RONNIE LEE BOWLING V. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: MARCH 21,2002
TO BE PUBLISHED
RONNIE LEE BOWLING
V.
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE LEWIS B. HOPPER, JUDGE
1989-CR-0024
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE JOHNSTONE
AFFIRMING
Appellant, Ronnie Lee Bowling, was convicted of two counts of murder, two
counts of first-degree robbery, and two counts of first-degree burglary. He was
sentenced to death on each of the murder counts and twenty years’ imprisonment on
each of the other counts, which sentences were ordered to be run consecutively for a
total of eighty years. His conviction and sentence were affirmed by this Court on direct
appeal. Bowlina v. Commonwealth, Ky., 942 S.W.2d 293 (1997), cert. denied, 522 U.S.
986, 118 S. Ct. 451, 139 L. Ed. 2d 387 (1997). Subsequently, he filed an RCr 11.42
motion with the trial courtto set aside the judgment against him. After an evidentiary
hearing on the motion, the trial court denied the motion. This appeal followed. For the
reasons set forth below, we affirm.
I. ALLEGED BRADY VIOLATION
Bowling first alleges that the prosecution failed to disclose exculpatory
information to the defense in violation of its duty to do so under Brady v. Maryland, 373
U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). This allegation centers on the
testimony of Tim Chappell.
Chappell and Bowling were incarcerated in the Laurel County Jail at the same
time. Chappell was being held on federal charges that were completely unrelated to the
state charges pending against Bowling. According to Chappell’s testimony at trial, he
and Bowling were friends at the jail, and, in the course of that friendship, Bowling
confessed to committing the crimes with which he was charged.
A. Federal Charaes
Chappell was charged with four counts of mail fraud and faced a possible
sentence of twenty years in prison in addition to a substantial fine. Three of the four
federal charges against Chappell were ultimately dismissed. Chappell pled guilty to the
remaining charge and was sentenced to two years in prison. Bowling argues that
Chappell struck a deal to trade testimony in Bowling’s state trial in exchange for a
favorable disposition of Chappell’s federal charges. In ruling on Bowling’s RCr 11.42
motion on this issue, the trial court concluded that the evidence did not support finding
that Chappell in fact had received a benefit for his testimony:
Nothing in the record herein or testimony introduced at this hearing
establishes that a benefit in fact was bestowed upon Mr. Chappell in his
Federal case. Mr. Chappell’s cooperation was brought to the attention of
the Federal Trial Judge, but as to what effect it may have had, if any,
upon his sentence, is not established.
In support of his argument that the federal court did take Chappell’s cooperation
into consideration, Bowling points to these comments made by the federal judge in
-2-
pronouncing Chappelt’s sentence: “Now, the Court feels that probation is not quite in
order, but the Court will give you what I feel is the minimum sentence under this under the situation we have here.” This statement is hardly conclusive. Moreover,
even if the federal sentencing hearing did definitively establish that a deal was struck,
there could have been no Brady violation for failing to disclose either the disposition of
the federal charges against Chappell or the federal judge’s comments made
contemporaneously with the imposition of Chappell’s sentence.
As a general rule “[tlhere is no general constitutional right to discovery in a
criminal case and Brady did not create one. . . .‘I Weatherford v. Bursev, 429 U.S. 545,
559, 97 S. Ct. 837, 846, 51 L. Ed. 2d 30, 42 (1977). Rather, Brady concerns those
cases in which the government possesses information that the defense does not and
the government’s failure to disclose the information deprives the defendant of a fair trial.
Therefore, reversal is required only where “there is a ‘reasonable probability’ that, had
the evidence been disclosed to the defense, the result of the proceeding would have
been different. A reasonable probability is the probability sufficient to undermine the
confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct.
3375, 3383, 87 L. Ed. 2d 481, 494 (1985). Moreover, Brady only applies to “the
discovery, after trial, of information which had been known to the prosecution but
unknown to the defense.” United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392,
2397, 49 L. Ed. 2d 342, 349 (1976) (emphasis added).
Bowling’s defense counsel knew that Chappell had been convicted in federal
court and cross-examined him about the disposition of the charges. The defense, as
conceded in Bowling’s brief, could have -without the Commonwealth’s assistance or
permission - obtained the transcript of the federal sentencing hearing. Thus, in the
-3-
case at bar, there could have been no Brady violation in connection with the federal
charges against Chappell, because the information in question does not fall within the
r u l e .
Brady
B. State Charaes
1. Leslie Countv Charaes
Chappell’s wife and a friend of his wife brought charges against Chappell in
Leslie County. The charges were kidnapping, second-degree assault, and first-degree
wanton endangerment and were ultimately dismissed. Chappell testified at Bowling’s
trial that the Leslie County charges against him were dismissed based on the request of
the two women who brought the charges. Bowling argues that the Commonwealth
should have discovered the reason for the dismissal of these charges and then turned
this information over to the defense if it proved to
be exculpatory under Brady. t
B u
a s
noted above, Brady turns on fair disclosure and does not create the right to discovery in
a criminal trial. Further, it certainly does not create an obligation on the Commonwealth
to perform the type of investigation suggested by Bowling here.
2. Fayette County Charges
At the time of Bowling’s trial, Chappell had felony charges pending against him in
Fayette County. The defense was unaware of these charges. Bowling argues that the
Commonwealth should have disclosed information regarding the pending charges to
the defense because they were admissible to show bias. That is, evidence of the
pending charges would have shown that Chappell had a motive to curry favor with the
Commonwealth’s Attorney prosecuting Bowling’s case, Tom Handy, in order to receive
lenient disposition of the charges.
-4-
There is authority to support the proposition that “knowledge may be imputed to
the prosecutor, or a duty to search may be imposed, in cases where a search for readily
available background information is routinely performed, such as routine criminal
background checks of witnesses.” Odie v. Calderon, 65 F. Supp. 2d 1065 (N.D. Cal.
1999) (citing cases). On the other hand, the government has no duty to disclose what it
does not know and could not have reasonably discovered. Id. Absent a showing that
the prosecution would have turned up an indictment pending in a different county as
part of a routine criminal background check, knowledge of the indictment cannot be
imputed upon the prosecution. Veaa v. Johnson, 149 F.3d 354, 363 (5th Cir. 1998),
cert. denied, 525 U.S. 1119, 119 S. Ct. 899, 142 L. Ed. 2d 899 (1999). As there is no
demonstration that a routine background check would have uncovered the pending
indictments or that Handy had actual knowledge of the pending indictment, no Brady
violation has been shown. Id. Further, even if known or discoverable, the indictments
were not admissible.
Indictments are admissible to show bias. Adcock v. Commonwealth, KY., 702
S.W.2d 440, 441 (1986). That is, an indictment is admissible when it tends to show
that a witness’s “testimony may have been influenced by a desire to seek the favor or
leniency of the prosecuting officer.” Chesapeake & 0. Rv. Co. v. Pittman, 283 Ky. 63,
138 S.W.2d 962, 964 (1940); see also Spears v. Commonwealth, Ky. App., 558 S.W.2d
641, 642 (1977) (An indictment, though not admissible as impeachment evidence, is
admissible “to show that the testimony of the prosecuting witness was influenced by a
desire to seek the favor or leniency of the prosecuting officer.“). In this case, the
pending Fayette County indictment would not have shown Chappeli’s bias.
-5-
Bowling’s case was tried in the Laurel Circuit Court. Handy, whose jurisdiction
does not extend to Fayette County, was not in a position to grant any favor or leniency
to Chappell in connection with the charges pending against Chappell in the Fayette
Circuit Court. Since there was no connection between Handy and the case against
Chappell in Fayette County, the pending Fayette County indictments were not
admissible. On appeal, Bowling argues that there was a connection. But the only
support he offers for this claim is a letter written by Handy to the Fayette Circuit judge
who sentenced Chappell, after Chappell had pled guilty to reduced charges. This letter
does not support Bowling’s claims.
While the letter does request the trial court to show Chappell some consideration
for his cooperation in Bowling’s trial, the consideration Handy asked for was not for a
more lenient sentence; rather, it was that the sentencing court urge additional
protection for Chappell during his incarceration. Further, the letter states in pertinent
part: “No one knew Mr. Chappell nor did Mr. Chappell ever request or receive any
favorable treatment by the Commonwealth, or law enforcement as a result of his
testimony.” There was no Brady violation in connection with the charges pending
against Chappell in Fayette County.
II. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
GUILT/INNOCENCE PHASE
Bowling raises nine (9) separate ineffective assistance of counsel claims. We
apply the Strickland standard and address each claim separately below. The Strickland
standard sets forth a two-prong test for ineffective assistance of counsel:
First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed by the Sixth Amendment.
Second, the defendant must show that the deficient performance
-6-
prejudiced the defense. This requires showing that counsel’s errors were
so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674,
693 (1984). To show prejudice, the
defendant must show there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is the probability sufficient to
undermine the confidence in the outcome.
Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 695.
A. Gilbert Jones
Bowling argues that his trial counsel was ineffective for failing to call Gilbert
Jones as a witness. We disagree.
Bowling, Chappell, and Jones were all held at the Laurel County Jail at the same
time. Before Bowling’s trial, Jones informed Bowling’s defense counsel that he heard
Chappell say that he (Chappell) intended to make up information about Bowling in order
to help himself. Thus, this testimony would have impeached Chappell’s testimony to a
degree. At the evidentiary hearing on Bowling’s RCr 11.42 motion, defense counsel
testified that he thought that Jones’s testimony would have been unpersuasive because
he would have had to argue, “Don’t believe this felon [Chappell], believe my felon
[Jones].” Based on this testimony, the trial court ruled that the decision not to call
Jones was reasonable trial strategy.
Bowling argues that this ruling was incorrect because it ignores the value of
Jones’s testimony relative to the value of Chappell’s testimony. Bowling argues that,
because Chappell stood to gain something and Jones did not, the jury would have
believed Jones instead of Chappell. Further, Bowling argues that, had defense counsel
-7-
properly investigated Chappell, counsel would have discovered that Chappell had in
fact traded his testimony for lenient treatment. This, Bowling argues, would have made
Chappell less credible than Jones.
We do not believe that Bowling has overcome the strong presumption that
counsel was effective in connection with this issue. See Strickland, 466 U.S. at 690,
104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Therefore, we hold that the decision not to call
Jones as a witness was not ineffective assistance of counsel.
B. Prior Bad Acts
The charges against Bowling concern two separate crime scenes. The first set
of charges relate to a robbery and burglary at Jones’s Chevron Station in Laurel
County, in which the service station attendant was murdered. These crimes occurred
on January 20, 1989. The second set of charges relate to a robbery and burglary at the
Hensley Spur Station in Laurel County, in which the service station attendant was
murdered. These crimes occurred on February 22, 1989. Prior to trial, the defense
moved in limine to exclude any evidence of the shooting incident that occurred three
days after the Hensley crimes occurred. We explained this evidence on direct appeal:
Rickey Smith, who owned and operated the Quality Sunoco
Service Station in Mt. Vernon (Rockcastle County), Kentucky, testified as
to events which occurred at his station soon after he opened around 6:00
a.m. on February 25, 1989, three days after the Hensley murder in Laurel
County. After opening the station, but before putting out the equipment
and displays, he saw a car pulling on to the lot. He waited at his desk and
the driver came in and asked about getting a job. At trial, Smith identified
the driver as the appellant. Smith testified that the appellant asked if the
station ever had two employees on duty at the same time, to which Smith
answered in the negative. The appellant kept looking out the window of
the service station at the road and the driveway. As he started to leave
the station, the appellant pulled out a revolver and began shooting at
Smith until he ran out of bullets. Smith stated that he dove behind a metal
desk and hit the floor face down. As soon as he heard the appellant stop
shooting, he pulled out his own revolver and returned shots. Smith
-8-
observed the appellant run to his car and drive off. This incident occurred
only three days after the murder of Marvin Hensley.
Bowling, 942 S.W.2d at 300.
The trial court denied the motion in limine and admitted the evidence of the
Rockcastle County shooting’ because it rebutted Bowling’s claims that he did not have
a handgun, and because forensic evidence linked Bowling to the charges involving the
Laurel County crimes at Jones’s Chevron and the Hensley Spur Station. On direct
appeal, we affirmed the trial court’s ruling that evidence of the Sunoco shooting was
admissible:
The evidence pertaining to the appellant’s attempted murder of
Rickey Smith at the Mt. Vernon Sunoco Service Station was sufficiently
probative under KRE 404(b). Forensic evidence linked the same handgun
and bullets used at Rickey Smith’s service station to the murder of Ronald
Smith at the Jones’ Chevron service station, to the murder of Marvin
Hensley at the Hensley Spur Station, and to bullets found in possession of
the appellant. The three incidents were sufficiently similar and interrelated
for an inference that all three were committed by the same perpetrator.
Moreover, there is a remarkable similarity between the respective crimes
in Laurel and Rockcastle counties. In each, a lone service station
operator was robbed during the early morning and shot with the same
weapon.
Bowlinq, 942 S.W.2d
at 301.
Bowling argues that the Commonwealth’s Attorney improperly argued that the
Sunoco shooting was so similar to the crimes for which Bowling stood charged that all
three crimes had to have been committed by the same person. Bowling argues that
this was contrary to the trial court’s ruling and that his counsel was ineffective for failing
to object to this argument. But as shown above, we held on direct appeal that the
‘From the record, it appears that Bowling was indicted for this shooting, but,
because the shooting occurred in Rockcastle County, the indictment was not joined with
the two Laurel County indictments.
-9-
evidence was admissible for this purpose, i.e., the Sunoco shooting was so similar to
the shootings and robberies of the other stations that it was admissible as a modus
operandi that was proof of Bowling’s identity as perpetrator of the two charged
robberies and murders. See. eo., United States v. Myers, 550 F.2d 1036, 1054 (5th
Cir. 1977) which states:
The probity of evidence of other crimes where introduced [to prove
identity] depends upon both the uniqueness of the modus operandi and
the degree of similarity between the charged crime and the uncharged
crime. Of course, it is not necessary that the charged crime and the other
crimes be identical in every detail. But they must possess a common
feature or features that make it very likely that the unknown perpetrator of
the charged crime and the known perpetrator of the uncharged crime are
the same person.
(Internal citations omitted).
There could have been no ineffective assistance of counsel in connection with
this claim because failure to object to admissible evidence cannot result in ineffective
assistance of counsel.
C. Bullet Composition Evidence
Donald Havekost testified as an expert for the Commonwealth. Havekost, at the
time of Bowling’s trial, was assigned to the scientific analysis section of the F.B.I.
Laboratory in Washington, D.C. His testimony concerned compositional analysis of
bullets recovered from the Jones’s Chevron crime scene, from the Hensley Spur Station
crime scene, from the Sunoco shooting and from a partially filled box of .38 special
ammunition recovered from Bowling. Using this analysis, Havekost matched (a) one of
the bullets recovered from Jones’s Chevron with a bullet recovered from the Hensley
Spur Station; (b) three of the bullets recovered from the Hensley Spur Station with three
of the bullets recovered from the Sunoco Station; (c) two other bullets recovered from
-lO-
the Hensley Spur Station with another one of the bullets recovered from the Sunoco
shooting, and matched those three bullets with three of the bullets contained in
Bowling’s box of ammunition; and (d) another one of the bullets recovered from the
Sunoco shooting with five other bullets contained in Bowling’s ammunition box. Thus,
Havekost was able to link, either directly or indirectly, unused ammunition found in
Bowling’s possession with spent ammunition found at the two charged crime scenes
and the uncharged Sunoco crime scene.
At a pretrial hearing on February 28, 1992, defense counsel moved for an
independent examination of physical evidence including an examination of bullets and
bullet fragments held by the Commonwealth as evidence against Bowling. The
Commonwealth noted that discovery was made to the defense two years prior, but had
no objection. The Commonwealth also argued that the court had no power to order the
F.B.I. to test the evidence. After renewing the motion for independent analysis on July
6, 1992, the trial court granted the motion for independent analysis on July 9, 1992. On
August 5, 1992, the trial court entered an order to transport evidence to the state
facilities Jefferson Regional Forensic Laboratory. The bullets and bullet fragments
examined by Havekost were included on the inventory sheet of evidence to be
transported.
Further, the order stated that the report from the tests were to be sent only
to defense counsel.
At the RCr 11.42 evidentiary hearing, defense counsel testified that he agreed to
the use of the state facilities because of his interpretation of the applicable law at the
time, which - according to the legislative history of KRS 31.185 - provided in
pertinent part:
-ll-
Any defending attorney operating under the provisions of this chapter is
entitled to use the same state facilities for the evaluation of evidence as
are available to the attorney representing the commonwealth. If he
considers their use impractical, the court concerned may authorize the
use of private facilities to be paid for on court order by the county.
1974 Kentucky Acts, Ch. 358, § 11. Thus, defense counsel’s decision to allow the
bullets and bullet fragments to be sent to the same laboratory that the Commonwealth
used, was reasonable.
The Jefferson Regional Forensic Laboratory was unable to perform the bullet
composition analysis. While the laboratory was able to forward the evidence to the
F.B.I. for bullet composition analysis when the Commonwealth submitted the evidence,
for whatever reason, it was unable to forward the evidence to the F.B.I. when the
defense submitted the evidence.
It became clear that the Jefferson Regional Forensic Laboratory was unable to
do the bullet composition analysis or forward the evidence to the F.B.I. So, on
September 9, 1992, defense counsel again moved for independent analysis using an
independent expert. The trial court granted the motion, but in so doing, advised, ‘I. . .
but the Court would make it clear and in fact that it does, that in the event that this
cannot, they cannot be back, does not mean that the Court will continue the case
because of the lateness of the motion.” On the same day, the trial court entered an
order that stated in pertinent part:
It is hereby ordered that pursuant to KRS 31.185, the defendant shall be
allowed funds to employ the University Analytical Microscopy Associates,
Inc. to examine some evidence previously examined by the F.B.I.
Laboratory. It was determined that the state facilities were incapable of
performing said examinations and that the F.B.I. would not re-examine the
evidence. . . . The evidence shall be examined by Dr. Allen Dozier. . . .
-12-
Pursuant to the above order, the bullet evidence was transported to an
independent laboratory on September 14, 1992. Fifteen days later, the trial court
ordered that the evidence sent to Dr. Dozier be returned to the Laurel Circuit Court to
be held in evidence for Bowling’s trial. Apparently, Dr. Dozier did no testing on the
evidence during the time it was in his possession.
In his RCr II .42 motion and on appeal, Bowling argues that defense counsel
was ineffective for failing to ensure that the independent testing of the bullets and
fragment evidence be performed. Or, in the alternative, Bowling argues that defense
counsel was ineffective for failing to move for a continuance once it became clear that
Dr. Dozier did not test the evidence.
Bowling’s first argument has no merit. Defense counsel recognized the
importance of the bullet composition evidence and repeatedly moved the court for
independent analysis of the evidence. Next, the record reveals that the trial court
affirmatively stated that it would not grant a continuance if the testing could not be done
before trial. It is not ineffective assistance of counsel to fail to perform a futile act.
Further, nothing in the record supports a finding that independent analysis would have
yielded evidence favorable to the defense.
In connection with his RCr 11.42 motion, Bowling moved for expenses to hire an
expert witness to examine the bullets and bullet fragments. As part of this motion,
Bowling tendered the vita of Robert J. Block, who holds a Ph.D. in metallurgical
engineering. Additionally, Bowling tendered a document prepared by Dr. Block entitled:
“Review of the F.B.I. Determination Regarding the Significance of the Chemical
Analysis Results Obtained from 39 Bullets.” In this document, Dr. Block acknowledged
that the procedures used by Havekost to obtain the bullet matches were valid.
-13-
But Dr.
Block questioned the confidence level of the matches obtained by Havekost. Further,
Dr. Block questioned Havekost’s decision to perform analysis on three different points
in each bullet or fragment. Dr. Block argued that using five different points would have
produced a higher degree of confidence in the results.
Dr. Block next attacked the results obtained by Havekost using his (Block’s) own
statistical analysis of the results of the chemical compositions of the bullets and
fragments obtained by Havekost. While Havekost determined that there were seven (7)
unique groupings among the bullets and fragments, Dr. Block determined that there
were only three (3) unique groupings. This, of course, casts doubt on Havekost’s
analysis of the data. Block’s attack on the interpretation of the data dovetails with
Bowling’s argument in this appeal that the methodology and basis of Havekost’s
testimony were not reliable. This argument questions the admissibility of Havekost’s
testimony. Likewise, his other arguments attack the admissibility of the bullet
composition evidence: (1) there was no statistical evidence introduced evidencing the
reliability of the “matching” of the bullets and bullet fragments; (2) that Havekost did not
testify as to how many bullets are shipped for sale in a single consignment or in what
quantity the manufacturer boxes the bullets; and (3) that Havekost had no established
expertise in the pattern and practice of the business of manufacturing bullets either
industry wide, or by the specific manufacturer Havekost identified as making all the
bullets he tested.
The admissibility of Havekost’s testimony could have been raised on direct
appeal. This is true even though defense counsel did not object to its introduction at
trial. See, e.a., Sanders v. Commonwealth, Ky., 801 S.W.2d 665, 668 (1990) cert.
denied, 502 U.S. 831, 112 S. Ct. 107, 116 L. Ed. 2d 76 (1991). Thus, the issue cannot
-14-
be raised or addressed in this appeal from the denial of Bowling’s RCr 11.42 motion.
See Haight v. Commonwealth, Ky., 41 S.W.3d 436, 441 (2001) cert. denied, - U.S.
-3 122 S. Ct. 471, 151 L. Ed. 2d 386 (2001) which holds that an RCr 11.42 motion is
limited to issues that were not and could not have been raised on direct appeal.
Bowling’s argument that defense counsel was ineffective for failing to ensure that the
bullets and fragments were independently analyzed appears to be an attempt to
circumvent this rule. If so, the attempt fails.
Assuming arguendo that counsel was deficient, there is no showing of prejudice
to Bowling. What an independent analysis of the bullets and fragment evidence would
have revealed is pure speculation. It may have been beneficial to the defense. On the
other hand, independent analysis may have increased the level of confidence in
Havekost’s results. Moreover, as Dr. Blocks report reveals, Bowling’s main point of
contention with the accuracy of Havekost’s testimony lies not with the actual results of
Havekost’s chemical analysis, but rather with Havekost’s interpretation of the data.
Thus, independent analysis of the bullets and fragments was not necessary to dispute
Havekost’s grouping results. Therefore, we hold in the alternative there is not a
reasonable probability that the outcome of Bowling’s trial would have been different had
an independent examination of the bullets and fragment evidence been performed.
D. Edward Euaene Herren
Bowling argues that defense counsel failed to interview Herren prior to his trial
testimony and that this resulted in ineffective assistance of counsel. We disagree.
Herren delivered the Corbin Times Tribune to Jones’s Chevron during the period
when the crimes for which Bowling was convicted occurred. On January 19, 1989,
Herren overheard two men talking in the public restroom at Jones’s Chevron. One of
-15-
the men said, “The [MF] is fried,” and formed his hand into the shape of a gun. Jones’s
Chevron was robbed the next day and the attendant on duty was shot and killed.
The defense called Herren as a witness. Herren related the threatening
comment he overheard, the concurrent hand gesture, and a physical description of the
two men engaged in the conversation. Herren testified that he was positive that neither
man was Bowling. Further, he testified that this occurred before the robbery and
shooting. But on cross-examination, he testified that he heard the threat after the
robbery and murder and not before as he had testified on direct examination.
Herren
admitted on the stand that this rendered his testimony meaningless. This contradictory
testimony was based on questions by the Commonwealth concerning dates contained
in a police report. The dates on the police report were incorrect. If correct, the dates
would not have impeached Herren’s testimony as to when the events occurred.
Bowling argues defense counsel failed to interview Herren prior to trial. Further,
he argues that, had defense counsel interviewed Herren and investigated the dates in
the report, then the confusion concerning the dates would not have occurred or could
have been cleared up easily on redirect. This, Bowling argues, was deficient
performance that deprived him of effective assistance of counsel. The trial court found
that defense counsel and Herren had discussed Herren’s testimony prior to Bowling’s
trial. Further, the trial court concluded that additional or contradictory testimony elicited
on cross-examination was not counsel error.
There is sufficient evidence in the record to support the trial court’s finding of
fact. Thus, the finding of fact was not abuse of discretion. Therefore, we affirm the trial
court on this basis. Further, even if there was no support for either the trial court’s
findings or conclusions on this issue, the alleged failure to interview Herren could not
-16-
rise to the level of ineffective assistance. Herren’s testimony had little or no probative
value. There is not a reasonable probability that, had Herren’s testimony been
corrected, the result of Bowling’s trial would have been different.
E. Randy Harris
Randy Harris contacted the police after the robbery and murder at Jones’s
Chevron. Harris told the police that he stopped briefly at the service station to buy
cigarettes, but he changed his mind and drove off without going inside. As he was
driving away, he saw a man run out of the service station, jump into an old green car,
and drive away. While stopped at a red light, Harris was able to observe this man.
While Harris could not identify the man, he was certain that it was not Bowling.
According to Harris, these events occurred at approximately the same time that
Jones’s Chevron was robbed.
Harris was a convicted felon who resided at the time in Virginia. Defense
counsel contacted Harris in Virginia and asked whether he would be willing to testify on
Bowling’s behalf. Harris indicated that he would not come voluntarily, but that he would
honor a subpoena. Apparently, defense counsel began preparing a subpoena for
Harris but never completed the task.
Bowling argues that defense counsel was deficient for failing to subpoena Harris
as a witness under the Uniform Act to Secure the Attendance of Witnesses from Within
or Without a State in Criminal Proceedings. KRS 421.230-270. In ruling on Bowling’s
RCr 11.42 motion, the trial court denied relief: “It is speculative as to whether or not
[the KRS 421.2501 procedure would have been successful, and even if Mr. Harris’[s]
attendance had been procured, whether or not it would have affected the outcome
. . . . II
-17-
KRS 421.250( 1) requires that a motion be made with the trial court, in which a
proceeding is pending, to certify that a witness is material and necessary to the
proceeding. The party wishing to subpoena the witness has the burden of showing
materiality. Dillinaham v. Commonwealth, Ky., 995 S.W.2d 377, 382 (1999). Once
certification of materiality is obtained, it is presented to a court of record in which the
witness is found. Id. The out-of-state court must then make an independent
determination as to whether the witness is material and as to whether compelling the
witness to attend would cause the witness undue hardship. Id. The ruling of the out-ofstate court cannot be challenged in or reviewed by a court in the Commonwealth of
Kentucky. Id.
The materiality of Harris’s testimony - the out-of-state witness in this case - is
far from apparent on its face. And, of course, there is no basis to consider how an outof-state court would have ruled on the question of undue hardship. Therefore, we
agree with the trial court that it is speculative as to whether Harris’s attendance at
Bowling’s trial could have been secured under the Uniform Act. Consequently, whether
Bowling was prejudiced by the failure to subpoena Harris cannot be determined. Just
as there can be no ineffective assistance of counsel for failing to object to admissible
evidence, Commonwealth v. Davis, Ky., 14 S.W.3d 9, 11 (1999), there can be no
ineffective assistance for failing to attempt to introduce inadmissible evidence or in
failing to subpoena a witness whose attendance at trial cannot be secured.
F. April Lunsford
April Lunsford testified for the defense and provided an alibi for Bowling for the
time when the Hensley Spur Station crimes were committed. On cross-examination,
the Commonwealth questioned her about a recent arrest, which was for operating a
-18-
motor vehicle without a license. She was with Bowling’s brother, John Bowling, when
she was arrested. Additionally, the Commonwealth questioned her about a note found
in her purse when she was arrested. The note read: “You are being watched by a .38
special, thank you, John Bowling.”
Bowling argues that defense counsel should have learned the nature of
Lunsford’s arrest. Further, he argues that defense counsel should have moved for a
continuance to question Lunsford in private about the meaning of the note signed by
John Bowling. Unlike the argument concerning Edward Herren, Bowling’s argument is
not that counsel failed to confer with Lunsford before she testified. Rather, Bowling
argues that defense counsel failed to elicit all pertinent information, including any
possible impeachment evidence, while conferring with her.
Bowling would set the bar for effective assistance of counsel too high. He would
have us move toward requiring near perfect performance by defense counsel, viewed
with the benefit of hindsight. This is contrary to the Strickland standard, which requires
not optimal performance but, rather, reasonably effective assistance. See. a., Fields
v. Baaley, 275 F.3d 478, 484 (6th Cir. 2001). While perhaps not perfect, defense
counsel’s preparation and questioning of Lunsford was reasonably effective under
Strickland. Therefore, we affirm the trial court’s ruling that there was no ineffective
assistance of counsel concerning Lunsford.
G. Handicapoed Jurors
Bowling argues that defense counsel was ineffective for failing to object to the
trial courts excusal of two handicapped jurors before voir dire because the courthouse
elevator was not working. The trial court found that there was no evidence in the record
to support this claim. Likewise, we find the record to be silent on the issue. Thus, the
-19-
trial court’s finding of fact on this issue was not clearly erroneous. We affirm the trial
court’s ruling that there was no factual support for Bowling’s ineffective assistance of
counsel claim on this issue.
H. Juror Siner
Bowling argues that Ena Siner stated in voir dire that she could not consider the
full range of penalties. Bowling argues that there was ineffective assistance due to the
failure to either move to strike Siner for cause, or to use a peremptory strike to remove
her from the jury. The trial court found that this claim was not supported by the record
and that Siner did state that she could give consideration to the full range of penalties.
This finding of fact is not clearly erroneous. Therefore, we affirm the trial court’s ruling
that there could have been no ineffective assistance of counsel on this issue.
I. Alibi instruction
Bowling argues that defense counsel was ineffective for failing to request an alibi
instruction. This issue was not raised in Bowling’s RCr 11.42 motion and, therefore, is
not properly before this Court. See West v. Commonwealth, Ky., 780 S.W.2d 600, 602
(1989), cert. denied, 518 U.S. 1027, 116 S. Ct. 2569, 135 L. Ed. 2d 1086 (1996). The
issue will not be considered or discussed further.
III. THE RCr 11.42 HEARING
Bowling raises a number of arguments that allege deprivation of various
constitutional rights at his RCr 11.42 hearing. We address each below.
A. Recusal of the Trial Judae
Bowling argues that the trial judge should have recused himself from presiding
over the RCr 11.42 hearing. We disagree.
-2o-
Bowling argues that the trial judge was a material witness at the hearing. The
record does not support this claim.
Bowling argues that, by questioning certain witnesses at length, the trial judge
created the appearance that he was taking sides. The cases Bowling cites in support
of his argument all concern jury trials. See, e.a., United States v. Sheldon, 544 F.2d
213 (5th Cir. 1976). The core issue in these cases is whether the judge’s questions had
a prejudicial impact on the jury. But in this case, there was no jury. Thus, no jury
impact concerns are present here. Further, we believe that the trial court did not
exceed its authorization to interrogate witnesses in this case.
The trial court is authorized by KRE 614 to question witnesses. When the trial
court acts as the trier of fact, the extent of examination of witnesses by the presiding
judge is left to the trial judge’s discretion. See. e.g., United States v. McCarthy, 196
F.2d 616, 619 (7th Cir. 1952); Jordan v. Guinn, 485 S.W.2d 715, 719 (Ark. 1972). Our
review of the record does not show that the questions asked of witnesses or the extent
of the questioning by the trial judge was an abuse of discretion.
B. Disqualification of the Commonwealth’s Attorney
Bowling argues that the trial court erred in denying his motion to disqualify
Commonwealth’s Attorney, Tom Handy, from representing the Commonwealth in the
evidentiary hearing on the RCr 11.42 motion. While we agree with the trial court’s
ruling, we believe that Handy should have disqualified himself. But, based upon the
facts of this case, we can offer Bowling no relief.
Prior to the evidentiary hearing on his RCr 11.42 motion, Bowling filed a motion
for the trial court to recuse Handy because he was going to be a material witness at the
hearing. This motion was based on defense counsel’s stated intention to call Handy as
-21-
a witness in connection with the alleged Brady violations outlined above and additional
allegations of prosecutorial misconduct in connection with two witnesses who testified
at trial. At a pre-hearing conference, the Commonwealth urged the trial court to deny
the motion. The Commonwealth argued that Handy was not the only witness available
to testify to the matters alleged in Bowling’s RCr 11.42 motion. Further, the
Commonwealth argued that to grant the motion would allow Bowling to control who
prosecuted his case in the evidentiary hearing. The trial court denied the motion on
grounds that Bowling had not established a sufficient basis to disqualify Handy.
KRS 15.733(3) provides: “Any prosecuting attorney may be disqualified by the
court in which the proceeding is presently pending, upon a showing of actual prejudice.”
We cannot say that the trial court erred in concluding that no actual prejudice had been
shown by the defense, especially in light of the Commonwealth’s assertion that other
witnesses were available to testify about the relevant matters. But KRS 15.733(2)(d)
provides in pertinent part: “Any prosecuting attorney shall disqualify himself in any
proceeding in which he . . . [i]s to the prosecuting attorney’s knowledge likely to be a
material witness in the proceeding.”
Contrary to the Commonwealth’s assurances at the pre-hearing conference,
Handy did testify at Bowling’s evidentiary hearing about material matters involving
Bowling’s allegations. At some point, Handy should have disqualified himself, but we
do not believe that Handy’s failure to disqualify himself unduly prejudiced Bowling. This
was an evidentiary hearing in which a judge was the trier of fact, and not a trial by jury.
Further, Bowling had the burden of proof at the hearing and not the Commonwealth.
The trial judge in this case is a seasoned and able judge. We have no doubt that he
-22-
was not unduly influenced by Handy’s participation as both prosecutor and witness in
this case.
C. -Other Claims
1. Continuance
Bowling argues that the trial court erred in not granting a continuance because
defense counsel wanted to (1) locate and subpoena additional witnesses, (2)
investigate the disposition of the Fayette County charges against Chappell, (3) confer
further with Bowling prior to the hearing, (4) further investigate the exclusion of disabled
jurors claim, and (5) investigate whether there were two different serial numbers for the
gun linked to Bowling at trial. Whether to grant a motion for continuance is well within
the sound discretion of the trial court. Morris v. Slappy, 461 U.S. 1, 11-12, 103 S. ct.
1610, 1616-17, 75 L. Ed. 2d 610 (1983); Crawford v. Commonwealth, Ky., 824 S.W.2d
847, 850-51 (1992). Thus, a trial court’s ruling on a continuance motion will remain
undisturbed unless it appears to the appellate court that, in overruling the motion, there
was a clear abuse of judicial discretion such as to deny the accused substantial justice.
Hunter v. Commonwealth, Ky., 869 S.W.2d 719, 721 (1994). There was no abuse of
discretion in this case.
An RCr 11.42 motion provides a forum for known grievances. Gilliam v.
Commonwealth, Ky., 652 S.W.2d 856, 858 (1983). It does not provide an opportunity
to search for or discover new grievances. Id. Therefore, there could be no abuse of
discretion for failing to grant a continuance to investigate new claims or search for
evidence to support suspected claims. As for any grounds that did not fall into the
previous category, there was no clear abuse of discretion for failing to grant Bowling’s
motion for a continuance.
-23-
2. Refusal to Allow Avowal Testimony
Bowling argues that the trial court prevented him from putting on avowal
testimony concerning his claim of ineffective assistance of appellate counsel. An RCr
11.42 motion cannot be used as a vehicle for relief from ineffective assistance of
appellate counsel. Harper v. Commonwealth, Ky., 978 S.W.2d 311,318 (1998), cert.
denied, 526 U.S. 1056, 119 S. Ct. 1367, 143 L. Ed. 2d 527 (1999). Thus, there was no
cognizable error to preserve and allowing the avowal testimony would have been an act
of futility.
3. in Camera Review
The trial court denied Bowling’s motion for an in camera review of files from
Fayette County concerning the disposition of the charges against Chappell. As
discussed above, the Fayette County indictments against Chappell were not admissible
at Bowling’s trial. Consequently, there was no reason to review the files. There was no
error.
4. Motion for Exculpatory Evidence
Bowling moved the trial court to order the Commonwealth to disclose exculpatory
evidence. The motion appears to be nothing more than an attempt to discover new
grounds for relief. Therefore, the motion was outside the scope of the purpose of the
RCr 11.42 motion.
5.
Neuropsvcholoaist
Bowling moved for the appointment of a neuropsychologist to assist in
supporting claims that defense counsel was ineffective for failing to investigate and put
on mitigating psychological evidence during the penalty phase of Bowling’s trial. The
trial court denied the motion stating, “There is no evidence that defense counsel was
-24-
ineffective in investigating [Bowling’s] background.” Thus, the trial court’s ruling was
that Bowling failed to show that the expenses for the expert funding were necessary.
A needy or indigent person charged with a serious crime is entitled to “be
provided with the necessary services and facilities of representation including
investigation and other preparation.” KRS 31 .I IO(l)(b). “Necessary services” has
been construed to mean “reasonably necessary.” Hicks v. Commonwealth, Ky., 670
S.W.2d 837, 838 (1984), cert. denied, 469 U.S. 1080, 105 S. Ct. 521, 83 L. Ed. 2d 409
(1984). In light of our holding concerning defense counsel’s investigation and
presentation of mitigating evidence in the penalty phase of Bowling’s trial, see Part IV,
infra, we conclude that the funds for a neuropsychologist were not reasonably
necessary. Therefore, we hold that the trial court did not err in denying the motion for
funds.
6. Failure to Enforce Subpoena
Beverly Lewis was a friend of Chappell’s ex-wife. Chappell was charged in
Leslie County with assaulting Lewis. As discussed above, the Leslie County charges
against Chappell were ultimately dismissed. As explained in Bowling’s brief, Lewis
would have testified that Chappell hit her over the head with a lead pipe and that she
did not know why the charges against Chappell were dismissed. Bowling argues that
this testimony would have supported his allegations that defense counsel was
ineffective for failing to investigate the dismissal of the Leslie County charges.
The trial court ruled that there was no ineffective assistance of counsel in
connection with the Leslie County charges and, thus, there was no reason to take
Lewis’s testimony. Like the trial court, we have strong doubts as to whether Lewis’s
testimony, as outlined in Bowling’s brief, would have been admissible at Bowling’s trial.
-25-
Even if admissible, there is not a reasonable probability that the results of Bowling’s trial
would have been different had Lewis testified.
7. Unsupported Errors
Bowling raises a number of additional allegations of trial court error that are
unsupported by law or by any argument in his brief, or both. These issues include:
denying Bowling’s motion to lift the standing order prohibiting contacts with the jury;
granting the Commonwealth’s motion to prohibit ex parte proceedings; denying
Bowling’s motion to supplement the record; limitation of defense counsel’s questioning
of Bowling’s trial defense counsel; preventing Bowling from presenting the testimony of
Bowling‘s brother John; and allowing the prosecutor to cross-examine a defense
witness before the direct examination of the witness. We see no reason to discuss
these issues further.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL - PENALTY PHASE
Bowling argues that his defense counsel was ineffective in the penalty phase of
his trial. The arguments center upon Bowling’s mental condition. Bowling argues that
his defense counsel should have investigated a prior spinal cord injury, prior head
injuries and any possible resulting brain damage. He argues that defense counsel
should have procured an independent neuropsychologist to examine Bowling for
possible mitigating evidence. We disagree.
The substance of Bowling’s argument is that the trial court erred in denying
defense counsel’s motion to proceed ex patte and in denying defense counsel’s motion
for an independent expert. Additionally, Bowling argues that it was error to designate
the KCPC to provide expert assistance to Bowling because such a role is outside the
scope of the KCPC’s mission. These are all errors that could have and should have
-26-
been raised on direct appeal. Indeed, Bowling argues that he was denied effective
assistance of appellate counsel for failing to raise these issues on direct appeal.
Bowling attempts to circumvent the rule that claims that could have been brought
on direct appeal cannot be raised in an RCr 11.42 motion, arguing that defense counsel
should have been more persistent in demanding expert funds for a neuropsychologist.
Under Strickland, defense counsel has an affirmative duty to make reasonable
investigation for mitigating evidence or to make a reasonable decision that particular
investigation is not necessary. Strickland, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L.
Ed. 2d at 696. The reasonableness of counsel’s investigation depends on the
circumstances of the case. Id. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. As
shown by the following chronology, we believe that defense counsel’s investigation into
psychological mitigating evidence was reasonable.
April 11, 1991:
Defense counsel files a motion for the trial court to hold ex parte
hearings on defense motions for funds for expert witnesses.
April 12, 1991:
Citing Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d
53 (1985), the trial court grants the defense motion for ex parte
hearings.
August 4, 1992:
Defense counsel makes a pretrial motion for an ex parte hearing on
a defense motion for funding for an expert witness to assist the
defense in the penalty phase. In support of the necessity of
holding the hearing ex parte, defense counsel specifically states
that he needed the assistance of a doctor who was “learned in the
particular field of neuropsychology.” Defense counsel argues that
this expertise was necessary to determine the “profound effect”
-27-
that Bowling’s spinal cord injury may have had on his subsequent
behavior. The trial court denies the defense’s motion to proceed ex
pane because defense has not shown sufficient grounds for
granting the motion. But the trial court does not preclude the
defense the right to proceed ex patte in the future.
August 5,1992:
The trial court enters an “Order directing the Kentucky Correctional
Psychiatric Center [KCPC] to Assist the Accused.” The order
specifically states that the KCPC
is hereby ordered to designate a psychiatrist and/or
psychologist to serve as an expert witness for the
accused. This expert is not to communicate with the
prosecuting authorities of the Commonwealth in any
manner in this case, or any other case involving the
same accused.
The order further provides:
The expert will examine the accused thoroughly, and
will devote particular attention to the organic head
trauma suffered by the accused, and the effect this
has had on the accused’s behavior. The expert will
also provide an accurate assessment of the
accused’s intelligence. The expert will also provide
an accurate multi-axial diagnosis of the accused. The
expert will [use] all good faith efforts to discover all
things relevant to the presentation of a mitigation
case by the accused, assuming that this case
reaches a penalty phase.
In view of the record and foregoing, we affirm the trial court’s ruling on these issues.
V. FINAL ISSUES
A. Prior Bad Acts - Penalty Phase
Bowling argues that the trial court erred in failing to admonish the jury that it
could not consider, in the penalty phase, the testimony that Bowling was responsible for
-28-
the uncharged Sunoco Service Station shooting. The admonition would have been
redundant in light of the trial court’s prior admonition to the jury in the guilt/innocence
phase that the testimony was not to be considered as evidence of Bowling’s guilt.
Further, in light of our holding on direct appeal that the testimony was admissible as
substantive evidence against Bowling, any error in failing to admonish the jury was
harmless.
B. Incorrect Standard
Bowling argues that the trial court used the wrong standard when it ruled on his
allegations concerning the improper exclusion of handicapped jurors. But the ruling
complained of was an alternative ruling: ‘I. . . even if the record did indicate that these
two handicapped jurors were excused, there’s nothing to indicate in this record . . . that
Mr. Bowling was denied his right to a fair trial.” As stated above, we affirmed the trial
court’s ruling on this issue based on its finding that there was no evidence in the record
to support the claim. Therefore, whether the trial court used an erroneous standard in
its alternative holding is not relevant.
For the reasons set forth above, we affirm the Laurel Circuit Court’s denial of
Bowling’s RCr 11.42 motion.
Cooper, Graves, Keller, and Wintersheimer, JJ., concur. Stumbo, J., concurs in
result only. Lambert, C.J., not sitting.
-29-
COUNSEL FOR APPELLANT:
Susan M. J. Martin
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 301
Frankfort, KY 40601
Teresa D. Harper
P. 0. Box 2417
511 S. Madison Street
Bloomington, IN 47402-2417
COUNSEL FOR APPELLEE:
A. B. Chandler, III
Attorney General of Kentucky
Connie Vance Malone
Susan Roncarti
Assistant Attorneys General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, KY 40601-8204
Thomas V. Handy
105 East Fourth Street
London, KY 40741
-3o-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.