Foster v. State

Decision Date01 September 1984
Docket Number91,Nos. 43,s. 43
Citation304 Md. 439,499 A.2d 1236
Parties, 54 USLW 2293 Doris Ann FOSTER, a/k/a Nuketa Leah Ansara v. STATE of Maryland. ,
CourtMaryland Court of Appeals

John L. Kopolow, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, George E. Burns, Jr., Michael R. Braudes, Asst. Public Defenders, Baltimore, on the brief), for appellant.

Valerie V. Cloutier, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C.J., SMITH, ELDRIDGE, COLE, RODOWSKY and COUCH, JJ., and JAMES C. MORTON, Jr., Associate Judge of the Court of Special Appeals (retired), Specially Assigned.


In February 1982, the defendant-appellant, Doris Ann Foster, was found guilty of felony murder by a jury in the Circuit Court for Cecil County. The defendant elected to be sentenced by the court, and, following a hearing, a sentence of death was imposed. On appeal, this Court held that certain evidence was erroneously excluded at trial, and we reversed the judgment and remanded for a new trial. Foster v. State, 297 Md. 191, 464 A.2d 986 (1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 985, 79 L.Ed.2d 221 (1984).

Upon re-trial, a jury again found the defendant guilty of felony murder. This time Mrs. Foster elected to be sentenced by a jury, and, after a sentencing proceeding, the same jury determined that the sentence should be death. We shall affirm.

The evidence at the re-trial disclosed the following facts, essentially as set forth in the parties' agreed statement of facts pursuant to Maryland Rule 828 g. The body of Josephine Dietrich, the manager of the Maryland Manor Motel in Cecil County, was retrieved from the Chesapeake and Delaware Canal on May 23, 1981. An autopsy established the cause of death as seven stab wounds to the chest inflicted in rapid succession.

According to the testimony of Elizabeth Phillips ("Liz"), the defendant's daughter, sometime after 6:00 p.m. on January 29, 1981, Liz, her friend Tammy Rissler, and the defendant began consuming beer and a drug referred to as "crank." As the defendant drove them along Route 40 in Delaware and Maryland, the defendant said that she needed three people to rob a woman. Tammy insisted upon being let out of the car and was then let out. Next, the defendant and Liz proceeded to the Maryland Manor Motel, where the defendant and her husband, Tommy Foster, resided. In the Fosters' motel room they drank more beer, and Mrs. Foster described a plan to rob Mrs. Dietrich. The defendant Foster said that she was going to go to Mrs. Dietrich and tell her that she heard noises. The defendant then went into the bathroom and returned with a screwdriver in her hand. She and Liz went to Mrs. Dietrich's office, where the defendant told Mrs. Dietrich about alleged noises in a vacant room next to the Fosters' room.

Mrs. Dietrich went into the vacant room to investigate. As she came back towards the middle of the room, the defendant grabbed her and threw her onto the floor. From her position at the door, Liz saw the defendant's hand moving up and down rapidly. At first Liz heard Mrs. Dietrich yelling; then she heard nothing. Liz asked the defendant to stop, but she did not. Liz ran out the door, telling the defendant that "the cops were coming," although they were not. This brought the defendant out of the vacant room. She and Liz went to the back of the motel where the defendant threw the screwdriver into the woods. Because the defendant was crying, Liz tried to hold her to calm her down. According to Liz,

"And, that's when she stuck. I felt something. I don't know. I guess it was that. I felt something and I asked her what she was gonna do, if she was gonna kill me. And she, I just pulled away from her."

When the pair went back to the Fosters' room, the defendant washed some blood out of either a pair of pants or a shirt. As the women drank some more beer, Mrs. Foster obtained another screwdriver and said that "she had to kill Mrs. Dietrich because she knew who she was." Mrs. Foster went into the next room and, upon her return, said that she had killed the victim by stabbing her in the heart.

Later, after Liz, the defendant and Tommy Foster had disposed of Mrs. Dietrich's body in the Canal, they returned to the motel and looted Mrs. Dietrich's living quarters. Liz described their activities as follows:

"Well, she [the defendant] was going through pocketbooks and she threw me some, told me to go through them and look for money. And Tommy went upstairs and then he came back down, and then we were just going through everything. And then we told her that we wanted to leave, but she didn't want to leave. So, we told her finally, we just said, 'we are gonna leave.'

Q: Who said that?

A: Me and Tommy.

Q: She say anything?

A: She just started coming with us, but before she left, she said she wanted to sit down and have something to eat."

The three then went back to the Fosters' motel room where the defendant produced the money, and Tommy counted it on a calculator. Liz received a television set and $65.00. After the money had been counted, Liz told the couple that she wanted to go home. As they were driving along the road, they threw the screwdriver out of the window. The defendant took the pocketbooks and other things which she had gotten from Mrs. Dietrich and threw them in the trash at the Kimberton Apartment where Liz was living.

Liz was sixteen years old in January of 1981. Since age three she had lived with her grandmother and had infrequent contact with the defendant. Prosecutorial authorities had promised her immunity in exchange for her testimony.

Tammy Rissler's testimony at the defendant's first trial was read to the jury because the State had been unable to locate her prior to the retrial. That testimony confirmed the beer drinking by the three women on January 29, 1981. Ms. Rissler recalled the conversation as they drove along Route 40:

"[Defendant] asked me if I wanted to make some money. And I asked her how and she said that she knew a lady that she could rob."

Ms. Rissler then got out of the defendant's car.

As Tommy Foster had given conflicting statements, some of which were admissions of responsibility for Mrs. Dietrich's murder, the trial court granted the State's request to have him called as a court witness. He testified that on January 29, 1981, he worked the 2:30 to 11:00 p.m. shift at RMR Corporation. At 11:00 p.m. he was picked up by the defendant and Liz, both of whom had been drinking quite a bit and seemed upset. On the ride to the motel the defendant said that Mrs. Dietrich was dead. After arriving there, Tommy saw the body in the vacant room next to the Fosters' room. They decided to clean up the room, dispose of the body, and remove all evidence that they had resided there. After trying to wipe up the blood, Tommy placed the body in the car. The three drove to a drainage ditch. After tying the body to a cinder block with rope, Tommy carried it into the water and released it. They returned to the motel, went into Mrs. Dietrich's apartment, and took money, a TV, and papers bearing their names.

A letter dated January 30, 1981, and written to "Princess," was introduced into evidence. It contained an admission by Tommy that he had killed Mrs. Dietrich. Tommy denied writing the letter. A second letter, mailed to "The Attorney General" in June 1981, contained a confession, a description of the murder, and a statement that the defendant had slept through the killing. Tommy admitted authorship of this letter but explained that it was intended to protect his wife. A third letter, mailed to the defendant in June 1981, also incriminated Tommy and exonerated the defendant. Tommy could not confirm that he had written it. A defense handwriting expert, Irby Todd, testified that the author of the second letter had probably written the first letter and had even more probably written the third letter. Tommy also admitted that he was testifying pursuant to a plea agreement, which involved a State promise to accept guilty pleas to theft and obstruction of justice and to recommend a twelve-year sentence.

The State also presented circumstantial evidence of the defendant Foster's connection with the robbery and homicide. Witnesses testified that on January 29, 1981, she was in need of money to buy drugs and pawned her wedding ring. The following day she bought a used car and paid $650 in cash. The money was folded lengthwise, as were other bills in her possession. Mrs. Dietrich's daughter testified that Mrs. Dietrich had a lifelong habit of folding her money in this manner.

The defendant did not testify at the trial. The jury, however, learned of her conflicting accounts of the events of January 29, 1981. Some were given to investigating police officers; others were part of her testimony at her first trial, which the State read to the jury. The defendant had initially told the first jury that from January 29 to 31 she was in Pennsylvania with Robert Shade. When confronted with evidence of Shade's incarceration in Delaware during that period, the defendant stated that her alibi was a lie designed to protect Liz. She then testified that, to the best of her knowledge, Mrs. Dietrich was alive when she and Liz picked Tommy up at work on the night of January 29. After returning to the motel, she drank some beer and went to sleep. She next recalled Liz running about. The defendant stepped outside and saw Mrs. Dietrich lying dead in in the grass. She did not go to the Canal to dispose of the body, but she admitted taking Mrs. Dietrich's money after Tommy returned. At one point in her testimony she stated that, "I'm a thief, but I'm not a murderer."

The defense sought to bolster its theory that Tommy was the murderer with the testimony of Mrs. Dietrich's friend, Helen Douglass. According to Mrs. Douglass, the victim had told her that, "Every time I ask him [Tommy]...

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