Owens v. Commonwealth, 2014–CA–000779–MR

• Decision Date: 27 January 2017
• Docket Number: NO. 2014–CA–000779–MR,2014–CA–000779–MR
• Citation: 512 S.W.3d 1
• Parties: James Ricky OWENS, Appellant v. COMMONWEALTH of Kentucky, Appellee
• Court: Kentucky Court of Appeals

512 S.W.3d 1

James Ricky OWENS, Appellant

v.COMMONWEALTH of Kentucky, Appellee

NO. 2014–CA–000779–MR

Court of Appeals of Kentucky.

JANUARY 27, 2017; 10:00 A.M.

BRIEFS FOR APPELLANT: James Ricky Owens, Pro se, LaGrange, Kentucky

BRIEF FOR APPELLEE: Jack Conway, Attorney General of Kentucky, Leilani K. Martin, Assistant Attorney General, Frankfort, Kentucky

BEFORE: ACREE, J. LAMBERT AND TAYLOR, JUDGES.

OPINION

ACREE, JUDGE:

James Owens appeals the April 2, 2014 order of the Simpson Circuit Court denying his motion for DNA testing and his motions, amendments, and supplements thereto for relief under RCr ¹ 11.42 and CR ² 60.02. We affirm.

FACTS AND PROCEDURE

In 2009, Owens was convicted by a jury of first-degree wanton assault, tampering with physical evidence, and of being a first-degree persistent felony offender (PFO I). For these crimes, the trial court sentenced Owens to an enhanced term of thirty years' imprisonment for the assault conviction, and an enhanced term of ten years for the tampering conviction, all to be served concurrently. Owens appealed to the Kentucky Supreme Court as a matter of right; the Court affirmed Owens' convictions. Owens v. Commonwealth , 329 S.W.3d 307, 311 (Ky. 2011) ( Owens I ). The Court's opinion succinctly summarizes the facts of the underlying criminal matter. They are that:

[the victim] was assaulted at her home in Franklin, Kentucky. ... At trial, [the victim] testified that on the night of the assault, August 25, 2007, [Owens] knocked on her door around 9:30 p.m. and asked if they could talk. [The victim] recognized [Owens] as a friend of her recently deceased husband, and she agreed. She testified that they sat outside on her patio where [Owens] offered her one of the two beers he had brought with him. She declined. [Owens] told [the victim] that he thought she was a "beautiful lady." [The victim] replied that she was still dealing with her husband's death and that she was not interested in him. [The victim] then said she needed to go inside the house to check on her dog. Her next memory was waking up at Vanderbilt Hospital having no idea of how or why she was there. [Owens had attacked her brutally, causing a large open skull fracture

and permanent physical and mental impairment.] [The victim] remained in Vanderbilt Hospital for several days....

[The victim] likely would not have survived [the attack] if not for the fact that someone saw the altercation and called the police. Franklin Police Officer Benjamin Brown testified that he was dispatched to [the victim's] house on August 25, 2007, around 10:30 p.m. Upon arriving he saw a white male lift a female ( [the victim] ) up in the air and slam her down against the ground twice. As the man lifted the woman in the air a third time, Officer Brown called out to the suspect identifying himself as a police officer. The man then dropped the woman and ran off. Officer Brown gave chase to the suspect through some heavy brush but could not catch him. Officer Brown described the suspect as a white male, with blond hair, wearing a white t-shirt and jeans.

Franklin Police Officer Justin Toth arrived at [the victim's] house soon after Officer Brown and also began to chase the suspect. Officer Toth later saw the suspect at a nearby house, near a swimming pool, dripping wet and wearing only underwear. He arrested the suspect, who later was identified as [Owens]. Officer Toth testified that [Owens] was intoxicated when arrested. ...

Franklin Police Officer Ben Harper testified that the day after the assault he found a gray t-shirt between a driveway and a hedge at a property near [the victim's] home. The t-shirt was turned inside out and appeared to have blood on the sleeve. Testing conducted by the Kentucky State Police Crime Laboratory linked DNA from the t-shirt to both [Owens] and [the victim].

Franklin Police Captain Dallas Wiles processed the crime scene. There he found a wallet containing [Owens's] social security card and driver's license, a hat that [Owens] admitted to owning, and two beer cans.

Owens I , 329 S.W.3d at 311–12.

The victim was found by officers at the edge of a brick patio bordered by wooden landscape timbers. Corporal Harper and Captain Wiles photographed this area while processing the scene. The photographs revealed significant pooling of blood and blood spatter along the landscape timber in the area where it is believed the victim had been seated. The officers also collected as evidence a white plastic chair shown overturned in the photographs near the bloodied landscape timber.

Following his arrest, Owens was Mirandized. He gave Captain Wiles a written statement. Owens admitted to being at the victim's house the night of the incident, but denied assaulting her. Owens stated he left the patio to use the bathroom and, upon his return he heard someone talking to the victim, so he left and went to his cousin's house, where he was found by police and taken into custody. Owens later gave Detective Wiles the name of an individual he believed perpetrated the assault. Detective Wiles pursued the lead, only to discover the individual had been incarcerated in another state at the time of the assault.

Owens was originally charged with first-degree intentional assault, tampering with physical evidence, and being a PFO I. He accepted a plea deal by the Commonwealth, and the trial judge specifically inquired into the knowing and voluntary nature of Owens' plea. Prior to being sentenced, Owens moved to withdraw his plea claiming he had not seen all the discovery. The circuit court granted Owens' motion and his case proceeded to trial, resulting in the verdict and sentence previously described.

In 2012, Owens, pro se , sought relief from his conviction under RCr 11.42, alleging ineffective assistance of counsel. Owens claimed his trial counsel failed to introduce at trial: (i) evidence to establish that the victim was struck from behind by a piece of wood; (ii) medical records from Vanderbilt Hospital that would have contradicted the victim's physician's testimony about the severity of the victim's injuries; and (iii) evidence of a new version of events, namely that when Officer Brown arrived on the scene Owens was holding the victim and that Owens ran from the scene because of a previous bad experience with law enforcement when he had been stopped with a Taser.

In that same motion, Owens further asserted his trial counsel erred by: (i) objecting to the introduction of a photograph of the blood-spattered chair in an upright position, which he believed supported his theory that the victim was struck from behind while seated in the chair; (ii) soliciting testimony from the victim's physician regarding the causation of the blood spatter on the wood timbers; and (iii) failing to effectively cross-examine Officer Brown that his view of the incident was skewed as he was temporarily blinded by the light from the victim's residence.

The circuit court denied Owens' motion without a hearing on June 18, 2012. Owens appealed to this Court. We affirmed the denial. Owens v. Commonwealth , No. 2012–CA–001175–MR, 2014 WL 3887908, at *1 (Ky. App. Aug. 8, 2014) ( Owens II ).

While Owens' appeal in Owens II was pending, he filed a pro se CR 60.02 motion seeking DNA testing of a single red brick (pictured in photographs of the crime scene offered in evidence by the Commonwealth) and the white plastic chair. The Commonwealth responded that the brick was not identified or secured as evidence and therefore not subject to DNA testing. Owens then filed a supplemental CR 60.02 motion asserting his convictions and sentence must be vacated due to the Commonwealth's failure to preserve the brick.³ He also sought to supplement his prior RCr 11.42 motion, claiming his trial counsel was ineffective by failing to: (i) ensure the brick was preserved as evidence; (ii) ask for a missing evidence instruction to support his new version of the events of that night that a third party struck the victim with a brick; and (iii) request an extreme emotional disturbance (EED) instruction. Owens also requested the appointment of counsel.

This latest round of motion practice did not end Owens' pursuit of post-conviction relief. On February 14, 2014, he filed a second motion to supplement his prior CR 60.02 motion claiming the circuit court erred by failing to give an EED instruction. He also moved to supplement his RCr 11.42 motion claiming his trial counsel failed to inform the jury of the 85% rule related to parole eligibility for violent offenders under KRS ⁴ 439.3401, and failed to request an evaluation of his mental capacity to stand trial. Owens also challenged the constitutionality of KRS 439.3401.

In a comprehensive order entered April 21, 2014, the circuit court denied all of Owens' pending CR 60.02 and RCr 11.42 motions. Owens requested reconsideration under CR 59.05 and additional factual findings under CR 52.02, which the circuit court also denied.

Undaunted, Owens then moved for an award of funds to hire a blood-spatter expert to examine the photographs of the crime scene. He claimed an expert could determine if the blood spatter was consistent with the victim's head being slammed repeatedly on the brick patio (as claimed by the Commonwealth) or more consistent with blood dripping from the victim's head as she bled while seated in the white chair (as claimed by Owens). The circuit court denied Owens' motion by order entered April 22, 2014. This appeal followed.

STANDARDS GOVERNING OUR REVIEW

We review a circuit court's ruling on a CR 60.02 motion for an abuse of discretion. Foley v. Commonwealth , 425 S.W.3d 880, 886 (Ky. 2014). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Miller v. Eldridge , 146 S.W.3d 909, 914 (Ky. 2004) (citation omitted).

In evaluating a claim of ineffective assistance of counsel, we apply the familiar "deficient-performance plus prejudice" standard...