Foley v. Com.

• Decision Date: 23 March 2000
• Docket Number: No. 1997-SC-1098-MR.,No. 1998-SC-0378-MR.,No. 1998-SC-0379-MR.,1997-SC-1098-MR.,1998-SC-0378-MR.,1998-SC-0379-MR.
• Citation: 17 S.W.3d 878
• Parties: Robert C. FOLEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

17 S.W.3d 878

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

No. 1997-SC-1098-MR.

No. 1998-SC-0378-MR.

No. 1998-SC-0379-MR.

Supreme Court of Kentucky.

March 23, 2000.

As Modified on Denial of Rehearing June 15, 2000.

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Kathleen K. Schmidt, Shepherdsville, Randall L. Wheeler, Assistant Public Advocate, Frankfort, Counsel for Appellant.

A.B. Chandler III, Attorney General, Connie Vance Malone, Assistant Attorney General, Susan Roncarti, Assistant Attorney General, Paul D. Gilbert, Assistant Attorney General, Criminal Appellate Division, Frankfort, Thomas V. Handy, Commonwealth Attorney, London, Counsel for Appellee.

WINTERSHEIMER, Justice.

This appeal is from a denial of a RCr 11.42 motion seeking the vacation of two murder convictions and sentences of death because of allegations of ineffective assistance of counsel.

In 1993, the Laurel Circuit Court imposed two death sentences on Foley pursuant to convictions for the murders of two people. In that case, Foley set out 26 allegations of error seeking a reversal of his conviction. After reviewing the record, the briefs and hearing oral arguments, this Court affirmed the conviction in Foley v. Commonwealth, Ky., 942 S.W.2d 876 (1997).

The events that culminated in the violent deaths of the two Vaughn brothers occurred on the evening of August 17, 1991, when ten other adults were at the home of Foley, along with five children. Other male guests had checked their pistols in the kitchen cabinet, but Foley kept his .38 colt snub-nose revolver concealed in the small of his back, under his belt and shirt. The first victim consumed enough alcohol to become belligerent and two fights erupted between Foley and the first victim. Foley admits that he started the first fight and later in the evening shot and killed the first victim. The deceased received multiple gunshot wounds to the left arm and body which resulted in hemorrhaging and death. Foley claims he acted in self-defense. Shortly thereafter, the second victim was killed at a time when only Foley, the victim and Ronnie Dugger remained inside the house. Foley claims that Dugger shot the victim while Dugger testified that Foley shot the victim in the back of the head. The victim died as a result of multiple penetrating and perforating gunshot wounds to the head and extremities. After the killings, Foley, Dugger and two other individuals dumped the bodies into a creek in Laurel County.

As noted in the opinion of the Court in Foley, supra, Foley was charged on October 26, 1991, with killing four other people whose bodies had been found in a septic tank in Laurel County. Prior to the indictment on the later charges, the district court had restrained all law enforcement personnel and court personnel from making any public comment about the case.

After this Court affirmed the jury verdict in 1997, Foley filed an unsuccessful petition for a writ of certiorari in the United States Supreme Court. Three days after that denial he faxed to the Laurel Circuit Court a motion pursuant to RCr 11.42 to vacate his judgment of conviction. That motion was filed by the Clerk on October 14, 1997, and on that same date, the Governor signed an executive order that Foley be put to death by electrocution on November 13, 1997. The circuit court refused a stay of execution and scheduled an evidentiary hearing on the RCr 11.42 motion on November 10, 1997, which was three days before the scheduled execution. This Court granted a stay of execution on November 3, 1997. Before the evidentiary hearing began on November 10, counsel for Foley renewed his motion for continuance which was denied. The RCr 11.42 motion was denied on November 25, 1997. This appeal followed.

I. Mitigating Evidence

Foley argues that his death sentence must be vacated because his trial attorney did not investigate and present to the jury all available evidence which would mitigate a finding that he deserved the death penalty. He asserts that evidence was available to trial counsel which would have proved relevant mitigation in the penalty phase of the trial, but his attorney did not conduct an adequate investigation of the available mitigating evidence and presented no evidence in mitigation. At his RCr 11.42 hearing, Foley presented twelve witnesses who would have been available to offer similar mitigating evidence at trial. He also claims that trial counsel did not properly explain the mechanics of the penalty phase, including the concept of mitigation so that Foley could make a rational choice and properly assist in his own defense.

At the RCr 11.42 hearing, trial counsel testified that he and Foley had discussed the penalty phase and that Foley did not want to put family witnesses through the ordeal of testifying. There was no testimony that Foley knew of any witnesses who possessed critical mitigating information evidence in the penalty phase.

The witnesses who testified at the RCr 11.42 hearing indicated that Foley was a lovable child and that he idolized his grandfather who was a seven-time murderer. One of the Foley witnesses testified that he was nice even though he carried a gun and had been convicted earlier of manslaughter. His mother testified that her father had killed seven men and had taught Foley to shoot a gun when he was only 6 years old. His mother also discussed some alleged injuries that Foley sustained, the implication being that there was some sort of brain damage. That inference was never substantiated by any medical record. Testimony regarding the injuries has no relevance to mitigation. Her testimony that he could be fine one minute and very angry the next certainly did not mitigate the propensity for violence. At the end of her testimony, she identified two different photographs of Foley with guns. The persuasive mitigation of this testimony is highly questionable.

Foley's brother testified about his brother's violent nature and how well he could handle a gun. He admitted on cross-examination that Foley could be violent, and that people were afraid of Foley.

Trial counsel also testified at the RCr 11.42 hearing. He stated that he had been a practicing attorney in Kentucky for almost 19 years with criminal defense work as a substantial part of his practice. Although this was his first capital case, he said he had handled other violent crimes. He had previously represented Foley and represented him in a quadruple homicide after this case was tried. He stated that Foley was reluctant to put his family through the rigors of testifying in mitigation. Trial counsel said that Foley assisted him in the defense and that they worked very closely together. He did not remember anything that would make him think that Foley was incompetent during trial because his client was lucid and able to converse with counsel and others. Trial counsel said that he met with post-conviction counsel and was cooperative in regard to the RCr 11.42 motion.

The general standards which measure questions relative to the ineffective assistance of counsel are set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); accord Gall v. Commonwealth, Ky., 702 S.W.2d 37 (1985); Sanborn v. Commonwealth, Ky., 975 S.W.2d 905 (1998). In order to be ineffective, performance of counsel must be deficient and below the objective standard of reasonableness and prejudicial so as to deprive a defendant of a fair trial and a reasonable result. Strickland, supra. "Counsel is constitutionally ineffective only if performance below professional standards caused the defendant to lose what he otherwise would probably have won." United States v. Morrow, 977 F.2d 222, 229 (6th Cir.1992). The critical issue is not whether counsel made errors but whether counsel was so thoroughly ineffective that defeat was snatched from the hands of probable victory. Morrow, supra. The purpose of RCr 11.42 is to provide a forum for known grievances, not to provide an opportunity to research for grievances. Gilliam v. Commonwealth, Ky., 652 S.W.2d 856, 858 (1983).

In considering an ineffective assistance of counsel claim, the reviewing court must consider the totality of evidence before the judge or jury and assess the overall performance of counsel throughout the case in order to determine whether the identified acts or omissions overcome the presumption that counsel rendered reasonable professional assistance. See Morrow; Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).

A defendant is not guaranteed errorless counsel, or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance. McQueen v. Commonwealth, Ky., 949 S.W.2d 70 (1997). Strickland notes that a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. The right to effective assistance of counsel is recognized because of the effect it has on the ability of the accused to receive a fair trial. In a death penalty case where the aggravating factors are overwhelming, it is particularly difficult to show prejudice at sentencing due to the alleged failure to present mitigating evidence. Bonin v. Calderon, 59 F.3d 815 at 836 (9th Cir.1995).

In a RCr 11.42 proceeding, the movant has the burden to establish convincingly that he was deprived of some substantial right which would justify the extraordinary relief afforded by the post-conviction proceeding. Dorton v. Commonwealth, Ky., 433 S.W.2d 117, 118 (1968).

The information that the witnesses at the RCr 11.42 hearing may have testified to during the penalty phase of the original trial would have been offset by their testimony regarding the propensity of Foley for violence. The performance of trial counsel was not ineffective because he failed to present testimony of these witnesses in the penalty phase of the original...