Foley v. Com., No. 1999-SC-0366-MR.

• Decision Date: 22 November 2000
• Docket Number: No. 1999-SC-0366-MR.
• Parties: Robert FOLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 809

55 S.W.3d 809

Robert FOLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 1999-SC-0366-MR.

Supreme Court of Kentucky.

November 22, 2000.

As Modified on Denial of Rehearing October 25, 2001.

Timothy T. Riddell, Milton C. Toby, Perch and Toby, Lexington, for appellant.

A.B. Chandler, III, Attorney General, Frankfort, Connie Vance Malone, Paul D. Gilbert, Assistant Attorneys General, Office of Attorney General, Criminal Appellate Division, Frankfort, for appellee.

COOPER, Justice.

Following a 1994 trial by jury, Appellant Robert C. Foley was convicted and sentenced to death for the murders of Kim Bowersock, Calvin Reynolds, Lillian Contino and Jerry McMillan. Judgment was entered on April 27, 1994 and affirmed by this Court on April 24, 1997. Foley v. Commonwealth, Ky., 953 S.W.2d 924 (1997), cert. denied, 523 U.S. 1053, 118 S.Ct. 1375, 140 L.Ed.2d 522 (1998). On March 4, 1998, Appellant filed a motion for a new trial on grounds of newly discovered evidence. RCr 10.02; RCr 10.06.¹ He also filed a motion for funds to perform ballistics tests on two car doors alleged to be part of his newly discovered evidence. Both motions were denied and that denial is the subject of this direct appeal to this Court. Skaggs v. Commonwealth, Ky., 803 S.W.2d 573, 577 (1990), cert. denied, 502 U.S. 844, 112 S.Ct. 140, 116 L.Ed.2d 106 (1991).

The victims were last seen alive on October 8, 1989. Their bodies were found two years later in a septic tank located on the "Murphy Gross property" in the Bald Rock community of Laurel County, Kentucky.² When the bodies were discovered, the property was titled in the name of Appellant's father, John Foley. Murphy Gross had died on August 30, 1989, and his widow had deeded the property to Appellant's father in June 1990. However, during a hearing on his pretrial motion to suppress evidence of the discovery of the victims' bodies, Appellant admitted that he was the actual owner of the property and that he had placed the title in his father's name to protect it from a judgment creditor. The property was resold to a third party in July 1993, long after the victims' bodies were discovered and Appellant had been charged with their murders. The Murphy Gross property lies adjacent to property which was owned in 1989 by Murphy Gross's nephew, David Gross. David Gross and his domestic companion, Phoebe Watts, along with Watts's two minor children, lived in a cabin on that property. Gordon Canter had previously lived in the cabin, and he and Gross grew marijuana on the property. There is substantial evidence in the record that Appellant Gross, Canter and Paul (Butch) Riley, a key figure in Appellant's motion for a new trial, engaged in various criminal enterprises together during the late 1980's.

To place Appellant's newly discovered evidence in proper perspective, it is necessary to review the evidence that was known at the time of his trial. Kim Bowersock, Lillian Contino and Jerry McMillan all resided in Van Wert, Ohio. Calvin Reynolds, Bowersock's boyfriend, lived in a house in Laurel County, Kentucky, not far from David Gross's cabin. While returning from Murphy Gross's funeral on September 2, 1989, Reynolds was arrested and charged with driving while intoxicated (DUI). Bowersock and Gordon Canter' were passengers in Reynolds's vehicle at the time. They were charged with alcohol intoxication and subsequently released. Reynolds, however, remained in jail until October 7, 1989.

Bowersock's cousin, Theresa Duncell, also of Van Wert, Ohio, testified that on October 8, 1989, Bowersock was trying to find someone to drive her from Van Wert to Kentucky. There is evidence that Bowersock intended to pick up Reynolds in Kentucky and bring him back with her to Ohio. Duncell was unable to make the trip, but agreed to help Bowersock find someone else to drive her to Kentucky. They proceeded first to Lillian Contino's residence, but Contino's car was not in working order. Contino, however, offered to accompany Bowersock to Kentucky if they could find a ride. The three women then proceeded to the residence of Duncell's sister, where, by chance, they encountered Jerry McMillan. Bowersock asked McMillan if he would drive her to Kentucky and McMillan agreed to do so.

Reynolds was supposed to meet Bowersock at David Gross's cabin. However, when Bowersock, Contino and McMillan arrived at the cabin, only Gross and Gordon Canter were there. Reynolds had returned to his own residence. The three Ohio residents then picked up Reynolds at his residence and all four returned to Gross's cabin. Meanwhile, Canter had telephoned Appellant to tell him that Bowersock was in the area. According to Canter, Appellant had a grudge against Bowersock because he believed she had informed his parole officer that he (Appellant) was selling drugs and "moonshining" illegal whiskey. (Appellant admits in one of his post-trial affidavits that he, Canter and Gross sold drugs and "ran a moonshine still.") Upon being informed that Bowersock was in the area, Appellant told Canter that he was going to "kick her a —," asked Canter how many people were with Bowersock, and told Canter to meet Appellant at his house and to bring his (Appellant's) guns.³ Three other witnesses, Allen and Imal Zannet and Appellant's ex-wife, Marjorie Foley, were in the same room with Appellant when this conversation took place and all confirmed Canter's version of the statements made to him by Appellant. Marjorie Foley further testified that Appellant told her when he left that night that if he did not return by morning, he would be either dead or in jail and that she should so notify his parents in Harlan County. When Appellant did not return the next morning, Marjorie notified Appellant's parents who then drove to Laurel County to investigate.

Appellant and Canter arrived at David Gross's cabin shortly after 11:30 p.m. on October 8th. Those present in the cabin when they arrived were Bowersock, Reynolds Contino, McMillan, David Gross, Phoebe Watts and Watts's two minor children. Canter and Watts both testified that immediately upon entering the cabin, Appellant went to Bowersock and grabbed her by the hair. When Reynolds arose to her assistance, Appellant drew his 9-mm pistol and shot Reynolds first, then Bowersock, then Contino, then McMillan. He pointed the gun at David Gross, but did not shoot when Gross begged for his life. Appellant then returned to Bowersock and shot her again in the head. Following the murders, Appellant, Gross and Canter confiscated the victims' valuables and removed the bodies from the cabin to a log-hauling trailer. Watts then cleaned up the cabin while the three men took McMillan's car to Lexington and abandoned it in a motel parking lot. Canter testified that Appellant, identifying himself as Calvin Reynolds, called an automobile repair shop, requested that the vehicle be picked up for repairs, and promised to retrieve it at a later date. Canter stated that he never saw the vehicle again and all efforts to locate it prior to trial were futile. The three men returned to Gross's cabin and slept the following day. The next night, they removed the victims' bodies from the trailer, placed them in Murphy Gross's septic tank, and covered them with lime and cement.

In October 1990, David Gross was shot and killed in a murder which remains unsolved.⁴ In the fall of 1991, Appellant was arrested for killing two Laurel County brothers, Lynn and Rodney Vaughn. See Foley v. Commonwealth, Ky., 942 S.W.2d 876 (1997), cert. denied, 522 U.S. 893, 118 S.Ct. 234, 139 L.Ed.2d 165 (1997). Shortly thereafter, Watts, who then lived in Tennessee, and Canter, who then lived in Arizona, came forward separately and gave virtually identical statements to the police about the murders of Bowersock, Reynolds, Contino and McMillan.

The theory advanced in Appellant's motion for a new trial is that David Gross and Gordon Canter killed the four victims because they had stolen "a lot" of marijuana from Gross, and that the victims were shot not in Gross's cabin, but while seated in McMillan's car. Further, McMillan's car was not driven to Lexington and abandoned in a motel parking lot, but was instead dismantled, the car seat burned, the car doors burned and deposited in a valley referred to locally as "the egg," and the remainder compacted at a Laurel County salvage yard. The initial "newly discovered evidence" supporting this theory was an anonymous, handwritten letter that Appellant claims to have received in October 1996. Appellant showed the letter to his attorney, who advised him that an anonymous letter would not support a motion for a new trial.

Appellant later produced a typewritten letter from Paul (Butch) Riley, one of his former criminal associates, dated May 17, 1997, less than thirty days after the rendition of this Court's opinion affirming Appellant's conviction and sentence. The letter was signed, "always and ever your friend and brother Butch." Both Appellant and Riley are inmates at the state prison at Eddyville.⁵ The substance of Riley's letter is that during the summer of 1994, while Riley was incarcerated in a federal penitentiary in Terre Haute, Indiana, he had a telephone conversation with Gordon Canter, who was then at the Grand Hotel in Hamilton, Ohio; and that Canter told him that Appellant did not commit the Bald Rock murders. (Riley's letter did not assert that Canter admitted committing the murders, himself.) Canter denies the conversation and denies ever staying at the Grand Hotel. The record also contains the affidavit of Linda Sheehan to the effect that in the summer of 1994, she forwarded calls from Riley to the Grand Hotel where Riley's mother was employed as a bartender. Sheehan does not state that she forwarded any calls to Canter. Riley's letter was subsequently reduced to an affidavit, which states in pertinent part:

Gordon said he had to go to court and testify against Bob Foley and it was bugging him....