Foster v. Commonwealth

Fay LaFonda and Tina FOSTER Powell,

Hickey Appellants, Kentucky,

COMMONWEALTH

Appellee. 87-SC-356-MR,

Nos. 88-SC-776-

TG and 87-SC-364-MR.

Supreme Kentucky. Court

Dec. 1991. Rehearing

As Modified on Denial of

May 1992. Walker, Advocate,

R. Neal Asst. Public Robinson, Kevin McNally, McNally & Frankfort, appellant for Foster. Lewter, Lexington, appellant Gene for Powell. Cowan, Gen., Atty.

Frederic J. Ian G. Smith, Sonego, A. David Denise A. Garri- son, Gen., Ferguson, Todd D. Attys. Asst. Div., Frankfort, Appellate ap- Criminal pellee.

SPAIN, Justice. Appellants, Fay LaFonda Foster and Powell, Hickey guilty Tina were both found by Fayette County jury a of five counts of intentional murder. After a tri- four-week al, recommended that Powell imprisonment sentenced to life mur- one count, imprisonment der and to life without probation parole or benefit of for twen- ty-five years remaining on the four counts. The same recommended that Foster be sentenced to death on each of her five murder convictions. The trial court en- respective judgments tered and sentences jury’s accordance with the recommenda- findings guilt tions. We affirm the as to appellants punishment both and the as to Powell. We reverse Foster’s sentences to however, penalty, and remand the death punishment her convictions for a new hear- ing for reasons hereinafter discussed. I. STATEMENT OF FACTS 23, 1986, Lexington police April On responded telephone complaint a Vir- ginia intoxicated women Kearns that two apartment and would not leave. were her at the Jennifer Road Two officers arrived complain- found the complex p.m. at 4 ant, Kearns, highly intoxicated to be Mrs. ap- questioning the belligerent. After determining they were pellants and intoxicated, police left. adjacent parking an walked to Appellants having a people several were lot where head, times drinking, Powell in the back of stabbed five party. While chest, some and her throat had attempted to sell knife to raise in her face this found in her money for more alcohol. At about been cut. No alcohol was time, apartment. system. Mrs. Kearns left her threatened her and then she and to a tavern located Powell drove car drug followed Mrs. Kearns to body from Ms. Harrell’s two miles where shaking Mrs. store where Foster was seen A the tavern testi- found. customer of violently. The re- Kearns three women came him and asked up that Powell fied where apartment

turned to the Kearnses’ .38s,” any “.22s or to which he if he had Kearns lived with her semi-disabled Mrs. he did Powell asked replied that not. husband, Carlos, and live-in house- their manager question, the same of the store keeper, Trudy Harrell. “shoot that she them to explaining needed give asked her to Mrs. Kearns husband gave four .22 cali- rats.” He Powell some appellants. the money to the He refused manager The that ber bullets. observed argument request and an ensued. Mr. driving Powell had blood the car which was agreed eventually them a Kearns to write He right passenger door of the car. on the stated that have to check but he would yelled Powell that wash to she had “better get in his it cashed. drive somewhere car to manager off.” The could that blood Sweet, friends Roger Keene and Theodore he did clearly see who was in the car but Kearns, apartment of Mr. arrived at the it, in “big guy no shirt on.” notice a with Powell, Kearns, Mrs. Ms. Harrell while and loading area car was driven to a The Mr. Kearns’ get went to car. store, Mrs. Kearns paint behind a where containing drove Foster then the car killed. The state medical examiner was and the five ultimate to a Powell victims shot testified that Mrs. Kearns had been shop manager the cashed Mr. bait where cut, head, and she her throat had been check 6:00 Kearns’ sometime between $25 wounds, including sixteen multiple stab had and p.m. and 7:00 Powell stated that she body her neck. Her had also wounds to attempting enough Foster were to raise dragged. lodged under car and become grama money purchase to of cocaine. wounds, Kearns died as Despite the Mrs. being run car and had result of over next home appellants stopped The at the time of her .32 alcohol level at the blood Luttrell, argument of Lester where an be- shirt, as large A sweat identified death. the appellants tween Luttrell and ended Keene, at belonging Roger was found firing with a .22 into the Foster bullet consistent scene with blood smears home. window of his being The blood wiped a knife off. with p.m., 8:00 and 9:00 car was Between Virginia belonging as was identified field off Road. driven to a Mount Tabor Kearns. There, Powell, according to the five victims hour later appellants The returned one of the to lie were forced out car and told manager again asked the the tavern grass. appellants in the The face down bullets, success. more without Mr. then shot and stabbed Ms. Harrell and had he manager that the blood observed Kearns, according to the demons- and Mrs. been previously on the car had noticed Al- found in the field. trative evidence car. driving the wiped off. Foster was wounded, Kearnses, along though Sweet, Mr. were not Mr. Keene and who home the trailer Appellants went next to time, got in the car at injured at that back father, pro- he Foster’s where of LaFonda appellants’ direction. it in the to use a nail and showed how vided cylinder place of .22 caliber revolver body Harrell’s was discovered Ms. Mount rod, at the had been lost park- Plaza from the field the Berke feet have field. This substitution would ing body lodged had un- Tabor Her become lot. “more diffi- firing pistol dragged a consid- made the car was derneath exam- cult,” according to the firearms state parking lot before distance erable fatally shot stated that while dislodged. iner. Powell becoming She was inside the remaining trailer the three having men victims were consistent with been begged her to do something help them. handgun. fired from this explained that she was unable to postmortem toxicology report A on Theo- help them because Foster had taken the Roger dore Keene Sweet indicated keys to the car and further stated she .22, they had blood alcohol levels of .35 and help believed she could best them respectively. transported Kearns Mr. However, staying. deny she did not Hospital to Humana where he died as the she had honked the car horn for Foster to gunshot result of two wounds to the head. hurry up. system. No alcohol was found in his At an during undetermined time the eve- pathologists penetrating gunshot listed the ning, appellants stopped at another bar. Roger wounds to the head of Keene as the Carolyn Cross, sitting who was in a car death, primary cause of his and stated that bar, outside the stated that Foster asked “multiple injuries Mr. died from in- Sweet money for some “because she needed a multiple flicted in fashions.” fix.” When asked Ms. Cross what was setting car, appellants After fire to the wrong, replied just that “she had Hospital to Humana walked on Richmond shot a man” and had “told the old man telephoned Road. Powell for a taxi while got when he if the car he bled in the car Foster into a bathroom went to wash blood that she would shoot the old son of a bitch emergency off her face and clothes. An again.” When Ms. Cross asked Foster room nurse noticed the going blood on their cloth- what she was to do with the of rest car, ing people police, the and notified the who were in the replied, Foster “I’ll them, building shoot on too.” Ms. Cross further testi- an unrelated matter. She ob- fied that Powell and a man in the car appellants called served the were coherent in both said, go.” to Foster and According “Let’s speech and stagger. able walk without a Cross, to Ms. she believed Foster had been police questioned separately ap- The the drinking but was “in control of herself.” pellants they to determine whether were She that prob- observed Foster exhibited no injured. Foster and Powell both told the standing, walking, communicating. lem or police in they fight that had been being Foster was described as “calm” and another, injuries one no found. but were hurry.” “not arresting The officer noticed an odor of remaining appel- The victims asked the capa- alcohol but that observed both were eat, something whereupon they lants for communicating walking of ble and without food, went to a drive-in restaurant for difficulty. Foster and Powell were arrest- receiving They left before their order. (and of) public ed for later convicted intoxi- then were driven to a field off Richmond cation they belligerent when became and a Roads, Squires and they where were killed “danger to themselves and others.” women, in the same manner as the two arresting they officers stated arrest- were head, being with each shot the stabbed “they public ed because were in a cut, repeatedly, throat and run over the place.” car. The car was then set ablaze with appellants were then to the driven Keene, gasoline. Roger who was shot two Fayette County Detention Center. Foster times in the head and back the once placed holding in a cell was while Powell ear, pinned under the car the was left while being booked. Sweet, was While the bathroom it Theodore who had burned. been cell, bloody ears, Foster removed her lying shot in was found face both shoestrings socks and and flushed them ground down on the near the car. Both wiped down the toilet. then Roger She blood Kearns and Keene had defen- Carlos exchanged off her shoes with water and injuries right to their hands. An sive RG missing cylinder pants blood-stained sweat with another .22 revolver with a caliber police burning in the field near the inmate. The obtained the unwashed rod was found pants found at the three homi- from the home of inmate the next car. The bullets day. scenes and inside the bodies of the Three .22 were found cide caliber bullets Florida, 794, 802, Murphy and a knife U.S. appellants blood-stained 2031, 2037, booking of 44 L.Ed.2d from Powell. The S.Ct. was taken videotaped played fifty-eight opin- appellants Twenty and of the had formed trial, during again upon request guilt. twenty having opin- ions of Of the during guilt, only their deliber- stated ions of four opinions ations. put could not aside their and de- presented at cide the case on evidence confinement, During pretrial Foster told addition, fifty-eight In trial. seven inmate, McLean, Betty that she another opinions pun- had formed as to veniremen had shot the women first and made the judge granted The trial ten of ishment. killed why men watch. When asked she prosecutor’s challenges for cause. them, in- Betty Foster informed and other being of the strikes were for not able Nine mates that the women were “bitches” penalty imposing to consider the death the men were witnesses who saw too much. judge granted the other was for bias. The victims, Commenting on one of the Appellant Foster’s seven of motions to stated, die. “The son of a bitch wouldn’t pre- cause. Three strike for were due to He the hardest man I ever killed.” publicity, trial two because the venire- explained that she did not believe appellant’s mitiga- men could not consider police crimes. could connect the evidence, tion one was because the venire- Montgomery, Foster claimed to Zina anoth- man could not consider the minimum autho- inmate, going play er that she was in- punishment, rized and the other venireman sane. She also corroborated the fact that automatically impose stated that he would destroyed she had evidence. penalty. jurors the death Three of the who thirty-five assignments There are of al- actually tentatively the case sat on had Foster, leged errors asserted on behalf of guilt, opinions judge formed but the trial alleged and two claims of errors asserted upon decided further examination that opinion on behalf of This fo- Powell. will put opinions Taken in could their aside. cus on all issues addressed Foster and answers, the full context of their the trial argument at oral their re- judge’s decision was not erroneous. Irvin Briefs, which, spective opinion in the of the 717, Dowd, supra v. at 366 U.S. 81 S.Ct. at Court, merit discussion. Issues which we 1639; Commonwealth, Ky., Peters v. 505 patently consider to be merit are without 764, (1974). Appellant 765 S.W.2d hereby affirmed without discussion. challenge any did not for cause case, jurors including sat these who II. DENIAL OF CHANGE OF VENUE three, indicating strong evidence that Fos- During pretrial proceedings, Foster jurors ter convinced the were not “... was made a motion change for a of venue. any opinions not formed as biased and had evidentiary hearings, After two trial 369 guilt.” Washington, to Beck v. [her] court denied the motion. Foster claims on 955, 964, 541, 557, 82 S.Ct. 8 L.Ed.2d U.S. appeal her direct that the trial court erred (1962). 98 failing grant to the motion. She com plains pretrial publicity generated that the grant judge’s A trial decision not to multiple homicides tainted her con given great weight because a transfer “is right “by panel tried a stitutional to be presumed to present county in the he is impartial, jurors.” ‘indifferent’ Irvin v. Hurley the situation.” Common know 717, 722, 1639, Dowd, 366 U.S. 81 S.Ct. 838, (1970). wealth, Ky., 841 451 S.W.2d (1961). 1642, L.Ed.2d 751 6 publicity which “It is not the amount of changed; should be prejudiced find no evidence of a com- determines that venue

We aroused as public opinionis so munity. potential jurors All had heard or it is whether case, Kordenbrock v. only fifty-eight preclude to a fair trial.” read about the but 384, Commonwealth, 387 required complete Ky., a 700 S.W.2d veniremen were 1153, (1985), denied, 106 476 U.S. jury. fourteen-member This is evidence of cert. (1986). 2260, L.Ed.2d 704 community prejudiced. a S.Ct. which was question change of whether a of venue side than being game. puts It a granted should be is a matter entrusted to little different slant on it.” the sound discretion of the trial court. McCarty, question, when asked the same Commonwealth, Grooms v. Ky., 756 “[g]oing stated that Tuesday into [when 131, (1988); S.W.2d Payne v. Com started], so, voir dire probably as monwealth, Ky., 867, 623 S.W.2d you [Judge what said as far as the Keller] (1981), denied, 909, cert. 456 U.S. 102 S.Ct. facts, knowing facts and I really 72 L.Ed.2d 167 We find no couldn’t make that right conclusion now.” abuse of discretion. range penalties per- When the entire explained,

missible was both veniremen III. DENIAL OF MOTION TO stated that the facts and circumstances of

STRIKE FOR CAUSE pun- the case would dictate what form of ishment appropriate. would be The trial alleges Foster next error occurred judge finding made a in both cases that when the trial court refused her motion to McCarty put any Short and could aside strike for cause veniremen Bernie Short opinions and could consider the whole McCarty. Although Kevin neither ve range penalties. nireman sat on the jury, fourteen member Appellant Foster had per thorough to use all of her Based on the trial court’s ex- veniremen, emptory challenges. error, amination For there to of the two we cannot showing say she has the burden of that its decision to that her use overrule Foster’s motion to peremptory challenge clearly of a strike for cause was erro- to strike each Caldwell, supra. neous. venireman The use of a subsequent “resulted inabil peremptory challenge ity to strike each venire- challenge unacceptable additional ve man did in subsequent not “result niremen.” inabili- Commonwealth, Marsch v. ty challenge unacceptable additional ve- (1988); Ky., 743 Rigsby S.W.2d v. Com niremen.” Rigsby, supra, overruled on monwealth, Ky., (1973), 495 S.W.2d 795 Pendleton, grounds, supra. other grounds, overruled on other Pendleton v. Ky., 685 S.W.2d The trial court did not its discre abuse (1985). Appellant also has the burden of Peters, Error, supra. any, tion. if proving preconceived bias and ideas as to beyond doubt, harmless a reasonable when challenged jurors. these Caldwell v. Com overwhelming from the viewed evidence of monwealth, (1982). Ky., 634 405 S.W.2d guilt against appellants. Chapman the v. 18, 824, California, 386 U.S. 87 S.Ct. 17 Our review of the Short and McCar (1967); 9.24; L.Ed.2d 705 Snodgrass RCr ty gives little, very any, voir dire rise to if Commonwealth, Ky., v. 814 S.W.2d 579 ability jury. doubt of their to serve on the (1991); Commonwealth, Ky., Abernathy v. Initially, prospective jurors both had (1969). 439 S.W.2d 949 opinions guilt punishment, formed of stating they appellant believed was DENIAL IV. OF SECOND-DEGREE guilty “capital punishment” and that MANSLAUGHTER INSTRUCTION penalty” appropriate the “death an was argues reversible error occurred punishment upon for the crime. But fur the trial instruct the when court refused to court, questioning by ther it the trial was jury second-degree manslaughter. Ap- opinions determined that these were not pellant during opening admitted statements strongly held. homicides, participated in that she but Short,

Mr. when asked the trial court she intoxicated. The trial claimed that was lay explained not enti- opinion whether he could aside his and court that Foster was evidence, upon instruction be- render a verdict based tled to the lesser-included replied being of or jury that since summoned for cause is no evidence wanton “[t]here said, duty, in this from a perspective. he had a new He reckless conduct case which make such a talking being quar- a side-line rational finder of fact could “We’re about However, instruct- being finding.” jury was terback. It’s a little different on the

677 (1981), wealth, it complete Ky., 623 S.W.2d be a ed that intoxication would justify to an held that order such intentional murder. defense to instruction there must be evidence provides that intoxi KRS 501.080 drunk, only that the defendant was charge to a criminal cation is a defense so drunk that he did not that he was negates if condition the existence doing. Meadows v. what he was know Obviously, one the crime. of an element of Commonwealth, Ky., 550 S.W.2d 511 elements of intentional of the essential (1977). 507.020(l)(a). In murder is intent. KRS court that agree with the trial We Evans, 605, 102 S.Ct. Hopper v. 456 U.S. in the evidence there was no rational basis 2049, (1982), L.Ed.2d 367 the United second-degree an instruction on justify to that a defen Supreme Court held States view, Moreover, in our manslaughter. prosecution is entitled to dant a homicide unnecessarily jury trial court instructed a lesser-included offense an instruction on that intoxication could under this evidence permit a to ra if the evidence would to each count of complete a defense guilty lesser of tionally find him if Logic dictates that intentional murder. acquit greater. him of the We fense and justify an in proof sufficient there is held that an accused is entitled have complete as a de struction on intoxication of intoxication submitted have the defense murder, then this evi fense to intentional if the evidence is in instructions to necessarily proof include suffi dence would degree indicate that of sufficient to justify instructing on the lesser cient to prevented at a intoxication was level which manslaughter. This involuntary offense of necessary under forming of the intent degree a more advanced is because it takes Commonwealth, the statute. Parido v. complete defense drunkenness for a (1977); Ky., 547 S.W.2d Smith Cf. (as establishing contrast than for a wanton 683, Ky., 737 S.W.2d intentional) mind for invol ed state of (1987). the circum untary manslaughter. But surrounding justi did not stances this case “the But we have also stated that intoxication. There fy any instruction on intoxication, voluntary circumstances brutally killed over a five victims alone, standing require never a volun will hours. The period approximately four manslaughter instruction.” Moore v. tary range shot at short victims each were Commonwealth, Ky., 771 S.W.2d wounds), re (some being stabbed contact (1988), denied, 494 U.S. cert. car, and in some crushed peatedly, 1536,108 L.Ed.2d 774 “Intoxi S.Ct. left for instances, They were then burned. only if there is some cation is a defense through separate three locations dead at support thing in the evidence sufficient went city. Foster and Powell twice out the he the defendant knew what doubt repair and once to to find additional bullets omitted.) (Citation doing.” Id. at 36. kill using had gun been sleep fatigue or is not a defense.” “Lack of destroy attempted Foster the victims. history past drug and Neither is a Id. immediately and after be before evidence a defense. alcohol abuse drug use on ing arrested. No evidence the inclusion of a lesser- The test for presented. day of the murders was the voluntary intoxi- instruction on included may intoxication have been Foster’s alcohol v. is found Common- cation Stanford support being arrested level to at a 112, wealth, 117-118 Ky., 793 S.W.2d still not to a level but public intoxication (1990): she was not know what she did where in a may a defense Moore, Stanford, supra. While intoxication supra; doing. is case, it if there its discretion. criminal is such not abuse The trial court did support a doubt evidence sufficient INSTRUCTION DENIAL OF V. what he was that the defendant knew MURDER WANTON ON Commonwealth, doing. In Jewell sup did not (1977), presented overruled on The evidence Ky., 549 S.W.2d murder. on wanton instruction port an by Payne v. grounds Common- other Commonwealth, murder not Ky., 464, Wanton is a lesser-ineluded of- 715 S.W.2d 468- 501.010; (1986), 1057, fense of intentional murder. KRS cert. denied 479 U.S. 501.020(3). (1987). simply KRS “It is murder com- S.Ct. 93 L.Ed.2d 986 It is not a a mitted with different state of mental mental disease or illness. Wellman v. murder, culpability Ky., whether intentional 694 S.W.2d wanton, Smith, capital It equivalent or is a offense.” is also not to duress supra. proper urges Thus, “It is not to instruct the as Powell us to believe. Id. it wholly on a wanton offense when all the is insufficient for the accused defen evidence indicates that it dant to claim would be unrea- the defense of extreme emo the jury gradual sonable for to believe that tional disturbance based aon vic environment, defendant’s anything conduct was other timization from his or her Moore, (ci- supra than intentional.” unless the proof triggering at 37 additional of a omitted). sufficiently tation The evidence does not in- event is shown. dicate wanton conduct. The trial court did Based on our review record as a its

not abuse discretion. whole, clearly we find that it was erro- neous for the trial court to find there

VI. DENIAL OF INSTRUCTION any support was “not evidence” to “that ON EXTREME EMOTIONAL killings these were done under extreme DISTURBANCE Smith, supra. emotional disturbance.” Foster was not entitled an in The trial court also did not abuse its first-degree manslaughter struction on as a reopen it discretion when refused to purported result of her defense of extreme expert testify case so that Foster’s could emotional disturbance. Holbrook v. Cf. on the definition of extreme emotional dis- Commonwealth, Ky., 813 S.W.2d turbance. (1991); Smith, supra. The trial court re give separate fused to a instruction but did VII. CROSS-EXAMINATION include extreme emotional disturbance in DR. OF NOELKER mitigat instructions as a We find no reversible error ing circumstance. Part of Foster’s defense cross-examination of Dr. Noelker (and mitigation) was that she was raised in prosecution. prosecutor asked Dr. dysfunctional family phys she where Noelker to read a letter written ically emotionally past abused. Her jail. to Lester Luttrell while she was in drug presented and alcohol abuse were also then Commonwealth asked the explaining why as she often lost her tem type if the letter was the of information he per “rage” people and directed her towards normally formulating opinion. used in Noelker, psychologist, around her. A Dr. expert agreed, prosecutor When extremely testified that Foster “was an passage read a of the letter which told child, emotionally disturbed was an ex Luttrell not talk to the but to talk police, adolescent; tremely emotionally disturbed wrote, lawyers. to her Foster then “... extremely emotionally she is an disturbed it motive behind is to convince drug dependent adult.” mentally deranged large that I from “evidence,”

Despite this amounts of excessive use of cocaine.” The killings proper prove failed to admission of these statements was “triggering” right prosecutor caused event. Since the because the has a to cross- code, adoption penal expert type of the under examine an of evi we have about required normally uses in taken to set out what evidence is dence which he or she long support formulating opinion, an instruction on extreme emo an as as the explained questioning sought tional in and evidence to be ad disturbance. We have triggers “The data on prior opinions that the event which mitted is relevant. which specific opin explosion part expert of violence on the witnesses rest their ions, distinguished knowledge un from the criminal defendant must be sudden and as Smith, qualifies opinions at interrupted. supra; v. which them to offer McClellan

679 separate respective their motions for trials. all, fully inquired into on cross- may be Expert prior during and examination.” 31 Am.Jur.2d occasions to and On several 92; also IMWINK- Opinion trial, Evidence See appellants moved for a counsel § ELRIED, MISCONDUCT UNCHARGED grounds for appellants’ The severance. (1st ed.1984). EVIDENCE § in- that Powell wanted to severance were Foster’s which showed troduce evidence However, error oc we believe as a basis for Pow- propensity for violence curred, harmless, prosecu albeit when duress, and that if she ell’s “defense” of expert knowledge questioned tor on his so, to do Foster would be was allowed prior acts of misconduct which If she not allowed to do prejudiced. was In a conference and had committed. bench so, prejudiced. The cross-examination, then Powell would be expert asked on wisely and the trial court knowledge he had of bad acts Commonwealth whether problem had committed and whether could ame- suggested which Foster that the knowledge reaching in he had utilized such holding separate penalty a liorated extremely diagnosis that Foster his defendant. After consider- phase for each Dr. Noelker stated emotionally disturbed. pretrial hearing, at a ing Powell’s evidence that knowledge he had of the acts and that initially sustained Foster’s the trial court everything.” I “[t]echnically, considered sever, opining that the evidence motion to expert proceeded to inform the then sought present pen- in the 1) shooting her jury about husband alty phase be admissible to show would arm; 2) shooting at Lester Lutt- “degree of involvement” and Powell’s 3) 4) rell; fights; a recurrent her theft of “unduly prejudicial” to therefore be would shotgun during burglary; the course of a granted “re- Foster. The severance was 5) and an incident where she had shaken gardless guilty plea.” Never- of Powell’s “violently.” her mother theless, subsequently the indictments were testimony as to these acts was bad admit at rejoined after Powell refused to irrelevant, uncharged inadmissible as mis- proceeding that she guilty plea her aborted Though acknowledge that the conduct. we intended to kill the victims. Commonwealth, nearly in all cases separate trials it requires 9.16 when RCr foundation, right to proper with the has the appears a defendant or the Common- that expert any question an matter which by joinder prejudiced a wealth is or will be formulating opinion, has used “In or defendants at trial. of the offenses that the admission of evidence we believe granting of a sever- justify order to capital murder trial is of bad acts ance, appear that the defendants it must outweighs highly prejudicial ordinarily defenses, the evi- antagonistic or that have may any probative value the evidence directly to tends dence as to one defendant present support of the Commonwealth’s Tinsley v. the other.” Com- incriminate consistently in chief. stated case We have 776, monwealth, Ky., 495 S.W.2d “[ejvidence of the commission of other (1973); also Rachel v. See prove crimes ... is admissible (1975). is a “There Ky., S.W.2d 395 person disposi- of criminal an accused is joint trials when strong policy favor Commonwealth, Ky., O’Bryan v. tion.” proved by the same series 153, (1982). (Citations charges will be 634 S.W.2d Blakeney, omitted.) Considering circumstances of acts United States ...” (Citation trial, (6th Cir.1991) omit- presented at the admission proof 942 F.2d 1001 error, Marsh, never- statements was ted.); of these Richardson v. also See beyond 1702, 1708, a reasonable theless harmless 107 S.Ct. U.S. 9.24; guilt of Foster. RCr doubt as to the L.Ed.2d 176 Abernathy, supra. judicial is a matter

Severance OF DENIAL SEVERANCE VIII. there are allegation that and the discretion only one of the is antagonistic defenses claim that Foster and Powell both Ep- to consider. judge trial grant factors for the it refused to trial court erred when 680 Commonwealth,

person v. Ky., slaughter 809 S.W.2d support of her duress claim (1991); Commonwealth, Ky., Brown v. because the record indicates that Powell (1989); McQueen 780 S.W.2d 627 v. Com had “intentionally wantonly placed or [her- monwealth, (1984). 721 S.W.2d 694 in a situation in probable which it was self] movant must antagonism show that subject would be to coercion.” [she] between the codefendants will mislead or 501.090(2). KRS properly The trial court jury. Horton, confuse the U.S. v. 847 F.2d relegated Powell’s claim of duress to the 313, (6th Cir.1988). “The movant satis penalty phase of the trial where it was fies this burden if he or she shows that the considered as a mitigating circumstance. separate was unable ‘to and treat dis 507.020; 532.025(2)(a)6; KRS KRS KRS tinctively evidence that is relevant to each seq. 503.010 et ” particular defendant at trial.’ United remaining allegations of error in the Gallo, 1504, (6th States v. 763 F.2d guilt phase directly which can be attributa- Cir.1985), denied, 1017, cert. 475 U.S. ble to the denial of severance are found to 1200, (1986). S.Ct. 89 L.Ed.2d 314 be without merit. A. GUILT PHASE preface, As a we find that neither B. PENALTY PHASE Foster nor prejudiced by Powell was The Commonwealth’s sole evidence dur- trial court’s denial of a during severance ing was the introduction guilt phase of the trial. Evidence of judgment Foster’s 1982 of conviction of presented by the Commonwealth to convict robbery in the degree, second and Powell’s appellants except was the same for the obtaining 1980 dual conviction of a con- pretrial additional admission of statements trolled promoting substance fraud and Foster awaiting had made to inmates while degree. contraband in the first

trial. Powell raised no defense and thus any proof, did not offer calling neither wit proceeded Foster penal first in the testifying nesses nor during herself ty phase. mitigating She introduced evi stage joint first proceed bifurcated dence physically that she was and emotion ings. guilt Powell’s admission of before ally grew abused as a child and that she up prejudice did not Foster since the dysfunctional family. in a Veltkamp, Lane prosecutor did not use it as substantive psychologist dysfunc a and an evidence to convict her. Askew v. Com families, tional interviewed Foster and her monwealth, Ky., (1989). 768 S.W.2d 51 family opinion and based his on these ses properly The trial court the scope limited sions. One of the three interviews was Foster’s cross-examination of witnesses to videotaped played and at trial. In in prevent any partic reference to Powell’s terview, gave history Foster a of her life. ipation. States, Bruton v. United 391 U.S. during Foster stated the interview that she (1968); 88 S.Ct. 20 L.Ed.2d 476 husband, had shot her cut her brother with Commonwealth, Cosby supra, v. knife, charged carrying a had been (Ky.1989). S.W.2d 367 deadly weapon, concealed had been in properly prevented Powell was in “burglaries” “breaking volved from introducing any evidence of un enterings,” fought peo and had with other charged criminal misconduct committed ple. Powell’s counsel cross-examined Mr. in support of her coercion claim. Veltkamp specific about the acts of vio O’Bryan Ky., See about, lence him which Foster had told S.W.2d 153 Powell’s introduction of basing opinion. which he considered in evidence bad acts committed her co- mistrial, objected and moved for properly pen defendant was limited to the claiming the evidence was not relevant and alty phase purpose for the standing question that Powell lacked supporting mitigation. Veltkamp. The trial court overruled objection, stating specific also not entitled that the acts of to a since guilt-phase voluntary “very instruction on man- violence relevant” 681 sister, Foster, making Hickey, testified by introduced thus Powell’s Sheila were twice, for an issue.” “propensity her violence that Foster had beaten her once re- stated, only opened the The court “You not hospitalization. further tes- quiring Sheila gates flung open.” wide door but apart- tified that Foster burned Powell’s could also ruled that Powell trial court boyfriend still inside. ment while was expert any information question the about stated had also Sheila further that Foster opinion. he had based his How- on which Powell. beaten ever, court refused to properly the trial testified on her in the Powell own behalf Veltkamp to ask about allow Powell Mr. phase. Fos- penalty She based her fear of specific acts of violence he did which relationship one-year on a lesbian dur- ter opinion. as a basis for his consider had her on numer- ing which Foster beaten of claims the Foster cross-examination occasions. Powell also stated that she ous by her im- Veltkamp Mr. co-defendant was knowledge of acts in had other violent disagree. has a We A defendant proper. had stat- Foster been involved. She which ex- co-defendant’s right cross-examine a sister, had ed that Foster beaten her Shei- qualifications matters on pert about and la, and apartment, had Powell’s burned opin- had or her based his which jail. threatened her while were first an ion. Foster made her character knowledge her also related about Powell acts of by specific issue the introduction of separate incidents where Foster shot uncharged through misconduct her intro- husband, brother, cut her stabbed own own videotape. duction of the “The first rule of charge man dismissed another was [which law, crimi- applied character evidence as grand jury], boy- by a hit Powell’s cases, is that of an nal character bad whiskey with a Powell friend bottle. proved accused cannot be until he has elect- she knew claimed that when Foster would make character in the case.” ed to an issue violent. She stated she believed become LAWSON, THE EVIDENCE KENTUCKY have been killed had she not that she would HANDBOOK, 1984); (2nd p. LAW 27 ed. participated killings. in the cross-exam- On Commonwealth, Ky., Redd v. See admitted, however, ination, Powell that she find no error in the S.W.2d We any by had not been threatened Foster admission of these bad acts and the cross- night of murders. manner on thereof examination the co-defendant. began her Powell evidence of duress miscon Foster claims the acts of calling mitigation by testi- witnesses who Powell duct testified witnesses and fied that Powell had a childhood with stable highly support mitigation of Powell’s history no of violence. Witnesses also tes- required to her and the trial prejudicial Powell’s reputation tified about nonviolent to sever the court community. began to then Powell trial. provide evidence her fear of Foster aggravat sets KRS 532.025 forth seven calling Montgomery witnesses. Zina may against a ing proven factors which testify recalled to a conversation about capital trial murder. defendant on she had overheard between 532.025(3) requires an affirmative KRS she and another inmate. Zina claimed finding aggravating one circum gotten Foster state had heard that Powell in order beyond stance reasonable doubt night “panicky” the of the murders a death sentence. to sustain Simmons killing planning she was that Ky., 746 S.W.2d might she also because was a witness denied, (1988), 489 U.S. cert. go police. Other inmates testified (1989). In this L.Ed.2d by S.Ct. threats made similar statements and beyond a proved case, Powell, the Commonwealth including an inmate Foster towards acts of that Foster’s “... doubt had admitted she reasonable who testified in mul resulted killing told intentional and the knife on Mr. Kearns. Foster used deaths_” aggravat Nonstatutory tiple “weak bitch” the inmate Powell was a in have also been allowed capable finishing ing the work.” factors and “not penalty phase expert of a trial. Tamme v. Com cause the had used the letters in monwealth, supra, (Ky. forming opinion. 759 S.W.2d 51 1988). specific uncharged But acts of mis first used the during Powell letters her jury may conduct are not factors which testimony on direct examination. Selected consider its determination of a defen passages by include threats made Foster to and, therefore, penalty dant’s are inadmis “Bitch, including, you’re Powell going to penalty phase. agree sible We with die,” extermination,” “plan your “I can the trial court that the acts of misconduct your fuck up,” whole world and “don’t support were relevant to the co-defendant’s you.” make me hurt claim of duress must but we hold that their The Commonwealth next utilized the let- joint admission in a trial was nevertheless impeach ters to Powell’s claim of fear of highly prejudicial to Foster. The admissi letter, In Foster. one Foster wrote to Pow- bility of the evidence would have been ell: said a people “Donna lot of thinks we proper if the of the trial had cut paper one man’s dick off because the been severed to allow Foster to have her said the sex couldn’t be determined on one by sentence determined first. you of the bodies. Hmm. did What do argues prejudiced by that she was I looking? when wasn’t Ha Ha.” The trial the introduction of letters which she had prosecutor court allowed to cross-exam- jail. to written Powell while The letters passage ine Powell on this because Foster by were introduced into evidence already portions had used substantial by argues the Commonwealth. Foster the letter to cross-examine Powell. Anoth- surprise that the letters were a because no by prosecutor er letter read stated that Powell, given by notice was and Foster was prepared accept Foster was a stiffer day unable examine the letters until the sentence A than Powell. third letter stat- before their introduction into evidence. ed, get penalty “We will for sure the death argument We find this meritless since the say things,” if we we don’t remember most voluntarily by letters were written up and “Do not make a defense.” to her co-defendant. letters which the agree We with the trial court that the sought Commonwealth to introduce and mitiga- letters were relevant to Powell’s during pretrial sup- which were discussed tion, joint their admission hearing at a pression proceedings signaled should have prejudicial was error due to the effect to Foster’s counsel of record that their mitiga- which the letters had on Foster’s writing client was to Powell and that the tion. The contents of the letters were potentially contents used would be at trial highly inflammatory cumulatively by either her co-defendant or the Common- beyond necessary went what was for Pow- Jacobsen, In wealth. United States prove mitigation. ell to The admission 109, 117, 1652, 1658, U.S. 104 S.Ct. letters, of the contents of the (1984), L.Ed.2d 85 the United States Su- Commonwealth had introduced for im- preme Court stated: Powell, peachment equally preju- It is that when an individual well-settled irrelevant, proba- very dicial and little another, private reveals information tive The effect of the admission of value. he assumes the risk that his [or she] penalty the letters was to further taint the confidante will reveal that information to phase joint trial as to Foster and if authorities and that occurs the deny impartial her a fair and trial. Fourth prohibit Amendment does not preju- that she was Foster next claims

governmental use of that information. by expert testimony diced on the Powell’s trial We turn next to whether the syndrome.” “battered wife admitting the letters court erred as sub Nietzal, psychologist, was Dr. a clinical proof. stantive The trial court ruled that mitigation support her portions as called Powell to of the letters were admissible by Foster. mitigation of duress and domination to Powell’s claim because Fos claim relationship be- ter’s had testified that Foster had a Nietzal stated char- violence,” had “similar “great propensity and be tween Foster and Powell mitigation appel- Pow- evidence in offered syndrome to the because acteristics” antagonistic to each lants to the helplessness” towards Fos- ell had “learned phase penalty as to Foster was other. appellants met explained ter. He unfairly appearance of Pow- tainted syndrome but some of the conditions of the acting prosecutor. as a second ell’s counsel all, not not the two women were because married, always together, not live did joint error in the finding In reversible dependent on the financially not one was hearing, nevertheless under- penalty we had Dr. Nietzal stated that Powell other. did completely why the trial court stand on the him that she had “freaked out” told original correct instincts to follow opinion night of the murders. His final always grant There is the the severance. intoxicated, acted un- was that Powell was hope tightrope that the can be walked with- disturbance, and extreme emotional der tremendous sav- falling, out and thus the court, under fear and duress of Foster ings acted in trial time and effort for attor- necessary spare life. effect- neys, parties, when to own and witnesses can be Furthermore, the decision not to ed. once in The trial court erred the ad made, it is We sus- sever is irrevocable. testimony of the of the battered mission the pect here that before syndrome by expert. Powell’s We wife old, and the very many hours the court recognized syn that the wife have battered attorneys grim came to the realization that in generally accepted drome has been “unring to the bell” and that it was too late community medical as a mental condition. any penalty returned death verdicts Rose, Ky., v. 725 Commonwealth S.W.2d ephemeral in duration. would be (1987). syndrome But the its own extraordinary It is lamentable that such an inapplicable relationship definition is to the by every participant re- effort must be may which these co-defendants have had peated part, justice clearly even in re- each other. A witness has who been Notwithstanding quires it in this instance. expert in is qualified as an a certain field conclusion, prejudice find no this we testify subject not allowed to about Powell, clearly she from the benefited proven testimony unless it has is been non-severance. is, jury? competent; does it aid the hereby judgment affirm the of con- We Swearer, Ky., See Alexander v. 642 S.W.2d Hickey against and sentence Tina viction (1982); See also Island Creek Coal Co. guilt LaFon- The verdicts of as to Powell. (1982). Rodgers, Ky.App., v. 644 S.W.2d 339 the sen- Fay da Foster are affirmed but testimony The admission of the was error and remanded tences of death are reversed prejudicial effect far out because penalty hearing. for a new weighed probative its value. STEPHENS, COMBS, C.J., and IX. CONCLUSION REYNOLDS, LAMBERT, LEIBSON and JJ., retrospect, In find that the trial we concur. penalty court’s decision not to sever the J., WINTERSHEIMER, part in concurs phase appellants’ joint re trial was by separate opinion. part dissents in Appellant versible error as Foster. WINTERSHEIMER, Justice, concurring pri- accumulated errors the admission of dissenting part. part misconduct, contents of letters or acts of part from that respectfully I dissent Powell, by Foster to and evidence written opinion which reverses Fos- majority syndrome regarding the battered wife the sen- sentence of death because ter’s improvi expert all stem from the Powell’s by the trial properly entered tence was court to hold a dent decision of the trial jury’s recommenda- judge pursuant to the er penalty phase. Individually, these

joint fun- received a defendants tion after both by this might be considered Court rors fair, joint trial. damentally harmless, together or “cu but viewed had prove that she been requires re failed to mulatively,” their commission 9.16. joint trial. RCr prejudiced by the respective versal of Foster’s sentence. showing There has not a “clear of an that is relevant particular been to each defen- ” regard 1011, of discretion” in to the trial dant Blakeney, supra, abuse on trial.’ at citing Gallo, court’s refusal to sever the trials notwith United v. 763 F.2d States standing previous (6th 1504, Cir.1985). the trial court’s decision if “Even grant Epperson severance. v. Com potential jury movant establishes some con- monwealth, Ky., fusion, 809 S.W.2d this confusion must be balanced recognized by majority, As against speedy the need for and efficient strong policy joint “there is a favor Moreover, presume trials.” Id. “We charges proved by trials when will be will be able to sort out the evi- ” same series of acts.... United States applicable dence to each defendant and ren- (6th Blakeney, 942 F.2d Cir. Id., accordingly.” citing der its verdict 1991). case, by In this it is admitted Horton, v. 847 F.2d United States they the mur and Powell committed (6th Cir.1988). ders of the Each of the five victims. vic jury in ponder The this case was able to by tims was killed the defendants over the presented by the evidence the defendants evening course of the same with the defen in support respective mitigating of their bullets, stopping dants twice to find and arriving in appropriate claims at an sen- repair gun once to the province tence. It is the within exclusive using to shoot the victims. Foster and jury to of the determine from the evidence Powell were seen with one another culpable whether one defendant is more throughout evening the and were eventual co-defendant, or her than his and there- ly together hospital. arrested while at the apply after to this conclusion to their re- only question, recognized in The as Powell time, spective sentences. For the first opening day her statement on the first of majority applied of this Court the sever- trial, was not whether the defendants were Tinsley, supra, ance found in standards guilty, penalty but what the would mitigating unintentionally evidence and has impose upon outrageous their them for and virtually impossible made it for a trial facts, and senseless behavior. Under these court of this Commonwealth to conduct a purpose judicial economy, for the alleges joint trial where one co-defendant judge properly complete joint trial held a commission of a crime under duress. trial. judge properly The trial allowed Powell prove Foster also failed to that she and cross-examine and the Commonwealth to defenses, antagonistic Powell had or that guilt in experts, Foster’s Dr. Noelker the evidence as to one defendant tended to phase Veltkamp penalty and Lane directly Tinsley incriminate the other. v. charged phase, specific acts of about Ky., 495 S.W.2d uncharged ex- and misconduct which the trial, during Prior to and formulating respec- in their perts had used partic- respective and Powell admitted their unchallenged by the opinions. It is tive murders, in can no ipation and there fully may that the majority Commonwealth complaint presented that the now evidence into, cross-examination, inquire evidence a co- by at trial the Commonwealth or expert forming opinion. in used an one defen- directly defendant incriminated Am.Jur.2d, Expert Opinion Evi- and dant over the other. inquiry must include bad dence 92. This § duress raised “mitigation” case, has, expert as in this acts where the joint knowledge of heavily upon relied bad antagonistic mitigation to the trial was not Otherwise, formulating opinion. acts in an potential- A presented by Foster. evidence effectively has been Commonwealth is one of the ly antagonistic defense of a de- hindered in its cross-examination judge factors for the trial to consider fendant’s witness. grant determining a severance. whether admissible both The bad acts were “The movant must es- Epperson, supra. the defendants’ guilt penalty phase of ‘to tablish that the would be unable undisputed that Foster It is distinctively joint trial. separate and treat evidence brought first character herself her into is- Noelker, through testimony of Dr.

sue HOSPITAL, WESTERN BAPTIST penalty phase, through and later her Appellant, videotaped testimony which allowed Foster v. testify at being the trial without cross- Faye KELLY; Spradling, Acting Vonda used examined. bad acts Powell in Fund; Special Director of Ronald W. supporting mitigating claim of duress May, Judge; Administrative Law were cumulative to the acts which Fos- bad Board, Compensation Appel Workers’ already ter herself had admitted on direct lees. examination. It noted should be that Pow- Veltkamp ell had cross-examined about un- NEWBERG, Acting Vicki G. Director misconduct, charged and not the Common- Fund, Special Appellant, wealth, therefore, the same rules about inquiry into a defendant’s character do not KELLY; Faye Baptist Hospital; Western apply. May, Ronald W. Administrative Law judge The trial did abuse his discre- Judge; Compensation and Workers’ he tion when admitted Foster letters in Board, Appellees. support of mitigation. proba- Powell’s The 91-SC-570-WC, Nos. 91-SC-576-WC. outweighed prejudicial tive value far may which the effect contents have had on Supreme of Kentucky. Court mitigation. properly Foster’s con- April 1992. respective sidered the mitiga- defendants’ just tions reached a verdict.

I any do believe reversible error oc- expert

curred admission of Powell’s

testimony on the syndrome. battered wife expert specifically stated that the rela-

tionship between Foster and Powell could “compared” syn-

be to the battered wife

drome. The did not state that Pow- wife, merely

ell was battered tried to

explain why try Powell did not to run from night

Foster on the of the murders. The testimony

admission of the was not error probative

because the value to Powell far

outweighed alleged prejudicial effect to

Foster. No abuse of discretion occurred.

The sentence entered the trial court

against Foster should affirmed. I con- majority

cur the balance opinion affirms the appel- convictions of both

lants and Powell’s sentence.

Case Details

Case Name: Foster v. Commonwealth

Court Name: Kentucky Supreme Court

Date Published: May 14, 1992

Citation: 827 S.W.2d 670

Docket Number: 87-SC-356-MR, 88-SC-776-TG and 87-SC-364-MR

Court Abbreviation: Ky.