LESTER LOWE v. COMMONWEALTH OF KENTUCKY
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RENDERED:
DECEMBER 22, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2004-CA-002476-MR
LESTER LOWE
APPELLANT
APPEAL FROM TAYLOR CIRCUIT COURT
HONORABLE DOUGHLAS M. GEORGE, JUDGE
ACTION NO. 86-CR-00052
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: HENRY AND VANMETER, JUDGES; MILLER, SENIOR JUDGE. 1
HENRY, JUDGE:
Lester Lowe appeals, pro se, from an order of the
Taylor Circuit Court denying his petition for post conviction
relief pursuant to Kentucky Rules of Civil Procedure (CR) 60.02.
For the reasons stated below, we affirm.
In August 1986, Grover Whitehead was beaten to death
and robbed at his home in Taylor County.
A tree limb found near
the body was believed to have been used to beat the victim to
death.
1
A whiskey bottle with Lowe’s fingerprints was found near
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statute 21.580.
the body.
A witness, Maxine Hitch, testified that she dropped
Lowe off near the victim’s residence on the night of the murder,
and later picked him up.
With others, Hitch also witnessed that
Lowe had a large amount of money after the murder, and was later
told by Lowe that if “she ever told he killed that old man or
robbed him, she would go down with him.”
On August 19, 1986, the Taylor County Grand Jury
returned an indictment against Lowe charging him with the murder
of Whitehead and first-degree-robbery.
The Commonwealth
subsequently notified Lowe that it intended to seek the death
penalty in the case.
Following a jury trial, Lowe was found
guilty of the murder of Whitehead and sentenced to life without
the possibility of parole for 25 years, and of first-degree
robbery, for which he was sentenced to 20 years.
Lowe’s
conviction and sentence was upheld on direct appeal to the
Supreme Court.
Lowe has previously filed two petitions for postconviction relief pursuant to Kentucky Rules of Criminal
Procedure (RCr) 11.42, and a petition for relief pursuant to CR
60.02, all of which were denied.
Lowe’s present petition for
post-conviction relief was filed on March 24, 2004.
On August
25, 2004, the circuit court entered an order denying Lowe’s
motion for relief.
This appeal followed.
- 2 -
Before us, Lowe contends that the circuit court erred
in denying his motion for relief under CR 60.02.
Lowe alleges
that the following irregularities associated with his conviction
entitle him to relief:
1)
the Commonwealth failed to disclose
prior to trial that a confidential informant met with witness
Maxine Hitch, and that the informant then took Hitch to meet
with police; 2) the Commonwealth failed to disclose before trial
that the footprints of another suspect, Charlie Bagby, were
found at the scene of the crime; and 3) the Commonwealth failed
to comply with a circuit court order to send a whisky bottle
located at the scene of the crime to the Kentucky State Police
Crime Lab for fingerprint analysis.
The claims raised by Lowe may not be considered in a
CR 60.02 motion.
In Gross v. Commonwealth, 648 S.W.2d 853 (Ky.
1983), the Kentucky Supreme Court explained that the structure
of post-conviction review is not haphazard or overlapping.
at 856.
Id.
It held that a criminal defendant must first bring a
direct appeal when available, then utilize RCr 11.42 by raising
every error of which "he is aware, or should be aware, during
the period when this remedy is available to him."
Id. at 857.
CR 60.02 may be used only in extraordinary circumstances not
otherwise subject to relief by direct appeal or by way of RCr
11.42.
Id. at 856.
- 3 -
More recently, in McQueen v. Commonwealth, 948 S.W.2d
415 (Ky. 1997), the Court reiterated the procedural requirements
set out in Gross when it stated: “Civil Rule 60.02 is not
intended merely as an additional opportunity to relitigate the
same issues which could ‘reasonably have been presented’ by
direct appeal or RCr 11.42 proceedings.
Commonwealth, supra, at 855, 856.
RCr 11.42(3); Gross v.
The obvious purpose of this
principle is to prevent the relitigation of issues which either
were or could have been litigated in a similar proceeding.”
Id.
at 416.
Lowe could reasonably have raised the claims stated
herein in the two previous RCr 11.42 proceedings he has filed.
Moreover, the issues raised by Lowe do not amount to an
extraordinary circumstance and, accordingly, may not be raised
in the present CR 60.02 motion.
In addition, the rule under
which Lowe seeks relief, CR 60.02, requires that the motion be
made within a “reasonable time.”
Lowe’s conviction was in May,
1987, almost 17 years prior to the filing of Lowe’s present CR
60.02 motion.
The motion was, therefore, not brought within a
reasonable time, and was correctly denied without a hearing by
the circuit court.
As such, we will not address Lowe’s claims
on the merits.
For the foregoing reasons, the order of the Taylor
Circuit Court is affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lester Lowe, pro se
Luther Luckett Correctional
Complex
LaGrange, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Louis F. Mathias, Jr.
Assistant Attorney General
Frankfort, Kentucky
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