Opinion
NO. 2018-CA-000266-MR
01-17-2020
KEVIN ROWE APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Maureen Sullivan Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky James Havey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 05-CR-00116 OPINION
AFFIRMING
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BEFORE: GOODWINE, TAYLOR, AND K. THOMPSON, JUDGES. GOODWINE, JUDGE: Kevin Rowe ("Rowe") appeals the January 31, 2018 order of the Pike Circuit Court denying his motion for DNA testing. We affirm.
BACKGROUND
On April 17, 2006, a Pike County jury found Rowe guilty of murder for shooting and killing Tammy Hylton and criminal attempt to commit murder for shooting Robin Hylton with the intent to kill him. On May 4, 2006, the trial court entered a final judgment, sentencing Rowe to life imprisonment for the murder of Tammy Hylton and twenty years for the attempted murder of Robin Hylton to run concurrently.
On direct appeal, the Supreme Court of Kentucky affirmed the trial court's judgment. Rowe v. Commonwealth, No. 2006-SC-000356-MR, 2007 WL 1532334 (Ky. May 24, 2007). Rowe then began filing post-conviction motions. Rowe filed a motion under RCr 11.42, which the trial court dismissed as untimely. This Court affirmed the trial court's denial of that motion. Rowe v. Commonwealth, 355 S.W.3d 480 (Ky. App. 2011). He also filed a motion under CR 60.02, which the trial court denied because the allegations in the motion were not supported by the record. This Court affirmed the trial court's ruling, noting that raising his claims in a CR 60.02 motion did "not cure the fact that Rowe should have brought these claims in a timely RCr 11.42 motion." Rowe v. Commonwealth, Nos. 2013-CA-001240-MR and 2014-CA-001714-MR, 2016 WL 6134909, at *5 (Ky. App. Oct. 21, 2016).
Kentucky Rules of Criminal Procedure.
Kentucky Rules of Civil Procedure.
Rowe then filed the underlying motion for release of physical evidence for testing of DNA evidence found on several items from the crime scene. The trial court noted that the motion "reads more like a RCr. 11.42 claim for ineffective assistance of counsel rather than a proper motion for DNA testing." R. at 156. As to Rowe's DNA testing claims, the trial court found that Rowe failed to argue "as to what role a favorable DNA test, within a reasonable probability would have played at trial." Id. The trial court denied Rowe's motion, and this appeal followed.
STANDARD OF REVIEW
We review a trial court's ruling on a DNA testing motion under an abuse of discretion standard. Owens v. Commonwealth, 512 S.W.3d 1, 13 (Ky. App. 2017). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
ANALYSIS
First, Rowe argues he established sufficient cause under KRS 422.285 to test DNA evidence found on the following items: (1) a cigarette butt collected from the scene, (2) Robin Hylton's cellphone, (3) Robin Hylton's handgun, (4) Robin Hylton's shirt, and (5) Rowe's previously tested Kawasaki Prairie ATV. KRS 422.285 "affords certain felons the post-conviction right to DNA testing of certain evidence." Owens, 512 S.W.3d at 7. To be entitled to relief under KRS 422.285, the petitioner must adhere to filing requirements and be a person "intended by the legislature to benefit from the statute." Id. at 8. There is no dispute that Rowe met the filing requirements and that he is a person intended to benefit from the statute.
Kentucky Revised Statutes.
Since Rowe meets the first two statutory requirements, he must also establish that the evidence meets the statutory requirements for testing. The evidence must be "in the possession or control of the court or Commonwealth[.]" KRS 422.285(1)(a). The statute also requires that "[t]he evidence is still in existence and is in a condition that allows DNA testing and analysis to be conducted[.]" KRS 422.285(5)(b) and (6)(b). Finally, the evidence must not have been "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[.]" KRS 422.285(5)(c) and (6)(c).
If the DNA evidence is eligible for testing, the trial court must determine "whether the evidence would have made a difference had it been available before or at trial." Owens, 512 S.W.3d at 10 (citing Bowling v. Commonwealth, 357 S.W.3d 462, 467-68 (Ky. 2010)). The trial court must "undertake the 'reasonable probability' analysis under the assumption that the evidence will be favorable to the movant." Bowling, 357 S.W.3d at 468. The petitioner must "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 sentence, or be exculpatory." Id. Exercising its sound discretion, "the trial court must then" determine "whether such reasonable probability exists, looking to whether such evidence would probably result in a different verdict or sentence." Id.
The trial court's reasonable probability analysis begins at subsection (5) of the statute. The court "must assess whether '[a] reasonable probability exists that the petitioner would not have been prosecuted or convicted' if such evidence had been available before or during the original trial. KRS 422.285(5)(a). If the trial court reasonably so concludes, the trial court has no discretion and 'shall order DNA testing and analysis[.]' KRS 422.285(5) (emphasis added)." Owens, 512 S.W.3d at 10.
If the petition does not satisfy subsection (5)(a), the trial court must then conduct the reasonable probability analysis under subsection (6)(a). The court must determine, within a reasonable probability, whether: (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[.]" KRS 422.285(6)(a). If either prong is satisfied, then the trial court "may order DNA testing and analysis[.]" KRS 422.285(6) (emphasis added).
Rowe asserts testing the cigarette butt, cellphone, shirt, and ATV would establish whether someone else was present at the crime scene. There is no dispute that the Commonwealth possesses these items or that they are in a condition that allows DNA testing. However, Rowe failed to satisfy the "reasonable probability" test. Even if someone else's DNA was found on these items, "this would not exonerate Appellant, and even with an alternate perpetrator theory, the presence of someone else's DNA would not necessarily be exculpatory." Bowling, 357 S.W.3d at 469. If testing showed that DNA on the items came from someone else who was present at the crime scene, "the jury would still be required to speculate as to" whether someone else committed the murder and attempted murder. Id. Rowe failed to establish, within a reasonable probability, that the DNA deposited on these items would preclude him as the shooter. See id. There was ample evidence against Rowe, including Robin Hylton's positive identification of Rowe as the shooter, and Rowe's girlfriend's testimony that he washed hair and blood from a pistol at her house. As such, Rowe failed to satisfy the requirements of KRS 422.285, and the trial court correctly found no further DNA testing was required.
As to the DNA evidence found on Rowe's ATV, it is not eligible for testing under the statute. It was previously tested, and Robin Hylton's DNA was found on the left brake handle. Swabs from other parts of the ATV contained a DNA profile "consistent with the blood being a mixture of that from Robin and from Rowe." Rowe, 2007 WL 1532334 at *3. Because the blood found on the ATV was tested previously, Rowe was required to "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.'" Bowling, 357 S.W.3d at 468 (quoting KRS 422.285(5)(c) and (6)(c)).
This statute was amended June 29, 2017. The subsections listed are from the amended version. Bowling references (2)(c) and (3)(c). --------
Rowe argues that modern technology would confirm the presence of Robin's and Rowe's DNA or show that someone else was at the scene. The trial court found that "Rowe has not detailed how new testing is 'qualitatively different' from the testing methods available during trial." R. at 156-57. Again, Rowe's argument is speculative, and the mere presence of someone else's DNA does not prove Rowe's innocence. He failed to show how re-testing the evidence would yield a qualitatively different result, and that re-testing would resolve an issue not previously resolved by testing the evidence.
Rowe also argues he established sufficient cause to test Robin Hylton's handgun. However, he admits the handgun at issue is not in the Commonwealth's possession. Because it is not in the Commonwealth's possession, it cannot be tested under KRS 422.285(1)(a). Therefore, the trial court correctly declined to order testing on the handgun.
Next, we address ineffective assistance of counsel arguments interspersed throughout Rowe's claims. To the extent Rowe's motion can be construed as one under RCr 11.42, his claims are successive. He filed a motion under RCr 11.42 raising claims of ineffective assistance of counsel. The trial court denied that motion, and this Court affirmed the trial court's order. Successive post-judgment motions are prohibited, so Rowe's arguments regarding trial counsel's performance are barred. Sanders v. Commonwealth, 339 S.W.3d 427, 438 (Ky. 2011).
Finally, Rowe argues the trial court failed to make preliminary findings relating to the existence and testability of the evidence under Owens. The Commonwealth asserts Rowe did not raise this issue below. This issue is unpreserved, and Rowe does not request review for palpable error under RCr 10.26. Thus, we decline to address this argument. See Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008).
CONCLUSION
For the foregoing reasons, we affirm the order of the Pike Circuit Court.
TAYLOR, JUDGE, CONCURS.
THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Maureen Sullivan
Louisville, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky James Havey
Assistant Attorney General
Frankfort, Kentucky