Fugate v. State

Decision Date21 June 1993
Docket NumberNo. S93P0299,S93P0299
Citation263 Ga. 260,431 S.E.2d 104
PartiesFUGATE v. The STATE.
CourtGeorgia Supreme Court

Francis N. Ford, Lawrence & Ford, Eatonton, Reginald Bellury, Milledgeville, for Fugate.

Wallace M. Fugate, pro se.

Joseph H. Briley, Dist. Atty., Gray, James L. Cline, Jr., Asst. Dist. Atty., Greensboro, for the State.

Michael J. Bowers, Atty. Gen., Atlanta.

Susan V. Boleyn, Asst. Atty. Gen., Dept. of Law, Atlanta.

Peggy R. Katz, Staff Atty., Atlanta.

Patsy Morris, Atlanta, Joseph L. Chambers, Sr., Pros. Attorneys' Council, Smyrna, for other party representation.

SEARS-COLLINS, Justice.

Wallace M. Fugate, III, was convicted by a jury in Putnam County for the murder of his former wife and sentenced to death. He appeals, raising 19 enumerations of error. We affirm. 1

1. Fugate and the victim were divorced after almost 20 years of marriage. The victim lived with their son in the former marital residence, while Fugate moved to another town to minimize the likelihood that he would find himself in violation of a restraining order prohibiting him from having contact with his former wife. However, on Saturday, May 4, 1991, Fugate went to the victim's residence while she and the son were at work. (The son worked part-time at the same business as the victim.) According to Fugate, the victim had left him a note stating she would be in South Carolina that weekend, and he thought he would repair his son's automobile while they were gone. Fugate broke into the house soon after his wife and son left for work and stayed there from 9:00 a.m. until they returned home at 5:30 that afternoon.

When the victim and the son returned home, they noticed that the son's car had been moved. She called her sister. The son testified that when he heard a noise in the basement, he got his rifle and ordered Fugate to come out. When Fugate appeared with a revolver in his hand, the son tried to shoot him because Fugate had threatened to kill the victim "if he ever caught her alone."

However, the son's rifle had been unloaded and disabled and would not fire. Fugate brushed past his son and went to the victim.

According to Fugate, he was surprised by the victim's return, and went to the basement thinking he would sneak out a back door and avoid a confrontation. However, there were too many locks on the back door, so he hid, hoping they would soon leave. When he was discovered, he went upstairs to his wife, who was calling the police, "mashed down" the receiver and told her to take him to the sheriff, thinking this would defuse the situation. However, she was scared--partly because he had a gun in his hand--and attacked him before he could put it in his pocket. As they fought their way out to her van, she knocked him down several times and tried to take away his gun. During the scuffle, the gun went off once inside the house, and a second time as he was trying to put her in her van. Both shots were accidents, according to Fugate. After the second shot mortally wounded her, he took the van and drove off.

According to the son, Fugate dragged the victim out to the van, pistol-whipping her when she resisted. He shot once in the house trying to scare her into obeying, and then, when he was unable to force her into her van, Fugate grabbed her hair, jerked her head back and shot her in the forehead. He dropped her body to the ground and drove off.

Besides the bullet wound in the forehead, the victim's body was bruised on the face, shoulders and arms and there was a blunt-force laceration on the back of her head. The son testified that Fugate had struck the victim at least 50 times before shooting her. A photograph of Fugate taken shortly after his arrest does not show that he suffered any visible cuts or bruises.

The jury found Fugate guilty of murder, burglary, kidnapping with bodily injury, two counts of aggravated assault and one count of theft by taking. The evidence supports the conviction on all counts. 2 Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Fugate argues that the court should have instructed the jury on voluntary manslaughter as a lesser included offense of the charge of murder. However, not only did Fugate fail to make a written request for an instruction on voluntary manslaughter, but when, during the charge conference, the court read to the parties the court's proposed instructions as to "Count one, where the defendant is charged with murder" and asked the parties if either one had "any problem" with those instructions, Fugate's attorney answered that he had "no problems with that."

Pretermitting whether the evidence even authorized a charge on voluntary manslaughter, the omission to charge voluntary manslaughter clearly was not error where the defendant not only failed to request such a charge but affirmatively assented to the omission. Graham v. State, 250 Ga. 473(5), 298 S.E.2d 499 (1983).

3. The court's instructions on reasonable doubt were not erroneous. Potts v. State, 261 Ga. 716(14), 410 S.E.2d 89 (1991).

4. There was no deficiency in the court's instructions concerning kidnapping with bodily injury. Waters v. State, 248 Ga. 355(10), 283 S.E.2d 238 (1981).

5. The trial court instructed the jury that in arriving at its sentencing determination You shall ... consider the facts and circumstances, if any, in extenuation, mitigation and aggravation of punishment.

Mitigating or extenuating facts or circumstances are those which you, the jury, find do not constitute a justification or excuse for the offense in question, and which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability or blame. Aggravating circumstances are those which you, the jury, find [to] increase the guilt or enormity of the offense or add to its injurious consequences.

After further instructing the jury that a death sentence could be imposed only if the jury found beyond a reasonable doubt at least one statutory aggravating circumstance and designated that finding in writing, the court explained that, by contrast:

It is not required and it is not necessary that you find any extenuating or mitigating facts or circumstances in order for you to return a verdict setting the penalty to be imposed at life in prison. Whether or not you find any extenuating or mitigating facts or circumstances, you are authorized to fix the penalty in this case at life in prison. [Emphasis supplied.]

(a) Fugate contends, first, that these instructions failed adequately to define the nature and function of mitigating circumstances. We disagree. The instructions in this case more specifically defined the nature and function of mitigating circumstances than did those at issue in Peek v. Kemp, 784 F.2d 1479 (11th Cir.1986). 3 In this case, as did the Court in Peek,

[W]e conclude that no reasonable juror could have failed to understand the meaning and function of mitigating circumstances. [Id. at 1489.]

See, also, Ross v. State, 254 Ga. 22, 33(6), 326 S.E.2d 194 (1985).

(b) The trial court did not err, as Fugate contends, by failing to instruct the jury that its failure to agree unanimously on a verdict would result in a life sentence. Romine v. State, 256 Ga. 521(1), 350 S.E.2d 446 (1986).

(c) Finally, Fugate contends the jury's consideration of mitigating circumstances was restricted by the court's instructions concerning unanimity.

The jury may not impose a death sentence unless it unanimously agrees upon at least one statutory aggravating circumstance beyond a reasonable doubt, and expresses this finding in writing. OCGA § 17-10-30(c); Ross v. State, supra, 254 Ga. at 31, 326 S.E.2d 194. However, if the jury does "cross this threshhold," ibid., it then considers all the evidence that has been presented preparatory to deciding what sentence to impose. In considering this evidence, the jury does not make further "findings" concerning what has been proved. Conner v. State, 251 Ga. 113, 119, 303 S.E.2d 266 (1983). Instead the jury must determine, based on a consideration of all the evidence, whether or not the defendant deserves a death sentence. Zant v. Stephens, 250 Ga. 97(2), 297 S.E.2d 1 (1982). Only the threshold issue of at least one statutory aggravating circumstance and the ultimate decision of life or death must be agreed to unanimously, not "each and every evidentiary vignette." Ross v. State, supra.

It is error to limit the jury's consideration of mitigating circumstances only to such as are "found" unanimously. Instead, the individual jurors must be allowed to consider whatever mitigating circumstances as are persuasive to each of them individually, thus giving the fullest play to the jury's consideration of mitigating circumstances. Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988); McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990).

In Brantley v. State, 262 Ga. 786(16), 427 S.E.2d 758 (1993), we reviewed a case in which the trial court had instructed the jury to consider mitigating circumstances in the same manner as it determined whether any statutory aggravating circumstances existed and had further instructed the jury to make written findings, signed by the foreperson, concerning mitigating circumstances. We concluded that these instructions could have been understood by reasonable jurors to impose a unanimity requirement on mitigating circumstances, that is, to restrict the jury's consideration of mitigating circumstances only to those the entire jury agreed upon. Thus, a reversal was required.

In this case, by contrast, the court did not require written findings on mitigating circumstances. In fact, the jury was explicitly instructed that such findings were not necessary or required. We do not find that reasonable jurors could have been misled by the instructions given in this case. There is no merit to this enumeration of error.

6. There was no...

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