Bowling v. Com.

• Citation: 981 S.W.2d 545
• Decision Date: 15 October 1998
• Docket Number: No. 96-SC-000946-MR,96-SC-000946-MR
• Parties: Thomas C. BOWLING, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

Page 545

981 S.W.2d 545

Thomas C. BOWLING, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 96-SC-000946-MR.

Supreme Court of Kentucky.

Oct. 15, 1998.

Rehearing Denied Jan. 21, 1999.

Oleh R. Tustaniwsky, Assistant Public Advocate, Richard Hoffman, Assistant Public Advocate, Department of Public Advocacy, Frankfort, for Appellant.

A.B. Chandler III, Attorney General, Connie Vance Malone, Assistant Attorney General, Kent T. Young, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, for Appellee.

GRAVES, Justice.

Appellant, Thomas C. Bowling, was convicted in the Fayette Circuit Court of the intentional murders of Edward and Tina Early and of the fourth degree assault of Christopher Early. He was sentenced to death. His convictions and sentence were affirmed by this Court on September 30, 1993, and his petition for rehearing was denied on March 24, 1994. Bowling v. Commonwealth, Ky., 873 S.W.2d 175 (1994). His petition for a Writ of Certiorari was denied by the United States Supreme Court on October 3, 1994. Bowling v. Kentucky, 513 U.S. 862, 115 S.Ct. 176, 130 L.Ed.2d 112 (1994). On January 3, 1996, an executive order was signed, scheduling Appellant's execution for February 1, 1996.

On January 26, 1996, Appellant filed an RCr 11.42 motion in the Fayette Circuit Court. At that time, Appellant's counsel requested additional time to file either an amended or a supplemental RCr 11.42 motion. The court observed the request and entered an order granting Appellant "120 days from January 26, 1996 in which to supplement his Motion for Post-Conviction Relief." In timely compliance with that order, on May 28, 1996, Appellant filed an unverified supplemental RCr 11.42 motion. Eight days later, and subsequent to the 120-day deadline, Appellant filed a verified version of the same supplemental motion. ¹

In an order entered on October 1, 1996, the Fayette Circuit Court struck the unverified supplemental motion from the record because it was not signed and verified, and struck the verified motion because the time limit in which to file the motion had expired. Further, the trial court denied Appellant's request for relief under RCr 11.42. It is from this order that Appellant appeals to this Court.

I. DISMISSAL OF APPELLANT'S SUPPLEMENTAL RCr 11.42 MOTION

Appellant argues that although RCr 11.42(2) requires that motions be "signed and verified by the movant", it does not require that any motion other than the initial pleading be signed. Furthermore, even if the rule does require verification of a supplemental pleading, Appellant contends that the rule does not mandate dismissal of a supplemental pleading merely because it is not verified. Appellant urges that rigid adherence to procedural requirements in a death penalty case should not prevent an individual from fully litigating all constitutional defects in his conviction and sentence. Rather, a policy of "substantial compliance in appellate procedure is required." Foxworthy v. Norstam Veneers, Inc., Ky., 816 S.W.2d 907 (1991); CR 73.02(2).

A trial court's ruling on a motion to amend will not be disturbed on appeal unless there has been a clear abuse of discretion. Graves v. Winer, Ky., 351 S.W.2d 193 (1961). In making its ruling, the trial court "may consider such factors as the failure to cure deficiencies by amendment or the futility of the amendment itself." First National Bank of Cincinnati v. Hartmann, Ky.App., 747 S.W.2d 614, 616 (1988).

Contrary to Appellant's assertion, we are of the opinion that although CR 73.02(2) does set forth a general theory of substantial compliance regarding the rules of appeals and motions for discretionary review, RCr 11.42 does not relate to either. Moreover, we cannot conclude that the trial court abused its discretion by declining to permit a belated verification of an unverified motion that was a supplement to a previous RCr 11.42 motion which had been filed only after protracted litigation. ² The trial court "seriously reviewed and considered the voluminous pleadings in this case" before deciding to strike Appellant's unauthorized pleadings. No error occurred.

II. CLAIMS RAISED IN THE INITIAL RCr 11.42 MOTION

Appellant argues that the trial court erred in refusing to grant an evidentiary hearing or relief pursuant to RCr 11.42. Appellant contends that trial counsel's performance was deficient in ten areas, and that evidence outside the record is necessary to establish the validity of his claims, thus requiring an evidentiary hearing.

RCr 11.42 requires a hearing "if the answer raises a material issue of fact that cannot be determined on the face of the record." RCr 11.42(5); Stanford v. Commonwealth, Ky., 854 S.W.2d 742, 743 (1993), cert. denied, 510 U.S. 1049, 114 S.Ct. 703, 126 L.Ed.2d 669 (1994). If the record refutes the claims of error, there is no need for an evidentiary hearing. Id. A hearing is also unnecessary where the allegations, even if true, would not be sufficient to invalidate the conviction. Brewster v. Commonwealth, Ky.App., 723 S.W.2d 863 (1986). "Even in a capital case, an RCr 11.42 movant is not automatically entitled to an evidentiary hearing." Stanford, supra at 743. (citing Skaggs v. Commonwealth, Ky., 803 S.W.2d 573, 576 (1990), cert. denied, 502 U.S. 844, 112 S.Ct. 140, 116 L.Ed.2d 106 (1991)). Having laid that foundation, we will address each of Appellant's claims regarding the effectiveness of his trial counsel.

1. Appellant contends that trial counsel spent an aggregate of one hour with him prior to trial and failed to keep him advised of developments in the case. However, this issue was raised and rejected on direct appeal to this Court, wherein we stated that "the trial strategy used by Bowling's counsel had a better chance of success than any of which the trial judge could think of in light of the strong evidence of guilt presented by the prosecution." Bowling, supra at 180. Therefore, Appellant is precluded from relitigating the issue in his RCr 11.42 motion. Brown v. Commonwealth, Ky., 788 S.W.2d 500 (1990).

2. While Appellant maintains his innocence, he alleges that defense counsel failed to properly investigate the possibility of asserting an Extreme Emotional Disturbance (EED) defense. Appellant claims that, had counsel informed him of the availability of an EED defense, he might have chosen to abandon his claim of innocence and have instead pursued the EED defense because he could have introduced two types of evidence to establish such a defense: 1) that his mental state in the days just prior to the murders was abnormal; and 2) that there was the requisite triggering event necessary to establish the defense. ³

The Commonwealth aptly points out, and we agree, that the "wealth of evidence" regarding EED was before the court at the end of the penalty phase and was not even sufficient to warrant an instruction on EED as a mitigating factor. Moreover, we are not inclined to embrace Appellant's theory that he would have abandoned his claim of innocence.

3. Appellant contends that the prosecution failed to disclose the name of a witness to the car accident that immediately preceded the shootings, and that trial counsel failed to take any additional steps to locate the witness. Appellant explains that the witness could have testified as to how the accident affected Appellant, thereby presenting the triggering event evidence necessary for an EED instruction.

Appellant presents no evidence that the Commonwealth knew of the witness's identity. Furthermore, defense counsel argued that the automobile accident presented sufficient evidence to support an EED instruction based upon the unchallenged conclusion that the collision occurred prior to the shootings. It was not the lack of evidence pertaining to the collision, but rather the lack of evidence showing the effect the collision had upon Appellant that precluded the EED instruction.

4. Appellant claims that he was denied effective counsel when lead counsel was indicted during trial. He alleges that counsel was distracted and even had a breakdown, and directed another member of the defense team to cross-examine witnesses until he could regain control of himself. As a result, Appellant concludes that impeachment and cross-examination were limited due to the role reversal. Also, Appellant believes that knowledge of the impending indictment may have played a role in the inadequate investigation of his case.

Appellant concedes that none of this was made part of the trial record. With no evidence that counsel's indictment had any negative implications on Appellant's trial, we cannot conclude that Appellant was denied effective counsel in this respect.

5. Appellant further contends that defense counsel failed to adequately investigate several other people who had a motive to commit the murders. However, Appellant's argument is based upon vague rumors and unsupported claims. Regardless of counsel's actions in this particular area, we are of the opinion that the mere existence of other potential suspects could do nothing to diminish the impact of the Commonwealth's overwhelming proof against Appellant. Moreover, we agree with the Commonwealth that such claim is particulary offensive when Appellant alleges to know the identity of the actual killer yet continues to withhold the information.

6. Appellant next claims that counsel failed to locate Norman Pullins, a witness to the shooting who gave a description of the shooter that was inconsistent with Appellant's appearance. The record indicates that counsel, in fact, made extraordinary efforts to locate Pullins, and even requested a continuance until he could be found. In response, the Commonwealth agreed to allow Pullins' taped statement to be introduced and played for the jury. Thus, Pullins' description of the gunman was provided to the jury without risking the possibility of an in-court identification or other potentially damaging...