Roberson v. Commonwealth

Decision Date01 July 2022
Docket Number2020-CA-0334-MR
PartiesKELVIN ROBERSON APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
CourtCourt of Appeals of Kentucky

NOT TO BE PUBLISHED

BRIEFS FOR APPELLANT: Kelvin Roberson, pro se Eddyville, Kentucky

BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort Kentucky

BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND K. THOMPSON JUDGES.

OPINION

CLAYTON, CHIEF JUDGE

Kelvin Roberson appeals from the Trigg Circuit Court's findings of fact, conclusions of law, and judgment denying his pro se motion for a release of evidence for DNA testing and analysis. Upon review of the record and applicable law, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In February 1985, Kelvin Roberson, then twenty-four years old, was convicted of first-degree burglary, first-degree rape, and theft by unlawful taking over $300. The victim, then eighty-three years old, had been raped and beaten into unconsciousness. Police found her Hopkinsville home in disarray, with blood throughout the bedroom and living room. Moreover, the victim's residence was missing two gold necklaces, a flashlight, and a billfold. Police collected several items of evidence from the crime scene, including numerous hairs, and a nightgown worn by the victim containing blood, semen, and fecal matter.

Law enforcement located a palm print in the victim's kitchen as well. This palm print, as well as one of the victim's missing necklaces found in Roberson's possession, was used to link Roberson to the crime scene. Roberson first told police that he had purchased the necklace from an unidentified male. However, Roberson later testified that he saw an unknown male leaving the victim's home when he was walking by, after which Roberson entered the house and took the necklaces. Nevertheless, Roberson denied raping or even encountering the victim.

The case was transferred from Christian County to Trigg County. The jury subsequently found Roberson guilty of first-degree burglary, first-degree rape, and theft by unlawful taking over $300.00. Roberson was ultimately sentenced to twenty years' imprisonment for burglary, life imprisonment for rape, and five years' imprisonment. Additionally, the trial court ordered that the twenty-five-year sentence for the burglary and theft by unlawful taking run consecutively with Roberson's life sentence.

Roberson filed a direct appeal to the Kentucky Supreme Court, which affirmed his conviction on February 28, 1986. In 1988 Roberson filed a Kentucky Rule of Criminal Procedure ("RCr") 11.42 motion to vacate, set aside, or correct sentence, which the trial court denied in 1990. Roberson filed a Kentucky Rule of Civil Procedure ("CR") 60.02(f) motion, which the trial court denied in 2003 and affirmed by the Court of Appeals in 2004. In 2012, the Court of Appeals denied Roberson's appeals of the denial of the RCr 11.42 motion. In 2014, Roberson filed a nunc pro tunc motion on the denial of his RCr 11.42 motion, which was denied by the trial court in 2014 and affirmed by a panel of this Court in 2015.

On August 16, 2018, Roberson filed the pro se motion at issue in this appeal to release certain evidence in the case. Specifically, Roberson asked the trial court to release any evidence related to his case that could be subject to DNA testing pursuant to Kentucky Revised Statute ("KRS") 422.285. After the trial court initially denied the motion for not complying with KRS 422.285(2), Roberson submitted a revised motion with a supporting affidavit that complied with the statute. The Commonwealth filed a response objecting to any hearing or DNA examination of previously submitted evidence arguing that additional DNA testing would not have changed the case's outcome.

Ultimately, the Trigg Circuit Court denied the motion, finding that while Roberson met the requirements of KRS 422.285(5)(f), the evidence was not in the custody or control of the court or of the Commonwealth. Further, the court found that, with the passage of time and by observing the examined items listed, the court could not find a reasonable probability that Roberson would not have been prosecuted or convicted if DNA testing had led to exculpatory results. Thus, the court held that the evidence was not in a condition to be tested, and, even if it were, it would not have made the difference required by KRS 422.285. This appeal followed.

ANALYSIS
a. Standard of Review

We review the denial of a motion to release evidence for DNA testing brought under KRS 422.285 under an abuse of discretion standard. Hodge v. Commonwealth, 610 S.W.3d 227, 229 (Ky. 2020). The test for abuse of discretion is whether the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). A trial court abuses its discretion "when (1) its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision . . . cannot be located within the range of permissible decisions" allowed by a correct application of the facts to the law. Miller v. Eldridge, 146 S.W.3d 909, 915 n.11 (Ky. 2004) (citations and emphasis omitted).

b. Analysis

Roberson argues on appeal that the trial court abused its discretion by denying his motion to release evidence for DNA testing. KRS 422.285 "affords certain felons the post-conviction right to DNA testing of certain evidence. Assuring only those certain felons are granted the right to test only that certain evidence for DNA is, of course, the trial court's responsibility." Owens v. Commonwealth, 512 S.W.3d 1, 7 (Ky. App. 2017).

KRS 422.285 permits a person convicted of a capital offense, a Class A felony, a Class B felony, or any offense designated a "violent offense" under KRS 439.3401 and who meets the other statutory requirements to request forensic DNA testing and analysis of evidence that "is in the possession or control of the court or Commonwealth[.]" The evidence must also be "related to the investigation or prosecution that resulted in the judgment of conviction and that may contain biological evidence." KRS 422.285(1)(a).

As discussed in Owens:

Generally speaking, the statute requires a trial court to determine the availability of relief . . . by assessing (1) the petition (and supplements and response), (2) the petitioner, and (3) the evidence, to confirm that each meets the
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