Thacker v. Com., No. 2003-SC-0430-MR.

• Decision Date: 15 June 2006
• Docket Number: No. 2003-SC-0430-MR.
• Citation: 194 S.W.3d 287
• Parties: Shawn O. THACKER, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

194 S.W.3d 287

Shawn O. THACKER, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee.

No. 2003-SC-0430-MR.

Supreme Court of Kentucky.

June 15, 2006.

COPYRIGHT MATERIAL OMITTED

Euva D. May, Department of Public Advocacy, Frankfort, for Appellant.

Gregory D. Stumbo, Attorney General, Perry T. Ryan, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, for Appellee.

GRAVES, Justice.

Appellant, Shawn Thacker, was sentenced to twenty years imprisonment in connection with his convictions by a Hardin Circuit jury of Robbery in the First Degree, Possession of a Firearm by a Convicted Felon, and Persistent Felony Offender in the First Degree. Appellant now appeals to this Court as a matter of right. Ky. Const. § 110(2)(b).

On September 10, 2001, Appellant entered the Exxon/Stuckey's Foodmart/Service Station near Interstate 65 in Elizabethtown, Kentucky. Appellant approached the sales counter with a sleeve of crackers. As the sales clerk, Nora Miller, began to process his purchase, Appellant stated, "while you have your drawer open, give me all the money." Miller replied, "Excuse me," and then looked down to see a gun on the counter. She saw that Appellant had rested the gun on its side using his hand to partially conceal it from public view. The gun was pointed toward the mid-section of Miller's body.

Miller emptied the cash register and Appellant left with the money. Miller saw Appellant and "a black person" drive away. Miller telephoned police and provided a description of the robber which was broadcast across local police radio. Within the next two hours, Appellant robbed a Shell Station in Bullitt County. The sales clerk in Bullitt County told police that two males, one white and one black, were driving an Oldsmobile with a recognized license plate number northward on interstate 65. The information from Bullitt County was also broadcast across local police radio. Shortly after the Bullitt County robbery, Appellant and a black male were apprehended driving north on interstate 65.

During Appellant's arrest, a revolver and miscellaneous cash were found in the vehicle. Appellant was transported to the Bullitt County Sheriff's Department where he confessed on videotape to the foregoing crimes. After the confession, officers brought Miller to the parking lot of the Sheriff's Department inside a police car with tinted windows. Appellant was brought out in handcuffs, where Miller identified him as the person who robbed her. She stated that she was certain because she recognized his t-shirt.

Appellant was subsequently charged and convicted by a jury of the crimes set forth above. Appellant now asserts five assignments of error upon which he requests relief. For the reasons set forth herein, we affirm.

I.

In his first assignment of error, Appellant alleges that his conviction for first degree robbery must be vacated because the jury did not convict him of each and every element of the crime pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). Those cases hold that criminal convictions must rest upon a jury determination that the defendant is guilty of each and every element of the crime with which he is charged. Apprendi, supra, at 477, 120 S.Ct. 2348; Gaudin, supra, at 510, 115 S.Ct. 2310. In Apprendi, supra, the United States Supreme Court held simply "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. 2348.

KRS 515.020 sets forth Robbery in the First Degree, in pertinent part, as follows:

A person is guilty of robbery in the first degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft and when he ... [i]s armed with a deadly weapon.

(Emphasis added). The trial court in this case submitted the following instruction regarding First Degree Robbery¹ to the jury:

You will find the Defendant guilty of First-Degree Robbery under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:

A. That in this county on or about September 10, 2001, and before the finding of the indictment herein, he stole currency from Stuckey's in the Heartland Travel Plaza;

B. That in the course of so doing and with intent to accomplish the theft, he used or threatened the immediate use of physical force upon Nora Miller; AND

C. That when he did so, he was armed with a 22-caliber revolver.

(Emphasis added).

First-Degree Robbery is a Class B felony and carries a possible sentence between ten and twenty years imprisonment. By contrast, Second-Degree Robbery, which does not require a defendant to be armed with a deadly weapon, carries a possible sentence between five and ten years imprisonment.

KRS 500.080 lists the definitions for the term "deadly weapon," including "any weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged." Appellant claims that the question of whether or not an object is a "deadly weapon" is an essential element that must be submitted to the jury. Appellant asks this Court to overturn Hicks v. Commonwealth, 550 S.W.2d 480 (Ky.1977). In Hicks, this Court held, "[i]t should never be necessary in the instructions to define the word `deadly weapon.' Whether the particular instrument is or is not a deadly weapon should be determined by the court as a matter of law."

It is clear that one of the essential elements of Appellant's first degree robbery charge is being armed with a deadly weapon. This element consists of two questions: (1) whether the defendant was armed with the object in question, and (2) whether that object is a deadly weapon. The first inquiry involves a pure question of fact. The second inquiry, whether an object is a deadly weapon, requires an application of the law to fact. Pursuant to Hicks, the jury in this case was only permitted to decide the purely factual question, while the trial judge decided the second inquiry, which involved the application of law to facts. Appellant argues that withholding the legal determination from the jury is error. For the reasons set forth below, we agree.

The United States Supreme Court has rejected the idea that a jury is only required to decide the factual components of essential elements. Gaudin, supra, at 511-515, 115 S.Ct. 2310. In Gaudin, the Supreme Court held that the jury should have been entitled to decide the entire essential element, including the application of law to fact. To avoid conflict with United States Supreme Court precedent in Gaudin and Apprendi, we are compelled to overrule Hicks. In doing so, we reiterate that the "judge must be permitted to instruct the jury on the law and to insist that the jury follow his instructions." Gaudin, supra, at 513, 115 S.Ct. 2310 (citing Sparf v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895)). Thus, a proper jury instruction may have read:

C. That when he did so, he was armed with a deadly weapon, to wit: a 22-caliber revolver.

D. As a matter of law, a deadly weapon is defined to include any weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged.

Although the change may seem minor, this instruction ensures that the jury ultimately determines the essential elements of the offense, and acts in accordance with the law. Courts in other jurisdictions have taken a similar approach to instructing their juries on robbery. See e.g., People v. Runnion, 30 Cal.App.4th 852, 856, 36 Cal. Rptr.2d 203 (Cal.Ct.App.1994) (the trial court properly instructed the jury that the legal definition of a firearm includes a handgun, and left to the jury's determination the question of whether the weapon in the case was a handgun); State v. Davis, 349 N.C. 1, 506 S.E.2d 455, 481 (1998) (holding similarly); Strickler v. Murray, 249 Va. 120, 452 S.E.2d 648, 650 (1995) (an example of a Virginia jury instruction on robbery).

The Commonwealth argues that even if the instruction was erroneous, it was harmless error. RCr 9.24 requires us to disregard any error or defect in the proceeding that does not affect the substantial rights of the parties. The test for harmless error is whether there is any substantial possibility that the outcome of the case would have been different without the presence of that error. Commonwealth v. McIntosh, 646 S.W.2d 43, 45 (Ky.1983). The United States Supreme Court has held that an erroneous jury instruction that omits an essential element of the offense is subject to harmless-error analysis. Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). We do not believe that the outcome of the case would have been different had the jury been properly instructed, as there is little doubt that the jury would have found a 22-caliber revolver to be a deadly weapon.² The error was harmless.

II.

Next, Appellant argues that the Commonwealth failed to present sufficient evidence to sustain a conviction for possession of a firearm by a convicted felon. Appellant argues that the revolver in this case was missing a pin which is designed to hold the cylinder, and raises doubts as to the gun's operability due to this missing pin. As such, Appellant claims that the revolver was not a "firearm" under KRS 527.040. KRS 527.010(4) sets forth the definition of "firearm" as "any weapon which will expel a projectile by the action of an explosion."

We do not believe that this issue was properly preserved for review, as Appellant's motion for directed verdict did not specify this ground as a basis for relief. CR 50.01; see also Potts v. Commonwealth, 172 S.W.3d 345, 347-48 (Ky.2005) (a mere motion...