Bowling v. Parker
| Citation | 138 F.Supp.2d 821 |
| Decision Date | 29 March 2001 |
| Docket Number | No. Civ.A. 99-236.,Civ.A. 99-236. |
| Parties | Thomas Clyde BOWLING, Jr., Petitioner, v. Phillip PARKER, Warden, Respondent. |
| Court | U.S. District Court — Eastern District of Kentucky |
Randall L. Wheeler, Elizabeth R. Stovall, Public Advocate's Office, Frankfort, KY, for Thomas Clyde Bowling, Jr., petitioner.
Connie V. Malone, David A. Smith, Ian G. Sonego, Dana Maria Todd, Attorney General's Office, Frankfort, KY, Joseph T. Bouvier, Commonwealth Attorney's Office, Lexington, KY, for Phillip Parker, respondent.
This matter is before the Court on the petition of Thomas Clyde Bowling, Jr., by counsel, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent, by counsel, has filed an answer [Record No. 25], to which the petitioner has, with the permission of the Court, filed a traverse [Record No. 66].
At approximately 7:00 a.m., on Monday, April 9, 1990, in the parking lot in front of the Earley Bird Cleaners, in Lexington, Fayette County, Kentucky, Tina and Eddie Earley, a couple in their twenties, and their two-year-old son, Chris, were shot as they arrived to open the family dry cleaning business. Eddie was found lying on the pavement between the open passenger door of his car and the door to the business; he was bleeding from four bullet wounds. Tina, who was still sitting in the car, had been shot and wounded three times; and Chris, found on the car floor under his mother, had a wound to his foot. The son would recover, but his parents were pronounced dead at the hospital minutes later that morning.
Police arriving at the scene found damage to the driver's side of the Earleys' car; collected bullets from outside and inside the vehicle; and recovered debris consistent with a collision, including paint and broken pieces of headlight from another car. The gunshots had alerted a few witnesses, whose observations varied when they gave descriptions of the shooter to the police. In the early stages of the investigation, it was determined that the debris came from a light blue 1981 Chevrolet Malibu and a 1981 Malibu was registered in Fayette County to Thomas Clyde Bowling, Jr. The police pursued a broad search for the suspect's car and considered several theories of what could have occasioned the young couple's murder.
On the following day, April, 10, 1990, police received a telephone call from the petitioner's sister, Pat Gentry. She stated that she and her mother, Iva Lee Bowling, were worried because his mother had not seen their son/brother, "T.C." Bowling, since he left the mother's Lexington home at approximately 6:00 a.m. the preceding day; she and her mother had just discovered his damaged car on family property in rural Powell County, Kentucky; the car met the description of the vehicle they had heard was being sought in the Earley shootings; and they feared that these facts, together with Bowling's recent depressed and unstable mental state, had caused him to take his life. Later in the day, the sister telephoned her Knoxville home and discovered that the petitioner had come to her home and was asleep on her couch.
Lexington and Knoxville police departments immediately coordinated a SWAT team of officers who arrested the petitioner at the Gentry home without incident and took him to jail. There his clothing was taken and examined and no blood residue found. Meanwhile, at approximately midnight, the police recovered the petitioner's car on the family's Powell County property and towed it to Lexington. The broken pieces of headlight and other debris recovered from the crime scene and paint smears on the Earleys' vehicle were later matched to the petitioner's car. A search of the car interior yielded only an empty thermos bottle; there were no traces of blood.
The following day, April 11, 1990, the police returned to Powell County. There they found a partially buried .357 magnum revolver and other items belonging to the petitioner which had been stashed in various places on the property. Police later found a man who reported that he had sold a .357 magnum to Mr. Bowling a few days prior to the shootings.
According to the instant 197-page petition, signed by counsel, the petitioner has no memory of the day of the crime. While being held in the Lexington jail, he was interviewed by mental health experts, whom he told he had no recollection of that day; he also told them he had no previous history of blackouts.1
On June 20, 1990, Bowling was indicted in Fayette Circuit Court on two counts of intentional murder and one count of assault. Although initially represented by a member of the Kentucky Department of Public Advocacy, at the time of his arraignment in the Fayette Circuit Court, Sixth Division, on June 22, he was represented by three retained counsel: Russell Baldani, William Summers, and Tucker Richardson. From the beginning, the Commonwealth announced that it would provide "open file" discovery to the defense and would seek the death penalty. After a number of pretrial motions by defense counsel and several pretrial conferences, the original trial date of October 15, 1990 was changed to December 10, 1990; Bowling underwent a neurological examination; his counsel obtained a court-ordered psychological evaluation; and the defense was granted extra peremptory challenges.
On Monday, December 10, 1990, jury selection commenced. Jurors had filled out a special jury questionnaire, designed by agreement of counsel, as well as the standard one; and they were voir dired first generally as a group and then, with regard to the death penalty, individually in chambers. The court's stated goal was to qualify from the 99-person jury pool 44 jurors, which would allow the defendant 18 peremptory challenges, the Commonwealth 12 peremptories, 12 people remaining to be jurors and 2 alternates. Two days later, stating that it was concerned that the original qualified juror pool would be too small, the court continued down the jury pool list and ended up qualifying 48 jurors. Just before trial, however, after striking a juror for cause, thus leaving 47 qualified, the court overruled the defense motion to grant it additional peremptories and, instead, struck the three extra jurors, numbers 45, 46, and 47.
On the third day, December 12, the jury was seated, and the guilt phase of the trial commenced.2 After opening arguments, the Commonwealth began its presentation of evidence. A total of 25 witnesses was presented, including the testimony of three individuals who heard the shots and became the only eye witnesses. The first, Larry Turner, thought he heard backfires while he was walking to work approximately a block away; upon his approach to the scene, he saw the two bodies, heard the child crying, and continued on to work to call 911. Another man, David Boyd, testified that from where he sat in the driver's seat of his car at the nearest stoplight, he looked back over his shoulder to see two cars on the cleaners' parking lot and a man standing beside the dark car. He was holding a gun with both hands and shooting into the car. Record No. 57 at 1272. The shooter then moved as if to get into the other vehicle, but did not do so; he went back around to look at the scene before coming around again and driving off. Boyd described the assailant's car as a light blue 1979 or 1980 Malibu and described the assailant as a white male, about six feet tall, medium build, wearing a black jacket and brimmed hat. The third eyewitness, Norman Pullins, who had seen events from the window of a nursing home across the street from the cleaners, could not be located by either the Commonwealth or by the defense. By agreement of the parties, the police officer who interviewed Pullins the morning of the shootings introduced the audiotape of that interview, which was played for the jury. Id. at 1286-92.
Police testimony concerned the securing of the crime scene, immediate care of the victims, and the beginning of an investigation. The Commonwealth introduced numerous photographs of the scene, including the view from the K-Mart parking lot through a slatted fence to the Earley Bird Cleaners, close-up photographs of the evidence collected, and a videotape of the entire area. Record No. 57 at 1340, et seq. One detective described his towing the Earleys' car later that day and going to the Bowlings' Powell County property the next day to tow Bowling's car; both were secured as evidence. Id. Officer Mark Merriman, of the Kentucky State Police, related his locating the Powell County property late on April 10. He found there the petitioner's damaged Malibu, in the thickets; a shed containing an orange jacket, an orange Little Caesar's t-shirt, and a black Rangers hat; and an unused outhouse into which had been thrown a "little beer case," a four-pack of wine coolers, an empty wine cooler bottle, and the Malibu's license plate. Record No. 58 at 1498-1510. Jim O'Brien, one of police officers searching the Powell County property, testified to his discovery of the .357 magnum, which was found under an upside down metal pan; the gun was wrapped in clothing and partially buried under leaves. Record No. 58 at 1494. Another officer stated that the gun was fully loaded and had been secured by him for evidence. Detective William Henderson, who was in charge of the investigation, related the events surrounding Bowling's arrest in Knoxville; told of retrieving Bowling's personal effects at that time: a black jacket, umbrella, and backpack containing an atlas, blanket, personal papers, and a homemade sign with "K-N-O-X" written on it;...
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