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Foley v. Commonwealth11/22/2000
he 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-of-the-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."
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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