and Exclude Use of Photos
in Ways that Would Cause Substantial Prejudice in Violation of KRE 403,” but the
record does not contain an order ruling on that motion. Regardless, as discussed
above, the circuit court held that it would have denied the motion. Therefore, even
if counsel had asked the court to rule on its motion to exclude the allegedly
gruesome photographs, the trial court would have denied that motion.
Consequently, Hopkins cannot show that the result of his trial would have been
different if counsel had requested a ruling on the motion, and this claim lacks
merit.
Moreover, in Johnson v. Commonwealth, 103 S.W.3d 687, 696 (Ky.
2003), the Kentucky Supreme Court reviewed Johnson’s claim that the trial court
-6-
erred when it denied his motion to exclude crime scene photographs because that
evidence was “ʽirrelevant and prejudicially inflammatory.’” The Court held that
Johnson’s claim must fail because he did not allege “that this visual evidence failed
to portray the crime scene or the victim’s injuries accurately.” Johnson, 103
S.W.3d at 696.
Like the situation in Johnson, Hopkins does not contend that the
allegedly “gruesome photographs” failed to portray the crime scene or the victim’s
injuries accurately. Therefore, Hopkins provides no basis for a determination that
the photographs were improperly introduced into evidence. Consequently, we
cannot say that the circuit court erred when it denied relief based upon Hopkins’s
claim that his counsel provided ineffective assistance concerning the introduction
of the photographs, as Hopkins cannot show that the result of his trial would have
otherwise been different.
C. CUMULATIVE EFFECT OF THE ERRORS
Finally, Hopkins alleges that his RCr 11.42 motion should have been
granted due to the cumulative effect of the errors he asserted in the circuit court.
However, because we have determined that none of the individual claims of error
have merit, there can be no cumulative error. See Epperson v. Commonwealth, 197
S.W.3d 46, 66 (Ky. 2006). Therefore, this claim lacks merit.
Accordingly, the order of the Pike Circuit Court is affirmed.
ALL CONCUR
-7-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
William Lee Hopkins
Pro se
West Liberty, Kentucky
Jack Conway
Attorney General of Kentucky
Frankfort, Kentucky
Michael J. Marsch
Assistant Attorney General
Frankfort, Kentucky
-8-
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.