Released for Publication April 10, 2014
ON APPEAL FROM LAUREL CIRCUIT COURT. HONORABLE THOMAS JENSEN, JUDGE. NO. 91-CR-00180.
COUNSEL FOR APPELLANTS: Euva Denean Blandford, Assistant Public Advocate, Department of Public Advocacy; Meggan Elizabeth Smith, Department of Public Advocacy, Assistant Public Advocate.
COUNSEL FOR APPELLEE: Jack Conway, Attorney General Of Kentucky, David Wayne Barr, Assistant Attorney General, Office of The Attorney General, Office of Criminal Appeals.
Robert Carl Foley appeals from an order of the Laurel Circuit Court summarily denying his motion for post-conviction relief pursuant to CR 60.02(b), CR 60.02(f), CR 60.03, and RCr 10.02. Appellant's motion challenges his two 1993 murder convictions, each of which resulted in the imposition of the death penalty.
As grounds for relief Appellant contends that the trial court erred by concluding that he was not entitled to a new trial based upon " newly discovered evidence." Among that evidence is the report and findings of a forensic firearms expert who concluded that the new information supported Appellant's version of events, that the two victims were each armed with a firearm during the shootings, thereby supporting Appellant's claim that he acted in self-defense in shooting Rodney Vaughn and that Rodney Vaughn, rather than Appellant, shot Lynn Vaughn.
Because the " newly discovered evidence" presented by Appellant falls short of the standards which must be met to obtain relief under the cited rules, we find that the trial court did not abuse its discretion in denying his motion for post-conviction relief.
I. FACTUAL AND PROCEDURAL BACKGROUND
At the August 1993 trial the Commonwealth presented evidence that Appellant shot and killed brothers Rodney and Lynn Vaughn at Appellant's home in Laurel County, on August 17, 1991. That evidence indicated that a number of people including the Vaughn brothers, Phoebe Watts, Ronnie Dugger, Bill Dugger, Rocky Arthur, Lisa Arthur, Marge Foley (Appellant's wife), Louise Bridges (Appellant's aunt), and several children were gathered at the Appellant's home when Appellant arrived with his friend Danny Joe Bryant. Upon his arrival, Appellant had a revolver concealed under his shirt. The Commonwealth's evidence disclosed that the events leading to the shootings began when Appellant and Rodney Vaughn had a brief fight. After the first altercation had subsided, hostilities escalated again when Rodney pointed his finger at Appellant and warned Appellant not to sucker-punch him again. Appellant responded by knocking Rodney into the living room, drawing his pistol, and shooting Rodney six times.
After the initial shooting everyone fled the house except Appellant, the Vaughn brothers, and Ronnie Dugger. Except for Appellant, Dugger was the only witness to what happened next. He testified that Appellant retrieved another gun from the kitchen, returned to the living room where Lynn Vaughn remained next to his dying brother, and shot Lynn in the back of the head. He then kicked Rodney's corpse, saying " you son of a bitch, you caused me to have to kill my partner [Lynn]."
The Commonwealth presented additional testimony that Appellant then organized Ronnie Dugger, Bill Dugger, and Danny Joe Bryant to assist him in hiding the bodies and covering up the crimes. To this end they dumped the Vaughn brothers' bodies in a creek and attempted to cover up the shootings and cast blame on others. Two days later, authorities discovered the bodies and after further investigation, Appellant was indicted on two counts of murder and other related offenses.
Appellant's version of events greatly differed from the Commonwealth's theory. According to Appellant's trial testimony, the killing of the Vaughn brothers occurred as follows: 1) Appellant and Rodney got into a fight and Appellant knocked Rodney from the kitchen into the middle of the living room; 2) Rodney " started getting back up and he was like, he got up on his knees and when he came back up he pulled the pistol out. He called me a few bad names and said 'I told you I would kill you if you ever hit me again'" ; 3) Lynn told Rodney that if he shot Appellant, he would kill him; 4) Lynn then shot Rodney, and as soon as Lynn fired, Rodney turned and shot Lynn; 5) in defense of himself and Lynn, Appellant shot Rodney; and 6) another shot rang out, and Appellant turned to see Dugger standing over Lynn with a pistol in his hand, having shot Lynn in the back of the head.
The jury rejected Appellant's version of events, and found him guilty of two counts of murder. Based upon the jury's recommendation, the trial court sentenced Appellant to death for both murders. Appellant's convictions and sentences were affirmed on direct appeal.
SeeFoley v. Commonwealth, 942 S.W.2d 876, 43 12 Ky. L. Summary 11 (Ky. 1996). Appellant was similarly unsuccessful in challenging his conviction in his post-conviction RCr 11.42 petition, seeFoley v. Commonwealth, 17 S.W.3d 878 (Ky. 2000). He again failed to obtain relief in his federal habeas corpus proceedings,
seeFoley v. Parker, 488 F.3d 377 (6th Cir. ...