Foshee v. State

• Decision Date: 06 November 1986
• Docket Number: No. 43636,43636
• Citation: Foshee v. State, 350 S.E.2d 416, 256 Ga. 555 (Ga. 1986)
• Parties: FOSHEE v. STATE.
• Court: Georgia Supreme Court

Page 416

350 S.E.2d 416

256 Ga. 555

FOSHEE v.STATE.

No. 43636.

Supreme Court of Georgia.

Nov. 6, 1986.

Reconsideration Denied Dec. 18, 1986.

Edward D. Tolley, Donna J. Salem, Cook, Noell, Tolley, Aldridge & Morris, Athens, for William David Foshee, III.

Lewis R. Slaton, Dist. Atty., Benjamin H. Oehlert III, Asst. Dist. Atty., Atlanta, Michael J. Bowers, Atty. Gen., Paula K. Smith, Asst. Atty. Gen., for the State.

CLARKE, Presiding Justice.

Appellant was convicted and sentenced to life imprisonment for the beating death of his wife.¹Although he contended that the injuries were caused by a fall while she was intoxicated, the autopsy findings according to the state's pathologist were not consistent with a fall but were consistent with injuries inflicted by a fist or hand.A pathologist called by appellant attempted to discredit the state's expert but could not attribute the numerous injuries to one fall.Appellant also testified that she suffered a fall on the previous night while moving some furniture and that a piece of furniture fell on her and caused her to have some pain during the night.But he testified that he saw no bleeding as a result of this incident.Two physicians who treated the victim after she sustained the injuries which led to her death testified that her injuries were not consistent with one or even several falls.

1.Appellant assigns error to the trial court's failure to give cautionary instructions to the jury after the court denied a motion for mistrial but sustained defense objections to questions concerning prior difficulties between the parties.Appellant contends that under OCGA § 17-8-75 curative instructions are mandatory when a motion for mistrial is denied.We do not find that the statute requires such instructions.Instructions are not required on every occasion when an objection is sustained.The fact that a party may have attached a request for mistrial to an objection does not automatically elevate the objection to a more serious level.Here the court excluded admissible evidence.In a murder case recent prior difficulties between the defendant and the victim are relevant as showing motive.Boling v. State, 244 Ga. 825, 262 S.E.2d 123(1979);Pilcher v. State, 170 Ga.App. 869, 318 S.E.2d 640(1984).Therefore, the absence of curative instructions was harmless.

Appellant insists that the prosecutor's conduct throughout the trial was so prejudicial that he was denied a fair trial.However, he points to no specific conduct as prejudicial except the prosecutor's persisting in questioning appellant regarding the prior relationship between appellant and the victim.He also cites the fact that the court finally found the prosecutor in contempt for his continuing his line of questioning as an indication of egregious conduct.The court's holdingthe prosecutor in contempt occurred outside the presence of the jury.The appellant made no objection and asked for no curative instructions relative to the contempt.

Although appellant argues that the prosecutor repeatedly attempted to inform the jury that the victim had been beaten to death and that appellant was a known "wife-beater,"he has shown us no instance of this in the transcript.We do not agree that inquiry into past relations between the victim and appellant is synonymous with characterizing appellant as a "wife-beater."

We find that the prosecutor's conduct was not so prejudicial as to deny appellant a fair trial.

2.Appellant argues that the burden of persuasion was impermissibly shifted to him.The trial judge in response to the state's objection to the introduction of a blood sample on the basis of chain of custody ruled that the jury must find beyond a reasonable doubt that the blood was that of the victim before the jury could consider the blood alcohol content of the blood.In State v. Moore, 237 Ga. 269, 270, 227 S.E.2d 241(1976), we held that "... charges which place any burden of persuasion upon the defendant in criminal cases shall not be given and such charges will be deemed erroneous and subject to reversal, absent harmless error and invited error."

The state responds that since the appellant made no contemporaneous objection to the instruction he in effect waived it.The rule set out in Jackson v. State, 246 Ga. 459, 271 S.E.2d 855(1980) and its progeny in interpreting Code Ann. § 70-207(present OCGA § 5-5-24) is that the statute relieves a criminal defendant from making exceptions to errors in a charge except in certain well-defined instances.See alsoLumpkin v. State, 249 Ga. 834, 295 S.E.2d 86(1982).However, these cases construe OCGA § 5-5-24, which concerns the charge to the jury at the end of the case.This statute does not relieve the criminal defendant of the obligation to make timely objection throughout the trial.This obligation is essential to the court's trying the case with as few errors as possible.

The state argues that even if there were error here, it was harmless error.We agree.Appellant contends that an important part of his defense of accident was the showing of the high alcohol content of the victim's blood.There was abundant evidence in the record that the victim had been drinking heavily.Therefore, the restrictive instructions were harmless.

3.The trial court's failure to charge on voluntary and involuntary manslaughter when a voluntary manslaughter charge had been requested by the state is enumerated as error by appellant.In State v. Stonaker, 236...