Foley v. Com.

• Decision Date: 21 November 1996
• Docket Number: No. 93-SC-000828,93-SC-000828
• Parties: Robert C. FOLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 876

942 S.W.2d 876

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

No. 93-SC-000828.

Supreme Court of Kentucky.

Nov. 21, 1996.

As Amended Dec. 2, 1996 and

Dec. 9, 1996.

As Amended on Denial of Rehearing April 24, 1997.

Rodney McDaniel, Assistant Public Advocate, Department of Public Advocacy, Jennifer J. Hall, Department for Public Advocacy, Appellate Public Advocate, Frankfort, for appellant.

A.B. Chandler, III, Attorney General, Sharon Kay Hilborn, Assistant Attorney General, Paul D. Gilbert, Assistant Attorney General, Criminal Appellate Division, Frankfort, Thomas V. Handy, Commonwealth Attorney, London, for appellee.

GRAVES, Justice.

FACTS

On September 2, 1993, the Laurel Circuit Court imposed two death sentences upon Appellant Robert Foley (hereinafter "Appellant"), pursuant to convictions for the murders of Harry Lynn Vaughn (hereinafter "Lynn") and Rodney Vaughn (hereinafter "Rodney"). Appellant appeals as a matter of right. Appellant sets forth twenty-six allegations of error which he contends mandate reversal of his conviction. After reviewing the record, studying the briefs, hearing oral arguments, and considering each of Appellant's allegations of error, we affirm.

The events that culminated in the Vaughn brothers' violent deaths began on the evening of August 17, 1991, when Appellant and ten other adults were at a home on White Oak Church Road in Laurel County, Kentucky. Adult guests present were Ronnie Dugger, Bill Dugger, Danny Bryant, Rodney Vaughn, Harry Lynn Vaughn, Marge Foley, Rocky Arthur, Lisa Arthur, Phoebe Watts, and Appellant's aunt. Five children were also present.

Other male guests had checked their pistols in the kitchen cabinet; however, Appellant kept his .38 colt snubnose revolver concealed in the small of his back under his belt. Rodney consumed enough alcohol to become belligerent and two fights subsequently erupted between Appellant and Rodney. Appellant admits he started the first fight by striking Rodney. Later in the evening, Appellant shot and killed Rodney. Rodney received multiple gunshot wounds to the left arm and trunk, which resulted in a multiple hemorrhage and death. Appellant claims he acted in self defense when he shot Rodney.

Shortly thereafter, Lynn was shot and killed at a time when only Appellant, Lynn, and Ronnie Dugger remained inside the house. Appellant claims that Ronnie Dugger shot Lynn, while Ronnie Dugger contends that Appellant shot Lynn in the back of the head. Lynn died as a result of multiple penetrating and perforating gunshot wounds to the head and extremities. After the killings, Appellant, Ronnie Dugger, Bill Dugger, and Danny Bryant dumped the bodies in Sinking Creek in Laurel County.

On October 18, 1991, the Laurel County Grand Jury indicted Appellant on two counts of capital murder, second degree arson, and being a persistent felony offender. Other factors, extraneous to the incident and charges but relevant to the trial, are pretrial statements by court officials and pretrial publicity.

On October 26, 1991, Appellant was charged with killing four other people whose bodies had been found in a septic tank in Laurel County. Prior to Appellant's indictment on these later charges, the Laurel District Court had restrained all law enforcement personnel of the Commonwealth and court personnel from making any public comments about this case. On October 4, 1991, the Laurel Circuit Court entered an order continuing the restraint and extending it to include Appellant's second indictment for four counts of capital murder.

Appellant alleges that respected officials in law enforcement made prejudicial public statements linking him to the killings. He was called the "worst criminal ever seen" and was referred to as a "remorseless killer." In support of the claim of misconduct by court officials, Appellant states that comments by Kentucky State Police Captain Doug Asher, Laurel County Deputy Sheriff Glen Holland, and Commonwealth Attorney Tom Handy violate Supreme Court Rule 3.130(3.6) ¹ in that these three officials not only had spoken publicly about the Vaughn killings but also had mentioned the allegations of other criminal acts that took place outside of Laurel County.

Appellant further complains that the jury deliberated only twenty minutes, thus implying that there were not serious, thought provoking deliberations and that the jury had already decided upon guilt before submission of the case.

I. VENUE WAS PROPER

On January 4, 1993, the trial court set an August 11, 1993 trial date. However, On August 10, 1993, eight months after the date was set and on the eve of trial, Appellant filed for a change of venue. The petition for change of venue included 134 pages of exhibits and affidavits. On August 13, 1993, Appellant filed two supplemental petitions. He also filed 82 pages of exhibits with the court on the day of the change of venue hearing consisting of news articles appearing between August 23, 1991, and May 24, 1993, which stated that he was an FBI informant who would be serving jail time for another crime were it not for deals made with the government. In addition, Appellant stated that editorials had contained inflammatory remarks about him; local news stations reported that he was a suspect in the killings of seven other people; and witnesses at the scene of the slayings were quoted as saying that he had killed both the Vaughn brothers with two six shot revolvers. Appellant's motion was denied and trial commenced in August 1993.

The majority of the newspaper articles provided as exhibits by Appellant are from 1991. Twenty-nine pages of exhibits contain articles from 1992. Eight of the exhibits from 1992 detail the FBI involvement in the case; three ironically deal with the problem of pretrial publicity; and the remainder cite a pretrial motion, an assault committed by Appellant in jail, an article on court bailiffs and an article on the other capital charges pending against Appellant. Some of the articles submitted are duplicate articles from other papers including the Herald-Leader from Lexington, and the Louisville Courier-Journal.

In all, Appellant only offered 14 pages of exhibits from 1993, the year in which the case was tried. Of the 1993 exhibits, eight pages are accounts of a civil suit against the FBI by the victims' parents. The three main articles are the same story found in three separate papers. Also included in the 1993 exhibits are four updates from three papers and an article covering the deposition of the Commonwealth's witnesses. In reviewing the exhibits, it is evident that the articles were not so numerous nor inflammatory as to render Appellant's trial fundamentally unfair. Deel v. Jago, 967 F.2d 1079 (6th Cir., 1992). This is particularly true as the most recent reports, within a year of trial, provide only an outline of the charges which is substantially what the jury was read from the indictment.

Part of Appellant's argument for a change of venue was that the publicity had clearly biased the jurors during jury selection. However, most of the publicity occurred in 1991 and was not specifically remembered by the jurors. Appellant emphasizes that only six of ninety-eight of the prospective jurors had heard absolutely nothing of the case, while one third of the prospective jurors either believed he was guilty or did not presume him to be innocent. In order for a change of venue to be granted there must be a showing that: 1) there has been prejudicial news coverage; 2) it occurred prior to trial; and 3) the effect of such news coverage is reasonably likely to prevent a fair trial. Wilson v. Commonwealth, Ky., 836 S.W.2d 872 (1992).

The voir dire revealed that, although almost every potential juror had heard of the case, most had heard little more than what was read to them from the indictment prior to voir dire. Ninety-eight jurors were questioned and sixty-three were excused. However, only eighteen were excused for having an opinion as to guilt, seventeen for the inability to give the presumption of innocence and six for having sufficient knowledge of the case to be struck for cause. Of the other excused jurors, nine had a bias toward police officers or the Commonwealth based on relationships with the victims, seven were against the death penalty, one could only vote for the death penalty and five for the inability to hear, religious preference, illness, connection with another capital case or representation by the assistant Commonwealth's attorney. Of the thirty-five that comprised the panel from which the jury was selected, particularly the fourteen that were seated, most had read of the crime when it first happened two years prior, and had not heard of it since that time. Two of the final jurors had never heard of Appellant or the crimes. McQueen v. Commonwealth, Ky., 721 S.W.2d 694 (1986), holds that the dismissal of 112 jurors from a pool of 153 did not prove bias and that the accused person could still obtain a fair trial. In this case only 18 of 98 jurors were excused for believing that Appellant was guilty, far less than the percentage in the McQueen case.

The amount of publicity alone is not the determining factor for a change of venue and the mere fact that jurors may have heard, talked, or read about a case is not sufficient to sustain the motion. Foster v. Commonwealth, Ky., 827 S.W.2d 670 (1991); Dean v. Commonwealth, Ky., 844 S.W.2d 417 (1992). The issue is whether public opinion is so aroused as to preclude a fair trial. Kordenbrock v. Commonwealth, Ky., 700 S.W.2d 384 (1985). There was no showing that the media accounts had persuaded the prospective jurors to the extent of prejudgment. At best they were aware of the crime and Appellant's name attached to it. However, this same information was provided to them on the first day of voir dire. Nonetheless, in Foster, supra, we upheld a capital murder conviction when all potential jurors had heard or read about the...