Opinion
2014-SC-000743-MR
02-16-2017
ROBERT CARL FOLEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
COUNSEL FOR APPELLANT: Euva Denean Blandford Margaret Anne Ivie Robert C. Garrison Assistant Public Advocate Department of Public Advocacy COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky Jason Bradley Moore Assistant Attorney General
IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. NOT TO BE PUBLISHED ON APPEAL FROM MADISON CIRCUIT COURT
HONORABLE THOMAS P. JONES, JUDGE
NO. 93-CR-00070
MEMORANDUM OPINION OF THE COURT
AFFIRMING
I. FACTUAL AND PROCEDURAL BACKGROUND.
Following a jury trial in 1994, Robert Carl Foley received four death sentences for the 1989 murder of four individuals; and in 1997, this Court affirmed the resulting judgment on direct appeal. Foley later filed a collateral motion for new trial alleging newly-discovered evidence, and this Court affirmed the trial court's decision to deny the new-trial motion.
See Foley v. Commonwealth, 953 S.W.2d 924, 928 (Ky. 1997) ("Foley I").
See Foley v. Commonwealth, 55 S.W.3d 809 (Ky. 2000) ("Foley II").
Shortly after the trial court denied his motion for new trial, but before we rendered our opinion in Foley II, he filed a motion to vacate, set aside, or correct his judgment under Kentucky Rules of Criminal Procedure (RCr) 11.42, alleging twenty-two grounds for relief. Over a decade passed before Foley's counsel moved for an evidentiary hearing on this RCr 11.42 motion. He also moved the court to amend his original motion, and sought funds for expert assistance.
In 2011, the trial court concluded that an evidentiary hearing would be necessary for claims that Foley's trial counsel failed to investigate and discover lay witnesses and failed to present mitigating evidence. The trial court also granted Foley leave to amend his claim but denied him funds for expert witnesses. Foley filed his amended RCr 11.42 claim a year later, asserting an additional twenty-one claims to his original motion. The trial court ultimately determined that five issues warranted an evidentiary hearing—four claims from Foley's original motion and one from his supplement. The trial court found the remaining claims to be refuted by the record. The trial court also found that thirteen of Foley's supplemental allegations did not relate back to his original motion and, accordingly, were untimely.
Following the evidentiary hearing on the five issues before the trial court, the trial court entered an order denying all of Foley's post-conviction claims. Foley now appeals to this Court as a matter of right.
Ky. Const. § 110(2)(b).
II. INEFFECTIVE ASSISTANCE OF COUNSEL.
A. Standard of Review.
The standard of review for claims of ineffective assistance of counsel on appeal is detailed in a two-part test first articulated in Strickland v. Washington. This standard essentially requires a reviewing court to ask two questions: (1) was trial counsel's representation so deficient that it "fell below an objective standard of reasonableness"; and (2) was the defendant actually "prejudiced by his attorney's substandard performance." Unless a defendant can prove the affirmative to both questions, "it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable."
466 U.S. 668 (1984).
Id. at 687-88.
Id. at 687.
The first question requires a defendant to prove that "counsel made errors so serious that counsel was not functioning as 'counsel' guaranteed the defendant by the Sixth Amendment." This is a highly deferential standard to an attorney's actual performance at trial. In performing this analysis, the Supreme Court held that "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's perspective at the time." And that requires the court to "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." This evaluation includes the defendant's own words or conduct in assisting his attorney. For example, if the defendant gives counsel reason to believe certain defenses or strategies are meritless or even potentially destructive, the defendant cannot later challenge the attorney's failure to pursue those leads as unreasonable actions by counsel in the scope of representation.
Id.
Id. at 689.
Id.
See id. at 691.
But even if a defendant can establish that counsel's conduct was unreasonable, the second Strickland factor still requires him to prove he suffered actual prejudice as a result of the deficient representation. The Supreme Court declared that, to prevail, the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." We impose such a high burden to blunt the "all too tempting" urge to second-guess trial counsel's performance after an adverse sentence.
Id. at 694.
See Harrington v. Richter, 562 U.S. 86, 105 (2011).
With the Strickland standard firmly in place, we must also recognize the context in which this rule is to be applied. This case comes to us on appeal from a collateral motion originally presented in the trial court under RCr 11.42. On appeal, we review counsel's performance under the de novo standard of review. But in appealing a trial court's decision to deny a motion based on ineffective assistance, the appealing party bears the burden of proving the trial court erred in its ruling. Furthermore, an RCr 11.42 motion "must set forth all facts necessary to establish existence of a constitutional violation and that the court will not presume that facts omitted from the motion establish existence of such a violation." And finally, an RCr 11.42 motion must state specific grounds for relief and include relevant supporting facts.
See Brown v. Commonwealth, 253 S.W.3d 490, 500 (Ky. 2008).
Id.
Simmons v. Commonwealth, 191 S.W.3d 557, 561 (Ky. 2006).
See Stanford v. Commonwealth, 854 S.W.2d 742 (Ky. 1993).
Keeping these standards in mind, we now review the entirety of Foley's motion—both the trial court's express rulings and its decision that some of Foley's claims did not merit a hearing.
B. Foley's Various Claims of Ineffective Assistance on Appeal.
1. Failure to question witnesses about agreements with the Commonwealth.
Foley's first instance of ineffective assistance on appeal was trial counsel's failure to impeach the Commonwealth's witnesses Phoebe Watts and Gordon Canter about agreements they made with police in exchange for their testimony. Both Canter and Watts could have faced a multitude of charges associated with the homicides Foley was charged with committing. They both took part in disposing of the victims' bodies and valuables, and Watts is believed to have cleaned the cabin where the murders took place.
At trial, Foley's counsel asked both Watts and Canter if any charges had been brought against them. Each witness responded in the negative. Foley suspects that Watts and Canter each had agreements with the Commonwealth that they would not be charged with any crimes in exchange for their testimony against Foley. And correspondingly, trial counsel was deficient because he should have asked them whether any agreements in fact existed. The trial court determined that trial counsel's questioning of these witnesses was simply trial strategy and was not adequate grounds for finding ineffective assistance. And we agree.
First, the Commonwealth reminds us that it has a duty to disclose any such agreements that may affect a witness's motivation to testify. Because of that duty, defense counsel could fairly assume that if any agreement such as the one Foley alleges existed, such agreements would have been disclosed. We cannot say counsel's performance was deficient when the Commonwealth possesses an affirmative duty to disclose agreements of this kind. It is a reasonable inference for trial counsel to conclude that the absence of a disclosure means that no agreements existed.
But even so, Foley also contends that the purpose of this line of impeachment is not to reveal the existence of an agreement between the prosecution and two witnesses but instead to expose the crimes Watts and Canter could have been charged with as associates to the murders. But the witnesses openly testified to the roles they played, and trial counsel made it clear to the jury that they had not been charged with any crimes. Given the lack of actual evidence of any agreement with the Commonwealth, we agree with the trial court that it was plausible trial strategy to allow the jury to draw its own inferences about Watts's and Canter's motivations for testifying against Foley. And we are certain Foley was not prejudiced by counsel's failure to explore this particular line of questioning.
2. Failure to impeach Watts's inconsistent statements.
Foley next argues that trial counsel was deficient by failing to impeach Watts with prior inconsistent statements made to Ed Gross and Louise Bridges. As a key witness in the case, Watts gave a number of different statements about the murders and her role in the events that unfolded. And this naturally lead to some inconsistencies in her story. Most notably, Foley points to her statement to Gross that suggests Gross and Canter were the true murderers and her statement to Bridges that Watts would supply Bridges with testimony if she would testify against Foley.
Trial counsel attempted to impeach Watts on this ground. But the trial court refused introduction of this evidence because trial counsel failed to lay a proper foundation as required by Kentucky Rules of Evidence (KRE) 613, the evidentiary rule governing the use of prior statements of witnesses. The trial court denied a hearing on this claim, determining that counsel's performance on cross-examination amounted to reasonable trial strategy. Though we agree that counsel may have erred, we agree with the trial court that there is no evidence of ineffective assistance in this instance.
Foley is correct in concluding that admission of this impeachment evidence almost certainly would have been allowed if trial counsel had properly laid the foundation to impeach Watts. This failure prevented defense counsel from exploring that line of questioning. But despite this error, we are confident that this mistake did not prejudice Foley's case. Under Strickland, not only must trial counsel perform deficiently, but the mistake must cast doubt on the integrity of the verdict. In this case, there was ample evidence connecting Foley to the crime. We are unable to say there would have been a different outcome had counsel laid the proper foundation and pursued a line of questioning in an attempt to impeach Watts.
3. Failure to subpoena an Indiana State Police investigator.
Foley next contends he received ineffective assistance by counsel's failure to subpoena Indiana State Police Investigator Robert Abbitt to testify about a fax transmission requesting Canter's location. At trial, Foley hoped to introduce this evidence to highlight Canter's flight from Kentucky to Indiana shortly after the bodies were discovered to suggest Canter's culpability for the murders. But similar to the issues impeaching Watts, Foley's trial counsel failed to lay the proper foundation for this evidence because he did not subpoena Investigator Abbitt to authenticate the document. And this Court in Foley I held that the trial court rightly excluded the fax from evidence. So Foley now argues counsel's ineffective assistance caused this evidence to be excluded.
Like the issue with Watts, we are inclined to agree that had counsel made the necessary preparations to subpoena Investigator Abbitt to testify, the fax transmission would likely have been admitted into evidence. But also like the prior issue, we cannot say this mistake prejudiced his case under the second Strickland factor. The fax itself sought to locate Canter only as a potential witness to the homicides and indicated that Kentucky police only planned to treat Canter as a co-conspirator if "uncooperative." In Foley I, we held that this evidence was "of marginal relevance" and cumulative in nature—similar testimony could be elicited from other detectives without the need of the document. With this in mind, we are confident Foley was not prejudiced on this issue.
See Foley I, 953 S.W.3d at 938.
4. Failure to call Timothy Rose as a witness.
The next instance of alleged ineffective assistance stems from counsel's failure to call Timothy Rose as a witness at trial. Foley specifically claims that Rose could have testified that David Gross possessed a number of firearms and was known as a "big-time dope dealer." Foley further speculates that Rose could have established a relationship between Gross, Canter, and Dave Neal. Rose spoke with detectives in December 1991 and much of his testimony was considered double-hearsay. No one has been able to locate him since, including a two-month window in 2014 when the trial court ordered an evidentiary hearing on this matter. Post-conviction counsel was unable to locate and subpoena Rose for testimony. And we agree with the Commonwealth that we cannot hold trial counsel as ineffective for failing to call a witness who has never been found.
5. Failure to call Jamie Bailey and Leonard Jones as witnesses.
Foley contends that counsel's failure to call Jamie Bailey and Leonard Jones as witnesses also amounts to ineffective assistance. He claims they both could have connected David Gross with the murder weapon. The trial court ordered an evidentiary hearing on this issue.
Despite subpoena, Jones could not be located to appear, and the trial court issued a bench warrant for his arrest. He was held for a considerable amount of time, but Foley never asserted a desire to present his testimony at the 11.42 hearing.
As for Bailey, he offered video testimony from an Oklahoma prison consistent with his original statements. The problem trial counsel immediately identified, however, was that Bailey did not meet Foley until they were both inmates in the Kentucky State Penitentiary in the mid-1990s. Trial counsel could not discern a basis for Bailey and Foley to have known each other when the crime occurred and he could not find an independent basis for knowing Bailey could be a credible witness at the time. As such, we agree that counsel was not deficient in this context.
6. Failure to call Imogene Barnes as a witness.
According to Foley, Imogene Barnes could have corroborated testimony from another witness, Brian Engle, which contradicts the timeline articulated by Watts and Canter. The trial court denied relief on this claim. There is no indication in the record that Barnes would have been willing to testify on Foley's behalf and there is no basis for concluding her testimony would be fundamentally different from Engle's testimony. As such, we can confidently declare he did not suffer prejudice to his case in counsel's failure to call Barnes as a witness.
7. Failure to prevent the Commonwealth from disparaging a witness.
Foley next argues that he received ineffective assistance when counsel failed to prevent the Commonwealth from disparaging a defense witness's testimony. Through deposition testimony, Crocket Stevens claimed to have had a conversation with Canter after the murders in which Canter admitted that he and Gross had to "off some people in Kentucky because of a drug-related controversy. For unknown reasons, Stevens did not offer live testimony at trial. The Commonwealth in closing argument used Stevens's failure to testify in person to discredit his testimony.
On direct appeal in Foley I, Foley argued that these characterizations of Stevens's deposition testimony amounted to prosecutorial misconduct. The basis behind his claim is the evidentiary principle that deposition testimony is afforded the same weight as live testimony and that the Commonwealth's remarks left the jury with the impression that Stevens's testimony was not credible because he did not appear in person. We determined that this did not amount to prosecutorial misconduct, finding that "the remarks referred to here [are] well within the proper bounds of a closing argument and certainly did not affect the outcome of the trial." Now in this ineffective-assistance case, Foley argues that counsel should have objected to this closing argument and also critiques counsel's failure to subpoena Stevens for live testimony.
Foley I, 953 S.W.3d at 939 (quoting Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky. 1987)).
Whether counsel objected to this characterization or not, Stevens's testimony was presented to the jury for consideration. The jury heard his unabridged account of his knowledge of the case and the conversation between him and Canter. As Foley himself argues, it is a principle of black-letter law that deposition testimony is to be given the same weight as that offered by a live witness at trial. So counsel successfully presented this side of Foley's case to the jury. And our position in Foley I finding no misconduct in the Commonwealth's closing argument assures us that even had counsel objected in this instance, this issue was meritless.
8. Failure to obtain a ballistics expert.
One of Foley's primary defenses at trial was that Canter and Gross executed the victims in a car owned by victim Jerry McMillan. Specifically, he claims his theory of multiple shooters with multiple weapons was confirmed by autopsy. In this post-conviction motion, he contends that counsel should have retained Arthur Alphin and Frank Camper as expert witnesses. Alphin is a retired army colonel and Camper is an alleged ballistics expert. Foley argues that two weapons were used: a 9mm Uzi and a P85 Ruger. The autopsy revealed a projectile in McMillan's body, while none of the other victims' bodies contained a projectile. Foley therefore contends that these witnesses would testify that a 9mm Uzi has a higher muzzle velocity than a P85 Ruger and would be more likely to pass through a body. Thus, this would imply two different weapons were used, implying two gunmen.
This is an intriguing argument. But the problem for Foley is that we have no way of differentiating this argument from conclusory, self-serving speculation. There are no affidavits from these experts in the record, and indeed, there is no evidence these men are in fact "ballistics experts." The only information provided on Alphin is his background as a retired army colonel, the record does not inform us of his experience testifying in court as a weapons expert. So there is no evidence qualifying Alphin as an expert.
As for Camper, it is easy to see why counsel did not retain him for testimony at trial. Camper was supposedly an owner and operator of a mercenary training school in Birmingham, Alabama. In 1987, he was sentenced to fifteen years in federal prison for a laundry list of federal crimes including conspiracy to destroy property, to possess and use "incendiary destructive devices," and two counts of using an "incendiary destructive device" during the course of violence and racketeering. We have no difficulty seeing why the trial court rejected Foley's claims on this issue.
See United States v. Hedgcorth, 873 F.2d 1307, 1309 (9th Cir. 1989), (affirming Camper's and co-defendant's convictions on direct appeal); Camper v. United States, 977 F.2d 587 (9th Cir. 1992) (affirming denial of Camper's petition for habeas corpus relief).
9. Failure to establish the absence of bullet strikes on October 9, 1991.
Under the Commonwealth's theory of the case, Foley shot his victims inside Gross's home, with some bullet strikes left in the walls. He contends these strikes were not discovered for over two years. At trial, the Commonwealth produced concrete blocks from the walls of Gross's home to demonstrate where the bullets allegedly struck and used the KSP Crime Lab to verify that a number of markings contained lead residue consistent with being caused by a bullet.
According to Foley, there is no evidence those strikes were present at the time the murders occurred. He cites an October 1991 report in which Detective Lonnie Owens, after inspecting the walls shortly after the Gross home burned, remarked there was no sign of any projectile ever hitting the walls. In his ineffective-assistance claim, Foley alleges that counsel failed to use the October 1991 report to rebut what he perceives as misrepresentation from the Commonwealth regarding the bullet strikes. The trial court determined Foley was not entitled to any relief on this issue. And we agree.
The record reflects that Foley's counsel directly asked Detective Owens whether there were any bullet strikes on the walls when he inspected the home. And Owens clearly responded that there were none. So it seems obvious that counsel elicited testimony consistent with the October 1991 report and accordingly, counsel was not deficient through failure to introduce the document when questioning Owens.
10. Charles Lanham's testimony.
Foley's next claim of ineffective assistance is his allegation that counsel deficiently failed to request a Daubert hearing to challenge Charles Lanham's opinion that indentations in concrete blocks removed from Gross's home were the result of bullet strikes.
In the Supreme Court's seminal case Daubert v. Merrill Dow Pharmaceuticals, Inc., the Court outlined a standard for trial judges to apply in qualifying witnesses purporting to testify as experts. This is done to determine whether "the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology can properly be applied to the facts in issue." And the record appears clear that counsel did not request to qualify Lanham's testimony through a Daubert hearing.
509 U.S. 579 (1993). Relevant Daubert factors include the ability to test particular testimony, methodologies subject to peer review or publication, that stated practices are generally accepted in the field, and the existence of standards controlling the bases for opinions. See id. at 593-94.
Id. at 592-93. See also Kumbo Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) (noting that the overall concern in Daubert was "to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes that practice of an expert in the relevant field.").
The problem for Foley here is that he first raised this issue in his amended RCr 11.42 motion filed in 2012; this claim did not appear in his original 1999 motion. Under our holding in Roach v. Commonwealth, we ruled that amended RCr 11.42 motions are untimely if filed outside the three-year period set forth in RCr 11.42(10) unless the amended claims "arose from the same 'conduct, transaction, or occurrence" as claims in the original motion. "New claims based on facts of a different time or type will not meet [this] standard and so, generally, should not be allowed." The trial court determined that counsel's alleged failure to request a Daubert hearing was unrelated to any of the other timely issues in the original motion. And we agree.
384 S.W.3d 131, 136 (Ky. 2012) (quoting Kentucky Rules of Civil Procedure (CR) 15.03(1)).
Id. at 137 (quoting Mayle v. Felix, 545 U.S. 644 (2005)).
To be sure, Foley is well-aware of the rule in Roach and attempts to structure his argument accordingly. He specifically cites to three arguments in his original motion that he considers adequately similar to this particular amended complaint: failure to retain a ballistics expert, failing adequately to prove there were no bullet strikes on the walls, and stipulating to autopsy reports. We agree with the lower court's determination that this particular issue does not properly relate back to his original RCr 11.42 motion. There is simply not enough in the three cited examples to prove to us that this amended issue truly enhances the nature of those preceding claims. So we affirm the trial court's ruling that the amended motion does not relate back, and we accordingly hold that this issue is not properly before the court for review on the merits.
11. Failure to consult with an independent expert about autopsy results.
Foley next claims he was denied effective assistance of counsel because of trial counsel's decision to stipulate to the medical examiner's findings. Most particularly, Foley takes issue with counsel's decision not to hire an independent expert to review the autopsy results, especially in light of Watts's and Canter's testimony. According to Foley, he could not rebut those statements without expert testimony. And he points to a United States Supreme Court decision holding that failure to retain an expert is deficient representation.
See Ake v. Oklahoma, 470 U.S. 68, 79-80 (1985).
The trial court disagreed and viewed the decision not to retain an independent expert as reasonable trial strategy. Counsel appeared to have opted to attack Watts's and Canter's credibility through cross-examination based on their own accounts of the events that transpired. But perhaps more importantly, by not using an expert, counsel spared the jury from the unsettling and graphic details of the murders, and the horrific conditions of the victims' bodies as they were discovered by authorities. We take no issue with this characterization of trial strategy, and we concur that the decision to spare the jury from more gory testimony than necessary was more likely to be in Foley's best interest.
12. Stipulating to autopsy results and failure to call Luther Arnold.
Related to the previous issue, Foley contends he was denied effective assistance of counsel through trial counsel's actions stipulating to autopsy results and failing to call Luther Arnold as a witness. The trial court found this issue meritless. And so do we.
Foley alleges that the autopsy results supported his theory that the victims were shot while sitting in a car, rather than in Gross's home. He argues that trial counsel should have called the pathologists who performed the autopsies to testify and highlight the results Foley believes were consistent with this defense theory. Instead, counsel decided to stipulate to the contents of the reports. He did not question the pathologists, but rather, a simple statement regarding each victim and injury sustained was read to the jury.
In ruling against Foley, the trial court determined that this approach was a reasonable strategic decision. The decision to stipulate to the findings was made intentionally, seeking to avoid testimony of the gruesome details surrounding the deaths and the condition of the corpses at the time of the examination. The simple descriptions of the deaths given as stipulation spared the jury from the graphic realities. The Commonwealth speculates that had counsel not stipulated to the findings, the autopsy photographs that would have inevitably been introduced contained images so graphic in nature that Foley may have argued he was denied a fair trial. We are inclined to agree that counsel acted strategically in limiting Foley's exposure in this instance.
But Foley also argues that counsel erred in failing to call Luther Arnold as a witness. According to Foley, Arnold possessed knowledge of how the victims were killed. Arnold was supposedly prepared to testify that sometime in the first week of October 1989 he heard automatic weapons firing and that he heard screams, suggesting that the victims were not in Gross's home but outside. The Commonwealth dismisses Arnold's value as a witness because he was also on record saying that the firing of automatic weapons was a routine occurrence, and that "Foley and Canter were at the Gross property all the time." This information in addition to his inability to recall precisely when he heard the gunfire and screams renders Arnold an unreliable witness that appears incapable of altering the result at trial. So we find no prejudice in counsel's failure to call him to testify at trial.
13. Foley's statement to the police.
Foley next asserts that counsel's recommendation to provide a statement to Detective Phelps amounted to ineffective assistance of counsel. This was an added issue as part of Foley's amended RCr 11.42 motion, but the trial court determined the issue related back to the original motion. Nevertheless, the trial court determined that counsel's action was trial strategy and Foley was not entitled to relief.
During the course of his statement to Detective Phelps, Foley revealed that a Ruger P85 was the murder weapon. According to Foley, the Commonwealth had no information about the murder weapon at that time. And eventually, this revelation helped the Commonwealth connect him with the weapon. The Commonwealth used this statement in its closing argument, suggesting that the reason Foley knew this particular weapon was the one used was because he was the "trigger man." His primary argument for ineffective assistance of counsel is that trial counsel inadequately investigated the case and should never have advised Foley to give that statement to the police. Because of the usefulness of this information regarding the murder weapon, Foley argues this mistake set off a chain of events that inalterably prejudiced his defense in this case.
Trial counsel's thought process behind recommending the statement ultimately boiled down to the realities of Foley's legal situation at the time. When this occurred, Foley was already charged with two murders outside this case and was not yet considered a prime suspect in these killings. Counsel believed it was in Foley's best interest in the outside case to provide a statement to police in this matter; counsel believed that useful information could help take the death penalty off the table for the charges he already faced. The trial court considered this reasonable trial strategy, and we agree. Of course that strategy ultimately failed, and Foley was indeed given a death sentence, perhaps partly because of the inculpatory statement he gave Detective Phelps. But that alone is not worth undermining the tactics employed designed to obtain a more lenient sentence for Foley.
14. Failure to advise Foley of the marital privilege.
Foley next claims he was prejudiced by a several statements made at trial by his wife, Marjorie. He asserts that these statements were privileged communications between spouses and that his attorney's failure to raise the privilege at trial amounted to a prejudicially deficient performance. In total, Foley raises this issue for six statements made at trial. The trial court determined that three Were not privileged and three were privileged, but non-prejudicial. We find no reason to overturn the trial court's ruling.
Under KRE 504(b), "An individual has a privilege to refuse to testify and to prevent another from testifying to any confidential communication made by the individual to his or her spouse during their marriage." This privilege may only be asserted by the individual holding the privilege. The rule qualifies a communication as confidential if "made privately by an individual to his or her spouse and is not intended for disclosure to any other person."
Id.
We will begin with the statements the trial court considered privileged but non-prejudicial. This classification applies to three instances in Marjorie's testimony: (1) Foley calling Bowerstock derogatory names; (2) Foley saying he would retaliate against Bowerstock for ruining his life; and (3) Foley saying he would run into Bowerstock when she returns to Kentucky. The essential basis in the trial court's determination that these admittedly privileged communications were not prejudicial was because this testimony was cumulative of other evidence properly admitted. In other words, the trial court determined that there was nothing in this testimony independent of other evidence and hence, Foley was relatively unharmed by the error. This testimony at its core reflects Foley's overall motive for committing the crimes—and there is ample evidence elsewhere in the record detailing a similar motive. So we are confident that while error, trial counsel's failure to invoke the marital privilege with regard to these statements did not corrupt the integrity of Foley's conviction.
Now for the alleged-non-privileged communications. The following portions of Marjorie's testimony were determined to be outside the scope of the marital privilege: (1) Foley's statements to Marjorie that she better not have anything to do with telling his parole officer of any parole violations; (2) that before leaving to commit the murders, Foley hit Marjorie with a gun and warned her she better have not had anything to do with calling his parole officer; and (3) Foley's statement to Marjorie, shortly before he left to commit the murders, to call his parents if he was not home by sunrise because he would either be in jail or in the morgue.
The trial court found the first two statements were not privileged because they were deemed threats against Marjorie and that those threats could be the subject of a domestic violence petition, and, accordingly, could be part of a public record in a circuit clerk's office. Under the exceptions to the spousal privilege detailed in KRE 504(c), there is no privilege where the spouse engages in wrongful conduct against the person or property of the other spouse, in any proceeding. At the time of trial, Marjorie had not filed a domestic violence petition against Foley—and to our knowledge one has never been filed. These two statements were never part of a public record, and we must agree with Foley that they are subject to the spousal privilege.
Though we agree that the trial court erred in classifying the two statements as privileged, for Foley to prevail on this RCr 11.42 motion, we must also determine he was prejudiced under the Strickland standard. And this requires us to ask: had these two bits of testimony been excluded from trial, do we seriously question whether Foley would have been convicted? Because of the overwhelming evidence against him, we simply cannot conclude counsel's error failing to object to this testimony altered the outcome in this case.
As for the final statement, the trial court ruled that Foley's instruction to call his parents if he did not return by sunrise was not privileged because it was not a confidential communication. The trial court characterized this statement as an instruction to a third party. Foley disputes that he told Marjorie to instruct his parents he would "either be in the jail or the morgue," but rather just to inform them he was missing if he did not return by daybreak. Nevertheless, the communication, when viewed as a whole, is clearly not meant to be limited between husband and wife; the nature of the statement invariably extends to those beyond the marital home. So we concur with the trial court that this statement was not within the scope of the spousal privilege.
25. Failure to establish Foley's standing to challenge the search of a septic tank.
Foley next argues he received ineffective assistance from counsel's failure to prove Foley's ownership of property in effort to establish his standing to suppress evidence recovered from a police search. The search ultimately led to the discovery of the victims' bodies buried in a septic tank. The trial court originally denied Foley's motion to suppress because he was supposedly not the record owner of the property at the time of the search, despite Foley's insistence that he owned the property. And this was an issue we affirmed on direct appeal.
See Foley I, 953 S.W.2d at 932.
Foley now presents an unrecorded deed from his father transferring the property to him, and he also highlights a number of affidavits in support of his ownership of the property in question. The basis behind this RCr 11.42 claim then is that trial counsel should have discovered this unrecorded deed and acted more diligently to establish Foley's standing to challenge the suppression. This error, he argues, led to the introduction of critical evidence against him and irreparably prejudiced his defense. Though hindsight is 20/20, we find no such prejudice in this instance.
First, even Foley thought no such deed existed at the time of trial. Though adamant about his ownership of the property, Foley believed the unrecorded deed had been destroyed in a house fire—he even told trial counsel the deed had been destroyed and could not be produced at the suppression hearing. We agree trial counsel cannot be deficient for failing to obtain evidence he reasonably believed did not exist.
But moreover, even if counsel had found the deed, we are unconvinced the outcome of the suppression hearing would have changed. Reviewing courts at the time determined that even had Foley been able to establish standing to challenge the search, there would have been no basis for granting the suppression.
Id. at 934.
There is no indication that Foley's trial counsel acted deficiently in attempting to suppress evidence of the discovered bodies, nor do we believe he was prejudiced in any way in this matter.
16. Reference to the Vaughn murders.
Foley next accuses trial counsel of making an egregious mistake while cross-examining Phoebe Watts. At trial, counsel opened the door to evidence that Foley had been charged with the Vaughn murders—two murders outside of those involved in the present case. Foley stresses the necessity of mitigating evidence in death-penalty cases. He believes that this blunder all but assured that he would receive the death penalty for his convictions. The trial court disagreed and found sound trial strategy in counsel's decision to bring up the Vaughn murders. And we affirm that ruling.
See Dickerson v. Bagley, 453 F.3d 690, 694 (6th Cir. 2006);
On direct examination, Watts testified that she did not seek help following the charged murders because she feared Foley. According to her testimony, she only spoke with police in October 1991 after she was assured Foley was in jail and could not get out. Counsel attempted to rebut that testimony, and in turn impugn her credibility through use of the Vaughn murders. In August 1991, before Foley was in jail, Watts willingly spoke with law enforcement regarding Foley's involvement in the Vaughn murders. It was also quite noteworthy that this August 1991 statement omitted any references to the murders involved in this case. By bringing up the Vaughn murders and Watts's ready cooperation with law enforcement in that case, counsel cast doubt on both her sincerity in fearing Foley and the truthfulness of her motivations for not seeking help following these murders. We agree with the trial court that this was reasonable trial strategy to discredit Watts's testimony before the jury.
17. Failure to object to use of the Vaughn murders as an aggravator.
During the penalty phase of trial, the Commonwealth used Foley's participation in the Vaughn murders as a serious-assaultive-conviction aggravator. The Vaughns were actually murdered after Foley's victims in this case but Foley had already been tried, convicted, and sentenced to death for those killings at the time this trial took place. The Commonwealth used this conviction to support an aggravating circumstance that Foley had a "substantial history of serious assaultive criminal convictions." Because those crimes occurred after those involved in this case, Foley contends that use of those convictions as aggravating circumstances violates both his right to Due Process of Law and the Ex Post Facto Clause of the United States Constitution. And Foley deems counsel's failure to raise this objection during the penalty phase of trial to be inexcusably deficient.
See U.S. Const., Art. I, § 9, cl. 3 ("No...ex post facto Law shall be passed."). The prohibition against ex post facto laws is violated by any law that "aggravates or increases the punishment or a crime as compared to the punishment when the crime was committed." Colder v. Bull, 3 U.S. 386, 390 (1798).
This claim was not part of Foley's original RCr 11.42 motion—it was added as part of his amended motion. So again, before analyzing any of the merits of this issue, we must first conclude that this issue relates back to one present in the original motion. The trial court denied review, holding this issue did not relate back and was thus untimely filed. Foley contends this relates back to his previous accusation involving counsel's introduction of the Vaughn murders when cross-examining Watts. We agree with the trial court that this issue is not properly before us for review.
See, e.g., Roach, supra.
Under Roach, an amended claim only relates back when it "amplify[ies] or clarify[ies] the original claims" or, if a new claim is "related to the original ones by shared facts such that the claims can be genuinely be said to have arisen from the same 'conduct, transaction, or occurrence."' But new claims "based on facts of a different time or type will not meet that standard and so, generally, should not be allowed."
Roach, 384 S.W.3d at 137.
Id.
Here, we find a number of key factual and temporal distinctions that unavoidably preclude this claim from relating back to the original motion. Most notably, this claim occurred in a critically different time at trial than the original reference to the Vaughn murders; this instance occurred during the penalty phase, which by its nature is a fundamentally different aspect of trial than the guilt phase. Also, the alleged deficiencies involved completely separate facts and uses of fact. In the original claim, counsel invoked Watts's testimony to law enforcement while the present action involves Foley's conviction. The only connection is the Vaughn murders themselves, but each instance involved different subcategories and facts within that proceeding. Literally the only thing connecting the two motions is the two outside murders and Foley's involvement, and to us, that is too far attenuated to find that this supplemental claim relates back to the original.
So we affirm the trial court's ruling that the claim does not relate back and is, thus, untimely filed.
18. Failure to reference Foley's head injuries as mitigating evidence.
Foley's next alleges he received ineffective assistance due to counsel's failure to conduct an adequate inquiry into his medical history to present evidence of a history of head injuries as mitigating evidence to the jury during the penalty phase of trial. To be sure, failure to conduct a thorough mitigation investigation and failure to consult with experts may constitute ineffective assistance of counsel in violation of the Sixth Amendment. And this is certainly true if a defendant possesses cognitive impairment as a result of head trauma.
See Williams v. Taylor, 529 U.S. 362, 395-96 (2000).
According to Foley, he has two documented instances of head injury, and he also points to undocumented claims from family members that he frequently injured his head. Unfortunately for him, there is no history of any injury of the type that could be remotely considered mitigating evidence. One of the recorded instances he cites occurred after he murdered Bowerstock, Reynolds, Contino, and McMillian, so that injury most certainly does not qualify. The medical records associated with the only other instance he can prove cites merely to scratches and contusions on his face. In short, he offers no evidence of any serious head trauma that may have impaired his cognitive functions. So the trial court rightly summarily refuted this claim.
19. Failure to cite Foley's exposure to violence as a child as mitigating evidence.
Foley next argues that counsel was deficient in the sentencing phase of trial by failing to investigate and present mitigating evidence relating to his exposure to violence as a child. The trial court agreed with Foley that this issue, which originally appeared in his amended RCr 11.42 motion, related back to his original motion alleging ineffective assistance of counsel. But on review of the merits, the trial court determined that Foley failed to meet his burden of prejudice as detailed in Strickland.
This argument is not a new one. Foley presented this same issue in his RCr 11.42 motion for the Vaughn murders, and he has also pursued this collateral attack in federal court. Both this Court and the Sixth Circuit confidently ruled that counsel was not ineffective by failing to present this specific evidence. These reviewing courts essentially determined that the volume of aggravating evidence substantially outweighed whatever mitigating impact this particular evidence may contain. And we agree with that assessment.
See Foley v. Commonwealth, 17 S.W.3d 878, 883-85 (Ky. 2000); Foley v. Parker, 488 F.3d 377, 382-84 (6th Cir. 2007).
The particular evidence Foley touches on relates to his relationship with his maternal grandfather, Sam Pennington. Pennington was supposedly a seven-time murderer whom Foley apparently "idolized" as a child. According to Foley's family members, Pennington instilled a culture of violence as a solution to life's problems. He taught Foley at a young age to fire a weapon and even allegedly asked the twelve-year-old Foley to assassinate a prosecutor. Foley believes Pennington's influence over him as a young man impacted the course of the rest of his life, and he avers that had counsel investigated and presented this evidence during the penalty phase of trial, he would have received a more lenient sentence than death.
In our review of the RCr 11.42 motion relating to the Vaughn murders, we recognized other testimony relating to Foley's general propensity for violence. And we concluded that whatever questionable mitigating effect Foley's relationship with Pennington may possess, this would have been offset through testimony regarding his violent tendencies. Trial counsel was never informed of any critical mitigating witnesses, so counsel used his own discretion in piecing together strategy for the sentencing phase of trial. Given the information and evidence available, we cannot say counsel was ineffective in making these strategic decisions.
20. Foley's exposure to toxins.
Next, Foley contends that counsel inadequately investigated his employment history and failed to identify his exposure to toxic chemicals that could have impacted his brain functions. Specifically, he contends that while working at his father's service station in his youth, he was exposed to industrial degreasers that may have contained Trichloroethylene (TCE). TCE supposedly may cause symptoms such as dizziness and vomiting, and long-term exposure may lead to damage to the central nervous system. Foley argues that his potential exposure to TCE may have impacted his mental state at the time of the murders.
This claim first appeared in Foley's amended RCr 11.42 motion. The trial court ruled this claim did not relate back under Roach and refused to review its merits. Foley offers no argument that the lower court erred in this analysis and fails to even address this initial burden to presenting the merits in this Court. Because Foley does not dispute the ruling below, neither will we. We affirm the trial court's holding that this amended claim does not related back to Foley's original RCr 11.42 motion.
21. Cumulative error.
As a final argument, Foley contends that even if each of the alleged errors do not amount to reversible error, the cumulative effect of errors below render his trial fundamentally unfair as a deprivation of due process of law. Though we have recognized and speculated on some minor errors below, we must remind ourselves that an accused is not guaranteed the right to a perfect trial; rather, our constitutions enshrine the right of each criminal defendant to a fair trial. There is nothing in the record or proceedings below for us to determine that counsel's performance was so deficient that Foley was denied a fair trial.
III. PROSECUTORIAL MISCONDUCT.
A. Standard of Review.
Part of Foley's RCr 11.42 motion essentially argues that the Commonwealth routinely committed prosecutorial misconduct during the course of his trial and counsel failed to prevent the prosecution from abusing the criminal-trial process. So naturally, before we can determine that trial counsel failed to defend Foley from prosecutorial misconduct, we must first determine whether the Commonwealth acted accordingly. Only upon a finding that the Commonwealth engaged in prosecutorial misconduct will we then review counsel's performance under Strickland.
B. Foley's Alleged Instances of Prosecutorial Misconduct.
1. Withholding information about a deal with Watts and Canter.
The first instance Foley brings on appeal is the Commonwealth's supposed deliberate withholding of evidence of a deal the prosecution made with Watts and Canter in exchange for their testimony against him. This claim is corollary to Foley's position that counsel failed to extract testimony about this deal from the witnesses during cross-examination.
In Brady v. Maryland, the United States Supreme Court held that the prosecution has a complete duty to disclose any potentially exculpatory evidence to the defense. But for purposes of determining whether evidence is material to an accused's defense, there is no distinction between exculpatory and impeaching evidence, which seemingly includes promises of leniency in exchange for testimony. And a failure to disclose is material, regardless of whether the prosecution acted in good or bad faith.
See 373 U.S. 83 (1963).
See United States v. Bagly, 473 U.S. 667 (1985).
See United States v. Gigilio, 405 U.S. 150 (1972).
Brady, 373 U.S. at 87.
Foley contends that a post-conviction investigation reveals the existence of a deal between the Commonwealth and Watts and Canter. He offers circumstantial inferences surrounding Watts's arrest for marijuana possession and an alleged fax from Kentucky authorities recognizing an agreement with Canter. The trial court rejected this claim without hearing because Foley failed to offer anything actually proving the existence of a relationship between the Commonwealth and these two witnesses.
The trial court particularly noted the apparent duplicitous nature of this claim in relation to his ineffective-assistance contention that trial counsel failed to impeach Watts and Canter through the existence of an agreement to testify. Foley simultaneously argues that the Commonwealth withheld material evidence but trial counsel failed to use that evidence at trial; this unavoidably presumes either trial counsel possessed this information at trial (and there can be no Brady violation) or his ineffective-assistance argument was totally meritless. The trial court aptly found that "Foley is basically arguing with himself on this issue because the information could not have been withheld from trial counsel while at the same time been known to him." We agree with that assessment and we see no merit to his claim.
2. Withholding exculpatory evidence and introducing misstatements of fact to the jury.
The second instance of alleged prosecutorial misconduct against relates to Watts's and Canter's testimony. Foley believes the Commonwealth withheld information about Canter's whereabouts before speaking with law enforcement and that the prosecution went even further to misstate related facts to the jury. Specifically, Foley discovered that Canter was supposedly in Phoenix, Arizona, directly before making his statement to the police in the Lexington airport. Coincidentally, other witnesses were supposedly in Arizona around the same time, and Foley suspects they coordinated stories to frame him for the murders. And he argues that the Commonwealth purposefully withheld this knowledge and intentionally offered misstatements of fact to the jury.
Unfortunately for Foley, there is no evidence the Commonwealth knew Canter came from anywhere other than Indiana—where he lived at the time—to offer his statement. It is difficult for us to condemn the Commonwealth for withholding potentially exculpatory evidence when the record is devoid of any factual basis supporting the claim that the Commonwealth actually identified this information at the time of the investigation. So we agree with the trial court that Foley failed to establish any factual support for this allegation.
3. Allegedly hiding Watts and Canter before trial.
Foley next alleges the Commonwealth inappropriately hid Watts and Canter from the defense before trial to "mask its misconduct." Before trial, trial counsel had the opportunity to depose both Watts and Canter. The witnesses refused to disclose their addresses and phone numbers. Foley argues this refusal to reveal their location amounts to misconduct. The trial court rejected Foley's argument as meritless and frivolous because "a defendant does not have a constitutional right to gain access to every witness he desires." And we agree.
Epperson v. Commonwealth, 197 S.W.3d 46, 54-55 (Ky. 2006).
Foley was given the opportunity to depose these two witnesses and accordingly possessed an arsenal of responses available for use at trial if Watts or Canter testified inconsistently. We know of no rule of law requiring the prosecution to disclose addresses and phone numbers for key fact witnesses. We see no violation of due process of law by failure to reveal the addresses and phone numbers.
4. Improper argument about bullets matching Foley's weapon.
For his next alleged incident of prosecutorial misconduct, Foley contends that the Commonwealth's statements relating to the veracity of an expert witness's testimony mischaracterized the true nature of the evidence and misled the jury. The trial court determined that this claim did not relate back to his original RCr 11.42 motion and considered this claim untimely filed under RCr 11.42(10) and Roach. Because Foley has failed to persuade us his claim is in fact timely filed, we affirm the trial court and reject this claim.
IV. CONCLUSION.
For the foregoing reasons, we affirm the trial court's rejection of Foley's RCr 11.42 motion.
All sitting. All concur. COUNSEL FOR APPELLANT: Euva Denean Blandford
Margaret Anne Ivie
Robert C. Garrison
Assistant Public Advocate
Department of Public Advocacy COUNSEL FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Jason Bradley Moore
Assistant Attorney General