Foster v. Com.
| Citation | 827 S.W.2d 670 |
| Decision Date | 19 December 1991 |
| Docket Number | 88-SC-776-TG and 87-SC-364-MR,Nos. 87-SC-356-M,s. 87-SC-356-M |
| Parties | LaFonda Fay FOSTER and Tina Hickey Powell, Appellants, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court (Kentucky) |
R. Neal Walker, Asst. Public Advocate, Kevin McNally, McNally & Robinson, Frankfort, for appellant Foster.
Gene Lewter, Lexington, for appellant Powell.
Frederic J. Cowan, Atty. Gen., Ian G. Sonego, David A. Smith, Denise A. Garrison, Todd D. Ferguson, Asst. Attys. Gen., Criminal Appellate Div., Frankfort, for appellee.
Appellants, LaFonda Fay Foster and Tina Hickey Powell, were both found guilty by a Fayette County jury of five counts of intentional murder. After a four-week trial, the jury recommended that Powell be sentenced to life imprisonment on one murder count, and to life imprisonment without the benefit of probation or parole for twenty-five years on the remaining four counts. The same jury recommended that Foster be sentenced to death on each of her five murder convictions. The trial court entered respective judgments and sentences in accordance with the jury's recommendations. We affirm the findings of guilt as to both appellants and the punishment as to Powell. We reverse Foster's sentences to the death penalty, however, and remand her convictions for a new punishment hearing for reasons hereinafter discussed.
On April 23, 1986, the Lexington police responded to a telephone complaint by Virginia Kearns that two intoxicated women were in her apartment and would not leave. Two officers arrived at the Jennifer Road complex at 4 p.m. and found the complainant, Mrs. Kearns, to be highly intoxicated and belligerent. After questioning the appellants and determining that they were not intoxicated, the police left.
Appellants walked to an adjacent parking lot where several people were having a party. While they were drinking, Powell attempted to sell a knife to raise some money for more alcohol. At about this time, Mrs. Kearns left her apartment. Powell threatened her and then she and Foster followed Mrs. Kearns to a drug store where Foster was seen shaking Mrs. Kearns violently. The three women returned to the Kearnses' apartment where Mrs. Kearns lived with her semi-disabled husband, Carlos, and their live-in housekeeper, Trudy Harrell.
Mrs. Kearns asked her husband to give money to the appellants. He refused the request and an argument ensued. Mr. Kearns eventually agreed to write them a check but stated that he would have to drive somewhere in his car to get it cashed. Roger Keene and Theodore Sweet, friends of Mr. Kearns, arrived at the apartment while Powell, Mrs. Kearns, and Ms. Harrell went to get Mr. Kearns' car.
Foster then drove the car containing Powell and the five ultimate victims to a bait shop where the manager cashed Mr. Kearns' $25 check sometime between 6:00 and 7:00 p.m. Powell stated that she and Foster were attempting to raise enough money to purchase a gram of cocaine.
The appellants next stopped at the home of Lester Luttrell, where an argument between Luttrell and the appellants ended with Foster firing a .22 bullet into the window of his home.
Between 8:00 and 9:00 p.m., the car was driven to a field off Mount Tabor Road. There, according to Powell, the five victims were forced out of the car and told to lie face down in the grass. The appellants then shot and stabbed Ms. Harrell and Mr. and Mrs. Kearns, according to the demonstrative evidence found in the field. Although wounded, the Kearnses, along with Mr. Keene and Mr. Sweet, who were not injured at that time, got back in the car at the appellants' direction.
Ms. Harrell's body was discovered 225 feet from the field in the Berke Plaza parking lot. Her body had become lodged underneath the car and was dragged a considerable distance in the parking lot before becoming dislodged. She was fatally shot in the back of her head, stabbed five times in her face and chest, and her throat had been cut. No alcohol was found in her system.
Powell drove the car to a tavern located two miles from where Ms. Harrell's body was found. A customer of the tavern testified that Powell came up to him and asked if he had any ".22s or .38s," to which he replied that he did not. Powell asked the manager of the store the same question, explaining that she needed them to "shoot some rats." He gave Powell four .22 caliber bullets. The manager observed that the car which Powell was driving had blood on the right passenger door of the car. He yelled to Powell that she had "better wash that blood off." The manager could not clearly see who was in the car but he did notice a "big guy in it, with no shirt on."
The car was driven to a loading area behind a paint store, where Mrs. Kearns was killed. The state medical examiner testified that Mrs. Kearns had been shot in the head, her throat had been cut, and she had multiple stab wounds, including sixteen wounds to her neck. Her body had also become lodged under the car and dragged. Despite the wounds, Mrs. Kearns died as a result of being run over by the car and had a .32 blood alcohol level at the time of her death. A large sweat shirt, identified as belonging to Roger Keene, was found at the scene with blood smears consistent with a knife being wiped off. The blood was identified as belonging to Virginia Kearns.
The appellants returned one hour later to the tavern and again asked the manager for more bullets, without success. The manager observed that the blood he had noticed previously on the car had been wiped off. Foster was driving the car.
Appellants went next to the trailer home of LaFonda Foster's father, where he provided a nail and showed how to use it in the .22 caliber revolver in place of the cylinder rod, which had been lost at the Mount Tabor field. This substitution would have made the firing of the pistol "more difficult," according to the state firearms examiner. Powell stated that while Foster was inside the trailer the three remaining men begged her to do something to help them. Powell explained that she was unable to help them because Foster had taken the keys to the car and further stated she believed that she could best help them by staying. However, she did not deny that she had honked the car horn for Foster to hurry up.
At an undetermined time during the evening, the appellants stopped at another bar. Carolyn Cross, who was sitting in a car outside the bar, stated that Foster asked her for some money "because she needed a fix." When asked by Ms. Cross what was wrong, Foster replied that "she had just shot a man" and had "told the old man when he got in the car if he bled in the car that she would shoot the old son of a bitch again." When Ms. Cross asked Foster what she was going to do with the rest of the people in the car, Foster replied, "I'll shoot them, too." Ms. Cross further testified that Powell and a man in the car called to Foster and said, "Let's go." According to Ms. Cross, she believed Foster had been drinking but was "in control of herself." She observed that Foster exhibited no problem standing, walking, or communicating. Foster was described as being "calm" and "not in a hurry."
The remaining victims asked the appellants for something to eat, whereupon they went to a drive-in restaurant for food, but left before receiving their order. They then were driven to a field off Richmond and Squires Roads, where they were killed in the same manner as the two women, with each being shot in the head, stabbed repeatedly, throat cut, and run over by the car. The car was then set ablaze with gasoline. Roger Keene, who was shot two times in the back of the head and once in the ear, was left pinned under the car while it burned. Theodore Sweet, who had been shot in both ears, was found lying face down on the ground near the car. Both Carlos Kearns and Roger Keene had defensive injuries to their right hands. An RG .22 caliber revolver with a missing cylinder rod was found in the field near the burning car. The bullets found at the three homicide scenes and inside the bodies of the victims were consistent with having been fired from this handgun.
A postmortem toxicology report on Theodore Sweet and Roger Keene indicated they had blood alcohol levels of .35 and .22, respectively. Mr. Kearns was transported to Humana Hospital where he died as the result of two gunshot wounds to the head. No alcohol was found in his system. The pathologists listed the penetrating gunshot wounds to the head of Roger Keene as the primary cause of his death, and stated that Mr. Sweet died from "multiple injuries inflicted in multiple fashions."
After setting fire to the car, appellants walked to Humana Hospital on Richmond Road. Powell telephoned for a taxi while Foster went into a bathroom to wash blood off her face and clothes. An emergency room nurse noticed the blood on their clothing and notified the police, who were in the building on an unrelated matter. She observed the appellants were both coherent in speech and able to walk without a stagger.
The police separately questioned the appellants to determine whether they were injured. Foster and Powell both told the police that they had been in a fight with one another, but no injuries were found. The arresting officer noticed an odor of alcohol but observed that both were capable of communicating and walking without difficulty. Foster and Powell were arrested for (and later convicted of) public intoxication when they became belligerent and a "danger to themselves and others." The arresting officers stated they were arrested only because "they were in a public place."
The appellants were then driven to the Fayette County Detention Center. Foster was placed in a holding cell while Powell was being booked. While in the bathroom of the cell, Foster removed her bloody socks and shoestrings and flushed them down the toilet. She then wiped...
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