Foley v. Com., 0639-87-3

• Decision Date: 02 May 1989
• Docket Number: No. 0639-87-3,0639-87-3
• Citation: 379 S.E.2d 915,8 Va.App. 149
• Parties: Frederick Lynwood FOLEY v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 915

379 S.E.2d 915

8 Va.App. 149

Frederick Lynwood FOLEY v. COMMONWEALTH of Virginia.

Record No. 0639-87-3.

Court of Appeals of Virginia.

May 2, 1989.

Ebb H. Williams, III and W. Roscoe Reynolds, Martinsville, for appellant.

Robert Q. Harris, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BARROW and MOON, JJ.

KOONTZ, Chief Judge.

Frederick Lynwood Foley, appellant, was indicted for murder, arson and the use of a firearm in the commission of a felony. A jury found Foley guilty on all three charges. Foley's motion to set aside the verdict and his motion for a new trial were both denied. Foley raises four issues on appeal: (1) whether the trial court erred in refusing to excuse juror Hazel Allen for cause; (2) whether the trial court erred by admitting into evidence the hearsay testimony of the victim's mother; (3) whether the trial court erred by allowing the Commonwealth to recall the victim's mother at the conclusion of the defense's case; and (4) whether the trial court erred by refusing to grant appellant's motion for a new trial based on after-discovered evidence. We hold that it was error for the trial court to fail to excuse the juror for cause. Because we reverse on that ground, we do not decide whether the trial court erred by refusing to grant a new trial based on a claim of after-discovered evidence. We further hold that the trial court did not err by admitting the challenged hearsay testimony, and did not err by allowing the Commonwealth to call a rebuttal witness.

On Saturday, November 30, 1985, at 5:50 p.m., Ok Soon Foley, appellant's wife, telephoned her mother, Myung Chan Park, from the K-Wig Mart which Mrs. Foley owned and operated in Martinsville, Virginia. Mrs. Foley told her mother that appellant had unexpectedly come home a day early from his stay at the Veterans Administration Hospital in Salem, Virginia where he was being treated for alcoholism. Mrs. Foley told Mrs. Park that they would be home soon and asked her to prepare dinner for them.

At 7:24 that evening the Martinsville Fire Department received a call that the K-Wig was on fire. Upon arrival the fire department discovered the charred remains of Mrs. Foley. Laboratory analysis revealed that the body and surrounding floor had been soaked in gasoline and set on fire. A preliminary autopsy report revealed two bullet wounds in the body, a fatal wound to the chest, and a wound in the hip. This information was released and reported in a December 4, 1985 article in the Martinsville Bulletin. The official autopsy report, which was not released until March, 1986, stated that Mrs. Foley was shot only once, and that was in the chest.

Carolyn Marie Scott, who lived with Foley's brother, testified that on December 5, 1985, she obtained a copy of the Martinsville Bulletin at work and brought it home with her. The headline read "Store Owner Shot Twice, Body Burnt." While visiting his brother and Scott, Foley saw the article and stated that the newspaper had made a mistake because he only shot his wife once, in the chest. He related that they had argued, that he shot his wife, went to his truck and got the gas, poured it on her and the floor, and set it on fire. He also told them that the only thing he was worried about was the phone call Mrs. Foley made to her mother telling her that he was in the shop. Scott further testified that Foley had told her on several prior occasions that "he had to get rid of the bitch." Scott stated that she had not heard about the phone conversation or the bullet wounds from anyone other than Foley.

Dorothy Knoell, who was at Scott's home that same evening, testified that Foley said, "[S]he's dead and she's gone, I did it." Knoell stated that she became upset, left the room and did not hear any further conversation.

Winston Merchant, who was Foley's cellmate while he was incarcerated in the Martinsville City Jail pending trial, testified that although he did not know Foley prior to this, Foley confided the entire story to him. Foley told Merchant that he went to the wig shop and shot his wife because she was having an affair with Ray Wilson. Foley also told him about the phone call Mrs. Foley made to her mother and how he was worried about that. He described in great detail how he set the fire with a triggering device involving a Pall Mall cigarette which gave him enough time to get to the Country Inn fourteen miles up the road. At the trial, a videotape reconstructing the crime using a triggering device like the one described by Merchant was shown to the jury; as reconstructed, it took eleven minutes, nineteen seconds for the fire to start.

Foley testified on his own behalf and denied murdering his wife. He stated that he checked into the Country Inn sometime after 4:30 p.m. that Saturday, and that he called his wife from there sometime before 6:00 p.m. He denied going to the shop and being there at the time his wife phoned her mother. However, a clerk from the Inn testified that Foley did not check in until after 6:45 p.m., and that Foley appeared nervous and worried.

During voir dire, Foley moved to have juror Hazel Allen struck for cause. Allen indicated that she had read some press reports concerning the crimes for which Foley was charged, and that she had formed an opinion (which she would not express) concerning the guilt or innocence of Foley. After further questioning by counsel and the trial court, the court refused to strike Allen for cause.

After the trial, Foley made a motion for a new trial based on newly discovered evidence, which, if heard at the trial, would have contradicted the testimony of Scott and Knoell. The court denied the motion after finding that the witness Foley sought to rely on for this new evidence was available at the time of the trial, had been subpoened by the Commonwealth, and Foley had made no effort to talk to him prior to the trial. Furthermore, the court concluded that the evidence was cumulative and not likely to produce a different result at a retrial because the witness was not credible, as he had changed his testimony several times in the past.

I. The Juror Issue

In his first assignment of error, Foley argues that the trial court erred by failing to exclude juror Hazel Allen for cause. The right to be tried before an impartial jury is firmly embedded in our system of jurisprudence. See U.S. Const. amend. VI, Va. Const. art. I, § 8; Code § 8.01-358; see also Briley v. Commonwealth, 222 Va. 180, 279 S.E.2d 151 (1981); Martin v. Commonwealth, 221 Va. 436, 271 S.E.2d 123 (1980); Justus v. Commonwealth, 220 Va. 971, 266 S.E.2d 87 (1980); Wilson v. Commonwealth, 2 Va.App. 134, 342 S.E.2d 65 (1986). However, this basic constitutional guarantee does not necessarily preclude those who have formed an opinion based on what they have read and heard in news accounts from serving as jurors. Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1978).

In these days of newspaper enterprise and universal education, every case of public interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely any one can be found among the best fitted for jurors who has not read or heard of it, and who has not formed some impression or some opinion in respect to its merits.

Id. at 155-56.

Although preconceived opinions will not automatically disqualify a venireman, the court, during voir dire, must be satisfied that the venireman can hear the case and consider only the evidence disclosed at trial as the basis of his verdict. Whether a juror is capable of laying aside a preconceived opinion and rendering "a verdict solely on the evidence is a mixed question of law and fact," the answer to which lies "within the sound discretion of the trial court." Calhoun v. Commonwealth, 226 Va. 256, 258, 307 S.E.2d 896, 898 (1983) (citations omitted). The trial court's finding is entitled to great weight and will not be disturbed on appeal absent manifest error. Id.; see also Mullis v. Commonwealth, 3 Va.App. 564, 351 S.E.2d 919 (1987); Wilson v. Commonwealth, 2 Va.App. 134, 342 S.E.2d 65 (1986). In determining whether manifest error exists, a juror's "statements reflecting some preconceived opinion of guilt 'must be read in context with the entire transcript of the voir dire.' " Calhoun, 226 Va. at 258, 307 S.E.2d at 898, (quoting L.E. Briley v. Commonwealth, 222 Va. 180, 182, 279 S.E.2d 151, 152 (1981)); see also Mullis, 3 Va.App. at 570, 351 S.E.2d at 923. Further, the proof that a juror is impartial must emanate from the juror.

[T]he true test of impartiality lies in the mental attitude of the proposed juror, and the proof that he is impartial and fair should come from him uninfluenced by persuasion or coercion by any one, least of all by the trial judge, who is charged with the duty of remaining impartial himself, and seeing that the panel is composed of impartial and unbiased men.

Bausell v. Commonwealth, 165 Va. 669, 682-83, 181 S.E. 453, 458, (1935); see also Parsons v. Commonwealth, 138 Va. 764, 773, 121 S.E. 68, 70 (1924); Educational Books, Inc. v. Commonwealth, 3 Va.App. 384, 389, 349 S.E.2d 903, 907 (1986).

In this case, when asked whether what she had read or heard in news reports had caused her to have any preconceived ideas about Foley's guilt or innocence, Allen responded, "Somewhat, I mean, you know, a body kind of makes up their mind after you read certain things." Although Allen admitted that she had formed an opinion about the case, she stated that she could remain impartial, and that she would have to hear all the facts before making a final decision. Thus, unlike the juror in Educational Books, Inc. v. Commonwealth where the juror unequivocally stated that she had a "great prejudice" against the defendant, Allen's preconceived opinion was not so fixed as to amount to a "great prejudice" against Foley. Consequently, in this context that case...