On April 23, 1986, bisexual mass murderers Lafonda
Fay Foster and Tina Marie Powell went on a brutal murder spree in
Lexington, Kentucky, leaving five people dead.
When the two women met while both in their
twenties, they each had a long criminal history and were abusing drugs
This escalated into vengeful murder when they went
berserk against five direct or indirect acquaintances with whom they
had real or imagined conflicts.
All five victims were stabbed repeatedly and shot
in the head. Several had been run over by a car and three were left
inside a car that was set on fire.
Foster and Powell were soon arrested and charged in
what was said to be Lexington's worst mass murder.
In February 1987, a jury found both women guilty on
five counts of first-degree murder. Lafonda Foster was sentenced to
death and Tina Powell received a life sentence. In 1991, Foster's
death sentence was reversed to life in prison.
Murders in the United States - By Ronald Barry
Flowers, H. Loraine Flowers
Woman Gets Death Sentence
The New York Times
April 27, 1987
LaFonda Fay Foster has been sentenced to death for
her role in the murders of five people last spring, becoming the
second woman sentenced to death in Kentucky this century.
On Friday, Judge James Keller of Fayette County
Circuit Court set an execution date of April 22, 1988. Ms. Foster, 23
years old, and Tina Hickey Powell, 28, were convicted March 9 of the
killings last April.
Bloody Rampage Blamed on Afternoon of Drinking :
Female Ex-Convicts Charged in 5 Deaths
Los Angeles Times
April 25, 1986
LEXINGTON, Ky. — Police said today two women
suspects in a bloody rampage in which five people were stabbed, run
over by a car, shot or burned apparently decided to rob the victims
after an afternoon of drinking and partying. Both the suspects and
victims had long criminal records, officials said.
The suspects, ex-convicts Tina Hickey Powell, 27,
and LaFonda Foster, 22, were arraigned today on charges of murdering
Carlos Kearns, 71, and police said they would also charge the women
with the other slayings.
Powell's attorney, John Larson, entered a plea of
innocent and told reporters later that his client "is not a killer."
Judge Lewis Paisley said he will appoint a public defender to
The women, shackled hand and foot and dressed in
prison blues, were ordered held in lieu of $100,000 cash bond each at
the Fayette County Detention Center.
Homicide Detective John Bizzack called the slayings
"a bizarre series of events" that came after the group had spent
Wednesday afternoon "drinking and partying together."
"We've established evidence that suggests the
motive was robbery," Bizzack said, adding some money was recovered.
But he declined to elaborate.
Three of the victims were run over by a car, one
was shot and one was fatally burned in the back seat of a car. Four
victims had also been stabbed, police said.
Powell and Foster, former convicts at the Kentucky
Correctional Institution for Women, were first arrested for public
drunkenness at a hospital where Kearns died. They were later charged
with killing Kearns, whose wife, Virginia, 45, was also slain. Also
killed were Trudy Harrell, 59, Roger Keene, 47, and Theodore Sweet,
Bizzack said that the suspects had served prison
time on narcotics, robbery and fraud charges and that the victims also
had long criminal records, including arrests for robbery, forgery and
concealing a deadly weapon.
The bodies were found Wednesday night between 9
p.m. and 1 a.m. within five miles of each other.
"We have not determined the order in which they
were killed, but it was over a short period of time," Fayette County
Coroner Chester Hager said.
Lafonda Fay Foster, sentenced April 24, 1987, in
Lafonda Fay Foster (caucasian, age twenty-two) was
a drug-addicted prostitute who also had a lesbian relationship with
Tina Powell. Over a course of several hours in one evening, Foster and
Powell killed five adult victims by shooting them in the head,
stabbing them repeatedly, cutting their throats, running over them
with a car, and (in one case) burning them up. Foster was sentenced to
death but Powell received a life sentence.
Foster had a long history of being battered by men,
being extremely emotionally disturbed, being drug addicted, and being
violent toward others. Her attorney's strategy for avoiding the death
sentence before her small town Kentucky jury was to portray Foster as
a victim of battering, violence, and drugs. Although Foster clearly
had been the perpetrator of horrible violence, she might be spared if
she could also be seen as the victim of horrible violence.
However, Foster's sentencing hearing was joined
with that of her co-defendant and lover, Tina Powell. Powell's
strategy, apparently successful, was to portray Foster as a violent
lesbian who battered Powell into submission. Powell even used the
Battered Wife Syndrome in her case to demonstrate the degree to which
she was dominated and controlled by Foster. These conflicting defense
strategies obviously played into the hands of the prosecutor's
presumed efforts to defeminize Foster and to portray her as a brutal,
Since Foster and Powell were co-defendants in their
joint trial for these several murders, it seems almost unavoidable
that the judge and jury would learn of their lesbian relationship. The
sexual nature of their relationship seems irrelevant until the
sentencing phase, at which Powell raised the battering issue.
Moreover, even absent any presumed discriminatory
attitude toward lesbian murderers, it seems that the horrifying facts
in this case are likely to have overwhelmed any other issue present.
Foster v. Commonwealth of Kentucky
Opinion OF THE COURT BY JUSTICE SPAIN
Appellants, LaFonda Fay Foster and Tina Hickey
Powell, were both found guilty by a Fayette County jury of five counts
of intentional murder. After a four-week trial, the jury recommended
that Powell be sentenced to life imprisonment on one murder count, and
to life imprisonment without the benefit of probation or parole for
twenty-five years on the remaining four counts. The same jury
recommended that Foster be sentenced to death on each of her five
murder convictions. The trial court entered respective judgments and
sentences in accordance with the jury's recommendations. We affirm the
findings of guilt as to both appellants and the punishment as to
Powell. We reverse Foster's sentences to the death penalty, however,
and remand her convictions for a new punishment hearing for reasons
I. STATEMENT OF FACTS
On April 23, 1986, the Lexington police responded
to a telephone complaint by Virginia Kearns that two intoxicated women
were in her apartment and would not leave. Two officers arrived at the
Jennifer Road complex at 4 p.m. and found the complainant, Mrs.
Kearns, to be highly intoxicated and belligerent. After questioning
the appellants and determining that they were not intoxicated, the
Appellants walked to an adjacent parking lot where
several people were having a party. While they were drinking, Powell
attempted to sell a knife to raise some money for more alcohol. At
about this time, Mrs. Kearns left her apartment. Powell threatened her
and then she and Foster followed Mrs. Kearns to a drug store where
Foster was seen shaking Mrs. Kearns violently. The three women
returned to the Kearnses' apartment where Mrs. Kearns lived with her
semi-disabled husband, Carlos, and their live-in housekeeper, Trudy
Mrs. Kearns asked her husband to give money to the
appellants. He refused the request and an argument ensued. Mr. Kearns
eventually agreed to write them a check but stated that he would have
to drive somewhere in his car to get it cashed. Roger Keene and
Theodore Sweet, friends of Mr. Kearns, arrived at the apartment while
Powell, Mrs. Kearns, and Ms. Harrell went to get Mr. Kearns' car.
Foster then drove the car containing Powell and the
five ultimate victims to a bait shop where the manager cashed Mr.
Kearns' $25 check sometime between 6:00 and 7:00 p.m. Powell stated
that she and Foster were attempting to raise enough money to purchase
a gram of cocaine.
The appellants next stopped at the home of Lester
Luttrell, where an argument between Luttrell and the appellants ended
with Foster firing a .22 bullet into the window of his home.
Between 8:00 and 9:00 p.m., the car was driven to a
field off Mount Tabor Road. There, according to Powell, the five
victims were forced out of the car and told to lie face down in the
grass. The appellants then shot and stabbed Ms. Harrell and Mr. and
Mrs. Kearns, according to the demonstrative evidence found in the
field. Although wounded, the Kearnses, along with Mr. Keene and Mr.
Sweet, who were not injured at that time, got back in the car at the
Ms. Harrell's body was discovered 225 feet from the
field in the Berke Plaza parking lot. Her body had become lodged
underneath the car and was dragged a considerable distance in the
parking lot before becoming dislodged. She was fatally shot in the
back of her head, stabbed five times in her face and chest, and her
throat had been cut. No alcohol was found in her system.
Powell drove the car to a tavern located two miles
from where Ms. Harrell's body was found. A customer of the tavern
testified that Powell came up to him and asked if he had any ".22s or
.38s," to which he replied that he did not. Powell asked the manager
of the store the same question, explaining that she needed them to
"shoot some rats." He gave Powell four .22 caliber bullets. The
manager observed that the car which Powell was driving had blood on
the right passenger door of the car. He yelled to Powell that she had
"better wash that blood off." The manager could not clearly see who
was in the car but he did notice a "big guy in it, with no shirt on."
The car was driven to a loading area behind a paint
store, where Mrs. Kearns was killed. The state medical examiner
testified that Mrs. Kearns had been shot in the head, her throat had
been cut, and she had multiple stab wounds, including sixteen wounds
to her neck. Her body had also become lodged under the car and
dragged. Despite the wounds, Mrs. Kearns died as a result of being run
over by the car and had a .32 blood alcohol level at the time of her
death. A large sweat shirt, identified as belonging to Roger Keene,
was found at the scene with blood smears consistent with a knife being
wiped off. The blood was identified as belonging to Virginia Kearns.
The appellants returned one hour later to the
tavern and again asked the manager for more bullets, without success.
The manager observed that the blood he had noticed previously on the
car had been wiped off. Foster was driving the car.
Appellants went next to the trailer home of LaFonda
Foster's father, where he provided a nail and showed how to use it in
the .22 caliber revolver in place of the cylinder rod, which had been
lost at the Mount Tabor field. This substitution would have made the
firing of the pistol "more difficult," according to the state firearms
examiner. Powell stated that while Foster was inside the trailer the
three remaining men begged her to do something to help them. Powell
explained that she was unable to help them because Foster had taken
the keys to the car and further stated she believed that she could
best help them by staying. However, she did not deny that she had
honked the car horn for Foster to hurry up.
At an undetermined time during the evening, the
appellants stopped at another bar. Carolyn Cross, who was sitting in a
car outside the bar, stated that Foster asked her for some money
"because she needed a fix." When asked by Ms. Cross what was wrong,
Foster replied that "she had just shot a man" and had "told the old
man when he got in the car if he bled in the car that she would shoot
the old son of a bitch again." When Ms. Cross asked Foster what she
was going to do with the rest of the people in the car, Foster
replied, "I'll shoot them, too." Ms. Cross further testified that
Powell and a man in the car called to Foster and said, "Let's go."
According to Ms. Cross, she believed Foster had been drinking but was
"in control of herself." She observed that Foster exhibited no problem
standing, walking, or communicating. Foster was described as being
"calm" and "not in a hurry."
The remaining victims asked the appellants for
something to eat, whereupon they went to a drive-in restaurant for
food, but left before receiving their order. They then were driven to
a field off Richmond and Squires Roads, where they were killed in the
same manner as the two women, with each being shot in the head,
stabbed repeatedly, throat cut, and run over by the car. The car was
then set ablaze with gasoline. Roger Keene, who was shot two times in
the back of the head and once in the ear, was left pinned under the
car while it burned. Theodore Sweet, who had been shot in both ears,
was found lying face down on the ground near the car. Both Carlos
Kearns and Roger Keene had defensive injuries to their right hands. An
RG .22 caliber revolver with a missing cylinder rod was found in the
field near the burning car. The bullets found at the three homicide
scenes and inside the bodies of the victims were consistent with
having been fired from this handgun.
A postmortem toxicology report on Theodore Sweet
and Roger Keene indicated they had blood alcohol levels of .35 and
.22, respectively. Mr. Kearns was transported to Humana Hospital where
he died as the result of two gunshot wounds to the head. No alcohol
was found in his system. The pathologists listed the penetrating
gunshot wounds to the head of Roger Keene as the primary cause of his
death, and stated that Mr. Sweet died from "multiple injuries
inflicted in multiple fashions."
After setting fire to the car, appellants walked to
Humana Hospital on Richmond Road. Powell telephoned for a taxi while
Foster went into a bathroom to wash blood off her face and clothes. An
emergency room nurse noticed the blood on their clothing and notified
the police, who were in the building on an unrelated matter. She
observed the appellants were both coherent in speech and able to walk
without a stagger.
The police separately questioned the appellants to
determine whether they were injured. Foster and Powell both told the
police that they had been in a fight with one another, but no injuries
were found. The arresting officer noticed an odor of alcohol but
observed that both were capable of communicating and walking without
difficulty. Foster and Powell were arrested for (and later convicted
of) public intoxication when they became belligerent and a "danger to
themselves and others." The arresting officers stated they were
arrested only because "they were in a public place."
The appellants were then driven to the Fayette
County Detention Center. Foster was placed in a holding cell while
Powell was being booked. While in the bathroom of the cell, Foster
removed her bloody socks and shoestrings and flushed them down the
toilet. She then wiped the blood off her shoes with water and
exchanged her blood-stained sweat pants with another inmate. The
police obtained the unwashed pants from the home of the inmate the
next day. Three .22 caliber bullets were found on the appellants and a
blood-stained knife was taken from Powell. The booking of the
appellants was videotaped and played during trial, and again upon the
request by the jury during their penalty phase deliberations.
During pretrial confinement, Foster told another
inmate, Betty McLean, that she had shot the women first and made the
men watch. When asked why she killed them, Foster informed Betty and
other inmates that the women were "bitches" and the men were witnesses
who saw too much. Commenting on one of the victims, Foster stated,
"The son of a bitch wouldn't die. He was the hardest man I ever
killed." Foster explained that she did not believe that the police
could connect the crimes. Foster claimed to Zina Montgomery, another
inmate, that she was going to play insane. She also corroborated the
fact that she had destroyed evidence.
There are thirty-five assignments of alleged errors
asserted on behalf of Foster, and two claims of alleged errors
asserted on behalf of Powell. This opinion will focus on all issues
addressed by Foster and Powell at oral argument and in their
respective Briefs, which, in the opinion of the Court, merit
discussion. Issues which we consider to be patently without merit are
hereby affirmed without discussion.
II. DENIAL OF CHANGE OF VENUE
During pretrial proceedings, Foster made a motion
for a change of venue. After two evidentiary hearings, the
trial court denied the motion. Foster claims on her direct appeal that
the trial court erred in failing to grant the motion. She complains
that the pretrial publicity generated by the multiple homicides
tainted her constitutional right to be tried "by a panel of impartial,
'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722 (1961).
We find no evidence of a
prejudiced community. All potential jurors had heard or read about the
case, but only fifty-eight veniremen were required to complete a
fourteen-member jury. This is evidence of a community which was not
prejudiced. Murphy v. Florida, 421 U.S. 794, 802 (1975). Twenty of the
fifty-eight had formed opinions of guilt. Of the twenty having
opinions of guilt, only four stated that they could not put aside
their opinions and decide the case on the evidence presented at trial.
In addition, seven of the fifty-eight veniremen had formed opinions as
to punishment. The trial judge granted ten of the prosecutor's
challenges for cause. Nine of the strikes were for not being able to
consider imposing the death penalty and the other was for bias. The
judge granted seven of Appellant Foster's motions to strike for cause.
Three were due to pretrial publicity, two were because the veniremen
could not consider appellant's mitigation evidence, one was because
the venireman could not consider the minimum authorized punishment,
and the other venireman stated that he would automatically impose the
death penalty. Three of the jurors who actually sat on the case had
tentatively formed opinions of guilt, but the trial judge decided upon
further examination that they could put their opinions aside. Taken in
the full context of their answers, the trial judge's decision was not
erroneous. Irvin v. Dowd, supra at 717; Peters v. Commonwealth, Ky.,
505 S.W.2d 764, 765 (1974). Appellant Foster did
not challenge for cause any of the jurors who sat on the case,
including these three, indicating strong evidence that Foster ". . .
was convinced the jurors were not biased and had not formed any
opinions as to guilt." Beck v. Washington, 369 U.S. 541, 557 (1962).
A trial judge's decision not
to grant a transfer "is given great weight because he is present in
the county and presumed to know the situation." Hurley v.
451 S.W.2d 838, 841 (1970). "It is not the amount
of publicity which determines that venue should be changed; it is
whether public opinion is so aroused as to preclude a fair trial."
Kordenbrock v. Commonwealth, Ky.,
700 S.W.2d 384, 387 (1985), cert. denied, 476
U.S. 1153 (1986). The question of whether a change of venue should be
granted is a matter entrusted to the sound discretion of the trial
court. Grooms v. Commonwealth, Ky.,
756 S.W.2d 131, 133 (1988); Payne v.
623 S.W.2d 867, 876 (1981), cert denied, 456 U.S.
909 (1982). We find no abuse of discretion.
III. DENIAL OF MOTION TO
STRIKE FOR CAUSE
Foster next alleges error
occurred when the trial court refused her motion to strike for cause
veniremen Bernie Short and Kevin McCarty. Although neither venireman
sat on the fourteen-member jury, Appellant Foster had to use all of
her peremptory challenges. For there to be error, she has the burden
of showing that her use of a peremptory challenge to strike each
venireman "resulted in a subsequent inability to challenge additional
unacceptable veniremen." Marsch v. Commonwealth, Ky.,
743 S.W.2d 830 (1988); Rigsby v. Commonwealth,
495 S.W.2d 795 (1973), overruled on other
grounds, Pendleton v. Commonwealth, Ky.,
685 S.W.2d 549, 552 (1985). Appellant also has
the burden of proving bias and preconceived ideas as to these
challenged jurors. Caldwell v. Commonwealth, Ky.,
634 S.W.2d 405 (1982).
Our review of the Short and
McCarty voir dire gives rise to very little, if any, doubt of their
ability to serve on the jury. Initially, both prospective jurors had
formed opinions of guilt and punishment, stating that they believed
appellant was guilty and that "capital punishment" and the "death
penalty" was an appropriate punishment for the crime. But upon further
questioning by the trial court, it was determined that these opinions
were not strongly held.
Mr. Short, when asked by the
trial court whether he could lay aside his opinion and render a
verdict based upon the evidence, replied that since being summoned for
jury duty, he had a new perspective. He said, "We're talking about
being a sideline quarterback. It's a little different being on the
side than being in the game. It puts a little different slant on it."
McCarty, when asked the same
question, stated that "going into Tuesday [when voir dire started],
probably so, but as to what you [Judge Keller] said as far as the
facts and knowing the facts, I really couldn't make that conclusion
When the entire range of
penalties permissible was explained, both veniremen stated that the
facts and circumstances of the case would dictate what form of
punishment would be appropriate. The trial judge made a finding in
both cases that Short and McCarty could put aside any opinions and
could consider the whole range of penalties.
Based on the trial court's
thorough examination of the two veniremen, we cannot say that its
decision to overrule Foster's motion to strike for cause was clearly
erroneous. Caldwell, supra. The use of a peremptory challenge to
strike each venireman did not "result in a subsequent inability to
challenge additional unacceptable veniremen." Rigsby, supra, overruled
on other grounds, Pendleton, supra.
The trial court did not
abuse its discretion. Peters, supra. Error, if any, was harmless
beyond a reasonable doubt, when viewed from the overwhelming evidence
of guilt against the appellants. Chapman v. California, 386 U.S. 18
9.24; Snodgrass v. Commonwealth, Ky.,
814 S.W.2d 579 (1991); Abernathy v. Commonwealth,
439 S.W.2d 949 (1969).
IV. DENIM OF
SECOND-DEGREE MANSLAUGHTER INSTRUCTION
Foster argues reversible
error occurred when the trial court refused to instruct the jury on
second-degree manslaughter. Appellant admitted during opening
statements that she participated in the homicides, but claimed that
she was intoxicated. The trial court explained that Foster was not
entitled to the lesser-included instruction because "there is no
evidence of wanton or reckless conduct in this case from which a
rational finder of fact could make such a finding." However, the jury
was instructed that intoxication would be a complete defense to
501.080 provides that intoxication is a defense
to a criminal charge only if the condition negates the existence of an
element of the crime. Obviously, one of the essential elements of
intentional murder is intent. KRS
507.020(1)(a). In Hopper v. Evans, 456 U.S. 605
(1982), the United States Supreme Court held that a defendant in a
homicide prosecution is entitled to an instruction on a
lesser-included offense if the evidence would permit a jury to
rationally find him guilty of the lesser offense and acquit him of the
greater. We have held that an accused is entitled to have the
defense of intoxication submitted in instructions to the jury if the
evidence is sufficient to indicate that the degree of intoxication was
at a level which prevented the forming of the intent necessary under
the statute. Parido v. Commonwealth, Ky., 547 S.W.2d 125 (1977); Cf.
Smith v. Commonwealth, Ky., 737 S.W.2d 683, 687 (1987).
But we have also stated that "the circumstances of
voluntary intoxication, standing alone, will never require a voluntary
manslaughter instruction." Moore v. Commonwealth, Ky., 771 S.W.2d 34,
36 (1988), cert. denied, 110 S.Ct. 1536 (1990). "Intoxication is a
defense only if there is something in the evidence sufficient to
support a doubt that the defendant knew what he was doing." Id. at 36.
(Citation omitted.) "Lack of sleep or fatigue is not a defense." Id.
Neither is a history of past drug and alcohol abuse a defense.
The test for the inclusion of a lesser-included
instruction on voluntary intoxication is found in Stanford v.
Commonwealth, Ky., 793 S.W.2d 112, 117-118 (1990):
While intoxication may be a defense in a criminal
case, it is such only if there is evidence sufficient to support a
doubt that the defendant knew what he was doing. In Jewell v.
Commonwealth, Ky., 549 S.W.2d 807 (1977), overruled on other grounds
by Payne v. Commonwealth, Ky., 623 S.W.2d 867 (1981), it was held that
in order to justify such an instruction there must be evidence not
only that the defendant was drunk, but that he was so drunk that he
did not know what he was doing. Meadows v. Commonwealth, Ky., 550
S.W.2d 511 (1977).
We agree with the trial court that there was no
rational basis in the evidence to justify an instruction on
second-degree manslaughter. Moreover, in our view, the trial court
unnecessarily instructed the jury under this evidence that
intoxication could be a complete defense to each count of intentional
murder. Logic dictates that if there is sufficient proof to justify an
instruction on intoxication as a complete defense to intentional
murder, then this evidence would necessarily include proof sufficient
to justify instructing on the lesser offense of involuntary
manslaughter. This is because it takes a more advanced degree of
drunkenness for a complete defense than for establishing a wanton (as
contrasted with intentional) state of mind for involuntary
manslaughter. But the circumstances surrounding this case did not
justify any instruction on intoxication. There were five victims
brutally killed over a period of approximately four hours. The victims
each were shot at short range (some being contact wounds), stabbed
repeatedly, crushed by a car, and in some instances, burned. They were
then left for dead at three separate locations throughout the city.
Foster and Powell twice went to find additional bullets and once to
repair the gun which they had been using to kill the victims. Foster
attempted to destroy evidence immediately before and after being
arrested. No evidence of drug use on the day of the murders was
presented. Foster's alcohol intoxication may have been at a level to
support being arrested for public intoxication but still not to a
level where she did not know what she was doing. Moore, supra ;
Stanford, supra. The trial court did not abuse its discretion.
V. DENIM OF INSTRUCTION ON WANTON MURDER
The evidence presented did not support an
instruction on wanton murder. Wanton murder is not a lesser-included
offense of intentional murder. KRS 501.010; KRS 501.020(3). "It is
simply murder committed with a different state
of mental culpability but murder, whether intentional or wanton, is a
capital offense." Smith, supra. "It is not proper to instruct the jury
on a wanton offense when all the evidence indicates that it would be
unreasonable for the jury to believe that the defendant's conduct was
anything other than intentional." Moore, supra at 37 (citation
omitted). The evidence does not indicate wanton conduct. The trial
court did not abuse its discretion.
VI. DENIAL OF INSTRUCTION
ON EXTREME EMOTIONAL DISTANCE
Foster was not entitled to
an instruction on first-degree manslaughter as a result of her
purported defense of extreme emotional disturbance. Cf. Holbrook v.
813 S.W.2d 811 (1991); Smith, supra. The trial
court refused to give a separate instruction but did include extreme
emotional disturbance in the penalty phase instructions as a
mitigating circumstance. Part of Foster's defense (and mitigation) was
that she was raised in a dysfunctional family where she was physically
and emotionally abused. Her past drug and alcohol abuse were also
presented as explaining why she often lost her temper and directed her
"rage" towards people around her. A psychologist, Dr. Noelker,
testified that Foster "was an extremely emotionally disturbed child,
was an extremely emotionally disturbed adolescent; she is an extremely
emotionally disturbed and drug dependent adult."
Despite this "evidence,"
Foster failed to prove that the killings were caused by a "triggering"
event. Since the adoption of the penal code, we have undertaken to set
out what evidence is required to support an instruction on extreme
emotional disturbance. We have explained in prior opinions that the
event which triggers the explosion of violence on the part of the
criminal defendant must be sudden and uninterrupted. Smith, supra ;
McClellan v. Commonwealth, Ky.,
715 S.W.2d 464, 468-69 (1986), cert. denied 479
U.S. 1057 (1987). It is not a mental disease or illness. Wellman v.
694 S.W.2d 696, 697 (1985). It is also not
equivalent to duress as Powell urges us to believe. Id. Thus, it is
wholly insufficient for the accused defendant to claim the defense of
extreme emotional disturbance based on a gradual victimization from
his or her environment, unless the additional proof of a triggering
event is sufficiently shown.
Based on our review of the
record as a whole, we find that it was not clearly erroneous for the
trial court to find that there was "not any evidence" to support "that
these killings were done under extreme emotional disturbance." Smith,
The trial court also did not
abuse its discretion when it refused to reopen the case so that
Foster's expert could testify on the definition of extreme emotional
VII. CROSS-EXAMINATION OF
We find no reversible error
in the cross-examination of Dr. Noelker by the prosecution. The
prosecutor asked Dr. Noelker to read a letter written by Foster to
Lester Luttrell while she was in jail. The Commonwealth then asked the
expert if the letter was the type of information he normally used in
formulating his opinion. When the expert agreed, the prosecutor read a
passage of the letter which told Luttrell not to talk to the police,
but to talk to her lawyers. Foster then wrote, ". . . the motive
behind it is to convince the jury that I was mentally deranged from
large amounts of excessive use of cocaine." The admission of these
statements was proper because the prosecutor has a right to
cross-examine an expert about the type of evidence which he or she
normally uses in formulating an opinion, as long as the questioning
and evidence sought to be admitted is relevant. "The data on which
expert witnesses rest their specific opinions, as distinguished from
the knowledge which qualifies them to offer opinions at all, may be
fully inquired into on cross-examination." 31 Am. Jur. 2d Expert and
Opinion Evidence § 92; See also IMWINKELRIED, UNCHARGED MISCONDUCT
EVIDENCE § 112 (1st ed. 1984).
However, we believe error
occurred, albeit harmless, when the prosecutor questioned the expert
on his knowledge of prior acts of misconduct which Foster had
committed. In a bench conference and on cross-examination, the expert
was asked whether he had knowledge of bad acts which Foster had
committed and whether he had utilized such knowledge in reaching his
diagnosis that Foster was extremely emotionally disturbed. Dr. Noelker
stated that he had knowledge of the acts and that "technically, I
considered everything." The expert then proceeded to inform the jury
about 1) Foster shooting her husband in the arm; 2) her shooting at
Lester Luttrell; 3) recurrent fights; 4) her theft of a shotgun during
the course of a burglary; and 5) an incident where she had shaken her
The testimony as to these
bad acts was inadmissible as irrelevant, uncharged misconduct. Though
we acknowledge that the Commonwealth, in nearly all cases and with the
proper foundation, has the right to question an expert on any matter
which the expert has used in formulating his opinion, we believe that
the admission of evidence of bad acts in a capital murder trial is
highly prejudicial and ordinarily outweighs any probative value the
evidence may present in support of the Commonwealth's case in chief.
We have consistently stated that "evidence of the commission of other
crimes . . . is not admissible to prove that an accused is a person of
criminal disposition." O'Bryan v. Commonwealth, Ky.,
634 S.W.2d 153, 156 (1982). (Citations omitted.)
Considering the circumstances and proof presented at trial, the
admission of these statements was error, but nevertheless harmless
beyond a reasonable doubt as to the guilt of Foster. RCr
9.24; Abernathy, supra.
VIII. DENIAL OF SEVERANCE
Foster and Powell both claim
that the trial court erred when it refused to grant their respective
motions for separate trials. On several occasions prior to and during
trial, counsel for appellants moved for a severance. The appellants'
grounds for severance were that Powell wanted to introduce evidence
which showed Foster's propensity for violence as a basis for Powell's
"defense" of duress, and that if she was allowed to do so, Foster
would be prejudiced. If she was not allowed to do so, then Powell
would be prejudiced. The Commonwealth and the trial court wisely
suggested that the problem could be ameliorated by holding a separate
penalty phase for each defendant. After considering Powell's evidence
at a pretrial hearing, the trial court initially sustained Foster's
motion to sever, opining that the evidence which Powell sought to
present in the penalty phase would be admissible to show Powell's
"degree of involvement" and would therefore be "unduly prejudicial" to
Foster. The severance was granted "regardless of Powell's guilty
plea." Nevertheless, the indictments were subsequently rejoined after
Powell refused to admit at her aborted guilty plea proceeding that she
intended to kill the victims.
9.16 requires separate trials when it appears
that a defendant or the Commonwealth is or will be prejudiced by a
joinder of the offenses or defendants at trial. "In order to justify
the granting of a severance, it must appear that the defendants have
antagonistic defenses, or that the evidence as to one defendant
tends directly to incriminate the other." Tinsley v. Commonwealth,
Ky., 495 S.W.2d 776, 780 (1973); See also Rachel v. Commonwealth, Ky.,
523 S.W.2d 395 (1975). "There is a strong policy in favor of joint
trials when charges will be proved by the same series of acts . . ."
United States v. Blakeney, 942 F.2d 1001 (6th Cir. 1991) (Citation
omitted.); See also Richardson v. Marsh, 481 U.S. 200, 209 (1987).
Severance is a matter of judicial discretion and
the allegation that there are antagonistic defenses is only one of the
factors for the trial judge to consider. Epperson v. Commonwealth,
Ky., 809 S.W.2d 835 (1991); Brown v. Commonwealth, Ky., 780 S.W.2d 627
(1989); McQueen v. Commonwealth, 721 S.W.2d 694 (1984). The movant
must show that the antagonism between the codefendants will mislead or
confuse the jury. U.S. v. Horton, 847 F.2d 313, 317 (6th Cir. 1988).
"The movant satisfies this burden if he or she shows that the jury was
unable 'to separate and treat distinctively evidence that is relevant
to each particular defendant at trial.'" United States v. Gallo, 763
F.2d 1504, 1525 (6th Cir. 1985), cert. denied, 475 U.S. 1017 (1986).
A. GUILT PHASE
As a preface, we find that neither Foster nor
Powell was prejudiced by the trial court's denial of a severance
during the guilt phase of the trial. Evidence presented by the
Commonwealth to convict the appellants was the same except for the
additional admission of pretrial statements Foster had made to inmates
while awaiting trial. Powell raised no defense and thus did not offer
any proof, neither calling witnesses nor testifying herself during the
first stage of the joint bifurcated proceedings. Powell's admission of
guilt before the jury did not prejudice Foster since the prosecutor
did not use it as substantive evidence to convict her. Askew v.
Commonwealth, Ky., 768 S.W.2d 51 (1989). The trial court properly
limited the scope of Foster's cross-examination of witnesses to
prevent any reference to Powell's participation. Bruton v. United
States, 391 U.S. 123 (1968); Cosby, supra.
Powell was properly prevented from introducing any
evidence of uncharged criminal misconduct committed by Foster in
support of her coercion claim. See O'Bryan v. Commonwealth, Ky., 634
S.W.2d 153 (1982). Powell's introduction of evidence of bad acts
committed by her co-defendant was properly limited to the penalty
phase and only for the purpose of supporting her mitigation.
Powell was also not entitled to a guilt-phase
instruction on voluntary manslaughter in support of her duress claim
because the record indicates that Powell had "intentionally or
wantonly placed [herself] in a situation in which it was probable that
would be subject to coercion." KRS 501.090(2). The trial court
properly relegated Powell's claim of duress to the penalty phase of
the trial where it was considered as a mitigating circumstance. KRS
507.020; KRS 532.025(2)(a)6; KRS 503.010 et seq.
The remaining allegations of error in the guilt
phase which can be directly attributable to the denial of severance
are found to be without merit.
B. PENALTY PHASE
The Commonwealth's sole evidence during the penalty
phase was the introduction of Foster's 1982 judgment of conviction of
robbery in the second degree, and Powell's 1980 dual conviction of
obtaining a controlled substance by fraud and promoting contraband in
the first degree.
Foster proceeded first in
the penalty phase. She introduced mitigating evidence that she was
physically and emotionally abused as a child and that she grew up in a
dysfunctional family. Lane Veltkamp, a psychologist and an expert in
dysfunctional families, interviewed Foster and her family and based
his opinion on these sessions. One of the three interviews was
videotaped and played at trial. In the interview, Foster gave a
history of her life. Foster stated during the interview that she had
shot her husband, cut her brother with a knife, had been charged with
carrying a concealed deadly weapon, had been involved in "burglaries"
and "breaking and enterings," and had fought with other people.
Powell's counsel cross-examined Mr. Veltkamp about the specific acts
of violence which Foster had told him about, which he considered in
basing his opinion. Foster objected and moved for a mistrial, claiming
the evidence was not relevant and that Powell lacked standing to
question Veltkamp. The trial court overruled the objection, stating
that the specific acts of violence were "very relevant" since they
were introduced by Foster, thus making her "propensity for violence an
issue." The court stated, "You not only opened the door but flung the
gates wide open." The trial court also ruled that Powell could
question the expert about any information on which he had based his
opinion. However, the trial court properly refused to allow Powell to
ask Mr. Veltkamp about specific acts of violence which he did not
consider as a basis for his opinion.
Foster claims the
cross-examination of Mr. Veltkamp by her co-defendant was improper. We
disagree. A defendant has a right to cross-examine a co-defendant's
expert about his qualifications and matters on which the expert had
based his or her opinion. Foster first made her character an issue by
the introduction of specific acts of uncharged misconduct through her
introduction of the videotape. "The first rule of character evidence
law, as applied to criminal cases, is that the bad character of an
accused cannot be proved until he has elected to make character an
issue in the case." LAWSON, THE KENTUCKY EVIDENCE LAW HANDBOOK, p. 27
(2nd ed. 1984); See Redd v. Commonwealth, Ky.,
591 S.W.2d 704 (1979). We find no error in the
admission of these bad acts and the cross-examination thereof by the
Powell began her evidence of
duress in mitigation by calling witnesses who testified that Powell
had a stable childhood with no history of violence. Witnesses also
testified about Powell's nonviolent reputation in the community.
Powell then began to provide evidence of her fear of Foster by calling
witnesses. Zina Montgomery was recalled to testify about a
conversation which she had overheard between Foster and another
inmate. Zina claimed she heard Foster state that Powell had gotten
"panicky" the night of the murders and that she was planning on
killing Powell also because she was a witness and might go to the
police. Other inmates testified to similar statements and threats made
by Foster towards Powell, including an inmate who testified that
Foster had admitted she used the knife on Mr. Kearns. Foster told the
inmate that Powell was a "weak bitch" and "not capable of finishing
Powell's sister, Sheila
Hickey, testified that Foster had beaten her twice, once requiring
hospitalization. Sheila further testified that Foster burned Powell's
apartment while a boyfriend was still inside. Sheila further stated
that Foster had also beaten Powell.
Powell testified on her own
behalf in the penalty phase. She based her fear of Foster on a
one-year lesbian relationship during which Foster had beaten her on
numerous occasions. Powell also stated that she had knowledge of other
violent acts in which Foster had been involved. She stated that Foster
had beaten her sister, Sheila, had burned Powell's apartment, and
threatened her while they were in jail. Powell also related her
knowledge about separate incidents where Foster shot her own husband,
cut her own brother, stabbed another man [which charge was dismissed
by a grand jury], and hit Powell's boyfriend with a whiskey bottle.
Powell claimed that she knew when Foster would become violent. She
stated she believed that she would have been killed had she not
participated in the killings. On cross-examination, Powell admitted,
however, that she had not been threatened by Foster in any manner on
the night of the murders.
Foster claims the acts of
misconduct testified by witnesses and Powell in support of Powell's
mitigation was highly prejudicial to her and required the trial court
to sever the penalty phase of the trial.
532.025 sets forth seven aggravating factors
which may be proven against a defendant on trial for capital murder.
532.025(3) requires an affirmative finding of
only one aggravating circumstance beyond a reasonable doubt in order
to sustain a death sentence. Simmons v. Commonwealth, Ky.,
746 S.W.2d 393 (1988), cert. denied, 489 U.S.
1059 (1989). In this case, the Commonwealth proved beyond a reasonable
doubt that Foster's ". . . acts of killing were intentional and
resulted in multiple deaths. . . ." Nonstatutory aggravating factors
have also been allowed in the penalty phase of a trial. Tamme, supra.
But specific acts of uncharged misconduct are not factors which a jury
may consider in its determination of a defendant's penalty and,
therefore, are inadmissible in the penalty phase. We agree with the
trial court that the acts of misconduct were relevant to support the
co-defendant's claim of duress but we must hold that their admission
in a joint trial was nevertheless highly prejudicial to Foster. The
admissibility of the evidence would have been proper if the penalty
phase of the trial had been severed to allow Foster to have her
sentence determined by the jury first.
Foster argues that she was
prejudiced by the introduction of letters which she had written to
Powell while in jail. The letters were introduced into evidence by
Powell and by the Commonwealth. Foster argues that the letters were a
surprise because no notice was given by Powell, and Foster was unable
to examine the letters until the day before their introduction into
evidence. We find this argument meritless since the letters were
voluntarily written by Foster to her co-defendant. The letters which
the Commonwealth sought to introduce and which were discussed during
pretrial suppression proceedings should have signaled to Foster's
counsel of record that their client was writing to Powell and that the
contents potentially would be used at trial by either her co-defendant
or the Commonwealth. In United States v. Jacobsen, 466 U.S. 109, 117
(1984), the United States Supreme Court stated:
It is well-settled that when
an individual reveals private information to another, he [or she]
assumes the risk that his confidante will reveal that information to
the authorities and if that occurs the Fourth Amendment does not
prohibit governmental use of that information.
We turn next to whether the
trial court erred in admitting the letters as substantive proof. The
trial court ruled that portions of the letters were admissible as to
Powell's mitigation claim because Foster's expert had testified that
Foster had a "great propensity for violence," and because the expert
had used the letters in forming his opinion.
Powell first used the
letters during her testimony on direct examination. Selected passages
include threats made by Foster to Powell including, "Bitch, you're
going to die;" "plan your extermination;" "I can fuck your whole world
up;" and "don't make me hurt you."
The Commonwealth next
utilized the letters to impeach Powell's claim of fear of Foster. In
one letter, Foster wrote to Powell: "Donna said a lot of people thinks
we cut one man's dick off because the paper said the sex couldn't be
determined on one of the bodies. Hmm. What did you do when I wasn't
looking? Ha Ha." The trial court allowed the prosecutor to
cross-examine Powell on this passage because Foster had already used
substantial portions of the letter to cross-examine Powell. Another
letter read by the prosecutor stated that Foster was prepared to
accept a stiffer sentence than Powell. A third letter stated, "We will
for sure get the death penalty if we say we don't remember most
things," and "Do not make up a defense."
We agree with the trial
court that the letters were relevant to Powell's mitigation, but their
admission at a joint hearing was error due to the prejudicial effect
which the letters had on Foster's mitigation. The contents of the
letters were highly inflammatory and cumulatively went beyond what was
necessary for Powell to prove her mitigation. The admission of the
contents of the letters, which the Commonwealth had introduced for
impeachment of Powell, was equally prejudicial and irrelevant, with
very little probative value. The effect of the admission of the
letters was to further taint the penalty phase of the joint trial as
to Foster and to deny her a fair and impartial trial.
Foster next claims that she
was prejudiced by Powell's expert testimony on the "battered wife
Dr. Nietzal, a clinical
psychologist, was called by Powell to support her mitigation claim of
duress and domination by Foster. Nietzal stated that the relationship
between Foster and Powell had "similar characteristics" to the
syndrome because Powell had "learned helplessness" towards Foster. He
explained that the appellants met some of the conditions of the
syndrome but not all, because the two women were not married, did not
always live together, and one was not financially dependent on the
other. Dr. Nietzal stated that Powell had told him that she had
"freaked out" on the night of the murders. His final opinion was that
Powell was intoxicated, acted under extreme emotional disturbance, and
acted under fear and duress of Foster when necessary to spare her own
The trial court erred in the
admission of the testimony of the battered wife syndrome by Powell's
expert. We have recognized that the battered wife syndrome has been
generally accepted in the medical community as a mental condition.
Commonwealth v. Rose,
725 S.W.2d 588 (1987). But the syndrome by its
own definition is inapplicable to the relationship which these
co-defendants may have had with each other. A witness who has been
qualified as an expert in a certain field is not allowed to testify
about the subject unless it has been proven the testimony is
competent; that is, does it aid the jury? See Alexander v. Swearer,
642 S.W.2d 896 (1982); See also Island Creek Coal
Co. v. Rodgers, Ky.App.,
644 S.W.2d 339 (1982). The admission of the
testimony was error because the prejudicial effect far outweighed its
In retrospect, we find that
the trial court's decision not to sever the penalty phase of the
appellants' joint trial was reversible error as to Appellant Foster.
The accumulated errors in the admission of prior acts of
misconduct, contents of letters written by Foster to Powell, and
evidence regarding the battered wife syndrome by Powell's expert all
stem from the improvident decision of the trial court to hold a joint
penalty phase. Individually, these errors might be considered by this
Court to be harmless, but viewed together or "cumulatively," their
commission requires reversal of Foster's sentence. The respective
evidence in mitigation offered by the appellants to the jury was
antagonistic to each other. The penalty phase as to Foster was
unfairly tainted by the appearance of Powell's counsel acting as a
In finding reversible error in the joint penalty
hearing, we nevertheless understand completely why the trial court did
not follow his original correct instincts to grant the severance.
There is always the hope that the tightrope can be walked without
falling, and thus the tremendous savings in trial time and effort for
court, attorneys, parties, and witnesses can be effected. Furthermore,
once the decision not to sever is made, it is irrevocable. We suspect
here that before the penalty phase was very many hours old, the court
and the attorneys came to the grim realization that it was too late to
"unring the bell" and that any death penalty verdicts returned by the
jury would only be ephemeral in duration. It is lamentable that such
an extraordinary effort by every participant must be repeated even in
part, but justice clearly requires it in this instance.
Notwithstanding this conclusion, we find no prejudice to Powell, for
she clearly benefited from the non-severance.
We hereby affirm the judgment of conviction and
sentence against Tina Hickey Powell. The verdicts of guilt as to
LaFonda Fay Foster are affirmed but the sentences of death are
reversed and remanded for a new penalty hearing.
Stephens, C.J., Combs, Lambert, Leibson, and
Reynolds, JJ., concur. Wintersheimer, J., concurs in part and dissents
in part by separate opinion.
AFFIRMING IN PART AND REVERSING IN PART
CONCURRING IN PART AND DISSENTING IN PART OPINION
BY JUSTICE WINTERSHEIMER
I respectfully dissent from that part of the
majority opinion which reverses Foster's sentence of death because the
sentence was properly entered by the trial judge pursuant to the
jury's recommendation after both defendants received a fundamentally
fair, joint trial.
Foster failed to prove that she had been prejudiced
by the joint trial. RCr 9.16. There has not been a "clear showing of
an abuse of discretion" in regard to the trial court's refusal to
sever the trials notwithstanding the trial court's previous decision
to grant severance. Epperson v. Commonwealth, Ky., 809 S.W.2d 835, 838
(1991). As recognized by the majority, "there is a strong policy in
favor of joint trials when charges will be proved by the same series
of acts. . . ." United States v. Blakeney, 942 F.2d 1001, 1010 (6th
Cir. 1991). In this case, it is admitted by Foster and Powell that
they committed the murders of the victims. Each of the five victims
was killed by the defendants over the course of the same evening with
the defendants stopping twice to find bullets, and once to repair the
gun which they were using to shoot the victims. Foster and Powell were
seen with one another throughout the evening and were eventually
arrested together while at the hospital. The only question, as Powell
recognized in her opening statement on the first day of trial, was not
whether the defendants were guilty, but what penalty the jury would
impose upon them for their outrageous and senseless behavior. Under
these facts, and for the purpose of judicial economy, the trial judge
properly held a complete joint trial.
Foster also failed to prove that she and Powell had
antagonistic defenses, or that the evidence as to one defendant tended
to directly incriminate the other. Tinsley v. Commonwealth, Ky., 495
S.W.2d 776, 780 (1973). Prior to and during trial, Foster and Powell
admitted their respective participation in the murders, and there can
be no complaint now that the evidence presented at trial by the
Commonwealth or a co-defendant directly incriminated one defendant
over the other.
The "mitigation" of duress raised by Powell in the
penalty phase of the joint trial was not antagonistic to the
mitigation evidence presented by Foster. A potentially antagonistic
defense is only one of the factors for the trial judge to consider in
determining whether to grant a severance. Epperson, supra. "The movant
must establish that the jury would be unable 'to separate and treat
distinctively evidence that is relevant to each particular defendant
on trial.'" Blakeney, supra, at 1011, citing United States v. Gallo,
763 F.2d 1504, 1525 (6th Cir. 1985). "Even if the movant establishes
some potential jury confusion, this confusion must be balanced against
the need for speedy and efficient trials." Id. Moreover, "We presume
that the jury will be able to sort out the evidence applicable to each
defendant and render its verdict accordingly." Id., citing Horton v.
United States, 847 F.2d 313, 317 (6th Cir. 1988).
The jury in this case was able to ponder the
evidence presented by the defendants in support of their respective
mitigating claims in arriving at an appropriate sentence. It is within
the exclusive province of the jury to determine from the evidence
whether one defendant is more culpable than his or her co-defendant,
and thereafter to apply this conclusion to their respective sentences.
For the first time, a majority of this Court applied the severance
standards found in Tinsley, supra, to mitigating evidence and has
unintentionally made it virtually impossible for a trial court of this
Commonwealth to conduct a joint trial where one co-defendant alleges
commission of a crime under duress.
The trial judge properly allowed Powell and the
Commonwealth to cross-examine Foster's experts, Dr. Noelker in the
guilt phase and Lane Veltkamp in the penalty phase, about the specific
acts of charged and uncharged misconduct which the experts had used in
formulating their respective opinions. It is unchallenged by the
majority that the Commonwealth may fully inquire into, on
cross-examination, evidence used by an expert in forming his opinion.
31 Am. Jur. 2d, Expert and Opinion Evidence § 92. This inquiry must
include bad acts where the expert has, as in this case, heavily relied
upon the knowledge of bad acts in formulating an opinion. Otherwise,
the Commonwealth has been effectively hindered in its
cross-examination of a defendant's expert witness.
The bad acts were admissible in both the guilt and
penalty phase of the defendants' joint trial. It is undisputed that
Foster herself first brought her character into issue through the
testimony of Dr. Noelker, and later in the penalty phase, through her
videotaped testimony which allowed Foster to testify at the trial
without being cross-examined. The bad acts used by Powell in
supporting her mitigating claim of duress were cumulative to the bad
acts which Foster herself had already admitted on direct examination.
It should be noted that Powell had cross-examined Veltkamp about
uncharged misconduct, and not the Commonwealth, and therefore, the
same rules about inquiry into a defendant's character do not apply.
The trial judge did not abuse his discretion when
he admitted the Foster letters in support of Powell's mitigation. The
probative value far outweighed the prejudicial effect which the
contents may have had on Foster's mitigation. The jury properly
considered the defendants' respective mitigations and reached a just
I do not believe any reversible error occurred in
the admission of Powell's expert testimony on the battered wife
syndrome. The expert specifically stated that the relationship between
Foster and Powell could be "compared" to the battered wife syndrome.
The expert did not state that Powell was a battered wife, but merely
tried to explain why Powell did not try to run from Foster on the
night of the murders. The admission of the testimony was not error
because the probative value to Powell far outweighed the alleged
prejudicial effect to Foster. No abuse of discretion occurred.
The sentence entered by the trial court against
Foster should be affirmed. I concur with the balance of the majority
opinion which affirms the convictions of both appellants and Powell's