Foy v. Donnelly

959 F.2d 1307, 1992 WL 78837
CourtCourt of Appeals for the Fifth Circuit
DecidedApril 21, 1992
DocketNo. 91-3214
StatusPublished
Cited by21 cases

This text of 959 F.2d 1307 (Foy v. Donnelly) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foy v. Donnelly, 959 F.2d 1307, 1992 WL 78837 (5th Cir. 1992).

Opinion

FITZWATER, District Judge:

In this appeal from a judgment denying habeas relief, we determine whether the content of a non-testifying accomplice’s confession was disclosed to the jury to the extent necessary to violate petitioner’s Sixth Amendment Confrontation Clause rights. We also decide whether the evidence is sufficient to sustain a conviction for armed robbery and whether the state prosecutor engaged in misconduct to the degree necessary to warrant collateral relief.

I

Petitioner Kenneth Foy (“Foy”) and John Shelbia (“Shelbia”) were charged by bill of information in Louisiana state court with two counts of armed robbery. Shelbia pleaded guilty and Foy went to trial.

On March 27, 1985 Shelbia entered a Church’s Fried Chicken restaurant located at Washington Avenue in New Orleans after closing.1 He robbed the establishment between 12:00 midnight and 1:30 a.m., obtaining several hundred dollars in cash. Shelbia put a gun to the head of a restaurant employee, warning her he would kill her if she did not give him the money. Shelbia then made her and two other employees lie down on the floor. Therefore, none of the employees could see which way Shelbia went when he departed following the robbery, or whether he left on foot or by motor vehicle. Two of the three employees (the only two who testified at trial) expressly stated that Shelbia — not Foy— was the man who robbed the Washington Avenue restaurant.

An employee reported the robbery to the New Orleans Police Department. Officer Mel Gerretts (“Officer Gerretts”), who was assigned the nightwatch in robbery, responded to the report. He interviewed the witnesses, obtaining a physical description of Shelbia and learning $694.00 dollars ($674.00 in bills and $20 in quarters) had been taken.

Officer Gerretts departed the scene and went to a Church’s restaurant at another location. This store was closed and everyone was gone, so he proceeded to the Church’s Fried Chicken restaurant located at Earhart and Monroe streets. As it turned out, Shelbia had gone there too, in order to rob the assistant manager at gunpoint. There were five employees at the Earhart location. At trial, the assistant manager positively identified Shelbia as the lone gunman. No witness identified Foy as entering the premises.

No employee could testify how Shelbia left the establishment because he forced them into the store’s cooler. But Officer Gerretts saw the getaway. As he passed the Earhart Street store he observed a green and white Ford parked directly across the street. A subject — whom Officer Gerretts later identified as Foy2 — was sitting behind the wheel. The officer went a block down the street, parked with his lights out, and observed the car. About two minutes later, the driver illuminated the car lights and pulled his vehicle directly in front of the Church’s Fried Chicken restaurant. A suspect — later identified as Shelbia — ran out the back of the store and jumped in the car before it sped off.

Officer Gerretts pursued the fleeing automobile, activating his lights and siren. He also radioed the dispatcher that he was [1310]*1310giving chase, relaying pertinent information concerning the suspects’ vehicle. Foy eventually lost control of the automobile. When the car came to a stop, Foy and Shelbia exited and started running. A back-up police unit of two officers arrived at the scene at this moment. One officer pursued Foy on foot and the other ran after Shelbia. Officer Gerretts remained in his squad car and chased Foy for about one-quarter block. As he ran, Foy looked back at Officer Gerretts. Because Foy was not watching where he was going, he ran into a fence located on a parking lot.

When Foy hit the fence he dropped to the ground. A gun fell by his side.3 Officer Gerretts jumped out of his squad car, pulled his service revolver, and ordered Foy to halt and not to move. Foy hesitated without moving for about five to ten seconds and looked at Officer Gerretts. The officer again instructed him not to move, then Foy suddenly bolted and ran down the highway.4 Officer Gerretts and a backup officer pursued Foy, but he was able to escape.

Officer Gerretts then placed Shelbia under arrest and called for a crime lab vehicle to recover and process the evidence. He returned Shelbia to the Earhart store where the witnesses identified him. The officer informed Shelbia he was under arrest for armed robbery and advised him of his rights. Shelbia told Officer Gerretts he wanted to give a statement.

A crime scene technician collected money from the getaway vehicle as well as the gun that Foy dropped by the fence. After the police obtained a search warrant, another officer conducted a search of the vehicle. From the trunk the officer removed a large amount of U.S. currency, two rolls of quarters, and a shirt. The currency totaled $674.00. From the floorboard of the vehicle an officer collected $132.00 and $456.00 in currency and coin.

Officer Gerretts applied for a warrant to arrest Foy and presented it to a magistrate judge, who issued the warrant. The officer also checked the serial number of the handgun and determined it was registered to Harold Foy, petitioner Foy’s father. Officer Gerretts verified the automobile registration on the getaway car and determined the vehicle was registered to Thelma J. Foy, petitioner’s mother.

A jury convicted Foy of two counts of armed robbery, following which he was sentenced to concurrent 20-year terms of imprisonment. He appealed the convictions directly, challenging the sufficiency of the evidence and the state’s use at trial of Shelbia’s confession. The Louisiana court of appeal affirmed Foy’s convictions. See State v. Foy, 529 So.2d 168 (La.Ct.App.1988) (table). Foy did not seek review in the Louisiana Supreme Court.

Foy thereafter sought collateral relief in the Louisiana courts, presenting the same two arguments as well as a third ground based upon prosecutorial misconduct. The trial court and intermediate court of appeal denied relief, as did the Louisiana Supreme Court, see State ex rel. Foy v. Donnelly, 560 So.2d 6 (La.1990), with two justices voting to grant the writ. Having exhausted his state remedies, Foy filed a habeas petition in U.S. District Court seeking relief pursuant to 28 U.S.C. § 2254. The district judge denied the application but granted a certificate of probable cause. This appeal followed.

II

Foy first challenges his convictions on the ground that the state violated his Sixth Amendment right of confrontation by using Shelbia’s confession.

A

It is a fair inference from the trial record that the state’s initial strategy for obtaining a conviction of Foy was to introduce evidence establishing that Shelbia was the individual who entered each Church’s Fried [1311]*1311Chicken location and then call Shelbia as a witness to inculpate Foy. The state would then corroborate Shelbia’s testimony with evidence that Foy was the getaway driver in the second robbery, that he was carrying a handgun registered to his father and driving an automobile registered to his mother, and that physical evidence found in the abandoned vehicle — in currency and coin — generally matched that taken during the two robberies.

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Bluebook (online)
959 F.2d 1307, 1992 WL 78837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foy-v-donnelly-ca5-1992.