RENDERED: JULY 1, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0334-MR
KELVIN ROBERSON APPELLANT
APPEAL FROM TRIGG CIRCUIT COURT v. HONORABLE C.A. WOODALL, III, JUDGE ACTION NO. 84-CR-00036
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND K. THOMPSON, JUDGES.
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
-2- 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
-3- 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
-4- 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)
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RENDERED: JULY 1, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0334-MR
KELVIN ROBERSON APPELLANT
APPEAL FROM TRIGG CIRCUIT COURT v. HONORABLE C.A. WOODALL, III, JUDGE ACTION NO. 84-CR-00036
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND K. THOMPSON, JUDGES.
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
-2- 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
-3- 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
-4- 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)
-5- the petition (and supplements and response), (2) the petitioner, and (3) the evidence, to confirm that each meets the requirements of the statute. Only after addressing these three preliminary steps, can the trial court reach . . . the more substantive and ultimate question – is there a reasonable probability that the DNA evidence the petitioner seeks would have made a difference had it been available at or before trial?
512 S.W.3d at 7. The Commonwealth is expected to file a written response to the
petition with the Commonwealth as the custodian of the evidence providing the
court with information on the condition of the evidence. Id. at 8.
In this case, Roberson seeks to obtain the release of slides containing
blood, semen, and hair evidence from his 1984 conviction so that such items can
be subjected to DNA testing. However, we conclude that the trial court correctly
denied Roberson’s motion to release evidence for testing, as the court found that
the evidence sought could not be obtained and thus could not be tested. Under
KRS 422.285, the trial court must first determine whether the subject evidence has
ever been “in the possession or control of the court or Commonwealth[.]”
However, “[i]f the evidence does not exist, then it obviously cannot be tested, and
KRS 422.285 only gives the right to a test, not to reversal of a conviction simply
where testing is impossible.” Moore v. Commonwealth, 357 S.W.3d 470, 484 (Ky.
2011).
Here, the trial court made a specific finding that the evidence was not
in the custody of the court or Commonwealth. Therefore, because the evidence
-6- was not “in the possession or control of the court or Commonwealth,” the trial
court correctly denied Roberson’s motion. We find no abuse of discretion.
Roberson makes additional arguments in his reply brief to this Court,
including claims that the victim was related to the trial judge in this case, the
prosecution’s suppression of evidence in violation of Brady v. Maryland, 373 U.S.
83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and bad faith on the part of the
prosecution in not maintaining the physical evidence in this case. However,
Roberson did not raise these issues before the trial court, and this Court is without
authority to review issues not raised in or decided by the trial court. Regional Jail
Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989).
Moreover, Roberson has produced no proof that the Commonwealth
lost or destroyed the evidence in this case in bad faith. Roberson was convicted in
1985. DNA was only beginning to be understood at that time, and criminal courts
did not use DNA profiling in their cases. Thus, it was not bad faith for the
Commonwealth to fail to maintain evidence in a condition for a type of testing that
was not being utilized at that time.
Furthermore, disposing of evidence as a matter of routine compliance
with an existing policy is sufficient evidence for a trial court to find there was no
intention of depriving them of exculpatory evidence. Garland v. Commonwealth,
458 S.W.3d 781, 786-87 (Ky. 2015). In claiming a due process violation, it must
-7- appear that the state deliberately sought to suppress material, potentially
exculpatory evidence. McPherson v. Commonwealth, 360 S.W.3d 207, 217 (Ky.
2012). Roberson has provided no evidence that the state deliberately sought to
suppress material, potentially exculpatory evidence.
For the foregoing reasons, we affirm the Trigg Circuit Court’s
judgment.
CALDWELL, JUDGE, CONCURS.
THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Kelvin Roberson, pro se Daniel Cameron Eddyville, Kentucky Attorney General of Kentucky
Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
-8-