Bowling v. Parker

Decision Date17 September 2003
Docket NumberNo. 01-5832.,01-5832.
Citation344 F.3d 487
PartiesThomas Clyde Bowling, Jr., Petitioner-Appellant, v. Phillip Parker, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Susan J. Balliet (briefed), Department of Public Advocacy, Frankfort, KY, Elizabeth R. Stovall (argued and briefed), Commonwealth of Kentucky, Department of Public Advocacy, LaGrange, KY, for Petitioner-Appellant.

Joseph T. Bouvier, Commonwealth Attorney's Office, Lexington, KY, Ian G. Sonego (argued and briefed), Office of the Attorney General, Frankfort, KY, for Respondent-Appellee.

Before: MOORE, GILMAN, and GIBBONS, Circuit Judges.



Thomas Clyde Bowling, Jr. ("Bowling") appeals the district court's judgment denying both his petition for a writ of habeas corpus and his request for an evidentiary hearing in conjunction with that petition. Bowling was convicted in state court of murdering Tina and Eddie Earley and sentenced to death. His conviction and death sentence were affirmed by Kentucky courts on direct appeal and in post-conviction proceedings. In the district court and now on appeal, Bowling raises numerous claims of error. He contends that he was denied proper jury instructions, given ineffective assistance of counsel, deprived of an evidentiary hearing, denied a fair jury, subjected to numerous instances of prosecutorial misconduct, and given a sentence that was constitutionally disproportionate. For the reasons that follow, we AFFIRM the decision of the district court below, and deny Bowling's petition for a writ of habeas corpus and his request for an evidentiary hearing.

A. Factual Background

Early in the morning on April 9, 1990, Eddie and Tina Earley were shot to death in their automobile in a parking lot outside a Lexington dry-cleaning establishment. Their two-year-old son Christopher was also shot, but not fatally. Police arriving at the scene found several witnesses offering varied observations of the shooter, collected several bullets from inside and outside the vehicle, and recovered debris consistent with a car collision. After analyzing the debris, the police determined that the Earleys' car must have been hit by a 1981 light blue Chevrolet Malibu. They also determined that a 1981 Malibu was registered in the county to Bowling. The police, however, did not seek to arrest Bowling at that point; instead they pursued several theories of who could have murdered the Earleys.

On the following day, April 10, 1990, police received a telephone call from Bowling's sister, Patricia Gentry. Gentry and her mother, Iva Lee Bowling, were worried because they had not seen Bowling, who was affectionately known as T.C., since approximately 6:00 a.m. the preceding day. Watching the news reports, they realized that Bowling's car matched the description of the suspected killer's car. Searching for Bowling, the two women drove to property owned by the family in rural Powell County. There they discovered Bowling's car. Bowling, however, was not there. When they returned to Gentry's Knoxville home, they discovered Bowling asleep on the couch. After consulting with their minister, they called the police, who came and picked Bowling up without incident. The police then recovered Bowling's car from the Powell County property, where they also discovered a buried .357-magnum revolver.

Bowling was represented at trial by three attorneys: Baldani, Summers, and Richardson. Prior to trial, these attorneys had Bowling undergo a neurological and psychological evaluation by Dr. Donald Beal.

B. The Trial

On December 10, 1990, the trial began. The court's stated goal in voir dire was to qualify forty-four of the ninety-nine pooled jurors. Qualifying forty-four jurors would allow the defendant to have eighteen peremptory challenges and the government twelve, with twelve people remaining to be jurors and two to be alternates. Later, however, the court stated that it was worried that the jury pool would be too small, so it ended up qualifying forty-eight jurors, but then struck the four extra jurors.

On December 12, the guilt phase of the trial began. The Commonwealth produced twenty-five witnesses. There were three eye-witnesses to the crime. The first, Larry Turner, never saw the shooter; he went to the crime scene after hearing what he thought was a car backfiring. By the time he reached the car, the killer had already fled, and Turner observed only the Earleys' dented car, the dead bodies, and the child crying. David Boyd testified that while stopped at a stoplight, he looked back to see two cars in the parking lot and a man firing a gun into one of them. According to Boyd, the shooter then stood and looked at the scene before driving off. Boyd described the car as being a light blue 1979 or 1980 Malibu and described the shooter as being six feet tall with a medium build, wearing a black jacket and a brimmed hat. The third eyewitness, Norman Pullins, who had seen the events from a nursing home across the street, could not be found by either party. By agreement of the parties, the police played their audiotape of an interview with Pullins that took place the morning of the shootings. The police next testified regarding the crime scene and presented to the jury photographs and a videotape depicting the scene in considerable detail.

The Commonwealth then focused on the evidence discovered at the Bowling property in Powell County. One officer testified that he found Bowling's Malibu in the thicket, and an orange jacket, an orange Little Caesar's T-shirt from Bowling's workplace, and a black Rangers' hat in a small shed. The officer also found an unused outhouse on the property into which several empty alcohol bottles had been thrown. Another officer testified to finding the gun on the property. Lastly, an officer testified that he retrieved Bowling's personal effects from his sister's house, including a black jacket.

The state then introduced expert testimony. A forensic pathologist testified that the Earleys had no chance of surviving the injuries that they sustained. A police automotive expert testified that the glass, plastic, and chrome debris from the crime scene matched Bowling's car. Another expert testified that paint from the Earleys' car had rubbed off (because of the accident) onto Bowling's car, and that paint from Bowling's car had also rubbed off on the Earleys' car. The expert unambiguously stated that tests on the paint samples demonstrated that it was Bowling's car that had rammed into the Earleys' vehicle. A state ballistics expert identified the recovered gun as a Smith and Wesson.357 and stated that the bullets shot from it would have identical markings to those recovered from the crime scene. On cross-examination, however, he admitted that there may be millions of guns that would have left marks like those on the bullets found at the crime scene.

The Commonwealth also presented testimony from Clay Brackett that he had sold a similar-looking Smith and Wesson .357 to Bowling a few days before the killings. There were also two witnesses, Jack Mullins and Jack Strange, who placed Bowling on the road in front of the property in Powell County the evening of the murders.

The Commonwealth then called Bowling's family to testify to the events leading up to the telephone call that they made to the police. Bowling's family testified that Bowling had been seriously depressed in the weeks before the shootings. Bowling was also obsessed with death. During a drive with his mother a few days before the shooting, Bowling told her that his time had run out and that she should look for him at the family property in Powell County if he disappeared. During this drive, Bowling had stopped for approximately thirty minutes in a parking lot, behind the nursing home property across from the dry-cleaning place where the Earleys worked. Bowling had also shown to his family the gun that he had recently purchased from Brackett.

The defense presented no witnesses, choosing not to present the expert testimony of Dr. Beal. Bowling's counsel asked for time to inform Bowling again of his right to testify, but after consulting with Bowling, counsel announced that Bowling would not testify.1 The defense rested on their cross-examinations of the witnesses. The defense had brought out Bowling's erratic behavior during the weekend before the shootings. Brackett admitted, while he was being cross-examined, that he traded in handguns without keeping records and had poor memory and hearing. David Boyd admitted that he may have told a police detective that the shooter had long brown hair, a dark complexion, and possibly a mustache — none of which describe Bowling. Though defense counsel did not gain much ground from the expert witnesses, the Commonwealth's ballistics expert did concede that the .357-magnum was one of perhaps millions of guns that could have fired the bullets that killed the Earleys. Defense counsel also established that none of Bowling's possessions, including his car, had any blood on them, that there were no fingerprints found on the gun or at the crime scene, and that the only lead residue on Bowling's belongings was inside the left pocket of his jacket and could have come from a gun or from bullets.

The defense asked for jury instructions on extreme emotional disturbance, circumstantial evidence, and reckless homicide. The trial court denied these instructions. The jury found Bowling guilty of intentionally murdering Tina and Eddie Earley and assaulting their son Christopher.

Before the penalty phase began, Bowling, his defense counsel, and the prosecution met because Bowling had filed a pro...

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