Fortson v. State, S03A1169.

• Decision Date: 06 October 2003
• Docket Number: No. S03A1169.,S03A1169.
• Citation: 587 S.E.2d 39,277 Ga. 164
• Parties: FORTSON v. The STATE.
• Court: Georgia Supreme Court

587 S.E.2d 39

277 Ga. 164

FORTSON v. The STATE.

No. S03A1169.

Supreme Court of Georgia.

October 6, 2003.

Cook, Noell, Bates & Michael, Edward D. Tolley, Ronald E. Houser, Athens, for appellant.

Robert W. Lavender, Dist. Atty., Thurbert E. Baker, Atty. Gen., Jason C. Fisher, Asst. Atty. Gen., for appellee.

FLETCHER, Chief Justice.

A jury in Madison County convicted Tracy Lea Fortson of malice murder and related crimes for the killing of Douglas Benton.¹ Because we find that Fortson was denied the effective assistance of counsel when her attorney unnecessarily used a peremptory strike on a juror that had already been excused for cause by the trial court, we reverse and remand for a new trial.

1. The evidence presented at trial shows that on June 17, 2000, neighbors of Benton became concerned because they had not seen him since June 4, 2000. The neighbors alerted the police and informed them that they had seen Fortson at the victim's home on June 4. Fortson admitted to police that she had been present at the victim's home on that day.

Meanwhile, a farm manager in nearby Oglethorpe County found a suspicious cattle trough on his farm that had been painted camouflage and filled with cement. The farm manager contacted the police, who found the victim wrapped in shower curtains and entombed in the trough. Police later determined that he had been killed by a single .22 caliber bullet wound to the head at close range and multiple stab wounds to the chest. The farm manager was familiar with Fortson because she used the farm to hunt turkey and deer.

Investigators obtained search warrants and discovered other evidence connecting Fortson to the crime. In Fortson's home, police found black, green, and beige spray paint that was the same type as that used on the cattle trough and on Fortson's mailbox, which had also been painted camouflage. Police also found a .22 caliber rifle and ammunition. The gun and bullets were later determined to be consistent with those that were used to kill the victim, although the police could not conclusively determine whether the bullet taken from the victim had come from Fortson's gun. Police also found a Wal-Mart receipt showing that Fortson had purchased a shower curtain on June 4, 2000. Police later learned that Fortson had also gone to Athens that day and purchased ten 80-pound bags of concrete and a cattle trough like the one in which the victim was found. Police found concrete in the bed of Fortson's truck that was similar to that in which the victim had been encased. Police also found that scuff marks on the trees near the place where the victim was found matched marks on Fortson's truck.

At the victim's home, police found bloodstains in the sofa cushions and carpet. They also noticed a heavy smell of kerosene, and found a candle that had burned down to the stub under the sofa, indicating that someone had unsuccessfully attempted to set the house on fire.

After reviewing the evidence in the light most favorable to the jury's verdict, we conclude that there was sufficient evidence for a rational trier of fact to find Fortson guilty of the offenses of malice murder, attempted arson, and the related crimes.²

2. Fortson contends that she was denied effective assistance of counsel when her attorney unnecessarily used a peremptory strike on a juror that had already been excused for cause. The dispute involves Juror no. 8, a female juror. During voir dire, Juror no. 8 informed the court that she had spoken to the arresting officer about the case, and that her brother, husband, and son all worked in law enforcement. In spite of these concerns, the trial court denied Fortson's initial request to excuse Juror no. 8 for cause. After individual voir dire, therefore, Juror no. 8 remained on the list of jurors to which the parties would direct their peremptory strikes. Although she was still listed as Juror no. 8, she was in fact the fourth juror on the strike list because the names of jurors who had been excused for cause had been crossed off the list.

Just before the parties proceeded to strike the jury, Fortson's attorney renewed his request to excuse Juror no. 8, although he improperly referred to her at that time as Juror no. 4. Reversing its earlier decision, the trial court granted the request, stating, "I think she is four on the list." The actual Juror no. 4 had already been excused for cause days earlier and was a male juror. It is clear from the record that both Fortson's attorney and the trial court intended to excuse Juror no. 8 at that time.

The parties then proceeded to silently strike the jury. Inexplicably, Juror no. 8 remained on the strike list and Fortson's attorney used his first peremptory strike to remove her. Fortson's attorney used his entire allotment of peremptory strikes.

In order to prevail on a claim of ineffective assistance of counsel, Fortson must show that the actions of her attorney were deficient and that there is a reasonable probability that the deficient conduct caused her actual prejudice.³ The trial court found, and we agree, that Fortson's attorney acted deficiently when he unnecessarily used a peremptory strike on a juror that had already been excused for cause. At the motion for a new trial, Fortson's attorney testified that his use of a peremptory strike on the recently excused juror was due to simple neglect. The trial court's credibility judgment that the mistake made by Fortson's attorney was due to neglect rather than induced error was not clearly erroneous.⁴

Although the trial court denied Fortson's motion for a new trial because it concluded that Fortson had suffered no prejudice from the error, this Court has recognized that causing a defendant to unnecessarily use a peremptory strike on a juror that should have been excused for cause is per se harmful error.⁵ "[I]t is well established in Georgia that peremptory strikes are invaluable."⁶ Because Fortson's attorney used a peremptory strike on a juror who had already been excused for cause, we conclude that Fortson suffered actual prejudice, and the second prong of the Strickland test is met. The trial court distinguished these prior holdings by ruling that it was not necessary to excuse Juror no. 8 for cause. We need not decide whether this juror was disqualified per se, however, since the trial court did in fact excuse her for cause. Because the trial court found that the juror was unfit to serve on the jury, Fortson was prejudiced by the fact that her attorney unnecessarily wasted a peremptory strike to excuse her. The trial court erred, therefore, in denying Fortson's motion for a new trial on the ground of ineffective assistance of counsel.

3. Fortson also contends that the warrants that authorized the search of her home and her truck violated the United States and Georgia Constitutions, as well as OCGA § 17-5-30. First, Fortson asserts that the application for the home warrant was defective because it contained vague and misleading statements and did not provide any basis for the magistrate to determine the reliability of the information. Second, Fortson argues that because the evidence that established probable cause for the truck warrant was obtained through the unconstitutional search of her home, the evidence obtained from the search of her truck should have been suppressed as "fruit of the poisonous tree."⁷ Because both warrants were properly issued, we affirm the trial court's denial of Fortson's motion to suppress the evidence obtained during those searches.

Both the United States and Georgia Constitutions protect against "unreasonable searches and seizures."⁸ The Georgia Bill of Rights, for example, provides that "no warrant shall issue except upon probable cause supported by oath or affirmation particularly describing the place or places to be searched and the persons or things to be seized."⁹ The Georgia legislature has also codified additional requirements for the proper issuance of search warrants.¹⁰ In determining whether the state has shown probable cause, the magistrate must make a practical, common-sense decision whether, given the totality of the circumstances, there is a reasonable probability that the fruits, instrumentalities, or evidence of a crime will be found at a particular place.¹¹

We will not disturb the magistrate's judgment on the credibility of the information and the informant unless that judgment is clearly erroneous.¹² In this case, the magistrate had enough information to judge the credibility of the information and the decision to issue the search warrants had ample support. At the beginning of the investigation, witnesses who reported the victim missing also reported that they had observed Fortson at the victim's home near the time he disappeared. The farm manager who located the victim's body on the Oglethorpe County farm told police that Fortson commonly used the farm for hunting. The police officer who testified at the probable cause hearing stated that he had personal knowledge of the tumultuous relationship between Fortson, a former police officer, and the victim, and this knowledge was corroborated through interviews with the victim's personal friends. The police officer had also personally observed that Fortson's mailbox was painted in a similar camouflage fashion as the cattle trough in which the victim was found. Under the totality of the circumstances, the state properly obtained its search warrants in this case and it was not error for the trial court to admit the evidence obtained in the execution of those warrants.

Because the issuance of the search warrant for the house was proper, the evidence obtained later from the search of the truck was not tainted as "fruit of the poisonous tree."

4. Fortson also argues that the trial court erred by denying her motion for a change of venue. Fortson claims that Madison County was an inherently prejudicial trial setting because of the level of pretrial...