PARTIN (DELMAR) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: AUGUST 27, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002360-MR
DELMAR PARTIN
v.
APPELLANT
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
ACTION NO. 93-CR-00158
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON AND VANMETER, JUDGES; LAMBERT,1 SENIOR JUDGE
.
VANMETER, JUDGE: Delmar Partin appeals from an order of the Knox Circuit
Court denying his motion for post-conviction relief. For the following reasons, we
affirm.
1
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS)
21.580.
Following a jury trial, a judgment was entered in 1994 convicting
Partin of murder. He received a sentence of life imprisonment. His conviction and
sentence was affirmed on direct appeal by the Kentucky Supreme Court.2 Partin
then sought RCr3 11.42 relief, which the trial court denied. This court affirmed the
denial of Partin’s RCr 11.42 motion.4 The Kentucky Supreme Court denied
Partin’s motion for discretionary review.
In 2008, Partin moved the trial court to order and fund DNA testing of
hair evidence presented in his 1994 trial. Specifically, Partin sought testing of hair
found on a paper towel in Partin’s home trash. Since Partin had already directly
appealed his conviction and moved for RCr 11.42 relief, the trial court treated his
motion as a motion for CR5 60.02 relief. The trial court denied his motion as
untimely and further held that neither KRS 422.285 nor KRS 31.185 applied. This
appeal followed.
Partin claims the trial court abused its discretion by denying his
motion for CR 60.02 relief. We disagree.
On appeal, we review the denial of a CR 60.02 motion for an abuse of
discretion. The test for abuse of discretion is whether the trial court’s decision was
2
Partin v. Commonwealth, 918 S.W.2d 219 (Ky. 1996).
3
Kentucky Rules of Criminal Procedure.
4
Partin v. Commonwealth, 1997-CA-002081-MR (Ky.App., Dec. 30, 1998).
5
Kentucky Rules of Civil Procedure.
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“arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted).
As an initial matter, we note that while the evidence of Partin’s guilt
was circumstantial, that evidence as a whole was sufficient to uphold the jury’s
verdict and the trial court’s denial of a directed verdict. 918 S.W.2d at 221.
Specifically, Partin and the victim had been engaged in an extra-marital affair
which the victim had recently ended; the victim was fearful of Partin; Partin was
seen by numerous witnesses at Tremco laboratory, where both he and the victim
worked, on his day off, Sunday, September 26, 1993; the witnesses placed Partin at
Tremco between 10:50 a.m. and 11:30 a.m. on that date; some witnesses saw
Partin in the vicinity of the victim prior to her disappearance; no one saw the
victim alive after Partin left Tremco on that date; the next morning, Monday,
September 27, the victim’s decapitated body was found in a fifty-five gallon drum
in the laboratory, the victim’s workstation at Tremco; the victim had been
strangled, hit in the head eight times, and decapitated; the cause of death was either
asphyxiation or blunt force trauma to the head; a lead pipe and an axe were found
at or in proximity to the murder scene; the lead pipe was consistent with existing
lab equipment; the lab had no use or need of an axe; Partin was seen carrying a bag
at Tremco on the morning of the murder which looked as if it carried something
resembling a cylinder or magazine. Early the next morning, prior to discovery of
the victim’s body, Partin falsely denied having been at Tremco on Sunday. In
addition, testimony was adduced that Partin was an experienced alligator hunter,
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having killed them by wires or ropes around the neck, hitting the head and
separating the spine.
With respect to the hair evidence which Partin now claims requires
DNA analysis, the hair was found in Partin’s kitchen trash. However, while the
state police forensic examiner testified certain hair was similar to the victim’s hair,
she also testified that other hair dissimilar to the victim’s hair was found on paper
towels in Partin’s kitchen trash. The jury, thus, was aware at the time of trial that
hair in Partin’s trash may or may not have belonged to the victim.
Against this background, we examine Partin’s claim of error. KRS
422.285 permits post-conviction DNA testing under certain circumstances.
Specifically, KRS 422.285(1) provides:
At any time, a person who was convicted of and
sentenced to death for a capital offense and who meets
the requirements of this section may request the forensic
deoxyribonucleic acid (DNA) testing and analysis of any
evidence that is in the possession or control of the court
or Commonwealth, that is related to the investigation or
prosecution that resulted in the judgment of conviction
and that may contain biological evidence.
Since Partin was not sentenced to death he was not entitled to DNA
testing and analysis per KRS 422.285(1). However, Partin maintains that the
recent case of Bedingfield v. Commonwealth, 260 S.W.3d 805 (Ky. 2008), permits
DNA testing under KRS 422.285 in non-capital cases in which the defendant is not
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sentenced to death.6 Our review of Bedingfield reveals that the Court did not
address this issue.
In Bedingfield, the Court vacated Bedingfield’s sentence pursuant to
CR 60.02 and granted his motion for a new trial based upon newly discovered
evidence. Bedingfield’s CR 60.02 motion was presented to the Court after he had
obtained the release of certain physical evidence, including the alleged victim’s
rape kit and other physical evidence, and subjected the semen samples contained
therein to forensic testing under methodologies evidently not available at the time
of his trial. Thus, Bedingfield was not requesting DNA testing under KRS
422.285. Rather, he claimed that the results of the DNA testing performed on the
forensic evidence definitively excluded him as the source of the semen recovered
from the alleged victim and, therefore, gave rise to sufficient justification for a new
trial based on newly discovered evidence. Id. at 807. Accordingly, the Court in
Bedingfield did not discuss KRS 422.285.
The plain language of KRS 422.285 allows a person convicted of and
sentenced to death for a capital offense to request DNA testing and analysis of
evidence. Since Partin was not entitled to post-conviction DNA testing under KRS
422.285, he failed to present a known grievance which necessitated a hearing
6
Bedingfield was convicted of first-degree rape and of being a persistent felony offender and
was sentenced to twenty-five years’ imprisonment.
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under KRS 31.185.7 Accordingly, the trial court did not abuse its discretion by
denying Partin’s motion for CR 60.02 relief.
Finally, in Bedingfield, the Court addressed the effect of DNA
evidence which was exculpatory, albeit non-exonerating, along with other
testimonial inconsistencies in that case. The Court stated that the new DNA
evidence “would probably induce a different conclusion by a jury” and serve to
warrant a new trial to avoid a miscarriage of justice. 260 S.W.3d at 814 (citing
RCr 10.02). Partin’s case, however, is different. Even if DNA analysis excludes
the victim as the source of any hair in Partin’s kitchen trash, even if a third
person’s DNA shows up among the evidence at the Tremco laboratory,8 which
would not be surprising given the number of persons who were in and out of that
location on Sunday, September 26, 1993, no testimonial inconsistencies exist
which otherwise cast doubt on the jury’s verdict. As the trial judge, who presided
over the trial, succinctly noted “[m]ore evidence, other than the hair, was presented
at [Partin’s] trial. Even excluding the hair from evidence, which must be [Partin’s]
intentions in testing the hair, would still not create the inference that he would
have, with reasonable certainly, been found not guilty at trial.”
The order of the Knox Circuit Court is affirmed.
7
Indigent post-conviction petitioners are entitled to public funds under KRS 31.185 “provided
that a court of competent jurisdiction has determined that an evidentiary hearing is necessary in
order to resolve the allegations contained in the post-conviction petition.” Hodge v.
Commonwealth, 244 S.W.3d 102, 109 (Ky. 2008).
8
The testing of any evidence other than the hair found at Partin’s residence was not raised before
the trial court.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Melanie A. Foote
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Jack Conway
Attorney General of Kentucky
W. Bryan Jones
Assistant Attorney General
Frankfort, Kentucky
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