Thomas Clyde Bowling v. Commonwealth of Kentucky , 2010 Ky. LEXIS 313 ( 2010 )

MODIFIED : MARCH 24, 2011
RENDERED: SEPTEMBER 23, 2010
TO BE PUBLISHED
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2008-SC-000901-MR
DATE
THOMAS CLYDE BOWLING APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT
V. HONORABLE KIMBERLY N . BUNNELL, JUDGE
NO . 90-CR-00363
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE . NOBLE
AFFIRMING
Appellant Thomas Clyde Bowling was convicted of the murders of Eddie
and Tina Earley, and assault on their infant son, who was also shot during the
crime, in Fayette Circuit Court in 1990. He was sentenced to the death penalty
for the murders . His direct appeal followed, and the judgment was affirmed .
Bowling v. Commonwealth, 873 S .W.2d 175 (Ky. 1993) . He has filed multiple
collateral attacks, none of which have resulted in a new trial. See Bowling v.
Commonwealth, 926 S.W .2d 667 (Ky. 1996) ; Bowling v. Commonwealth, 981
S .W.2d 545 (Ky . 1998) ; Bowling v. Parker, 138 F .Supp .2d 821 (E.D . Ky. 2001),
affd, 344 F.3d 487 (6th Cir. 2003) ; Bowling v. Commonwealth, 163 S .W .3d 361
(Ky. 2005) ; Bowling v. Lexington-Fayette Urban County Govt, 172 S .W .3d 333
(Ky. 2005) ; Bowling v. Commonwealth, 224 S .W.3d 577 (Ky. 2006) ; Baze v.
Rees, 217 S.W.3d 207 (Ky. 2006), affd, 553 U.S . 35 (2008) ; Bowling v.
Kentucky Dept. of Corrections, 301 S.W.3d 478 (Ky. 2000 . He now comes
before the Court seeking a new trial based on DIVA evidence not available at the
time of his trial. Because Appellant cannot meet the requirements of the DNA
statute, KRS 422.285, the trial court's order is affirmed.
I. Background
Appellant filed a motion in the original case against him in Fayette
Circuit Court seeking DNA testing pursuant to KRS 422 .285 in August 2006.
This statute provides that a person convicted of a capital offense and who
otherwise meets the requirements of the statute may "at any time" request
deoxyribonucleic acid (DNA) testing and analysis of any evidence related to the
conviction that the court or Commonwealth retains and that may contain
biological evidence . Specifically, Appellant asked for DNA testing of a jacket
allegedly worn during the crime and of his automobile .
Appellant now espouses a theory not presented at trial in support of his
DNA motion . He speculates the existence of an alternative perpetrator of the
crime onto whom he seeks to shift blame for the murders . Specifically, he
alleges that the murder may have been committed by a member of the Adams
family, members of which had befriended him and were known to engage in
criminal activity .
Though Appellant presented no direct defense during the guilt phase at
trial-he did not take the stand and called no witnesses-and instead made his
case entirely by cross examination of the Commonwealth's 25 witnesses, he
nonetheless points to evidence at trial that he claims supports his alternative
perpetrator theory, if paired with DNA evidence. He specifically claims that
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another person had the opportunity to commit the crimes and points to
evidence showing that he did not know the victims; he did not confess to their
murders ; the gun presented at trial could not be established as the murder
weapon; the two eyewitnesses gave conflicting descriptions of the murderer and
could not pick Appellant out of a line-up; and no motive was established for the
murders. He also claims that the jacket introduced at trial did not belong to
him, according to his sister's testimony.
He now argues that the Adams family did have a motive instead. One of
the victims, Eddie Earley, had turned the Adamses in for drug dealing, and the
other victim, Tina Earley, was allegedly having an affair with one of the
Adamses. Additionally, Appellant claims to have been so drunk on the day of
the murders that he has no memory of the day except for John Ed Adams
telling him he had to get his car out of town and to hide it. He theorizes that
this is when he came into contact with the jacket and that he was set up to
wear it while driving his car out of town to Powell County, where the car was
later found. He wore the jacket as he hitchhiked from Powell County to his
sister's home in Knoxville, Tennessee, where the jacket was later found.
Appellant thus believes that DNA evidence that someone else had worn the
jacket or had been in his car would have exonerated him or resulted in a
different verdict or sentence at trial.
After filing the motion for testing, the parties agreed not to pursue a
hearing to determine whether DNA evidence could be obtained from the vehicle
after 16 years. This agreement was referenced in the trial court order dated
February 22, 2007. The court did hear argument about the collar and
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underarm area of the jacket . This resulted in the trial court ordering testing of
the neck and arm area of the jacket, thereby implicitly finding that Appellant
had satisfied the "reasonable probability" standard set forth in IRS
422 .285(2)(a) or (3)(a) . As to the vehicle, in addition to noting the parties'
agreement, the trial court held that there could be no credible proof to
establish the age of the DNA, and thus an inability to connect any DNA finding
to the time of the offense, and denied DNA testing of the vehicle . The court also
found that even if DNA evidence could be found in the car, it would not fit the
criteria laid out in IRS 422 .285 .
Initial testing was done on the jacket, with the result that there was a
mixture of the DNA of at least two people on the jacket. The trial court then
declined further analysis on the jacket DNA to compare it to Appellant or other
persons on the basis that the multiple DNA findings on the jacket showed that
it had been contaminated, having been handled by numerous people during
the trial and since .
Appellant now asks this Court to review the actions of the trial court,
and to remand for complete DNA analysis . Because Appellant was sentenced
to death, his appeal is to this Court as a matter of right. See Icy. Const. §
110(2)(b) ; Leonard v. Commonwealth, 279 S.W.3d 151, 155 (Ky. 2009) ("This
Court has exclusive appellate jurisdiction over death penalty matters, even
when the appeal involves a collateral attack on a sentence of death.") .
II. Analysis
Appellant argues that he is entitled to the DNA testing under both the
United States Constitution and under KRS 422.285.
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A. Constitutional Claims
Appellant claims he is entitled to DNA testing under the Due Process
Clause, under both substantive and procedural due process theories, and
under the Eighth Amendment. None of these theories is convincing .
After Appellant submitted his brief to this Court, the .U.S . Supreme
Court issued a landmark ruling addressing whether there is a due process
right to postconviction DNA testing. See District Attorney's Office for Third
Judicial Dist . v. Osborne, 129 S .Ct. 2308 (2009) . The Court flatly denied the
existence of such a right under the rubric of substantive due process . After
noting that the defendant in Osborne had asked the court to "recognize a
freestanding right to DNA evidence" based on substantive due process, the
Court stated, "We reject the invitation and conclude . . . that there is no such
substantive due process right." Id. at 2322 .
As to whether such a right can be found in procedural due process, the
Court first looked at whether the defendant has a liberty interest that is
protected by due process . The Court found such an interest in Osborne in the
state statutes providing for postconviction relief procedures aimed at
demonstrating innocence. Id. at 2319. While Kentucky also has in place
procedures for postconviction relief, see Ky. Const. § 16 (right of habeas
corpus) ; RCr 11 .42 (challenge to lawfulness of sentence) ; CR 60 .02 (allowing
relief from judgment for mistake, newly discovered evidence, inequity or any
other reason of an extraordinary nature justifying relief,, and specifically
provides the right of a person sentenced to death to seek DNA testing, which if
granted and is favorable may be used in postconviction proceedings to seek
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relief, see KRS 422 .285, there is no statutory right to demonstrate innocence
under Kentucky law . Thus, if the Kentucky procedures create a liberty
interest akin to the one in Osborne, it is a lesser interest .
This Court, however, need not decide what, if any, liberty interest might
arise from those procedures. Osborne recognized that a person already
convicted in a fair trial cannot claim the same liberty interest as a person first
standing trial. 129 S .Ct. at 2320. As such, a convicted person is not entitled
to the "familiar preconviction trial rights" in pursuit of a "postconviction liberty
interest ." Id. at 2319 . Trial rights, such as the one to disclosure of exculpatory
evidence in Brady v. Maryland, 373 U.S . 83 (1963), are simply inapplicable in
the postconviction setting . See Osborne, 129 S.Ct at 2320 ("[The] right to due
process is not parallel to a trial right, but rather must be analyzed in light of
the fact that [the defendant] has already been found guilty at a fair trial, and
has only a limited interest in postconviction relief. Brady is the wrong
framework .") . "A criminal defendant proved guilty after a fair trial does not
have the same liberty interests as a free man." Id. Such a defendant "has only
a limited interest in postconviction relief." Id.
The states have substantial "flexibility in deciding what procedures are
needed in the context of postconviction relief." Id. A state may properly limit
the available procedures, which will be found to violate due process "only if
they are fundamentally inadequate to vindicate the substantive rights
provided." Id. This Court concludes that the procedures established in KRS
422 .285 are sufficient to vindicate any substantive right to DNA testing that
might also be created by the statute. The procedures "are similar to those
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provided for DNA evidence by federal law and the law of other States, and they
are not inconsistent with the ``traditions and conscience of our people' or with
``any recognized principle of fundamental fairness.' Id. at 2320-21 (quoting
Medina v. California, 505 U .S. 437, 446, 448 (1992)) . As such, due process
requires no additional rights beyond what is already provided in KRS 422 .285
and the various postconviction procedures found in Kentucky law .
Appellant also argues that he is entitled to DNA testing under the Eighth
Amendment, which he claims includes a right against the execution of an
innocent person . He argues that DNA testing, which might demonstrate his
innocence, is necessary to vindicate this Eighth Amendment right. First,
"[w]hether such a federal right [to be released upon proof of actual innocence]
exists is an open question," which the Supreme Court declined to decide in
Osborne. Id. at 2321 . Second, and more importantly, because this claim is
one for a procedure needed to effectuate another right, it is actually a due
process claim, where the substantive right (or liberty interest) to be protected
stems from the Eighth Amendment . As noted above, there is no substantive
due process right to DNA testing, nor is there a procedural due process right to
anything beyond what KRS 422 .285 currently provides . "The absence of a
federal constitutional right to postconviction DNA evidence forecloses
[Appellant's] Eighth Amendment claim, which rested upon his due process
argument ." Young v. Philadelphia County Dist. Attorney's Office, 341 F. App'x.
843, 846 (3d Cir. 2009) .
B. Statutory Claims
1. The Procedures Under KRS 422.285
The remaining question, then, is whether Appellant is entitled to the
additional DNA testing he seeks under Kentucky law. The postconviction DNA-
testing statute, KRS 422 .285, was enacted in 2002 and was amended in 2007
for the purpose of allowing DNA analysis of evidence that had not been
previously tested or previously tested according to current standards, when
such evidence would negate a prior conviction or result in a more favorable
verdict or sentence . Subsection (2)(a) of the statute mandates that a trial court
"shall" order DNA testing and analysis if "a reasonable probability exists" that
"the petitioner would not have been prosecuted or convicted" if the results are
exculpatory. Such a showing is essentially one of exoneration . Subsection
(3)(a) provides that a trial court "may" order such testing if it first finds that
there is a "reasonable probability" that the "verdict or sentence would have
been more favorable" because of the exculpatory DNA evidence, or a
"reasonable probability" that the analysis will in fact produce exculpatory
evidence . Both sections require prior notice to the Commonwealth and
opportunity to respond.'
' The relevant portions of KRS 422.285 read in their entirety :
(2) After notice to the prosecutor and an opportunity to respond, the
court shall order DNA testing and analysis if the court finds that all of
the following apply:
(a) A reasonable probability exists that the petitioner would not have
been prosecuted or convicted if exculpatory results had been obtained
through DNA testing and analysis ;
(b) The evidence is still in existence and is in a condition that allows
DNA testing and analysis to be conducted; and
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Thus, the first level of proof the movant must make in support of the
DNA testing request, under either section (2) or (3) of the statute, is that the
evidence sought would either exonerate the defendant, lead to a more favorable
verdict or sentence, or otherwise be exculpatory. To do this, the movant must
describe the role the evidence would have had if available in the original
prosecution. It is obvious that at this point the movant will not know with
certainty what the DNA evidence will show. Thus, two of the subsections, (2)(a)
and (3)(a)(1) require the court to undertake the "reasonable probability"
analysis under the assumption that the evidence will be favorable to the
movant .
This assumption does not mean that the movant gets a free pass simply
because he can allege that the evidence will be helpful. He must still state
what he expects the evidence to be, and how that evidence would, within a
reasonable probability, result in exoneration, or a more favorable verdict or
(c) The evidence was not previously subjected to DNA testing and
analysis or was not subjected to the testing and analysis that is now
requested and may resolve an issue not previously resolved by the
previous testing and analysis .
(3) After notice to the prosecutor and an opportunity to respond, the
court may order DNA testing and analysis if the court finds that all of the
following apply :
(a) A reasonable probability exists that either:
1 . The petitioner's verdict or sentence would have been more
favorable if the results of DNA testing and analysis had been
available at the trial leading to the judgment of conviction; or
2. DNA testing and analysis will produce exculpatory evidence ;
(b) The evidence is still in existence and is in a condition that allows
DNA testing and analysis to be conducted; and
(c) The evidence was not previously subject to DNA testing and analysis
or was not subjected to the testing and analysis that is now requested
and that may resolve an issue not previously resolved by the previous
testing and analysis .
sentence, or be exculpatory. In the exercise of sound discretion, the trial court
must then make the call whether such reasonable probability exists, looking to
whether such evidence would probably result in a different verdict or sentence .
But the analysis does not stop here.
Both sections of the statute also require that the DNA evidence still be in
existence and in such a condition that testing can be conducted. KRS
422 .285(2)(b) 8v (3)(b) . This requires the movant, at a bare minimum, to
specifically identify what is to be tested, and where on the item the DNA is
expected to be found, as it is patently unreasonable to expect every area of an
item to be tested. Since the evidence is not in the movant's custody, this may
require the Commonwealth to establish the existence and condition of the
evidence left in its or the court's control. If the Commonwealth objects that the
evidence is not testable, since the state is the custodian of the evidence, the
Commonwealth must go forward with expert testimony as to the viability of
testing, which the movant may rebut. Even though a trial court may have
found reasonable probability that the evidence as described by the movant
would exonerate him, lead to a more favorable verdict, or definitely be
exculpatory, the trial court must also find that the evidence requested to be
tested exists in a condition that will allow proper DNA testing. If it is not, then
obviously the inquiry is at an end.2
2 KRS 17 .176(l) imposes additional requirements related to this aspect of KRS
422 .285:
In addition to the requirements specified in KRS 422 .285, any evidence
submitted for testing and analysis pursuant to KRS 422.285 or 422 .287
shall be of probative value . When the motion is filed with the court
requesting testing and analysis of evidence pursuant to this section, the
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Finally, this evidence must not have been previously tested for DNA, or if
it was tested, the movant must show that the type of testing now being
requested is qualitatively different and"may resolve an issue not previously
resolved by the previous testing and analysis ." KRS 422 .285(2)(c) 8, (3)(c) . By
this language, the legislature made clear its intent not to have successive,
redundant DNA testing requests, and placed a high burden on a movant to
establish that an entirely new issue is involved . Otherwise, DNA testing,
sometimes many years after trial, is limited to the "one bite of the appld' rule.
2 . Testing of the Car
In this case, the trial court found that any DNA evidence which could be
found in the car would not present a reasonable probability of providing
evidence that would be admissible at trial or satisfy"the criteria as outlined in
KRS 422 .285 ;' because the age of any DNA found could not be established
sufficiently to determine when it was deposited in the vehicle . The trial court
properly excluded testing of DNA that at best could produce mere speculation .
The vehicle belonged to Appellant, and as its usual driver, his DNA would
obviously be in the vehicle. If DNA belonging to a member of the Adams family
were also found in the car, without being able to precisely pinpoint when the
DNA was deposited, it would prove nothing; by his own admission, Appellant
allowed the Adamses to use his car . So, even if John Ed Adams's DNA could be
found in the car after 16 years, that fact does not give rise to a reasonable
proceeding for a court to make a determination of the probative value of
the evidence proposed to be tested and analyzed.
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probability of exonerating Appellant, nor is there a reasonable probability that
it would change the verdict or be exculpatory in any way.
Appellant points to sworn statements of his experts as proof that any
DNA evidence found in the car could be shown to relate directly to the time of
the murders, but this simply overstates the case . As one of the experts put it,
"it is also possible that another person who drove the car could have left DNA,"
and "[t]hat DNA could potentially be detectable, especially if that person drove
the car immediately prior to impound." (Emphasis added.) These statements
point at best to a speculative possibility-not a reasonable probability-that
any recovered evidence would be helpful.
3. Testing of the Jacket
As to the jacket, it is questionable whether the trial court was correct in
allowing DNA testing in the first place, but if the decision is error, it is
harmless . The jacket admitted at trial was found in Appellant's possessions at
his sister's home in Tennessee . He had apparently worn the jacket in Powell
County, and took it with him as he hitchhiked to Tennessee. Though no
comparison testing was ever performed, it is almost inevitable that Appellant's
DNA would be on the jacket since he wore it. Much like the DNA in the car,
however, even if someone else's DNA was found on the jacket, this would not
exonerate Appellant, and even with an alternate perpetrator theory, the
presence of someone else's DNA would not necessarily be exculpatory.
Appellant was known to have worn the jacket at some point near the
time of the murders; the fact that another person may also have worn the
jacket would not have changed the result at trial. Appellant had an opportunity
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to challenge whether the jacket was his at trial, and now claims some of the
testimony, specifically that of his sister, would support such a finding.
Appellant has not shown by a reasonable probability that additional DNA
comparison testing would lead to a different result. "Where there is enough
other incriminating evidence and an explanation for the DNA result, science
alone cannot prove a prisoner innocent. The availability of technologies not
available at trial cannot mean that every criminal conviction, or even every
criminal conviction involving biological evidence, is suddenly in doubt."
Osbome, 129 S . Ct. at 2316 . Thus, it was appropriate for the trial court to
deny comparison testing of the jacket. If testing showed that additional DNA
on the jacket came from one of the Adamses, the jury would still be required to
speculate as to when an Adams family member had worn the jacket .
Given all the other evidence at trial-Appellant's mother testified that he
had been living with her in the weeks prior to the crime and had left her house
the morning of the murders ; physical evidence showed Appellant's car was
used in the murder ; witnesses in Powell County saw Appellant in the jacket ;
Appellant's sister testified that he always wore a black jacket, though she did
not identify the jacket produced at trial as his; the jacket was found with
Appellant in Tennessee; and gun residue was found on the jacketit cannot be
said that merely introducing evidence that the jacket had been worn by
someone else at some point in time would result in an acquittal or lesser
sentence, within a reasonable probability . Even if Appellant fleshed out his
alternative perpetrator theory with testimony that established a motive for an
Adams family member to kill the Earleys, and assuming that the other DNA on
13
the jacket belonged to a member of the Adams family, there still would be the
question of when the DNA was deposited on the jacket and still would not
preclude Appellant as the shooter, within a reasonable probability.
Thus Appellant has failed to satisfy the requirements of KRS 422 .285 .
By its use of "reasonable probability" language, the legislature set a high
threshold which must be met before a new trial can be granted based on DNA
evidence that is sought long after finality of the underlying judgment . The
movant must establish before the trial court that a viable theory exists, if DNA
testing reveals the expected, that would exonerate him, or that testing would
result in exculpatory evidence that would lead to a more favorable verdict or
sentence . Before ordering genetic testing, the trial court must make a finding,
on the record, that there is a reasonable probability that such a result will
occur. Then, depending upon the facts of a given case, the trial court must
determine, after the initial testing, whether to test further to identify any DNA
belonging to someone other than the movant . The effect of excluding the
movant by an absence of his DNA on the item tested must also be weighed in
light of the facts in a given case . The trial court necessarily has broad
discretion in applying the results of any DNA testing to the question of whether
a new trial is warranted. The trial court in this case did not clearly reach a
decision that no new trial was warranted, but such a finding was the inevitable
result of denying further DNA testing on the jacket. There was no error that
requires reversal.
III . Conclusion
Because Appellant has no constitutional right to further DNA testing and
has failed to satisfy the requirements of KRS 422 .285, the orders of the Fayette
Circuit Court denying further DNA testing are affirmed .
All sitting. All concur.
COUNSEL FOR APPELLANT:
David Michael Barron
Department of Public Advocacy
Assistant Public Advocate
Capital Post Conviction Unit
100 Fair Oaks Lane, Suite 301
Frankfort, Kentucky 40601
Jamesa J . Drake
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General
James Daryl Havey
Office of the Commonwealth's Attorney
116 North Upper Street, Suite 300
Lexington, Kentucky 40507-1161
William Robert Long, Jr.
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
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2008-SC-000901-MR
THOMAS CLYDE BOWLING APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT
V. HONORABLE KIMBERLY N . BUNNELL, JUDGE
NO . 90-CR-00363
COMMONWEALTH OF KENTUCKY APPELLEE
ORDER DENYING PETITION FOR REHEARING AND MODIFYING OPINION
The Appellant having filed a Petition for Rehearing of the Opinion of
the Court by Justice Noble, . rendered September 23, 2010 ; and the Court
being otherwise fully and sufficiently advised ;
The Court ORDERS that the Petition for Rehearing is DENIED . The
Court, on its own motion, modifies the Opinion of the Court by Justice
Noble, rendered September 23, 2010 . Pages 1, 7 and 11 are
SUBSTITUTED in lieu of the original . Said modification does not affect the
holding.
All sitting. All concur.
ENTERED : March 24, 2011 .
JUSTICE
W