Foster v. State

• Decision Date: 04 February 1986
• Docket Number: No. F-84-76,F-84-76
• Citation: 1986 OK CR 19,714 P.2d 1031
• Parties: Charles A. FOSTER, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1031

714 P.2d 1031

Charles A. FOSTER, Appellant, v. STATE of Oklahoma, Appellee.

No. F-84-76.

Court of Criminal Appeals of Oklahoma.

Feb. 4, 1986.

Rehearing Denied March 17, 1986.

Patti Palmer, Deputy Appellate Public Defender, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

Charles A. Foster was convicted in Muskogee County District Court of Burglary in the Second Degree, Larceny of an Automobile, Grand Larceny, each After Former Conviction of Two Felonies, and Murder in the First Degree. He received sentences, as recommended by the jury, of ninety years' imprisonment on the first three convictions and the death penalty for the murder conviction.

The victim, seventy-four-year-old Claude Wiley, owned a grocery store in Muskogee and made local deliveries. The night he was killed, he had made a delivery to appellant's home. While waiting for appellant's wife, Eula Mae Foster, to return with the payment for the groceries, according to Mrs. Foster's testimony, appellant suddenly started accusing the victim of having "something to do" with his wife, pushing him and then striking him with a baseball bat. Appellant had stood behind the front door with the baseball bat when Wiley first entered their home. The medical examiner testified that the victim received three stab wounds to the chest. He had blunt force lacerations to the ear, orbit of the right eye, and on top of the head. The skull was extensively fractured and there was massive hemorrhaging.

Mrs. Foster also testified that appellant wrapped the victim, who was still breathing, in a blanket and left in Mr. Wiley's El Camino. He returned shortly and then left for a period of one and one-half hours. The couple then fled Oklahoma in the El Camino. Appellant had in his possession a number of the victim's household items. Mrs. Foster said they got rid of the victim's vehicle and then bought a Cadillac in Texas with cash taken from the deceased.

Appellant testified that he was away from home during the time of the crimes. He said he knew nothing of the incident until his wife picked him up in the victim's El Camino at the grocery store where he was shopping.

The State was allowed to introduce at trial, over appellant's objection, a baseball bat which according to Mrs. Foster's testimony was similar to the one used by appellant to strike the victim. Appellant contends that the bat had no connection to the crimes and, therefore, his right to a fair trial was prejudiced by its admission. The bat displayed was one Mrs. Foster selected at a sporting goods store and was new. The one allegedly used by appellant to beat the victim was older, had a broken handle, and would have been stained by the victim's blood. The new bat was marked to show where the original one was broken. Appellant had discarded in Texas the actual bat used. The judge admonished the jury to consider the bat only for its demonstrative value.

The baseball bat was relevant to the case in allowing the jury to visualize one of the weapons used in the attack. Relevant evidence should be excluded, however, if its probative value is outweighed by the danger of it having a prejudicial, confusing or misleading effect on the jury. 12 O.S.1981, § 2403. This Court held in Pannell v. State, 640 P.2d 568, 571 (Okl.Cr.1982), that a weapon is admissible if there is sufficient evidence to connect it to the offense. There, as here, the connection was only in similarity between the actual bat and the offered bat. Yet, in the absence of the demonstration of prejudice to defendant, there is no denial of a fair trial.

We fail to discern prejudice suffered by appellant herein. The prosecution and the court were careful to inform the jury that the bat was not the actual weapon used, but only a likeness. We find this case distinguishable from Sitsler v. State, 603 P.2d 1142 (Okl.Cr.1979), upon which appellant relies for authority in urging error. We disapproved in Sitsler of the prosecutor's display of a weapon before the jury, supposedly being like that used in the crime, without informing the jury until closing argument that it was not the weapon used in the offense and without offering it into evidence. We find no harm resulting from admission of the bat. See Noah v. State, 562 P.2d 950 (Okl.Cr.1977).

Appellant next contends the trial court erred in failing to instruct the jury, though not requested to do so, that Eula Mae Foster's testimony must be corroborated since she was an accomplice to appellant. We find this assignment to be without merit for two reasons. The first is that failure to give such an instruction does not constitute error if there is no request. Garcia v. State, 639 P.2d 88 (Okl.Cr.1981); Samples v. State, 337 P.2d 756 (Okl.Cr.1959). Appellant did not request the desired instruction nor did he submit a proposed one to the trial court.

The second reason we do not find error by the trial court in this regard is that appellant's theory of defense was alibi. To instruct the jury that Mrs. Foster was an accomplice is inconsistent with this evidence, as well as the State's.

The State's evidence is that Mrs. Foster did not know of the attack until it occurred. She did not participate in it or the other crimes. Furthermore, there was presented evidence which was corroborative of the State's theory. Gautt v. State, 551 P.2d 1150 (Okl.Cr.1976). When the couple reached a motel in Dennison, Texas, on the evening of the offenses, appellant registered under an assumed name. On the evening of the crimes and again later, appellant engaged in flight. The Fort Worth police came to the car in which the Fosters were sleeping in a park a few days after the crimes and ordered appellant out. He fled the scene and was not captured for several months. And, though coming in the penalty stage of trial, a former cellmate of appellant's testified of his admissions of killing the victim and wrapping him in a blanket. The absence of the instruction did not deny appellant a fair trial.

Appellant complains for the first time on appeal of the court's instruction concerning the defense of alibi. He urges it failed to clearly place the burden on the State to disprove his alibi defense. As noted earlier, his failure to object to the instruction given or to submit a proposed instruction constitutes waiver of error. Jetton v. State, 632 P.2d 432 (Okl.Cr.1981). Moreover, the instructions which the trial court did give properly apprised the jury of the law concerning the State's burden of proof. When taken as a whole, the instructions were adequate. Hines v. State, 684 P.2d 1202 (Okl.Cr.1984).

Again, appellant claims for the first time on appeal error occurred because of the absence of a third instruction. The instruction which he asserts should have been given was a specific cautionary instruction concerning the weight to be given Mrs. Foster's testimony. He asserts that such an instruction was warranted because she gained a personal advantage by testifying. Originally, Mrs. Foster was charged as a principal to the same offenses as her husband. They were subsequently reduced to Accessory After the Fact, and she received concurrent five year sentences, with two and one-half years suspended.

The charges against Mrs. Foster were changed and her pleas entered before appellant's trial. She was thoroughly cross-examined regarding her sentences before the jury. It does not appear that she received anything in exchange for her testimony. Additionally, proper instruction regarding judging the credibility of witnesses was given to the jury. For a like disposition of this issue, see our opinion in Gee v. State, 538 P.2d 1102 (Okl.Cr.1975). See Oliver v. State, 568 P.2d 1327 (Okl.Cr.1977).

Appellant made a pretrial motion for change of venue based on adverse publicity. The trial judge reserved ruling on the motion until after voir dire. At that time, the trial judge denied the motion. Upon our review of the evidence offered in support of the motion, that is, three affidavits of citizens from the community and the newspaper articles published in a local periodical concerning the crimes and suspects, we find no error occurred in denying the motion.

Of the potential jurors, two were excused who could not set aside opinions formed from pretrial publicity. A substantial voir dire was conducted and many veniremen had read newspaper accounts of the crimes, mostly those articles published in April, 1983, immediately following the incident. The newspaper articles of potential prejudicial value were those published in the later stages of the investigation. Of the jurors who had read any accounts, all except the two mentioned above said they could ignore that information and fairly and impartially judge the case on the evidence presented at trial. This is the standard applied by this Court because a defendant cannot expect a jury ignorant of the facts. Nauni v. State, 670 P.2d 126 (Okl.Cr.1983).

A defendant carries the burden of persuasion in overcoming the presumption that he or she can get a fair and impartial trial. Hammons v. State, 560 P.2d 1024 (Okl.Cr.1977). Prejudice from exposure to adverse pretrial publicity must be shown. Robison v. State, 677 P.2d 1080 (Okl.Cr.1984). However, we are unable to discern any after a thorough review of the record.

Appellant further stresses in regard to voir dire that the trial court erred in not allowing each potential juror to be questioned individually. We note that when such appeared necessary for one juror, it was permitted by the trial court.

Although such a practice may be allowed by a trial judge, see Nauni supra, and Morrison v. State, 619 P.2d 203 (Okl.Cr.1980), it is an extraordinary measure. Practically every murder case is well covered by the media. Usually the bias of potential jurors can be ascertained without unduly burdening the examination process. Unless the danger of...