Foster v. Com.
| Decision Date | 17 May 1988 |
| Docket Number | No. 1363-86-4,1363-86-4 |
| Citation | 369 S.E.2d 688,6 Va.App. 313 |
| Court | Virginia Court of Appeals |
| Parties | Glen Lloyd FOSTER v. COMMONWEALTH of Virginia. Record |
Leah A. Darron, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.
Present: DUFF, KEENAN and MOON, JJ.
Glen Lloyd Foster was indicted by a grand jury in January 1986. That indictment contained nine separate counts charging Foster with violations of former Code § 18.2-370 1 (1979) and former Code § 18.2-374.1 (1979 AND 1983)2. 3 On July 21, 1986, (first trial), Foster was tried before a jury on counts one, two, and three. He was convicted and sentenced to five years incarceration on each count. On September 18, 1986, (second trial), Foster was tried before a jury on counts six through nine. He was found guilty on all four counts and was sentenced to a total of twenty-nine years incarceration. The Commonwealth nolle prossed counts four and five.
The issues raised in this appeal are: (1) whether the indictment was void for multifariousness; (2) whether the trial court erred in allowing counts six through nine to be tried together; (3) whether the 1979 version of Code § 18.2-374.1, under which Foster was tried in counts two and three, is unconstitutional for vagueness or overbreadth; (4) whether the evidence was sufficient to convict Foster on the charges in counts six, seven, eight, and nine; (5) whether the trial court erred at the first trial when it refused to strike for cause jurors who knew that Foster was charged with taking photographs of nude girls; (6) whether the trial court erred at the second trial in not striking for cause jurors who knew some of the details of the allegations involved in the first trial but did not know the outcome of that prior trial.
We find that the trial court did not err in refusing to quash the indictment or in denying Foster's motion to sever counts six through nine for separate trials. We further find that former Code § 18.2-374.1 (1979) is not unconstitutional; that the evidence was insufficient to sustain Foster's convictions in counts six, seven, and nine but was sufficient to sustain his conviction in count eight; and that the trial court did not err in refusing to strike for cause the veniremen in the first and second trial.
The record discloses that prior to trial, Foster made a motion to quash the indictment and a motion to dismiss for failure to state a crime on counts six through nine. He alleged that under Rule 3A:6(b) the charges were not properly joined; that the 1979 version of Code § 18.2-374.1 was unconstitutionally vague and overbroad; and that the facts as specified in the bill of particulars did not constitute crimes as alleged in counts six through nine. The trial court overruled each of these motions.
Foster also made a motion to sever the indictment so that counts not involving the same victim would be tried separately. The trial court denied this motion. On July 18, 1986, the trial court held a hearing on a motion in limine. During that hearing, the trial court reconsidered the motion to sever and ruled that counts one, two, and three, counts four and five, and counts six through nine would be severed, requiring three separate trials. On July 21, 1986, counts one, two, and three were tried; counts six through nine were tried on September 18-19, 1986. The Commonwealth elected not to prosecute counts four and five.
During jury selection at the first trial, Foster moved to exclude for cause Harriett DeJarnette, Virginia Estes, and Bertha Anderson. DeJarnette indicated that she had read about the case in the newspaper and had heard on the radio that three of the charges were to be tried that day. She also stated that she could not remember the details of the newspaper account. DeJarnette further stated that her exposure to prior information would not affect her impartiality in deciding the case. Foster moved to exclude DeJarnette, arguing that her knowledge would affect her judgment. The trial court overruled Foster's motion.
Virginia Estes indicated during voir dire that she had read about the case in the newspapers. She stated that all she remembered was that Foster had taken some pictures of a girl in a coffin. She further stated that she could put that knowledge out of her mind and decide the case based on the evidence presented. Foster moved to exclude Estes for cause, contending that she could not fairly separate this information from the issues to be tried. The trial court overruled this motion.
Bertha Anderson stated during voir dire that she had read a newspaper article about the case. She said that the only thing she remembered from the newspaper article was that some pictures were taken of a nude girl in "dead poses". She further stated that at the time she read the article, she had hoped that none of her children were involved. In response to the trial court's questions, Anderson stated that she had not formed any opinion as to Foster's guilt or innocence, could enter the jury box with an open mind, and that the information she possessed would not affect her impartiality. Foster moved to exclude Anderson for cause. He argued that her knowledge of the case, as well as her statement that she hoped none of her children were involved, showed that her judgment would be affected. The trial court overruled this motion.
During the trial, the evidence disclosed that Foster approached R.R., a ten year old boy, and asked for his help with his newspaper route. R.R. testified that he agreed to help Foster and accompanied him to his home. He further testified that Foster sent him downstairs to fold newspapers.
R.R. testified that while he was in the basement, Foster approached him from behind. Foster grabbed R.R. and tied his hands. He then stripped R.R. and ordered him to lie on a table and pretend to be dead. R.R. further testified that Foster showed him pictures of nude girls who appeared to be dead and fondled his penis. R.R. also testified that Foster took pictures of him in various poses while he was undressed.
The jury returned a verdict of guilty on all three counts. It sentenced Foster to five years incarceration on each count.
Prior to voir dire of the venire panel, the trial court ruled that if any prospective juror knew about Foster's prior convictions, that juror would be excused. During voir dire, Foster objected to two potential jurors, Samuel Pattie and Phyllis Rockwell, on the ground that they had knowledge of the prior trial.
Samuel Pattie indicated that he had read about the case in the local newspaper but stated that he could not remember the outcome of the previous trial. He recalled reading that the charges concerned pictures which Foster had allegedly taken and that force or trickery had been used. Pattie further stated, however, that he did not remember any specific information about prior court hearings. In response to questioning by the trial court, Pattie stated that he could set his prior knowledge aside and decide the case based on the law and the evidence presented. Foster moved to excuse Pattie for cause because he had knowledge of the prior trial. The trial court denied the motion based on Pattie's statement that he could put aside his prior knowledge of the case, as well as the fact that there was no indication that Pattie knew of Foster's prior conviction.
Phyllis Rockwell indicated that she had read about the case in the newspapers but did not know the outcome of any prior hearings or trial in the case. She stated that she remembered that the case involved minor children but could not remember any specific information. In response to a question from the trial court, Rockwell stated that she could set aside any prior information and decide the case based on the law and the evidence presented at trial. Foster moved to excuse Rockwell for cause, contending that her prior knowledge might prevent her from fairly trying the issue of intent. The trial court denied Foster's motion.
At trial, the Commonwealth called W.C. to testify with regard to count nine. W.C. testified that she is the mother of S.C., and that Foster approached her in late July or early September, 1983, to inquire whether S.C. would be available to model for him. She further testified that Foster measured S.C. to determine the size of the clothing she would need. W.C. stated that she did not give Foster an answer at that time but called him about two weeks later and told him that she had decided not to let S.C. model.
S.C. testified that around the end of July, 1983, Foster came to her home and asked her to model for him. He told her that she would be lying in a casket for the purpose of modeling burial clothing. S.C. further testified that Foster told her that her parents could not be present while the pictures were being taken. She testified that during that visit Foster took her to her bedroom, had her lie on the bed, and took her measurements. She further testified that Foster had her close her eyes and had her lie in positions "that the dead people would use."
S.C. testified that she next encountered Foster about two weeks later, after her mother had told him that she would not be modeling for him. S.C. testified that Foster took her to his car and showed her a photograph album. She further testified that he showed her two pictures of girls dressed in "see-through" nightgowns lying in a casket. S.C. testified that Foster told her that this was the type of modeling she would be doing.
The Commonwealth next called B.M. to testify concerning the facts alleged in count seven. B.M. testified that during the first part of September, 1983, Foster approached her and asked her to model clothes for the dead. He told her that this modeling job would take place at his office where she was to pose as if she were dead. B.M. testified that she next saw Foster...
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