Bowling v. Parker

RONNIE LEE BOWLING, Petitioner,

v.PHILIP W. PARKER, Warden, Respondent.

Civil No. 03-28-ART

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION LONDON

Dated: June 26, 2012

MEMORANDUM OPINION & ORDER

Nearly twenty years ago, a Kentucky jury convicted Petitioner Ronnie Lee Bowling of murdering Ronald Smith and Marvin Hensley and sentenced him to death. Bowling has filed a petition for the writ of habeas corpus, R. 1, alleging numerous errors in his trial and appeal. As the Court explained in its previous Order, R. 192, many of Bowling's claims are intertwined with his motions for an evidentiary hearing, R. 118, additional discovery, R. 120, and funds for a brain MRI and neuropsychological evaluation, R. 166. This Memorandum Opinion and Order addresses thirty-seven of Bowling's claims that are not related to those evidentiary motions. On all thirty-seven, Bowling is not entitled to habeas relief.

TABLE OF CONTENTS

BACKGROUND ..................................................................................................................... 4

DISCUSSION ........................................................................................................................ 10

I. Denial of Motion for a Change of Venue (Claim 1) ............................................... 10

II. Proportionality Review (Claims 6, 36, 39) .............................................................. 16

A. Challenge to Kentucky's Proportionality Review (Claims 6 and 36) ................... 16

B. Access to Death Penalty Data (Claim 39) ............................................................. 21

III. Confidential and Independent Defense Expert (Claim 8) ..................................... 23

IV. Guilt Phase Instructions (Claims 9A, 9B, 9D) ........................................................ 30

A. Failure To Instruct on Theft (Claim 9A) ............................................................... 30

B. Failure To Instruct on First-Degree Manslaughter (Claim 9B) ........................... 32

C. Instructions on Presumption of Innocence (Claim 9D) ......................................... 33

V. Penalty Phase Instructions (Claims 11, 12, 27, 35) ................................................. 35

A. Penalty Phase Verdict Forms (Claim 11) ............................................................. 35

B. Instructions on Unanimity for Mitigating Circumstances (Claim 12) .................. 37

C. Aggravating Circumstance for Multiple Murders (Claim 27) .............................. 39

D. Penalty Phase Instructions (Claim 35) ................................................................. 42

1. Jury Instructions on Mitigating Factors (Claim 35A) ..................................... 42

2. Directed Verdict on Mitigating Factors (Claim 35B) ...................................... 44

3. "Life Option" Instruction (Claim 35D) ........................................................... 44

4. Adverse Inference Instruction (Claim 35F) ..................................................... 45

5. Mitigation Limited to Penalty Phase Evidence (Claim 35H) .......................... 49

VI. Speedy Trial Right and Denial of Continuances (Claims 14, 28, 31) ................... 49

A. Speedy Trial Right (Claim 14) ............................................................................... 49

B. Denial of Motions To Continue Trial (Claim 28) .................................................. 59

C. Denial of Motion To Continue Sentencing Hearing (Claim 31) ........................... 62

VII. Testimony of Ora Lee Isaacs (Claims 17, 30) ......................................................... 64

A. Release of Psychological Records (Claim 17) ...................................................... 64

B. Isaacs's Testimony (Claim 30) .............................................................................. 65

VIII. Burglary and Robbery Charges (Claims 5, 10, 25, 29) ....................................... 68

A. Directed Verdict on Burglary Charges (Claim 5) ................................................. 68

B. Directed Verdict on Aggravating Circumstances (Claim 10) ............................... 72

C. Directed Verdict on Robbery Charges (Claim 25) ................................................ 73

D. Multiple Punishments (Claim 29) .......................................................................... 74

IX. Evidentiary Objections (Claims 21, 22, 23) ............................................................ 76

A. Rebuttal Evidence (Claim 21) ............................................................................... 76

B. Character Evidence (Claim 22) ............................................................................. 77

C. Hearsay Testimony and Other Evidentiary Rulings (Claim 23) ........................... 79

X. Prosecutorial Misconduct (Claims 24, 32, 34) ........................................................ 80

A. Guilt Phase Closing Argument (Claim 24) ........................................................... 80

B. Penalty Phase (Claims 32 and 34) ........................................................................ 83

XI. Ineffective Assistance of Counsel (Claims 49, 65) .................................................. 87

A. Failure To Investigate and Prepare Edward Eugene Herren (Claim 49) ............ 87

B. Failure To Object to Evidence of Rockcastle County Shooting (Claim 65) .......... 90

XII. Ex Parte Hearing on Expert Funding (Claim 56) .................................................. 92

XIII. Trial Judge Bias (Claim 68) ................................................................................... 95

XIV. Comparative Bullet Lead Analysis Evidence (1st Amend. to Petition) ........... 101

XV. Cumulative Error (Claim 44) ................................................................................. 109CONCLUSION ................................................................................................................... 110BACKGROUND

On January 20, 1989, Ronald Smith worked his usual midnight to 8 a.m. shift at the Jones Chevron station in London, Kentucky. Smith had $200 in the cash register when he started his shift, and he usually worked alone until 6:30 a.m. Around 5:30 a.m., two customers noticed that the gas pumps were not working. They went inside and found Smith lying face-down on the floor—dead. The cash register reflected $354 in sales over the course of the night, with a "no sale" indicated at 5:21 a.m, but the register was empty except for coins. Smith had been shot six times: three times in the back of the head, twice in the back, and once in the chest.

A month later, on February 22, 1989, Marvin Hensley opened his gas station one-and-a-half miles north of London around 6:00 a.m. One customer bought five dollars of gas from him at 6:15 a.m. But when another customer entered the station at 7:00 a.m., he found Hensley dead on the floor. Hensley, who was also a minister at a church in Mt. Vernon, had suffered three gunshot wounds to the back of his head, one to his ear, one to the back of his neck, and one to his hand. Again, the station's cash register was empty except for coins.

The Smith and Hensley murders received extensive attention in the local news, and gas station operators began to take additional security precautions. One such operator was Ricky Smith (no relation to Ronald), who owned and operated a Sunoco station on U.S. Highway 25 in Rockcastle County, Kentucky. On February 25, 1989, Smith opened his station around 6:00 a.m. Not long afterward, Ronnie Lee Bowling entered the station. Bowling told Smith he was looking for a job, but kept his hands in his pockets and asked Smith if the station ever had two employees on duty at the same time. Smith also recalled that Bowling looked out the station window, up and down the highway in both directions.

Smith told Bowling that the station was not hiring, and Bowling began to leave. But as Bowling exited, he pulled out a revolver and started firing at Smith. Reacting quickly, Smith dove behind a wall and metal desk and pulled out his own gun. When he heard Bowling finish shooting, Smith returned fire at Bowling through the wall. When Smith fired back, Bowling ran out of the station, jumped in to his car, and headed south on Highway 25.

Smith called the Kentucky State Police, told them what happened, and gave them a description of Bowling. State Police Troopers Allen Lewis and Danny Alton quickly intercepted Bowling's car and began pursuing it. When Lewis switched on his blue lights, Bowling responded by accelerating. The pursuit continued for more than thirty miles, and, according to Lewis, frequently exceeded speeds of 100 miles per hour. By the time Bowling stopped at an area near his residence, eight to ten other police cars were involved in the chase. The police arrested Bowling and noticed that he was bleeding from his head.

During the chase, police observed Bowling throw two brown objects out of his car near the nine-mile marker of Kentucky Highway 472. When police returned to this location, they found a pair of brown gloves. State police troopers searching the entire route of the chase made an even more important discovery—near the area where the chase began, they found a .38-caliber revolver. Ricky Smith identified the gun as similar to the one Bowling brandished at the Sunoco station.

When the police arrested Bowling, he told them that he entered Ricky Smith's gas station to look for a job. According to Bowling, Smith lost his temper during the conversation and began shooting. Bowling claimed that he never had a gun at the gas station, and that he did not throw anything out of his car while fleeing from the police.Bowling also denied ever owning a handgun. When Bowling gave his initial statement to the police, he was bleeding because one of Smith's shots had grazed the side of his head.

Bowling's trial lasted from September 21 to October 9, 1992. At the trial, a Kentucky State Police forensic scientist presented...