ROBERT C. FOLEY V. COMMONWEALTH OF KENTUCKY
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MODIFIED: JUNE 15, 2000
RENDERED: MARCH 23,200O
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APPELLANT
ROBERT C. FOLEY
V.
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
91-CR-0180
APPELLEE
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE WINTERSHEIMER
AFFIRMING
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
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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 IO, 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
IO, 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
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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.
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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
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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. Dot-ton 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 trial.
Trial counsel became familiar with members of the Foley family during the
course of this representation and discussed the trial strategy with the defendant. There
was no testimony that Foley told the trial attorney that there were witnesses that had
critical mitigating evidence. As a result of the discussions with Foley and trial strategy,
the trial counsel decided not to call mitigation witnesses. There is no evidence to
substantiate the claim that Foley may not have understood mitigation. It is clear that
trial counsel understood what issues could be raised in the penalty phase. “Decisions
relating to witness selection are normally left to counsel’s judgment and this judgment
will not be second-guessed by hindsight.” Fretwell v. Norris, 133 F. 3d 621, 627 (8th
Cir. 1998).
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Although we certainly recognize the necessity for complete investigation by
defense counsel, we must conclude that a reasonable investigation is not an
investigation that the best criminal defense lawyer in the world, blessed not only with
unlimited time and resources, but also with the benefit of hindsight would conduct.
Thomas v. Gilmore, 144 F.3d 513 (7th Cir. 1998). It is only reasonable for any lawyer to
place certain reliance on his client. The investigation must be reasonable under all the
circumstances. Stevens v. Zant, 968 F.2d 1076 (1 Ith Cir. 1992). In this case, there
was no proof of any reason for trial counsel to investigate Foley’s background more
thoroughly. There was no evidence of any mental defect. Trial counsel knew Foley and
his family from previous representations, and their testimony at the RCr 11.42 hearing
indicated a violent nature. The decision of counsel not to conduct additional
investigation into a defendant’s background in search of mitigating circumstances can
be supported by reasonable professional judgment. Cf. Fretwell, supra. Even if he had
documented additional mitigating evidence, trial counsel could have decided that the
negative testimony that would be elicited might only serve to inflame the jury and
therefore decline to present it. As in Fisher v. Anaelone, 163 F.3d 835 (4th Cir. 1998) it
cannot be said that a strategic decision not to call mitigating witnesses was
unreasonable. See also Preston v. Delo, 100 F. 3d 596, 603 (8th Cir. 1996).
In this case, there is no reasonable probability that the omitted testimony would
have changed the result reached by the jury or the sentencing fixed by it. Foley was not
prejudiced by the alleged failure of trial counsel to investigate and present mitigating
evidence. There is no showing of either deficient performance or substantial prejudice
which are required to present an ineffectiveness of counsel argument.
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II. Competency and Mental Health
It is axiomatic that federal and state law prevent the trial of an incompetent
defendant. KRS 504.090; RCr 8.06. If there are reasonable grounds to believe that a
defendant is not competent to stand trial, the proceeding must be discontinued and the
trial judge must appoint a psychologist or psychiatrist to examine the defendant, file a
report and then a hearing must be held. KRS 504.100. Here, at the RCr 11.42 hearing,
trial counsel testified that Foley assisted him in his defense and that they worked very
closely. The attorney further testified that he did not remember anything that made him
think Foley was incompetent during trial and that Foley seemed lucid and was able to
converse with him and others. Foley testified in his own defense for over one and onehalf hours. The trial judge had the opportunity to observe that Foley was able to
communicate effectively his version of the offense and was able to answer questions
both on direct and cross-examination,
Foley did not testify at his RCr 11.42 hearing. No medical proof of any mental
history was offered to support the claim of incompetency. The only evidence introduced
indicating any bizarre behavior were letters supposedly written by Foley to his deceased
grandmother shortly before trial. Although family members spoke of various head
injuries suffered by Foley during childhood, no medical records were presented to
support such testimony. Trial counsel testified at the RCr 11.42 hearing that he saw no
signs of mental illness and that he had no problem communicating with Foley before
and during the trial, and that Foley maintained his own trial folder and discussed it
intelligently with counsel. There was no evidence that Foley was incompetent. The
authorities cited by Foley are unpersuasive. Trial counsel was not ineffective for
declining to request a competency hearing.
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III. Effective Assistance of Counsel
A review and analysis of the argument presented by Foley that he was denied
effective assistance of counsel because the circuit court improperly denied an
evidentiary hearing on certain issues is without merit.
The RCr 11.42 motion contained twenty-six grounds and the circuit court
disposed of issues 1 through 17, 19, 20, 22 and 26, determining that a hearing was not
required. An evidentiary hearing was held on the remaining issues on November 10,
1997. As has been previously noted, the standard for reviewing ineffective assistance
of counsel claims has been discussed and Foley was not denied effective assistance.
Here, the record clearly refutes the allegations contained in the RCr 11.42 motion. He
was not entitled to an evidentiary hearing on all of the allegations. He received a full
and fair litigation of his alleged grounds for relief pursuant to Stone v. Powell, 428 U.S.
465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).
We have reviewed the other issues and find them to be without merit. In the guilt
phase, the change of venue issue was raised on direct appeal and cannot be relitigated
in this proceeding. Wilson v. Commonwealth, Ky., 975 S.W.2d
901, 903 (1998). The
ballistic expert used by the defense was allowed to testify and was extensively crossexamined at trial. The trial court was correct in finding that there was no ineffective
assistance of counsel in this respect. The question of rebuttal evidence was rejected on
direct appeal as were the issues regarding the impeachment of Foley, victim evidence
and the fact the victim’s father testified while in a wheelchair.
In regard to the impeachment of witnesses for the Commonwealth, Marge Foley
was extensively cross-examined by defense counsel. The jury had sufficient evidence
to make an informed judgment about the credibility of such witnesses. There was no
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evidence that the witness, Watt, was a suspect in the other case involving Foley and her
testimony was consistent with that of Foley. Defense counsel cross-examined the
witness and pointed out inconsistencies in regard to her prior deposition.
Defense counsel was not ineffective for failing to object to a prior felony
conviction from 1977. The indictment gave sufficient notice of aggravators pursuant to
Perdue v. Commonwealth, Ky., 916 S.W.2d 148 (1995) and instruction issues were
rejected in the direct appeal.
IV. Funds for Experts
Foley argues that the trial court improperly denied him funding for a ballistics
expert and a social worker because he needed these two experts for the evidentiary
hearing to prove the prejudice in his original jury verdict.
Foley has no constitutional right to expert assistance in a collateral attack
proceeding. Murrav v. Giarranto, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d
1 (1989).
The requirement to provide funds to indigent defendants for necessary experts as
stated in Binion v. Commonwealth, Ky., 891 S.W.2d 383 (1995) and Ake v. Oklahoma,
470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) has not been extended to postconviction matters. The standard for determining whether a criminal defendant is
entitled to funds for expert assistance is whether such assistance is reasonably
necessary. Hicks v. Commonwealth, Ky., 670 S.W.2d
837 (1984). Such a decision is
within the sound discretion of the trial judge, and the same standard is to be applied in
RCr 11.42 proceedings. McQueen, supra.
Foley contends that a ballistics expert was necessary to prove that he did not kill
Harry Vaughn and only shot at Rodney Vaughn in self-defense. He does not have an
affidavit from any ballistics expert stating this proposition. There is no showing that the
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one expert he contacted could change the Foley verdict. He also claims that he needs
a social worker to explain his background and character to the jury. Again, he does not
indicate what a social worker would testify to or how this testimony would change the
reliability of the verdict. Foley does not demonstrate that either of these proposed
I t w a s
expert witnesses was reasonably necessary pursuant to Hicks, supra. n o t
e r r o r
for the trial judge to deny motions for funds for experts because those experts were not
reasonably necessary.
V. Credibility of Witness
Foley claims that newly discovered evidence would show that a prosecution
witness lied and that thus his conviction and sentence should be reversed. His new
evidence is based on affidavits from another death-row inmate and a convicted felon
who both alleged they were in jail with the prosecution witness who confessed to them
that he actually shot Lynn Vaughn. The evidence is not new because it only
corroborates Foley’s trial testimony.
The granting of a new trial is disfavored when the grounds are newly discovered
evidence which is merely cumulative or impeaching in nature. See Collins v.
Commonwealth, Ky., 951 S.W.2d 569, 576 (1999). At the RCr 11.42 hearing, a witness
testified that Dugger confessed to him also. The witness admitted that he had five
felony convictions and that four of them had been prosecuted by the current prosecutor
of Foley. Newly discovered evidence is not a basis for RCr 11.42 relief. McQueen:
There is nothing to suggest that in the absence of this allegedly newly discovered
material, the verdict would have been any different. The trial judge did not abuse his
discretion in finding that the testimony submitted by affidavits from prison inmates was
not credible. See Epperson v. Commonwealth, Ky., 809 S.W.2d 835 (1991).
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VI. Rush to Judgment
Foley contends that his RCr 11.42 attorneys needed additional time to prepare
and present issues. In this case, Foley had sufficient time to prepare issues for the RCr
11.42 motion. His conviction was affirmed in 1996 and certiorari was denied by the U.S.
Supreme Court. Foley did start preparing for his RCr 11.42 hearing by faxing a 15page
motion to the circuit court just three days after certiorari was denied. The motion had
attached to it the affidavits of two potential RCr 11.42 witnesses which were signed on
September 26, 1996 and November 22, 1996, approximately one year before the
evidentiary hearing would eventually be scheduled. Foley and his lawyers were well
aware of what was coming and had the commendable foresight to begin preparations
even before the direct appeal was affirmed.
As previously stated, the purpose of a RCr 11.42 proceeding is to provide a
forum for known grievances, not to provide an opportunity to research for grievances.
Gilliam, supra. There was no valid reason for the circuit court to grant additional
preparation time.
RCr 9.04 provides a standard for postponing a trial or evidentiary hearing. It
requires the defendant to demonstrate what witnesses or evidence counsel has been
unable to obtain in time for the hearing, the materiality and that due diligence has been
exercised to obtain it. Foley did not comply with the requirements of this rule.
Foley was unable to identify with any particularity, any witnesses or evidence of
claims that they would have been able to present had they been granted a continuance
of the RCr 11.42 hearing. Foley mentions three missing witnesses but of those he only
gives the name of one, Ronnie Dugger. He provides no affidavits to indicate what he
believes Dugger’s testimony would be. He merely claims that Dugger lied during trial,
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I
.
and yet he presented the testimony of two witnesses at the RCr 11.42 hearing that
Dugger had lied. He claims in a vague general way that he learned of useful
information that could have been presented by other witnesses, but no mention of these
individuals is made and what they would have specifically testified about.
In addition, there is no indication as to what a ballistics expert and a social
worker would have testified or why their testimony was material. Again, no affidavits of
any nature were filed. Thus, there was no need to grant a continuance based on either
of these suggested sources of testimony. Neither of these witnesses would have been
reasonably necessary and the trial court was correct in not granting funds. Foley’s
complaint about discovery issues is without merit because pretrial discovery rules do
not apply in RCr 11.42 proceedings. Sanborn v, Commonwealth, Ky., 975 S.W.2d 905
(1998).
In regard to the missing evidence of medical records, there is no showing as to
what those records would say or if he was ever taken to a doctor and if there were any
medical records in existence. He did not comply with RCr 9.04 and was not entitled to a
postponement of the hearing.
Foley contends that an RCr 11.42 proceeding requires a “virtual reinvestigation.”
We disagree. This proceeding is not a retrial. He had ample time in which to prepare
for the hearing and there is no legitimate RCr 11.42 claim which would justify the
extraordinary relief available in an RCr 11.42 proceeding. There was no abuse of
discretion or error of any kind in not granting a continuance.
VI I. Prosecutorial Misconduct
Foley complains that he was denied due process of law, a fair trial and a reliable
sentence because the prosecutor withheld favorable evidence, coached witnesses and
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tossed a gun into the jury box. All aspects of this issue were raised in his motion for a
new trial as well as the RCr 11.42 motion.
Our review of the record does not indicate that the prosecutor withheld evidence.
This issue has already been addressed on direct appeal and was raised by Foley in a
motion for a new trial that was rejected by the trial judge. We find no reason to relitigate
this subject. See Foley v. Commonwealth, 942 S.W.2d
at 886. Foley claims that the
prosecutor withheld evidence that Ronnie Dugger was not intimidated because the
prosecutor knew that Dugger called his mother and said he was okay. In order to
support a motion for a new trial, any newly discovered evidence must be of such a
decisive nature that it would, with reasonable certainty, change the verdict. Collins v.
Commonwealth, Ky., 951 S.W.2d 569, 576 (1997); Coots v. Commonwealth, Ky., 418
S.W.2d 752, 754 (1967). The granting of a new trial is not favored when the grounds
are newly discovered evidence which is merely cumulative or impeaching in nature.
Reliance by Foley on Gialio v. United States, 405 U.S. 150, 92 SCt. 763, 31
L.Ed.2d 104 (1972), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1199, 10 L.Ed.2d 215
(1963) is misplaced. Those federal cases held that a new trial is not automatically
required whenever a combing of the prosecutor’s files after trial has disclosed evidence
possibly useful to the defense, but not likely to have changed the verdict. Next, Foley
asserts that the prosecutor met with prosecution witnesses prior to trial, provided them
with portions of the discovery and instructed them on their testimony. This ground was
also included in his motion for a new trial. We agree with the trial judge that this claim
has been waived because post-conviction counsel has not introduced any evidence to
substantiate this allegation at the evidentiary hearing. There was no abuse of discretion
in refusing a request for reconsideration or for a supplemental hearing because of an
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alleged automobile accident involving the witness. Finally, the suggestion that the
prosecutor threw a gun in the court room is without merit and has been refuted by an
examination of the video tape of the trial. There was no basis for avowal testimony from
the person who has testified that he was a personal friend of Foley and would do
anything to help him. There was no credible evidence to support this claim and it was
refuted by the video tape of the trial. The trial judge properly overruled the issue before
the RCr 11.42 hearing and avowal testimony was not proper at the hearing. Cf.
McQueen.
VIII. Juror Misconduct
Foley argues there was misconduct on the part of three jurors during his original
trial. To support these allegations he presented evidence from four witnesses, his trial
attorney, one of the jurors and two other persons. All three of the jurors unequivocally
denied making the statements attributed to them by Foley.
The trial attorney testified that he was aware of a claim that a juror had told
others at a restaurant that the jury had already decided guilt. The trial lawyer sent an
associate to the restaurant to investigate the claim but the associate was not able to
verify the allegation.
The witnesses called by Foley to support his contention could not name a single
individual who supposedly heard such statements or passed information on to them.
Foley offered no proof as to the assertions regarding the kinship of jurors to an assistant
Commonwealth Attorney and the Commonwealth offered proof that there was no such
kinship. The assistant Commonwealth Attorney did not participate in the trial. The
claims of juror misconduct are based on suspicion, rumor and speculation. There is no
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credible evidence to support such allegations. The authorities cited by Foley are
unconvincing and without merit.
IX. Discovery Denial
Foley contends that he was denied discovery during the RCr 1? .42 postconviction proceedings. He asserts that the proceedings must have the same scope as
a pretrial investigation. We disagree. The RCr 11.42 proceeding is limited in purpose
and scope. This Court has stated that such proceedings are not the equivalent of a
retrial. Dot-ton v. Commonwealth, Ky., 433 S.W.2d 117 (1968). Sanborn, supra, has
indicated that pretrial rules of discovery do not apply in RCr 11.42 proceedings.
Foley has already received complete discovery and has been convicted. He is
no longer simply an accused. He is not permitted to fish through official records in
hopes that something may turn up to his benefit. See Gilliam, supra.
X. Letter from Wife
An examination of the record does not indicate any testimony that the trial
attorney was made aware of an alleged letter from Foley’s wife to the defendant prior to
trial. The letter indicated that she became pregnant by a state police officer and that
another police officer had given her money. Obviously, defense counsel did not crossexamine her about the letter or about her relationships with either of the two police
officers. Foley does not state when he received the letter, nor does he indicate when
trial counsel became aware of the letter during trial. Foley, who testified in his own
defense, made no mention of the facts that he now argues. Trial counsel crossexamined Foley’s wife concerning pending criminal charges against her and the fact
that she had unresolved custody litigation. At trial, Foley testified that his wife was “a
dopehead and a whore.”
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I
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The trial judge correctly found that Foley did not assert that he made trial counsel
aware of the purported letter or that he asked trial counsel to question his wife about the
alleged letter. Foley did not testify at the RCr 11.42 hearing.
In attempting to obtain post-conviction relief, the movant must present facts with
sufficient particularity to generate a basis for relief. RCr 11.42(2);
Commonwealth, Ky., 803 S.W.2d
Skaaas v.
573 (1990); Lucas v. Commonwealth, Ky., 465
S.W.2d 267 (1971).
Xl. Denial of Mitigating Evidence
Foley complains that he was not allowed to present relevant mitigating evidence
during the testimony of four witnesses at the RCr 11.42 hearing. Foley argues that the
evidence was highly relevant to the issue of his character both as a child in school and
as a grown adult. All of the evidence he wanted to present was placed in the record by
avowal. An examination of it indicates that it is clearly unreliable, inadmissible hearsay.
KRE 802. None of the information would have been admissible at trial even through the
hearsay exception route. KRE 803 and 804. Thus, it was not ineffective assistance of
counsel for the defense lawyer not to have produced it at trial.
The hearsay testimony offered here meets none of the criteria of reliability noted
by the United States Supreme Court in Green v. Georaia, 442 U.S. 95, 99 S.Ct. 2150,
60 L.Ed.2d 738 (1974). In any event all the testimony was recorded by avowal and we
conclude that the trial court did not commit any error in excluding it.
We conclude that Foley did not receive ineffective assistance of counsel
pursuant to RCr 11.42. He has not demonstrated a professional performance that was
so deficient that it prejudiced the defense. There is no showing that the alleged errors
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of defense counsel were so serious that the result of the trial was unreliable. See
Strickland. 7-v McQueen; Sanborn.
Gall.
The decision of the circuit court is affirmed in all respects.
All concur.
COUNSEL FOR APPELLANT:
Kathleen K. Schmidt
148 East Znd Street
P.O. Box 218
Shepherdsville, KY 401650218
Randall L. Wheeler
Assistant Public Advocate
100 Fair Oaks Lane, Suite 302
Frankfort, KY 40601
COUNSEL FOR APPELLEE:
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
1024 Capital Center Drive
Frankfort, KY 40601-8204
Thomas V. Handy
Commonwealth Attorney
105 E. Fourth Street
London, KY 40741
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1997-SC-1098-MR
1998-SC-0378-MR
1998-SC-0379-MR
ROBERT C. FOLEY
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HON. RODERICK MESSER. JUDGE
vs.
COMMONWEALTH OF KENTUCKY
APPELLEE
ORDER
The appellant’s Motion for Leave to File Supplemental Authority is hereby
granted. The appellant’s Petition for Rehearing is hereby denied.
The appellant’s Petition for Modification is granted in part, and the Opinion of the
Court rendered herein on March 23, 2000, is modified by the substitution of new pages
4, 6 and 11, hereto attached, in lieu of pages 4, 6 and 11 of the Opinion as originally
rendered. Said modifications do not affect the holding.
All concur.
Entered: June 15, 2000.
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