Rowe v. Commonwealth

• Citation: 355 S.W.3d 480
• Decision Date: 18 November 2011
• Docket Number: Nos. 2008–CA–000916–MR,2008–CA–001824–MR.,s. 2008–CA–000916–MR
• Parties: Kevin ROWE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: Court of Appeals of Kentucky

355 S.W.3d 480

Kevin ROWE, Appellant,

v.COMMONWEALTH of Kentucky, Appellee.

Nos. 2008–CA–000916–MR

2008–CA–001824–MR.

Court of Appeals of Kentucky.

Nov. 18, 2011.

Stephen W. Owens, Pikeville, KY, Randall E. Reagan, Pro Hac Vice, Knoxville, TN, for appellant.

Jack Conway, Attorney General of Kentucky, Bryan D. Morrow, Assistant Attorney General, Frankfort, KY, for appellee.

Before CLAYTON, KELLER, and MOORE, Judges.

OPINION

CLAYTON, Judge:

These consolidated appeals stem from the Pike Circuit Court's denial of Kevin Rowe's two separate Kentucky Rules of Criminal Procedure (RCr) 10.02 motions for a new trial following a judgment convicting him of murder and attempted murder. For the following reasons, we affirm.

BACKGROUND

Following a nine-day jury trial, which began on November 3, 2005, Rowe was found guilty of both murder and attempted murder. On May 4, 2006, the trial court sentenced him in accordance with the jury's recommendations of life in prison for murder and twenty years of imprisonment for attempted murder, which were to be served concurrently.

After Rowe's conviction, he engaged in extensive post-conviction challenges. Initially, Rowe directly appealed the conviction to the Kentucky Supreme Court, alleging four errors on the part of the trial court: (1) denying his motion to suppress evidence seized in the search of an outbuilding located on property adjoining the property identified by street address in the search warrant; (2) refusing to allow jurors to read his prepared transcripts of the 911 call placed by Robin Hylton that interpreted inaudible portions of the call; (3) denying his motion for a continuance to allow his DNA expert time to review materials produced in the Commonwealth's expert's DNA analysis; and (4) denying his motions for mistrial prompted by the Commonwealth's alleged failure to disclose exculpatory evidence and to disclose a tape recording of his telephone conversation with his parents from jail.

On May 24, 2007, in a unanimous opinion, the Supreme Court affirmed his conviction. Therein, the Court succinctly set forth the facts of the case:

Robin and Tammy Hylton, husband and wife, were shot while riding their four-wheeler on a road in a remote area in the Eastern Kentucky mountains. According to Robin, the assailant, who was riding an all-terrain vehicle (ATV), opened fire on them with an assault rifle. Although Robin reached for his own handgun to defend himself, Tammy accidentally knocked the gun from his hand in the melee. Robin fell wounded to the ground and remained motionless as if dead. The assailant walked up to Tammy, who was lying across the four-wheeler, and delivered a single shot into her body.

After the assailant fled, Robin discovered that Tammy was dead. He called 911 on his cell phone and reported that he and his wife had been shot by a young man approximately twenty or twenty-one years old riding a Polaris ATV. While still on the phone, he exclaimed, “Oh, God, he's coming back.” Robin tried to flee, but the assailant shot at him again several times and then began beating him on the head with a pistol. The two men wrestled. The assailant pressed the end of the gun barrel to the back of Robin's head and pulled the trigger. Fortunately, the gun was out of bullets. The assailant then fled on an ATV.

According to the police report, four persons who passed the scene shortly after the attacks saw the Hyltons and tried to help them. They were Ricky Rose, David Walker, Josh Anderson, and Pamela Perkins. According to his statement to police, Anderson retrieved Robin's pistol, removed the clip, cleared the chamber, and laid it back down.

Kentucky State Police (KSP) Trooper Jason Merlo was the first law enforcement official to arrive at the scene. According to Trooper Merlo's report, he found Tammy lying dead across the four-wheeler, Robin lying wounded on the ground, and Anderson standing near Robin. According to Trooper Merlo's trial testimony, Robin told Trooper Merlo that the assailant was a thin young man—whom Robin did not know—driving a red Kawasaki ATV (in contrast to the Polaris as Robin described in the 911 call) and that the assailant had stated, “Y'all killed my brother.” Trooper Merlo also interviewed Rose, Walker, Anderson, and Perkins.

Trooper Derek Sturgill arrived next at the scene. He reportedly interviewed ten to fifteen people who were already at or had come to the scene on ATVs within an hour of Robin's 911 call. Apparently, none of these persons reported seeing anything of relevance. Although Trooper Sturgill gave the names and addresses of these interviewees to primary investigator Detective Stewart “Joey” Howard, Trooper Sturgill did not make a supplemental report with details concerning the content of these interviews. And the Commonwealth provided no information concerning these interviewees to the defense in pretrial discovery.

While the investigation proceeded at the scene, according to the police report, William Younce reported that he passed Kevin Allen Rowe, who was traveling along a road down the side of the mountain leading away from the location of the scene of the crime. Younce recalled that Rowe wore a dark shirt and jeans and drove a red Kawasaki 700 ATV. He also noticed a dark box or duffle bag strapped to Rowe's ATV.

A short time later, according to the police report, Rowe appeared at the home of Phillip and A.J. Silcox offering to sell them firearms and a cell phone. Phillip Silcox testified that Rowe wanted to sell these items because Rowe wanted money to get out of town for a while. Phillip declined to buy the guns, but A.J. bought the cell phone. A.J. testified at trial that Rowe was wearing coveralls.

Rowe then appeared at the home of his girlfriend, Joanna Trump, according to her trial testimony. She testified that Rowe removed his coveralls at her house. She noticed that he had blood all over him and that his pants and underwear were soaked with blood. Trump gave him a change of clothes and patched up scratches and cuts over Rowe's arms and one of his legs. According to her, Rowe rinsed hair from a pistol at her house. Trump's mother also testified to seeing Rowe wash hair and blood from the pistol. Rowe told Joanna that he had been attacked by two men riding four-wheelers and that he had fought with them, during which time his gun fell out of his pants onto the ground. Rowe told her that one attacker pulled a knife on him and that Rowe had fired a shot, which grazed one attacker's legs.

The next day, Detective Howard interviewed Robin at the hospital. Robin described the assailant as a male, nineteen to twenty years old, tall, and slim, with short dark hair, and driving a red Kawasaki 700. Robin thought the attacker's assault rifle was fully automatic and described the pistol used by the attacker as dark with brown grips. Robin was confident he would be able to identify the shooter if he saw him again.

The detective returned to the crime scene. While there, several ATV riders drove by. Detective Howard advised them of Robin's description of the shooter and the shooter's ATV. One rider advised Detective Howard that he knew of a young man named Rowe who matched the description of the shooter and who often rode a red Kawasaki. According to the rider, Rowe lived on Harless Creek Road. Further investigation focused on Rowe, and Robin ultimately identified Rowe from a photo lineup.

KSP obtained an arrest warrant for Rowe and a search warrant for 390 Harless Creek Road, the house where Rowe lived with his father, Kenneth Rowe. The search warrant also explicitly authorized the search for and seizure of a red Kawasaki ATV, as well as any other vehicles used by Rowe. KSP seized several guns from the Rowes' residence, although none matched the descriptions of those used in the Hylton shooting. KSP also seized ammunition that matched the types of casings retrieved from the crime scene.

During the search, KSP found an ATV in a shed on adjoining property, known as 358 Harless Creek Road. The address for the adjoining location was different from the address of the location to be searched as described in the warrant. The different address was visibly posted on the road, according to Rowe. KSP seized the ATV and took it to the KSP post.

KSP performed various tests on the ATV, finding the presence of human blood on the left brake handle. DNA testing revealed that the blood was that of Robin Hylton. Blood was also found on other parts of the ATV; and although tests could not conclusively show that either Rowe or Robin were contributors, the DNA profile was consistent with the blood being a mixture of that from Robin and from Rowe.

Appellant was arrested and indicted for Tammy's murder and the attempted murder of Robin.

Rowe v. Commonwealth, 2007 WL 1532334 (Ky.2007) (2006–SC–000356–MR), *1–3.

Besides the other challenges in state court, which will be presented below, on July 11, 2007, Rowe filed a petition for habeas corpus relief in the United States District Court for the Eastern District of Kentucky, which raised four grounds for relief, including: (1) the denial of his suppression motion; (2) the refusal to allow jurors to review transcripts of his 911 call; (3) the withholding of exculpatory evidence; and (4) the violation of his constitutional right to cross-examine because the trial court had ruled that he was not entitled to certain lab notes and quality assurance data. The petition was denied on September 30, 2008.

During the pendency of the direct appeal, on March 29, 2007, Rowe filed a motion for a new trial. Rowe alleged that since the trial, he had the 911 tape enhanced by an expert who discovered new words on it. Then, on October 30, 2007, Rowe filed a supplemental motion for a new trial, arguing that he had yet another enhanced version of the tape of the 911 call. The trial court, without an evidentiary hearing, denied Rowe's motion for a new trial on May 7, 2008. Rowe appealed this decision on May 13, 2008,...