                                                 MODIFIED : MARCH 24, 2011
                                             RENDERED: SEPTEMBER 23, 2010
                                                         TO BE PUBLISHED


               ,*uyrrmQ C~vixzf of cft
                                                                                 L_
                               2008-SC-000901-MR
                                                       DATE
THOMAS CLYDE BOWLING                                                   APPELLANT


                 ON APPEAL FROM FAYETTE CIRCUIT COURT
V.               HONORABLE KIMBERLY N . BUNNELL, JUDGE
                            NO . 90-CR-00363


COMMONWEALTH OF KENTUCKY                                                APPELLEE


                OPINION OF THE COURT BY JUSTICE . NOBLE

                                   AFFIRMING

      Appellant Thomas Clyde Bowling was convicted of the murders of Eddie

and Tina Earley, and assault on their infant son, who was also shot during the

crime, in Fayette Circuit Court in 1990. He was sentenced to the death penalty

for the murders . His direct appeal followed, and the judgment was affirmed .

Bowling v. Commonwealth, 873 S .W.2d 175 (Ky. 1993) . He has filed multiple

collateral attacks, none of which have resulted in a new trial. See Bowling v.

Commonwealth, 926 S.W .2d 667 (Ky. 1996) ; Bowling v. Commonwealth, 981

S .W.2d 545 (Ky . 1998) ; Bowling v. Parker, 138 F .Supp .2d 821 (E.D . Ky. 2001),

affd, 344 F.3d 487 (6th Cir. 2003) ; Bowling v. Commonwealth, 163 S .W .3d 361
(Ky. 2005) ; Bowling v. Lexington-Fayette Urban County Govt, 172 S .W .3d 333

(Ky. 2005) ; Bowling v. Commonwealth, 224 S .W.3d 577 (Ky. 2006) ; Baze v.

Rees, 217 S.W.3d 207 (Ky. 2006), affd, 553 U.S . 35 (2008) ; Bowling v.
Kentucky Dept. of Corrections, 301 S.W.3d 478 (Ky. 2000 .     He now comes

before the Court seeking a new trial based on DIVA evidence not available at the

time of his trial. Because Appellant cannot meet the requirements of the DNA

statute, KRS 422.285, the trial court's order is affirmed.

                                  I. Background

       Appellant filed a motion in the original case against him in Fayette

Circuit Court seeking DNA testing pursuant to KRS 422 .285 in August 2006.

This statute provides that a person convicted of a capital offense and who

otherwise meets the requirements of the statute may "at any time" request

deoxyribonucleic acid (DNA) testing and analysis of any evidence related to the

conviction that the court or Commonwealth retains and that may contain

biological evidence . Specifically, Appellant asked for DNA testing of a jacket

allegedly worn during the crime and of his automobile .

       Appellant now espouses a theory not presented at trial in support of his

DNA motion . He speculates the existence of an alternative perpetrator of the

crime onto whom he seeks to shift blame for the murders . Specifically, he

alleges that the murder may have been committed by a member of the Adams

family, members of which had befriended him and were known to engage in

criminal activity .

       Though Appellant presented no direct defense during the guilt phase at

trial-he did not take the stand and called no witnesses-and instead made his

case entirely by cross examination of the Commonwealth's 25 witnesses, he

nonetheless points to evidence at trial that he claims supports his alternative

perpetrator theory, if paired with DNA evidence. He specifically claims that
                                        2
another person had the opportunity to commit the crimes and points to

evidence showing that he did not know the victims; he did not confess to their

murders ; the gun presented at trial could not be established as the murder

weapon; the two eyewitnesses gave conflicting descriptions of the murderer and

could not pick Appellant out of a line-up; and no motive was established for the

murders. He also claims that the jacket introduced at trial did not belong to

him, according to his sister's testimony.

       He now argues that the Adams family did have a motive instead. One of

the victims, Eddie Earley, had turned the Adamses in for drug dealing, and the

other victim, Tina Earley, was allegedly having an affair with one of the

Adamses. Additionally, Appellant claims to have been so drunk on the day of

the murders that he has no memory of the day except for John Ed Adams

telling him he had to get his car out of town and to hide it. He theorizes that

this is when he came into contact with the jacket and that he was set up to

wear it while driving his car out of town to Powell County, where the car was

later found. He wore the jacket as he hitchhiked from Powell County to his

sister's home in Knoxville, Tennessee, where the jacket was later found.

Appellant thus believes that DNA evidence that someone else had worn the

jacket or had been in his car would have exonerated him or resulted in a

different verdict or sentence at trial.

      After filing the motion for testing, the parties agreed not to pursue a

hearing to determine whether DNA evidence could be obtained from the vehicle

after 16 years. This agreement was referenced in the trial court order dated

February 22, 2007. The court did hear argument about the collar and
                                          3
underarm area of the jacket . This resulted in the trial court ordering testing of

the neck and arm area of the jacket, thereby implicitly finding that Appellant

had satisfied the "reasonable probability" standard set forth in IRS

422 .285(2)(a) or (3)(a) . As to the vehicle, in addition to noting the parties'

agreement, the trial court held that there could be no credible proof to

establish the age of the DNA, and thus an inability to connect any DNA finding

to the time of the offense, and denied DNA testing of the vehicle . The court also

found that even if DNA evidence could be found in the car, it would not fit the

criteria laid out in IRS 422 .285 .

       Initial testing was done on the jacket, with the result that there was a

mixture of the DNA of at least two people on the jacket. The trial court then

declined further analysis on the jacket DNA to compare it to Appellant or other

persons on the basis that the multiple DNA findings on the jacket showed that

it had been contaminated, having been handled by numerous people during

the trial and since .

      Appellant now asks this Court to review the actions of the trial court,

and to remand for complete DNA analysis . Because Appellant was sentenced

to death, his appeal is to this Court as a matter of right. See Icy. Const. §

110(2)(b) ; Leonard v. Commonwealth, 279 S.W.3d 151, 155 (Ky. 2009) ("This

Court has exclusive appellate jurisdiction over death penalty matters, even

when the appeal involves a collateral attack on a sentence of death.") .

                                      II. Analysis

      Appellant argues that he is entitled to the DNA testing under both the

United States Constitution and under KRS 422.285.
                                           4
                            A. Constitutional Claims

      Appellant claims he is entitled to DNA testing under the Due Process

Clause, under both substantive and procedural due process theories, and

under the Eighth Amendment. None of these theories is convincing .

       After Appellant submitted his brief to this Court, the .U.S . Supreme

Court issued a landmark ruling addressing whether there is a due process

right to postconviction DNA testing. See District Attorney's Office for Third

Judicial Dist . v. Osborne, 129 S .Ct. 2308 (2009) . The Court flatly denied the

existence of such a right under the rubric of substantive due process . After

noting that the defendant in Osborne had asked the court to "recognize a

freestanding right to DNA evidence" based on substantive due process, the

Court stated, "We reject the invitation and conclude . . . that there is no such

substantive due process right." Id. at 2322 .

      As to whether such a right can be found in procedural due process, the

Court first looked at whether the defendant has a liberty interest that is

protected by due process . The Court found such an interest in Osborne in the

state statutes providing for postconviction relief procedures aimed at

demonstrating innocence. Id. at 2319. While Kentucky also has in place

procedures for postconviction relief, see Ky. Const. § 16 (right of habeas

corpus) ; RCr 11 .42 (challenge to lawfulness of sentence) ; CR 60 .02 (allowing

relief from judgment for mistake, newly discovered evidence, inequity or any

other reason of an extraordinary nature justifying relief,, and specifically

provides the right of a person sentenced to death to seek DNA testing, which if

granted and is favorable may be used in postconviction proceedings to seek
                                         5
relief, see KRS 422 .285, there is no statutory right to demonstrate innocence

under Kentucky law . Thus, if the Kentucky procedures create a liberty

interest akin to the one in Osborne, it is a lesser interest .

      This Court, however, need not decide what, if any, liberty interest might

arise from those procedures. Osborne recognized that a person already

convicted in a fair trial cannot claim the same liberty interest as a person first

standing trial. 129 S .Ct. at 2320. As such, a convicted person is not entitled

to the "familiar preconviction trial rights" in pursuit of a "postconviction liberty

interest ." Id. at 2319 . Trial rights, such as the one to disclosure of exculpatory

evidence in Brady v. Maryland, 373 U.S . 83 (1963), are simply inapplicable in

the postconviction setting . See Osborne, 129 S.Ct at 2320 ("[The] right to due

process is not parallel to a trial right, but rather must be analyzed in light of

the fact that [the defendant] has already been found guilty at a fair trial, and

has only a limited interest in postconviction relief. Brady is the wrong

framework .") . "A criminal defendant proved guilty after a fair trial does not

have the same liberty interests as a free man." Id. Such a defendant "has only

a limited interest in postconviction relief." Id.

      The states have substantial "flexibility in deciding what procedures are

needed in the context of postconviction relief." Id. A state may properly limit

the available procedures, which will be found to violate due process "only if

they are fundamentally inadequate to vindicate the substantive rights

provided." Id. This Court concludes that the procedures established in KRS

422 .285 are sufficient to vindicate any substantive right to DNA testing that

might also be created by the statute. The procedures "are similar to those
                                          6
provided for DNA evidence by federal law and the law of other States, and they

are not inconsistent with the `traditions and conscience of our people' or with

`any recognized principle of fundamental fairness.' Id. at 2320-21 (quoting

Medina v. California, 505 U .S. 437, 446, 448 (1992)) . As such, due process

requires no additional rights beyond what is already provided in KRS 422 .285

and the various postconviction procedures found in Kentucky law .

      Appellant also argues that he is entitled to DNA testing under the Eighth

Amendment, which he claims includes a right against the execution of an

innocent person . He argues that DNA testing, which might demonstrate his

innocence, is necessary to vindicate this Eighth Amendment right. First,

"[w]hether such a federal right [to be released upon proof of actual innocence]

exists is an open question," which the Supreme Court declined to decide in

Osborne. Id. at 2321 . Second, and more importantly, because this claim is

one for a procedure needed to effectuate another right, it is actually a due

process claim, where the substantive right (or liberty interest) to be protected

stems from the Eighth Amendment . As noted above, there is no substantive

due process right to DNA testing, nor is there a procedural due process right to

anything beyond what KRS 422 .285 currently provides . "The absence of a

federal constitutional right to postconviction DNA evidence forecloses

[Appellant's] Eighth Amendment claim, which rested upon his due process

argument ." Young v. Philadelphia County Dist. Attorney's Office, 341 F. App'x.

843, 846 (3d Cir. 2009) .
                                 B. Statutory Claims

                      1. The Procedures Under KRS 422.285

       The remaining question, then, is whether Appellant is entitled to the

additional DNA testing he seeks under Kentucky law. The postconviction DNA-

testing statute, KRS 422 .285, was enacted in 2002 and was amended in 2007

for the purpose of allowing DNA analysis of evidence that had not been

previously tested or previously tested according to current standards, when

such evidence would negate a prior conviction or result in a more favorable

verdict or sentence . Subsection (2)(a) of the statute mandates that a trial court

"shall" order DNA testing and analysis if "a reasonable probability exists" that

"the petitioner would not have been prosecuted or convicted" if the results are

exculpatory. Such a showing is essentially one of exoneration . Subsection

(3)(a) provides that a trial court "may" order such testing if it first finds that

there is a "reasonable probability" that the "verdict or sentence would have

been more favorable" because of the exculpatory DNA evidence, or a

"reasonable probability" that the analysis will in fact produce exculpatory

evidence . Both sections require prior notice to the Commonwealth and

opportunity to respond.'


' The relevant portions of KRS 422.285 read in their entirety :
      (2) After notice to the prosecutor and an opportunity to respond, the
      court shall order DNA testing and analysis if the court finds that all of
      the following apply:
        (a) A reasonable probability exists that the petitioner would not have
        been prosecuted or convicted if exculpatory results had been obtained
        through DNA testing and analysis ;
        (b) The evidence is still in existence and is in a condition that allows
        DNA testing and analysis to be conducted; and
                                             8
      Thus, the first level of proof the movant must make in support of the

DNA testing request, under either section (2) or (3) of the statute, is that the

evidence sought would either exonerate the defendant, lead to a more favorable

verdict or sentence, or otherwise be exculpatory. To do this, the movant must

describe the role the evidence would have had if available in the original

prosecution. It is obvious that at this point the movant will not know with

certainty what the DNA evidence will show. Thus, two of the subsections, (2)(a)

and (3)(a)(1) require the court to undertake the "reasonable probability"

analysis under the assumption that the evidence will be favorable to the

movant .

      This assumption does not mean that the movant gets a free pass simply

because he can allege that the evidence will be helpful. He must still state

what he expects the evidence to be, and how that evidence would, within a

reasonable probability, result in exoneration, or a more favorable verdict or

         (c) The evidence was not previously subjected to DNA testing and
        analysis or was not subjected to the testing and analysis that is now
        requested and may resolve an issue not previously resolved by the
        previous testing and analysis .
      (3) After notice to the prosecutor and an opportunity to respond, the
      court may order DNA testing and analysis if the court finds that all of the
      following apply :
        (a) A reasonable probability exists that either:
               1 . The petitioner's verdict or sentence would have been more
              favorable if the results of DNA testing and analysis had been
              available at the trial leading to the judgment of conviction; or
              2. DNA testing and analysis will produce exculpatory evidence ;
        (b) The evidence is still in existence and is in a condition that allows
        DNA testing and analysis to be conducted; and
        (c) The evidence was not previously subject to DNA testing and analysis
        or was not subjected to the testing and analysis that is now requested
        and that may resolve an issue not previously resolved by the previous
        testing and analysis .
sentence, or be exculpatory. In the exercise of sound discretion, the trial court

must then make the call whether such reasonable probability exists, looking to

whether such evidence would probably result in a different verdict or sentence .

But the analysis does not stop here.

       Both sections of the statute also require that the DNA evidence still be in

existence and in such a condition that testing can be conducted. KRS

422 .285(2)(b) 8v (3)(b) . This requires the movant, at a bare minimum, to

specifically identify what is to be tested, and where on the item the DNA is

expected to be found, as it is patently unreasonable to expect every area of an

item to be tested. Since the evidence is not in the movant's custody, this may

require the Commonwealth to establish the existence and condition of the

evidence left in its or the court's control. If the Commonwealth objects that the

evidence is not testable, since the state is the custodian of the evidence, the

Commonwealth must go forward with expert testimony as to the viability of

testing, which the movant may rebut. Even though a trial court may have

found reasonable probability that the evidence as described by the movant

would exonerate him, lead to a more favorable verdict, or definitely be

exculpatory, the trial court must also find that the evidence requested to be

tested exists in a condition that will allow proper DNA testing. If it is not, then

obviously the inquiry is at an end.2


2 KRS 17 .176(l) imposes additional requirements related to this aspect of KRS
 422 .285:
      In addition to the requirements specified in KRS 422 .285, any evidence
      submitted for testing and analysis pursuant to KRS 422.285 or 422 .287
      shall be of probative value . When the motion is filed with the court
      requesting testing and analysis of evidence pursuant to this section, the
                                           10
      Finally, this evidence must not have been previously tested for DNA, or if

it was tested, the movant must show that the type of testing now being

requested is qualitatively different and"may resolve an issue not previously

resolved by the previous testing and analysis ." KRS 422 .285(2)(c) 8, (3)(c) . By

this language, the legislature made clear its intent not to have successive,

redundant DNA testing requests, and placed a high burden on a movant to

establish that an entirely new issue is involved . Otherwise, DNA testing,

sometimes many years after trial, is limited to the "one bite of the appld' rule.

                              2 . Testing of the Car

      In this case, the trial court found that any DNA evidence which could be

found in the car would not present a reasonable probability of providing

evidence that would be admissible at trial or satisfy"the criteria as outlined in

KRS 422 .285 ;' because the age of any DNA found could not be established

sufficiently to determine when it was deposited in the vehicle . The trial court

properly excluded testing of DNA that at best could produce mere speculation .

The vehicle belonged to Appellant, and as its usual driver, his DNA would

obviously be in the vehicle. If DNA belonging to a member of the Adams family

were also found in the car, without being able to precisely pinpoint when the

DNA was deposited, it would prove nothing; by his own admission, Appellant

allowed the Adamses to use his car . So, even if John Ed Adams's DNA could be

found in the car after 16 years, that fact does not give rise to a reasonable




      proceeding for a court to make a determination of the probative value of
      the evidence proposed to be tested and analyzed.
                                          11
 probability of exonerating Appellant, nor is there a reasonable probability that

it would change the verdict or be exculpatory in any way.

       Appellant points to sworn statements of his experts as proof that any

DNA evidence found in the car could be shown to relate directly to the time of

the murders, but this simply overstates the case . As one of the experts put it,

"it is also possible that another person who drove the car could have left DNA,"

and "[t]hat DNA could potentially be detectable, especially if that person drove

the car immediately prior to impound." (Emphasis added.) These statements

point at best to a speculative possibility-not a reasonable probability-that

any recovered evidence would be helpful.

                             3. Testing of the Jacket

      As to the jacket, it is questionable whether the trial court was correct in

allowing DNA testing in the first place, but if the decision is error, it is

harmless . The jacket admitted at trial was found in Appellant's possessions at

his sister's home in Tennessee . He had apparently worn the jacket in Powell

County, and took it with him as he hitchhiked to Tennessee. Though no

comparison testing was ever performed, it is almost inevitable that Appellant's

DNA would be on the jacket since he wore it. Much like the DNA in the car,

however, even if someone else's DNA was found on the jacket, this would not

exonerate Appellant, and even with an alternate perpetrator theory, the

presence of someone else's DNA would not necessarily be exculpatory.

      Appellant was known to have worn the jacket at some point near the

time of the murders; the fact that another person may also have worn the

jacket would not have changed the result at trial. Appellant had an opportunity
                                          12
to challenge whether the jacket was his at trial, and now claims some of the

testimony, specifically that of his sister, would support such a finding.

Appellant has not shown by a reasonable probability that additional DNA

comparison testing would lead to a different result. "Where there is enough

other incriminating evidence and an explanation for the DNA result, science

alone cannot prove a prisoner innocent. The availability of technologies not

available at trial cannot mean that every criminal conviction, or even every

criminal conviction involving biological evidence, is suddenly in doubt."

Osbome, 129 S . Ct. at 2316 . Thus, it was appropriate for the trial court to

deny comparison testing of the jacket. If testing showed that additional DNA

on the jacket came from one of the Adamses, the jury would still be required to

speculate as to when an Adams family member had worn the jacket .

      Given all the other evidence at trial-Appellant's mother testified that he

had been living with her in the weeks prior to the crime and had left her house

the morning of the murders ; physical evidence showed Appellant's car was

used in the murder ; witnesses in Powell County saw Appellant in the jacket ;

Appellant's sister testified that he always wore a black jacket, though she did

not identify the jacket produced at trial as his; the jacket was found with

Appellant in Tennessee; and gun residue was found on the jacketit cannot be

said that merely introducing evidence that the jacket had been worn by

someone else at some point in time would result in an acquittal or lesser

sentence, within a reasonable probability . Even if Appellant fleshed out his

alternative perpetrator theory with testimony that established a motive for an

Adams family member to kill the Earleys, and assuming that the other DNA on
                                        13
the jacket belonged to a member of the Adams family, there still would be the

question of when the DNA was deposited on the jacket and still would not

preclude Appellant as the shooter, within a reasonable probability.

      Thus Appellant has failed to satisfy the requirements of KRS 422 .285 .

By its use of "reasonable probability" language, the legislature set a high

threshold which must be met before a new trial can be granted based on DNA

evidence that is sought long after finality of the underlying judgment . The

movant must establish before the trial court that a viable theory exists, if DNA

testing reveals the expected, that would exonerate him, or that testing would

result in exculpatory evidence that would lead to a more favorable verdict or

sentence . Before ordering genetic testing, the trial court must make a finding,

on the record, that there is a reasonable probability that such a result will

occur. Then, depending upon the facts of a given case, the trial court must

determine, after the initial testing, whether to test further to identify any DNA

belonging to someone other than the movant . The effect of excluding the

movant by an absence of his DNA on the item tested must also be weighed in

light of the facts in a given case . The trial court necessarily has broad

discretion in applying the results of any DNA testing to the question of whether

a new trial is warranted. The trial court in this case did not clearly reach a

decision that no new trial was warranted, but such a finding was the inevitable

result of denying further DNA testing on the jacket. There was no error that

requires reversal.
                                 III . Conclusion

      Because Appellant has no constitutional right to further DNA testing and

has failed to satisfy the requirements of KRS 422 .285, the orders of the Fayette

Circuit Court denying further DNA testing are affirmed .

      All sitting. All concur.



COUNSEL FOR APPELLANT:

David Michael Barron
Department of Public Advocacy
Assistant Public Advocate
Capital Post Conviction Unit
100 Fair Oaks Lane, Suite 301
Frankfort, Kentucky 40601

Jamesa J . Drake
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601


COUNSEL FOR APPELLEE :

Jack Conway
Attorney General

James Daryl Havey
Office of the Commonwealth's Attorney
116 North Upper Street, Suite 300
Lexington, Kentucky 40507-1161

William Robert Long, Jr.
Assistant Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
              ,*uyrrmr (~ourf of ~irufurhV
                                2008-SC-000901-MR

THOMAS CLYDE BOWLING                                         APPELLANT



                ON APPEAL FROM FAYETTE CIRCUIT COURT
V.              HONORABLE KIMBERLY N . BUNNELL, JUDGE
                           NO . 90-CR-00363



COMMONWEALTH OF KENTUCKY                                      APPELLEE



 ORDER DENYING PETITION FOR REHEARING AND MODIFYING OPINION

     The Appellant having filed a Petition for Rehearing of the Opinion of

 the Court by Justice Noble, . rendered September 23, 2010 ; and the Court

 being otherwise fully and sufficiently advised ;

     The Court ORDERS that the Petition for Rehearing is DENIED . The

 Court, on its own motion, modifies the Opinion of the Court by Justice

 Noble, rendered September 23, 2010 . Pages 1, 7 and 11 are

 SUBSTITUTED in lieu of the original . Said modification does not affect the

 holding.

     All sitting. All concur.

     ENTERED : March 24, 2011 .




                                             JUSTICE
                                                    W
