Foley v. Commonwealth

• Decision Date: 20 March 2014
• Docket Number: No. 2013–SC–000215–MR.,2013–SC–000215–MR.
• Parties: Robert Carl FOLEY, Appellant v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

425 S.W.3d 880

Robert Carl FOLEY, Appellant

v.COMMONWEALTH of Kentucky, Appellee.

No. 2013–SC–000215–MR.

Supreme Court of Kentucky.

March 20, 2014.

Euva Denean Blandford, Meggan Elizabeth Smith, Assistant Public Advocate, Department of Public Advocacy, for appellant.

Jack Conway, Attorney General of Kentucky, David Wayne Barr, Assistant Attorney General, Office of The Attorney General, Office of Criminal Appeals, for appellee.

Opinion of the Court by Justice VENTERS.

Robert Carl Foley appeals from an order of the Laurel Circuit Court summarily denying his motion for post-conviction relief pursuant to CR 60.02(b), CR 60.02(f), CR 60.03, and RCr 10.02. Appellant's motion challenges his two 1993 murder convictions, each of which resulted in the imposition of the death penalty.

As grounds for relief Appellant contends that the trial court erred by concluding that he was not entitled to a new trial based upon “newly discovered evidence.” Among that evidence is the report and findings of a forensic firearms expert who concluded that the new information supported Appellant's version of events, that the two victims were each armed with a firearm during the shootings, thereby supporting Appellant's claim that he acted in self-defense in shooting Rodney Vaughn and that Rodney Vaughn, rather than Appellant, shot Lynn Vaughn.

Because the “newly discovered evidence” presented by Appellant falls short of the standards which must be met to obtain relief under the cited rules, we find that the trial court did not abuse its discretion in denying his motion for post-conviction relief.

I. FACTUAL AND PROCEDURAL BACKGROUND

At the August 1993 trial the Commonwealth presented evidence that Appellant shot and killed brothers Rodney and Lynn Vaughn at Appellant's home in Laurel County, on August 17, 1991. That evidence indicated that a number of people including the Vaughn brothers, Phoebe Watts, Ronnie Dugger, Bill Dugger, Rocky Arthur, Lisa Arthur, Marge Foley (Appellant's wife), Louise Bridges (Appellant's aunt), and several children were gathered at the Appellant's home when Appellant arrived with his friend Danny Joe Bryant. Upon his arrival, Appellant had a revolver concealed under his shirt. The Commonwealth's evidence disclosed that the events leading to the shootings began when Appellant and Rodney Vaughn had a brief fight. After the first altercation had subsided, hostilities escalated again when Rodney pointed his finger at Appellant and warned Appellant not to sucker-punch him again. Appellant responded by knocking Rodney into the living room, drawing his pistol, and shooting Rodney six times.

After the initial shooting everyone fled the house except Appellant, the Vaughn brothers, and Ronnie Dugger. Except for Appellant, Dugger was the only witness to what happened next. He testified that Appellant retrieved another gun from the kitchen, returned to the living room where Lynn Vaughn remained next to his dying brother, and shot Lynn in the back of the head. He then kicked Rodney's corpse, saying “you son of a bitch, you caused me to have to kill my partner [Lynn].”

The Commonwealth presented additional testimony that Appellant then organized Ronnie Dugger, Bill Dugger, and Danny Joe Bryant to assist him in hiding the bodies and covering up the crimes. To this end they dumped the Vaughn brothers' bodies in a creek and attempted to cover up the shootings and cast blame on others. Two days later, authorities discovered the bodies and after further investigation, Appellant was indicted on two counts of murder and other related offenses.

Appellant's version of events greatly differed from the Commonwealth's theory. According to Appellant's trial testimony, the killing of the Vaughn brothers occurred as follows: 1) Appellant and Rodney got into a fight and Appellant knocked Rodney from the kitchen into the middle of the living room; 2) Rodney “started getting back up and he was like, he got up on his knees and when he came back up he pulled the pistol out. He called me a few bad names and said ‘I told you I would kill you if you ever hit me again’ ”; 3) Lynn told Rodney that if he shot Appellant, he would kill him; 4) Lynn then shot Rodney, and as soon as Lynn fired, Rodney turned and shot Lynn; 5) in defense of himself and Lynn, Appellant shot Rodney; and 6) another shot rang out, and Appellant turned to see Dugger standing over Lynn with a pistol in his hand, having shot Lynn in the back of the head.

The jury rejected Appellant's version of events, and found him guilty of two counts of murder. Based upon the jury's recommendation, the trial court sentenced Appellant to death for both murders.¹ Appellant's convictions and sentences were affirmed on direct appeal. See Foley v. Commonwealth, 942 S.W.2d 876 (Ky.1996). Appellant was similarly unsuccessful in challenging his conviction in his post-conviction RCr 11.42 petition, see Foley v. Commonwealth, 17 S.W.3d 878 (Ky.2000).² He again failed to obtain relief in his federal habeas corpus proceedings, see Foley v. Parker, 488 F.3d 377 (6th Cir.2007). In addition to the foregoing proceedings, according to the trial court, Appellant has filed five CR 60.02 motions challenging his conviction and sentence.

Appellant's latest challenge to his convictions is founded upon a report recently prepared by John Nixon, a forensic expert on firearms and ballistics. As further discussed below, in his report Nixon explains that he examined the available evidence, including the trial testimony, the autopsy report, and crime scene diagrams, and concluded that the evidence supports Appellant's version of events and, correspondingly, contradicts the Commonwealth's theory.

Appellant filed his latest motion for post-conviction relief on February 21, 2013. The trial court summarily denied Appellant's motion without conducting an evidentiary hearing. This appeal followed as a matter of right.

II. PROCEDURAL DEFAULT

While the trial court did ultimately address Appellant's motion on the merits, it also concluded that Appellant had procedurally defaulted upon his claim for relief because his present motion, based upon the Nixon findings, was filed more than twenty years after the trial, and because the motion “is a successive 60.02 motion.”

Relief may be granted under CR 60.02(f) for any reason of an extraordinary nature justifying relief. However, a CR 60.02(f) motion must be made “within a reasonable time.” See CR 60.02; Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky.1983). An evidentiary hearing is not required to assess the reasonable time restriction inherent in CR 60.02 motions because this determination is left to the discretion of the trial court. Gross at 858. In consideration that two decades passed between the conclusion of the trial and Appellant's filing of his present CR 60.02 motion, we are constrained to conclude that the trial court did not abuse its discretion in concluding that the present motion was not brought within a “reasonable time.” See Stoker v. Commonwealth, 289 S.W.3d 592 (Ky.App.2009) (trial court properly denied Appellant's CR 60.02 motion, his second post-conviction motion, which was brought approximately eighteen years after his conviction).

Similarly, CR 60.02 does not permit successive post-judgment motions, and the rule may be utilized only in extraordinary situations when relief is not available on direct appeal or under RCr 11.42. McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky.1997). That is, CR 60.02 is not intended merely as an additional opportunity to relitigate the same issues which could reasonably have been presented by direct appeal or an RCr 11.42 proceeding. Id. Indeed, RCr 11.42(3) makes clear that the movant shall, in his RCr 11.42 petition, state all grounds for holding the sentence invalid of which the movant has knowledge.³ Thus, final disposition of a movant's RCr 11.42 motion shall conclude all issues which could reasonably have been presented in the same proceeding. Gross, 648 S.W.2d 853; see also Shepherd v. Commonwealth, 477 S.W.2d 798, 799 (Ky.1972) (“this court will not review matters which have been or should have been raised and reviewed in prior motions to vacate.”); Gross, 648 S.W.2d at 856 ( CR 60.02 was never meant to be used as just another vehicle to revisit issues that should have been included or could have been included in prior requests for relief. Nor is it intended to be used as a method of gaining yet another chance to relitigate previously determined issues.). According to the trial court's calculations, in addition to his direct appeal and RCr 11.42 petition (and federal habeas corpus proceeding), Appellant has filed five prior 60.02 motions. Accordingly, the trial court did not abuse its discretion in concluding that Appellant's present filing is an impermissible successive CR 60.02 motion.

Nevertheless, despite these critical procedural flaws in his present petition for relief, Appellant argues that since the 1993 verdict he has diligently pursued access to a firearms expert at every stage of his various challenges to his conviction and sentence. Indeed, Appellant devotes a significant portion of his argument detailing his efforts to obtain funding to retain an expert during the years since his trial, and he argues that he was eventually able to obtain the funds and retain an expert only through friends, family and strangers aid. The Commonwealth responds that Appellant has not shown good cause for his delay in bringing forth expert forensic firearm testimony and, if nothing else, should have “passed the hat sooner” so as not to violate our unreasonable delay rules.

Appellant is, in substance, making a claim for equitable tolling such that his delay in pursuing Nixon's forensic theories should be excused. In Roach v. Commonwealth, 384 S.W.3d 131, 139 (Ky.2012), we recently adopted the United States Supreme Court formulation for evaluating equitable tolling claims as expressed in Holland v. Florida, 560...