ROBERT FOLEY V. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 22,200O
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AS MODIFIED: OCTABER 25, 2001
1999-SC-0366-MR
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ROBERT FOLEY
V.
APPEAL FROM MADISON ClRCUl
HONORABLE WILLIAM T.
93-CR-00070
APPELLEE
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING
Following a 1994 trial by jury, Appellant Robert C. Foley was convicted and
sentenced to death for the murders of Kim Bowersock, Calvin Reynolds, Lillian Contino
and Jerry McMillan. Judgment was entered on April 27, 1994 and affirmed by this
Court on April 24, 1997. Foley v. Commonwealth, Ky., 953 S.W.2d 924 (1997), cert.
denied, 523 U.S. 1053 (1998). On March 4, 1998, Appellant filed a motion for a new
trial on grounds of newly discovered evidence. RCr 10.02; RCr 10.06.’ He also filed a
motion for funds to perform ballistics tests on two car doors alleged to be part of his
’ RCr 10.06(l) requires a motion for new trial on grounds of newly discovered
evidence to be filed within one year after the entry of judgment “or at a later time if the
court for good cause so permits.” Although the record is silent in this regard, we
assume the trial court made a finding of good cause, since he decided the motion on its
merits.
newly discovered evidence. Both motions were denied and that denial is the subject of
this direct appeal to this Court. Skaoos v. Commonwealth, Ky., 803 S.W.2d 573, 577
(1990) cert. denied, 502 U.S. 844 (1991).
The victims were last seen alive on October 8, 1989. Their bodies were found
two years later in a septic tank located on the “Murphy Gross property” in the Bald Rock
community of Laurel County, Kentucky.* When the bodies were discovered, the
property was titled in the name of Appellant’s father, John Foley. Murphy Gross had
died on August 30, 1989, and his widow had deeded the property to Appellant’s father
in June 1990. However, during a hearing on his pretrial motion to suppress evidence of
the discovery of the victims’ bodies, Appellant admitted that he was the actual owner of
the property and that he had placed the title in his father’s name to protect it from a
judgment creditor. The property was resold to a third party in July 1993, long after the
victims’ bodies were discovered and Appellant had been charged with their murders.
The Murphy Gross property lies adjacent to property which was owned in 1989 by
Murphy Gross’s nephew, David Gross. David Gross and his domestic companion,
Phoebe Watts, along with Watts’s two minor children, lived in a cabin on that property.
Gordon Canter had previously lived in the cabin, and he and Gross grew marijuana on
the property. There is substantial evidence in the record that Appellant, Gross, Canter
and Paul (Butch) Riley, a key figure in Appellant’s motion for a new trial, engaged in
various criminal enterprises together during the late 1980’s.
To place Appellant’s newly discovered evidence in proper perspective, it is
necessary to review the evidence that was known at the time of his trial. K i m
* The victims were murdered in Laurel County, but the trial was held in the
Madison Circuit Court on a change of venue. KRS 452.210.
Bowersock, Lillian Contino and Jerry McMiilan all resided in Van Wert, Ohio. Calvin
Reynolds, Bowersock’s boyfriend, lived in a house in Laurel County, Kentucky, not far
from David Gross’s cabin. While returning from Murphy Gross’s funeral on September
2, 1989, Reynolds was arrested and charged with driving while intoxicated (DUI).
Bowersock and Gordon Canter were passengers in Reynolds’s vehicle at the time.
They were charged with alcohol intoxication and subsequently released. Reynolds,
however, remained in jail until October 7, 1989.
Bowersock’s cousin, Theresa Duncell, also of Van Wet-t, Ohio, testified that on
October 8, 1989, Bowersock was trying to find someone to drive her from Van Wert to
Kentucky. There is evidence that Bowersock intended to pick up Reynolds in Kentucky
and bring him back with her to Ohio. Duncell was unable to make the trip, but agreed to
help Bowersock find someone else to drive her to Kentucky. They proceeded first to
Lillian Contino’s residence, but Contino’s car was not in working order. Contino,
however, offered to accompany Bowersock to Kentucky if they could find a ride. The
three women then proceeded to the residence of Duncell’s sister, where, by chance,
they encountered Jerry McMillan. Bowersock asked McMillan if he would drive her to
Kentucky and McMillan agreed to do so.
Reynolds was supposed to meet Bowersock at David Gross’s cabin. However,
when Bowersock, Contino and McMillan arrived at the cabin, only Gross and Gordon
Canter were there. Reynolds had returned to his own residence. The three Ohio
residents then picked up Reynolds at his residence and all four returned to Gross’s
cabin. Meanwhile, Canter had telephoned Appellant to tell him that Bowersock was in
the area. According to Canter, Appellant had a grudge against Bowersock because he
believed she had informed his parole officer that he (Appellant) was selling drugs and
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“moonshining” illegal whiskey. (Appellant admits in one of his post-trial affidavits that
he, Canter and Gross sold drugs and “ran a moonshine still.“) Upon being informed
that Bowersock was in the area, Appellant told Canter that he was going to “kick her
a--,” asked Canter how many people were with Bowersock, and told Canter to meet
Appellant at his house and to bring his (Appellant’s) guns.3 Three other witnesses,
Allen and lmal Zannet and Appellant’s ex-wife, Marjorie Foley, were in the same room
with Appellant when this conversation took place and all confirmed Canter’s version of
the statements made to him by Appellant. Marjorie Foley further testified that Appellant
told her when he left that night that if he did not return by morning, he would be either
dead or in jail and that she should so notify his parents in Harlan County. When
Appellant did not return the next morning, Marjorie notified Appellants parents who then
drove to Laurel County to investigate.
Appellant and Canter arrived at David Gross’s cabin shortly after II:30 p.m. on
October 8th. Those present in the cabin when they arrived were Bowersock, Reynolds,
Contino, McMillan, David Gross, Phoebe Watts and Watts’s two minor children. Canter
and Watts both testified that immediately upon entering the cabin, Appellant went to
Bowersock and grabbed her by the hair. When Reynolds arose to her assistance,
Appellant drew his g-mm pistol and shot Reynolds first, then Bowersock, then Contino,
then McMillan. He pointed the gun at David Gross, but did not shoot when Gross
begged for his life. Appellant then returned to Bowersock and shot her again in the
head. Following the murders, Appellant, Gross and Canter confiscated the victims’
3 Apparently, Canter was in possession of Appellant’s handguns because
Appellant, a convicted felon, would be guilty of a class D felony if found in possession
of such weapons. KRS 527.040.
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valuables and removed the bodies from the cabin to a log-hauling trailer. Watts then
cleaned up the cabin while the three men took McMillan’s car to Lexington and
abandoned it in a motel parking lot. Canter testified that Appellant, identifying himself
as Calvin Reynolds, called an automobile repair shop, requested that the vehicle be
picked up for repairs, and promised to retrieve it at a later date. Canter stated that he
never saw the vehicle again and all efforts to locate it prior to trial were futile. The three
men returned to Gross’s cabin and slept the following day. The next night, they
removed the victims’ bodies from the trailer, placed them in Murphy Gross’s septic tank,
and covered them with lime and cement.
In October 1990, David Gross was shot and killed in a murder which remains
unsoIved.4
In the fall of 1991, Appellant was arrested for killing two Laurel County
brothers, Lynn and Rodney Vaughn. See Foley v. Commonwealth, Ky., 942 S.W.2d
876 (1997) cert. denied, 522 U.S. 893 (1997). Shortly thereafter, Watts, who then lived
in Tennessee, and Canter, who then lived in Arizona, came forward separately and
gave virtually identical statements to the police about the murders of Bowersock,
Reynolds, Contino and McMillan.
The theory advanced in Appellant’s motion for a new trial is that David Gross and
Gordon Canter killed the four victims because they had stolen “a lot” of marijuana from
Gross, and that the victims were shot not in Gross’s cabin, but while seated in
McMillan’s car. Further, McMillan’s car was not driven to Lexington and abandoned in a
motel parking lot, but was instead dismantled, the car seat burned, the car doors burned
and deposited in a valley referred to locally as “the egg,” and the remainder compacted
4 There is evidence in the record that Gross’s body was found in the front yard of
Appellant’s residence with a bullet through the heart.
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at a Laurel County salvage yard. The initial “newly discovered evidence” supporting this
theory was an anonymous, handwritten letter that Appellant claims to have received in
October 1996. Appellant showed the letter to his attorney, who advised him that an
anonymous letter would not support a motion for a new trial.
Appellant later produced a typewritten letter from Paul (Butch) Riley, one of his
former criminal associates, dated May 17, 1997, less than thirty days after the rendition
of this Court’s opinion affirming Appellant’s conviction and sentence. The letter was
signed, “always and ever your friend and brother Butch.” Both Appellant and Riley are
inmates at the state prison at Eddyville.5
The substance of Riley’s letter is that during
the summer of 1994, while Riley was incarcerated in a federal penitentiary in Terre
Haute, Indiana, he had a telephone conversation with Gordon Canter, who was then at
the Grand Hotel in Hamilton, Ohio; and that Canter told him that Appellant did not
commit the Bald Rock murders. (Riley’s letter did not assert that Canter admitted
committing the murders, himself.) Canter denies the conversation and denies ever
staying at the Grand Hotel. The record also contains the affidavit of Linda Sheehan to
the effect that in the summer of 1994, she forwarded calls from Riley to the Grand Hotel
where Riley’s mother was employed as a bartender. Sheehan does not state that she
forwarded any calls to Canter. Riley’s letter was subsequently reduced to an affidavit,
which states in pertinent part:
Gordon said he had to go to court and testify against Bob Foley and
it was bugging him. That it was his way of coming clean and out from
under it. Gordon said he had to go to court against Bob Foley on 4 more
murder charges. I ask [sic] him what was up and he said they had Bob
Foley on 2 other murder charges and he was going to fry anyhow, and
5 The Commonwealth asserts that Riley is serving fifty-five years for convictions
of various criminal offenses.
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besides if Foley had of [sic] been there he would have been in on it
anyway. Gordon said the ones that got killed had it coming because they
stole a lot of pot from Dave Gross. He also said, Foley had got Dave
Gross killed on a bad dope deal. Gordon told me he and Dave stashed
the bodies in a trailer and later buried them in a [sic] old septic tank. That
they used lime to eat up the bodies. Gordon even mentioned getting rid of
part of the car in the egg pit and burning it. That the rest of the car went to
the junkyard and was crushed. I asked Gordon just how many people was
it that Foley had suppose [sic] to have killed. Gordon said, as far as he
new [sic] just the 2 brothers in London. I said, so he didn’t kill the 4 in the
septic tank, and Gordon said no he didn’t, but it didn’t matter because Bob
Foley was going to fry on the other 2 murders anyhow.
Appellant’s final item of newly discovered evidence is the affidavit of his “stepcousin,” Chris Allen. According to Allen, he proceeded at Appellant’s direction to a
seventy-foot cliff above a section of “the egg.” After rappelling down the cliff, Allen
discovered two rusty car doors which appeared to have been burned. Each door
contained two holes which Allen “thought could be bullet holes.” Allen then discovered
what he believed to be an automobile ignition key, a post office box key, and a set of
“dogtags” (but not standard military identification tags) inside one of the door panels.
The dogtags contained the name, address, social security number and date of birth of
Jerry McMillan. McMillan’s father and brother subsequently confirmed that McMillan
owned and occasionally wore dogtags similar to those alleged to have been found by
Allen. Allen hoisted the car doors out of “the egg” and took them to a body shop
mechanic. The mechanic compared the doors to those on a 1975 Chevrolet Malibu and
filed an affidavit to the effect that the burned doors “could possibly have come from a
1975 Chevy Malibu.” In fact, the record contains several descriptions of McMillan’s
vehicle, none of which identify it as a Malibu. Canter testified that he thought the
vehicle he drove to Lexington after the murders was a 1970 Chevelle. McMillan’s
mother filed a missing person’s report in 1989 describing her son’s vehicle as a 1975
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Chevy Nova. Bowersock’s mother told the police that her daughter had left Ohio on
October 8, 1989 in a Pontiac LeMans with Ohio tag number 567-RTP.
While this evidence may be “newly discovered,” Appellant’s theory of the case is
not. During his cross-examination of Gordon Canter at the 1994 trial, Appellant’s
attorney posited that Canter and David Gross had killed the four victims and that Canter
had decided to place the blame on Appellant because Appellant was already in jail on
other capital charges. Canter denied this assertion. Further, Crocket (“Mel”) Stevens, a
self-described lifelong friend of Appellant, testified at trial that Canter told him in the
spring of 1990 that he and David Gross had “offed”
some people after “ripping them
off.” During his sworn statement given in response to Appellant’s motion for a new trial,
Canter produced a letter from Stevens, dated July 14, 1997, in which Stevens urged
Canter to blame Gross for the murders, because “Dave is dead and no one needs to
protect him any longer.”
Whether to grant a new trial on the basis of newly discovered evidence is largely
within the discretion of the trial court, and the standard of review is whether there has
been an abuse of that discretion. Collins v. Commonwealth, Ky., 951 S.W.2d 569, 576
(1997); see also, Epperson v. Commonwealth, Ky., 809 S.W.2d 835, 841 (1991), cert.
denied, 502 U.S. 1065 (1992); Commonwealth v. Littrell, Ky., 677 S.W.2d 881 (1984);
Combs v. Commonwealth, Ky., 356 S.W.2d 761 (1962). It was formerly held that newly
discovered evidence which merely impeaches or is collateral is insufficient unless it
impeaches the only material witness in the case. Brvant v. Commonwealth, 272 Ky.
222, 113 S.W.2d 1118 (1938); Sawyer v. Commonwealth, 267 Ky. 388, 102 S.W.2d 371
(1937); Lassiter v. Commonwealth, 249 Ky. 352, 60 S.W.2d 937 (1933). Even under
that standard, Appellant’s newly discovered evidence would be insufficient since it only
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impeaches the credibility of Canter and not the credibility of Phoebe Watts. More
recently, we have held that newly discovered evidence that merely impeaches the
credibility of a witness or is cumulative is generally disfavored as grounds for granting a
new trial. Collins v. Commonwealth, supra, at 576. The evidence “must be of such
decisive value or force that it would, with reasonable certainty, change the verdict or
that it would probably change the result if a new trial should be granted.” Id. (quoting
Coots v. Commonwealth, Ky., 418 S.W.2d 752, 754 (1967)).
In Epperson v. Commonwealth, supra, the motion for a new trial was premised
upon affidavits from prison inmates alleging, as here, that the prosecution’s chief
witness had admitted to them that he, not the defendant, had killed the victim. The
affidavits were deemed to be merely impeaching and insufficient to require a new trial.
In Coots v. Commonwealth, supra, evidence that the prosecutrix had made a post-trial
statement to a police officer that the defendant had not molested her was held to be
merely impeaching and not to require a new trial. Denials of motions for new trials were
also upheld in Parslev v. Commonwealth, Ky., 321 S.W.2d 259 (1958) (evidence that
the prosecutrix’s mother later admitted that she had mistakenly identified the defendant
as the person who raped her daughter tended only to impeach); Jeter v.
Commonwealth, 268 Ky. 285, 104 S.W.2d 979 (1937) (alleged post-trial statement by
prosecution’s chief witness that contradicted his trial testimony with respect to whether
the defendant killed the victim in self-defense was merely impeaching); Alford v.
Commonwealth, 244 Ky. 27, 50 S.W.2d 1 (1932) (alleged post-trial statements of
prosecuting witnesses contradicting their trial testimony that the victim was unarmed
when he was shot was cumulative and impeaching).
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While some of these results may at first blush seem harsh, they are based on the
principle that a defendant is entitled to one fair trial and not to a series of trials based on
newly discovered evidence unless that evidence is sufficiently compelling as to create a
reasonable certainty that the verdict would have been different had the evidence been
available at the former trial; and that mere hearsay evidence that a trial witness made a
post-trial statement inconsistent with his previous testimony is insufficient. Compare the
following cases, which are illustrative of newly discovered evidence deemed sufficient to
mandate a new trial: Dolan v. Commonwealth, Ky., 468 S.W.2d 277 (1971) (discovery
after trial of the identity of a person who was present when the murder was committed,
who possessed knowledge important to the case, and who was not related to the
defendant); Mullins v. Commonwealth, Ky.: 375 S.W.2d 832 (1964) (sworn statement of
an eyewitness to the murder admitting that she perjured herself at trial); McGreaor v.
Commonwealth, Ky., 253 S.W.2d 624 (1952) (evidence that a key witness was
suborned to give perjured testimony at trial); Haynes v. Commonwealth, 304 Ky. 753,
202 S.W.2d 400, 403 (1947) (discovery of an alibi witness with no family or business
relationship with and “no incentive, either actual or imaginary to falsify in behalf of’ the
defendant).
Here, Riley’s proposed testimony would only impeach the credibility of Canter’s
testimony. When confronted with Riley’s affidavit, Canter denied its allegations and
reaffirmed his previous testimony. Riley’s affidavit does not impeach Phoebe Watts’s
testimony or the testimonies of the Zannets and Marjorie Foley, who overheard
Appellant threaten to harm Bowersock and express his intent to arm himself shortly
before the victims were murdered. Further, we agree with the trial court that the
discovery of the two car doors is collateral and does not impeach Canter’s testimony as
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to how the murders occurred or that he abandoned McMillan’s car in a motel parking lot
in Lexington. If anything, it only tends to bolster Riley’s proposed impeachment
evidence. Remember, Riley does not assert that Canter told him the victims were shot
while seated in McMillan’s car. The discovery of the car doors is just as supportive of a
theory that Appellant, himself, retrieved McMillan’s car from Lexington, dismantled it,
deposited the doors in “the egg,” and otherwise disposed of the remainder. Further
supporting that theory is the fact that Appellant apparently was able to direct his stepcousin, Allen, exactly where to enter “the egg,” which is described in the post-trial
affidavits as a “large valley,” in order to find the car doors. Finally, the only proof that
the car doors came from McMillan’s car is Allen’s statement that he found two keys and
McMillan’s dogtags inside one of the door panels, Since all of the victims’ valuables
(and presumably identification) were removed from their bodies before they were
buried, a jury could just as well believe that McMillan’s dogtags and keys were retained
by Appellant and subsequently “planted” inside the door panel at his direction, a theory
which is just as plausible as a theory that the dogtags and keys all managed to fall into
the door panel as McMillan was being shot and killed.
Appellant’s theory that the four victims were killed because they had stolen “a lot”
of marijuana from David Gross is belied by Theresa Duncell’s description of the spur-ofthe-moment decisions of Contino and McMillan to accompany Bowersock to Kentucky.
Further inducing skepticism of Appellant’s theory is the fact that Riley’s affidavit recites
the same motive for Canter’s testimony that was suggested by Appellant’s attorney at
trial, i.e., that Appellant would be sentenced to death for murdering the Vaughn brothers
anyway, so blaming him for four additional murders was “no harm done.”
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Considered in light of the strong evidence of Appellant’s guilt and the weakness
of the evidentiary support for his alternative theory, we agree with the trial judge that
Appellant’s “newly discovered evidence,” which is only impeaching in nature, is not of
“such decisive value or force that it would, with reasonable certainty, change the verdict
or . . . probably change the result if a new trial should be granted.” Collins v.
Commonwealth, supra, at 576.
We also affirm the trial court’s denial of Appellant’s motion for funds for ballistics
tests on the car doors. As concluded by the trial judge, such tests would prove at best
that the holes were created by firing g-mm bullets through the door from the outside
surface. The only relevance of that fact would be circumstantial support for Appellant’s
unsubstantiated theory of the case. Furthermore, funds for ballistics tests are
authorized only if use of the Kentucky State Police Forensic Laboratories Section is
considered impractical. KRS 31.185(l). There is no such evidence in the record.
Nor do we believe the trial judge abused his discretion in denying an evidentiary
hearing on these motions. Appellant filed numerous affidavits in support of his motion
for a new trial, including two of his own. The Commonwealth countered with Canter’s
sworn statement denying Riley’s allegations and reaffirming his trial testimony.
Appellant responded with more affidavits impeaching portions of Canter’s sworn
statement. Appellant does not suggest what additional evidence he might have
presented at an evidentiary hearing or how such evidence could overcome the fact that
his “newly discovered evidence” is merely collateral and impeaching, thus insufficient to
mandate a new trial.
Accordingly, the order of the Madison Circuit Court is affirmed.
All concur.
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COUNSEL FOR APPELLANT:
Timothy T. Riddell
Milton C. Toby
Perch and Toby
Suite 10
1750 Alexandria Drive
Lexington, KY 40504-3100
COUNSEL FOR APPELLEE:
A. B. Chandler, III
Attorney General
State Capitol
Frankfort, KY 40601
Connie Vance Malone
Paul D. Gilbert
Assistant Attorneys General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort. KY 40601-8204
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*
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1999-SC-0366-MR
APPELLANT
ROBERT FOLEY
V.
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE WILLIAM T. JENNINGS, JUDGE
93-CR-00070
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER DENYING PETITION FOR REHEARING
The petition for rehearing is denied. The Opinion of the Court rendered
herein on November 22, 2000, is modified on its face by the substitution of the attached
pages 1, 11, 12, and 13 in lieu of the original pages 1, 11, 12, and 13.
All concur.
ENTERED: October 25, 2001.
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