Foley v. Commonwealth11/22/2000
As amended October 25, 2001. The petition for rehearing is denied.
TO BE PUBLISHED
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 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. Kim 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
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