Thacker v. Com.
| Decision Date | 18 February 1972 |
| Parties | Lenoral THACKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Lawrence R. Webster, Pikeville, for appellant.
John B. Breckinridge, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for appellee.
CATINNA, Commissioner.
This is an appeal from an order overruling appellant's motion to vacate a judgment of conviction pursuant to RCr 11.42. Appellant complains that he was convicted on perjured testimony.
Thacker was sentenced to life imprisonment on a verdict finding him guilty of committing rape upon a child under twelve years of age. The crime consisted of a series of acts of rape commencing in the summer of 1966 and extending up to March 4, 1969. The prosecuting witness, Carolyn Sue Hess, the stepdaughter of Thacker, testified in detail concerning the repeated acts of Thacker. Her testimony was corroborated by that of her sister and brother, Teresa Lynn Hess and Gene Lee Hess. The mother, Betty Jo Thacker, wife of Lenoral Thacker, did not testify at the trial, although she had done so at the examining trial and before the grand jury.
Thacker moved for a new trial, filing in support of the motion affidavits of Carolyn Sue Hess, Teresa Lynn Hess, Gene Lee Hess, and the mother Betty Jo Thacker. These affidavits recanted the prior testimony of these witnesses and admitted a conspiracy to falsely convict Thacker.
The motion for a new trial was overruled. An appeal was taken to this court. Upon a consideration of the appeal the court had available and examined the entire proceeding of the trial court, including all testimony and exhibits heard and filed in support of the motion for new trial. The case was affirmed. See Thacker v. Commonwealth, Ky., 453 S.W.2d 566 (1970).
This court has previously examined and passed on every ground alleged in the RCr 11.42 motion, and the court will not retry those issues. It is not the purpose of RCr 11.42 to permit a convicted defendant to retry issues which could and should have been raised in the original proceeding, nor those that were raised in the trial court and upon an appeal considered by this court. See Hoskins v. Commonwealth, Ky., 420 S.W.2d 560 (1967); Fields v. Commonwealth, Ky., 408 S.W.2d 638 (1966); and Parsley v. Commonwealth, Ky., 400 S.W.2d 202 (1966).
The judgment is affirmed.
All concur.
To continue reading
Request your trial
-
Taylor v. Jordan
...Kentucky Rule 11.42. That rule barred a defendant from presenting claims already adjudicated on direct review. See Thacker v. Commonwealth , 476 S.W.2d 838, 839 (Ky. 1972). Taylor's motion included 45 claims of error, including a claim under Swain v. Alabama , 380 U.S. 202, 85 S.Ct. 824, 13......
-
Slaughter v. Parker
...have been raised on direct appeal, so it is not appropriate for an RCr 11.42 motion." (Dkt. No. 13, App.225) (citing Thacker v. Commonwealth, 476 S.W.2d 838 (Ky.1972) (RCr 11.42 does not permit a defendant to retry issues which could and should have been raised in the original proceeding or......
-
Taylor v. Simpson, Civil Action No. 5: 06-181-DCR
...an issue that was raised and decided against him on direct appeal. This is foreclosed by both the above-discussed rule set forth in Thacker, and the law of the case doctrine. Under the law of the case doctrine, "an opinion or decision of an appellate court in the same cause is the law of th......
-
Hodge v. White
...each of these allegations were addressed and resolved on direct appeal and cannot be raised in an RCr 11.42 motion. Thacker v. Commonwealth, 476 S.W.2d 838 (1972).Hodge v. Commonwealth, 68 S.W.3d 338, 345 (2001). The Court begins with the presumption that the Kentucky Supreme Court adjudica......