512 S.W.3d 1
Ky. Ct. App.2017Background
- Owens was convicted in 2009 of first‑degree wanton assault, tampering with physical evidence, and classified as a PFO I; the Kentucky Supreme Court affirmed his convictions in Owens v. Commonwealth, 329 S.W.3d 307 (Ky. 2011).
- Crime‑scene photos showed pooled blood on a brick patio, blood spatter on landscape timbers, and an overturned white plastic chair; police recovered a white T‑shirt with DNA linking Owens and the victim and items with Owens’ identification.
- Owens filed pro se post‑conviction motions seeking DNA testing (a red brick shown in photos and the white plastic chair), CR 60.02 relief, and RCr 11.42 relief alleging ineffective assistance of trial counsel and other defects.
- The Commonwealth’s inventory listed the white plastic chair but not the brick; officers testified the brick was not collected as evidence.
- The trial court denied DNA testing and Owens’ other RCr 11.42 / CR 60.02 claims; Owens appealed and the Court of Appeals affirmed.
Issues
| Issue | Owens' Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Right to DNA testing of the brick and chair under KRS 422.285 | Brick and chair testing could identify an alternative perpetrator and exculpate Owens | Brick was never in Commonwealth/court custody; chair testing would only confirm victim’s blood (already resolved at trial) | Denied: brick not subject to testing because never in state/court custody; chair denied because testing would be merely cumulative and not exculpatory |
| Funding for blood‑spatter expert under KRS 31.110(1)(b) | Expert would show blood patterns consistent with alternative‑perpetrator theory (victim seated in chair) | Request is untimely and constitutes a fishing expedition years after trial | Denied as not "reasonably necessary"; motion was untimely and speculative |
| Ineffective assistance of trial counsel (EED instruction, competency evaluation, 85% parole rule) | Counsel failed to request competency evaluation, EED instruction, and inform jury of 85% parole eligibility | Claims could and should have been raised earlier; some asserted deficiencies lack merit (e.g., EED not applicable; counsel did inform jury of 85% rule) | Denied as procedurally defaulted or meritless; too late on collateral review and some claims substantively weak |
| Claim that post‑conviction counsel was ineffective (relying on Martinez) | Owens argues Martinez entitles him to relief for ineffective assistance on initial RCr 11.42 work | Court of Appeals: law of the case rejects this; Owens didn’t preserve the issue below; Kentucky law limits appellate‑counsel ineffectiveness claims to direct appeal | Denied: prior appellate ruling controls, issue not preserved for review, and Kentucky precedent limits such claims |
Key Cases Cited
- Owens v. Commonwealth, 329 S.W.3d 307 (Ky. 2011) (direct appeal affirming convictions and summarizing trial evidence)
- Bowling v. Commonwealth, 357 S.W.3d 462 (Ky. 2010) (standards for post‑conviction DNA testing under KRS 422.285)
- Moore v. Commonwealth, 357 S.W.3d 470 (Ky. 2011) (denial of DNA testing where evidence not in custody or untestable)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong standard for ineffective assistance of counsel)
- Hollon v. Commonwealth, 334 S.W.3d 431 (Ky. 2010) (limits on raising ineffective‑assistance claims outside direct appeal)
- Davenport v. Commonwealth, 177 S.W.3d 763 (Ky. 2005) (standards for funding investigative services for indigent defendants)