Foley v. Commonwealth of Kentucky
| Decision Date | 21 August 2003 |
| Docket Number | 2002-SC-0222-TG. |
| Parties | ROBERT C. FOLEY, APPELLANT, v. COMMONWEALTH OF KENTUCKY, APPELLEE. |
| Court | United States State Supreme Court — District of Kentucky |
In 1993, the Laurel Circuit Court imposed two death sentences upon Appellant, Robert Foley, pursuant to convictions for the murders of Harry Lynn Vaughn and Rodney Vaughn. The convictions and sentences were affirmed by this Court on direct appeal in Foley v. Commonwealth, Ky., 942 S.W.2d 876 (1996), cert. denied, 522 U.S. 893 (1997). The trial court's denial of Appellant's motion for RCr 11.42 relief was subsequently affirmed in Foley v. Commonwealth, Ky., 17 S.W.3d 878 (2000), cert. denied, 531 U.S. 1055 (2000).
This appeal is from the Laurel Circuit Court's November 2001 order denying Appellant's motion for new trial pursuant to CR 60.02 and RCr 10.02. Appellant argues that he is entitled to a new trial because of newly discovered exculpatory evidence indicating that a Commonwealth's witness, Aaron Caldwell, perjured himself to the detriment of Appellant's defense. Appellant's primary proof of this allegation is an affidavit from Caldwell disavowing his previous trial testimony that Appellant had approached him in jail in an attempt to solicit favorable untruthful testimony to bolster Appellant's defense. Appellant maintains that Caldwell's testimony was a critical link in the Commonwealth's case and had a significant impact on the jury. Therefore, Appellant contends that Caldwell's "fatally damning" and "absolutely false" testimony mandates relief because it secured his conviction in violation of his due process rights. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Commonwealth v. Spauldinq, Ky., 991 S.W.2d 651 (1999).
As a preliminary matter, there is some question as to the timeliness of Appellant's motion. Pursuant to CR 60.02, a motion for relief from judgment based on allegations of newly discovered evidence or perjury "shall be made . . . not more than one year after the judgment . . . was entered. . . ." RCr 10.06(1) provides that a motion for a new trial based on newly discovered evidence shall be made "within one (1) year after the entry of the judgment or at a later time if the court for good cause so permits." Appellant points out that in Commonwealth v. Spaulding, supra, this Court held that a criminal conviction based on perjured testimony can be a reason of "an extraordinary nature justifying relief" pursuant to CR 60.02(f) and is subject to a reasonable time limitation rather than the one-year limitation.
Caldwell's affidavit alleging that he perjured himself was notarized on March 17, 2000. However, Appellant's motion for new trial (based on the alleged perjury) was not filed until June 8, 2001. The Commonwealth argues, as it did in the trial court, that the delay is presumptively unreasonable and that Appellant has offered no evidence to justify his delay in filing the motion. Nonetheless, the Laurel Circuit Court ruled that Appellant's motion was procedurally sufficient under Spaulding, supra.
Notwithstanding preservation, we find no merit in Appellant's argument. Without reciting the convoluted factual scenario Appellant alleges occurred on the evening of the murders, he contends that the Commonwealth called Caldwell to testify at trial in an "effort to bolster its weakening case." Caldwell testified at trial that Appellant had approached him while both were in the Laurel County Jail and asked him to testify that he (Caldwell) had run out of gas near Appellant's home on the night in question and had, in fact, witnessed another individual shoot the Vaughns. Caldwell told the jury that he reported the conversation with Appellant to authorities because it was his duty as a citizen and he thought the jurors should know that Appellant had asked him to lie. Appellant concludes that Caldwell's testimony was very persuasive since "it took the jury less than twenty minutes to reject [Appellant's] credible claims of self-defense, defense of others, and absolute innocence."
Appellant relies on Giglio v. United States, supra, wherein the United States Supreme Court reiterated that "deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with `rudimentary demands of justice'." Id. at 153, 92 S.Ct. at 766 (quoting Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 342, 79 L.Ed. 791 (1935)). In Giglio, the prosecution's only witness linking the defendant to the crime testified that no promises of immunity or leniency were made in exchange for his testimony. After the trial had concluded, defense counsel discovered that one of the Assistant U. S. attorneys had, in fact, promised the witness he would not be prosecuted if he testified against the defendant. In holding that the defendant was entitled to a new trial, the Court stated:
[T]he Government's case depended almost entirely on Taliento's testimony; without it there could have been no indictment and no evidence to carry the case to the jury. Taliento's credibility as a witness was therefore an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it.
405 U.S. at 154-155, 92 S.Ct. at 766.
We find Giglio clearly distinguishable from the case at hand. Appellant makes the bald assertion that the Commonwealth must have known that Caldwell lied during his testimony. However, as the trial court aptly stated, "[Appellant] does not explain and cannot explain as to how the Commonwealth could know Aaron Caldwell would make statements inconsistent with his trial testimony some six or seven years after the trial." Appellant has offered absolutely no proof that the Commonwealth had any knowledge of Caldwell's alleged perjury at the time of trial.
In addition to the "knowing" and "deliberate" requirements, Giglio further mandates that Appellant show that the allegedly perjured testimony was material, false, and had a reasonable likelihood to affect the judgment of the jury. Id. at 154 (). Caldwell was called by the Commonwealth as a rebuttal witness to dispute Appellant's...
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