Foley v. Com.

• Citation: 953 S.W.2d 924
• Decision Date: 24 April 1997
• Docket Number: No. 94-SC-371-MR,94-SC-371-MR
• Parties: Robert Carl FOLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court (Kentucky)

Page 924

953 S.W.2d 924

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

No. 94-SC-371-MR.

Supreme Court of Kentucky.

April 24, 1997.

As Modified on Denial of Rehearing Nov. 20, 1997.

David T. Eucker, Oleh R. Tustaniwsky, Department of Public Advocacy, Frankfort, for appellant.

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

STUMBO, Justice.

Robert Foley was sentenced to death for each of four murders by the Madison Circuit Court. This is his matter of right appeal. Having reviewed the record and briefs and heard oral arguments, we affirm.

THE FACTS:

Foley was indicted in December of 1991 for the murders of Lillian Contino, Kim Bowersock, Jerry McMillan, and Calvin Reynolds. The murders took place and the indictment was issued in Laurel County. A change of venue was granted and the trial was held in Madison County in April of 1994. During the intervening years, Foley was indicted for and convicted of two other murders in a single trial which took place in Laurel County. That conviction was upheld by this Court in Foley v. Commonwealth, Ky., 942 S.W.2d 876 (Ky.1996).

On October 8, 1989, the four victims were at a cabin owned by David Gross and occupied by Phoebe Watts, who lived there with her two children. On October 8, Watts returned home after work at approximately 11:30 p.m. David Gross, Calvin Reynolds, Kim Bowersock, Lillian Contino, Jerry McMillan and Watts' children were at the cabin. While beer was being drunk, Watts did not recall any drunkenness or marijuana use.

Soon afterward, Gordon Canter and Appellant came into the cabin. Reynolds was sitting in an easy chair in the center of the room, with Bowersock seated beside him on the floor. Gross was on the edge of a bed next to Watts and her children. McMillan and Contino were sitting on a couch. All were in the same room. Appellant went to Bowersock and grabbed her by the hair. When Reynolds arose to come to her aid, Appellant pulled his gun and began shooting, killing the four victims. When Foley turned to Gross, Gross stated, "Not me, man," and waved his hands. Watts testified that the children were not awakened by the gunfire and that she took them into a bedroom after the shooting ended.

When she returned to the living room some time later, Appellant, Canter, and Gross were in the kitchen drinking beer. Appellant brought Watts a beer and asked "Can you handle this?" Watts was permitted to testify over defense objection that she interpreted that question to mean she would be killed. Watts assisted in the clean-up of the cabin. Watts testified that none of the victims had a weapon or in any way threatened Appellant.

The following night, Appellant, Gross, and Canter disposed of the bodies by burying them in a cistern or septic tank and covering them with lime and cement. The burial site was near the Gross cabin on land which was titled at various times to members of both the Gross family and Foley family. The bodies were discovered two years later by police following up a tip. When the bodies were found, the property was titled to Appellant's father, a fact that plays a role in some of the issues presented by Foley on appeal.

The Commonwealth's theory of these murders was that Appellant was angry with Bowersock because he believed she had accused him of growing and selling marijuana. This allegation had supposedly caused Appellant trouble with his parole officer, though the officer testified otherwise at trial. The other victims were apparently killed because they witnessed Bowersock's murder.

Watts and Canter were among the witnesses against Appellant at trial. David Gross died in October of 1990, the victim of a murder still unsolved at the time of this trial.

STANDARD OF REVIEW:

KRS 532.075(2) provides that, in death penalty cases, "[t]he Supreme Court shall consider the punishment as well as any errors enumerated by way of appeal." This has been held to mean that there is an exception to the contemporaneous objection rule in cases where the death penalty has been imposed. See, e.g., Ice v. Commonwealth, Ky., 667 S.W.2d 671, cert. denied, 469 U.S. 860, 105 S.Ct. 192, 83 L.Ed.2d 125 (1984). As we stated in Sanders v. Commonwealth Ky., 801 S.W.2d 665, 668 (1990), cert. denied, 502 U.S. 831, 112 S.Ct. 107, 116 L.Ed.2d 76 (1991):

Assuming that the ... error occurred, we begin by inquiring: (1) whether there is a reasonable justification or explanation for defense counsel's failure to object, e.g., whether the failure might have been a legitimate trial tactic; and (2) if there is no reasonable explanation, whether the unpreserved error was prejudicial, i.e., whether the circumstances in totality are persuasive that, minus the error, the defendant may not have been found guilty of a capital crime, or the death penalty may not have been imposed.

Foley's brief poses thirty-four (34) issues for resolution by this Court, many of which are not preserved. This opinion will not attempt to address in detail every issue, though each has been carefully considered on its merits.

I. WAS THE VOIR DIRE IMPROPERLY RESTRICTED?

Appellant first argues that he was denied due process by the trial court's conduct of the examination of the prospective jurors and refusal to propound a question submitted by the defense. Specifically, the defense sought voir dire on whether each juror could vote for each of the possible penalties for intentional murder, including the minimum penalty of twenty (20) years in the penitentiary, in a case where a jury had found a defendant guilty of more than one intentional murder.

Prior to trial, the judge advised counsel that he would question the jury about the death penalty himself, but would allow the attorneys to question the jurors about pretrial publicity. The questions at issue were propounded to each juror and were substantially as follows:

Our legislature in Kentucky has recognized every case is different and in recognizing that, they've determined there are four different types of penalties that can be imposed in a murder case. One would be for a term of years in prison of not less than 20 years; or two would be for a term of life in prison; three would be for a term of life in prison without possibility of parole for at least 25 years; and the fourth would be the death penalty. The jury would not even be considering the death penalty unless the jury determined that not only was there an intentional murder, but there was [sic] some aggravating circumstances in the case. In addition to the aggravating circumstances, the jury would be considering mitigating circumstances or anything that it felt dealt with the issue of punishment. Bearing that in mind, if you were chosen as a juror in a case of that nature, would you be able to give a fair and equal consideration of all four of those different penalty options?

Upon receiving an affirmative response to this question, the court would then ask: "Would you be able then to impose whichever one you felt was fair and appropriate under the facts as you heard them in that particular case?"

Depending on the jurors' responses, some were also asked if there was a penalty that the juror could not fairly consider and whether that juror could consider a penalty of twenty years as well as the death penalty. The defense sought to ask each juror specifically whether he or she could consider imposition of each specific sentence in a case of multiple murders. The trial judge denied the defense request on the ground that the more specific question would compel the prospective jurors to prejudge this case. The judge also refused to define or explain for the jurors what aggravating and mitigating circumstances were.

It is Appellant's contention that merely asking whether a juror can consider the entire range of punishments and do what is right is insufficient to advise counsel whether a juror would actually vote for any particular penalty. Thus, Appellant argues, he could not make meaningful and valid challenges for cause or intelligent use of his peremptory strikes.

In particular, Appellant argues that he was unable to determine whether any prospective juror was biased in favor of the death penalty to the extent that he or she would not, no matter what the circumstances might have been, consider imposing a lesser penalty. Such bias would serve as grounds for a challenge for cause. Grooms v. Commonwealth, Ky., 756 S.W.2d 131, 137-38 (1988). RCr 9.38 grants to the circuit court the authority to conduct the examination of the prospective jurors. If the court chooses to personally conduct the examination, it "shall permit the attorney for the Commonwealth and the defendant or the defendant's attorney to supplement the examination by such further inquiry as it deems proper." The further examination may be conducted by either counsel or the court. RCr 9.38. This rule was complied with in its entirety.

The trial court's voir dire was clearly sufficient and explicit enough to elicit the information sought by Appellant's counsel. The specific potential punishments that he sought to question the jurors about were disclosed and the jurors were asked if fair and equal consideration could be given to each, with no emphasis on a particular penalty. The question propounded to the jurors is in accord with and seems to simply be a more detailed version of that approved by this Court in Morris v. Commonwealth, Ky., 766 S.W.2d 58 (1989). Therein, this Court directed that: "The jury should be asked the simple question 'If you determine under the instructions of the court beyond a reasonable doubt that the defendant is guilty of intentional murder, could you consider the entire range of penalties provided by statutes of this Commonwealth as outlined to you?' " Id. at 60. The trial...