Foster v. State

• Decision Date: 22 November 1988
• Docket Number: No. 45609,45609
• Citation: 258 Ga. 736,374 S.E.2d 188
• Parties: FOSTER v. The STATE.
• Court: Georgia Supreme Court

Page 188

374 S.E.2d 188

258 Ga. 736

FOSTER v. The STATE.

No. 45609.

Supreme Court of Georgia.

Nov. 22, 1988.

Reconsideration Denied Dec. 14, 1988.

[258 Ga. 748] James C. Wyatt, Robert K. Finnell, Rome, for Timothy Tyrone foster.

David L. Lomenick, Jr., Dist. Atty., David J. Dunn, Jr., Scott K. Camp, Asst. Dist. Attys., Stephen F. Lanier, Dist. Atty., Rome, Michael J. Bowers, Atty. Gen., Paula K. Smith, Asst. Atty. Gen., for the State.

MARSHALL, Chief Justice.

This is a death-penalty case. Queen Madge White, a 79-year-old widow, lived by herself in Rome, Georgia. Early in the evening of August 27, 1986, a friend took White to choir practice, and brought her home at 8:30 p.m. White talked to her sister by telephone at 9:00 p.m. and everything was normal. However, when the sister stopped by early the next morning, she discovered that White's house had been broken into and ransacked. The sister called the police, who found White's body lying on the floor in her bedroom covered to her chin by a blanket. Her face was coated with talcum powder. Her jaw was broken. She had a severe gash on the top of her head. She had been sexually molested with a salad-dressing bottle, and strangled to death. A number of her possessions were missing from her home.

The appellant, Timothy Tyrone Foster, was arrested for White's murder a month later when he threatened his live-in companion and she responded by turning him in. The victim's possessions were recovered from their home and from Foster's two sisters. Foster was interrogated and confessed. A jury convicted him of malice murder and burglary, and sentenced him to death. This is his appeal. ¹

1. Foster first contends the trial court erred by excusing one prospective juror and by failing to excuse eight prospective jurors.

Prospective juror Black was excused because of her views against capital punishment. The test for excusal is "whether the juror's views [on capital punishment] would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' " Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). See Alderman v. State, 254 Ga. 206(4), 327 S.E.2d 168 (1985).

Black's answers to questions about the death penalty, like those of many other prospective jurors, were somewhat contradictory. See Curry v. State, 255 Ga. 215, 220, 336 S.E.2d 762 (1985). As she pointed out, she had never before been asked to express her views on capital punishment. See Spivey v. State, 253 Ga. 187, 197 (fn. 3), 319 S.E.2d 420 (1984). She did state, however, that, although she "maybe" could change her mind, she was opposed to the death penalty, and she stated repeatedly that she would automatically vote for a life sentence in a murder case. The trial court's finding that she was disqualified is not clearly erroneous. Wainwright v. Witt, supra 469 U.S. at 431, 105 S.Ct. at 856. ²

Foster contends that prospective juror Tate should have been excused because he initially stated that he would vote automatically to impose a death sentence if the defendant were convicted, and because he had formed an opinion that the police had "probably got the right man" when they arrested Foster. However, it is clear that Tate was confused at first by the question about the automatic imposition of the death penalty. ³ Further questioning cleared up the confusion and showed no disqualification in this respect. Compare Pope v. State, 256 Ga. 195(7f), 345 S.E.2d 831 (1986). The previously-formed opinion as to guilt was not so "fixed and definite" as to necessitate an excusal for cause. Childs v. State, 257 Ga. 243(8), 357 S.E.2d 48 (1987). Tate stated repeatedly that he could set aside his opinion, and decide the case strictly on the evidence. Spivey v. State, supra 253 Ga. at 196-7, 319 S.E.2d 420.

Foster also contends that prospective juror Holder should have been excused for his views on the death penalty. Any death-qualification issue here is moot, since this prospective juror was excused on other grounds.

Foster complains of the refusal to excuse six additional prospective jurors on the ground of bias. Some of these prospective jurors knew the victim, but none were close to her, and they all testified that they could be fair and impartial jurors and could decide the case on the evidence presented. The trial court did not err by overruling Foster's challenges for favor. Wilson v. State, 250 Ga. 630(4b), 300 S.E.2d 640 (1983).

2. The voir dire examination concluded on a Friday afternoon. The jury was selected Monday morning, giving the parties the weekend to plan their peremptory challenges. The qualified panel from which the jury was selected included four blacks. The district attorney exercised peremptory challenges against each of the four black jurors. Foster timely raised an issue of racial discrimination in the prosecution's exercise of peremptory challenges. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The trial court ruled that a prima facie case had been established, and required the prosecutor to explain his exercise of peremptory challenges. See Gamble v. State, 257 Ga. 325(2), 357 S.E.2d 792 (1987). Foster contends the trial court erred by finding that the state successfully rebutted the prima facie case. As we stated in Gamble (quoting from Batson):

The [prosecutor's] explanation [of his peremptory challenges] "need not rise to the level justifying exercise of a challenge for cause," but it must be "neutral," "related to the case to be tried," and a " 'clear and reasonably specific,' explanation of his 'legitimate reasons' for exercising the challenges." [Cit.]

Gamble, supra at 327, 357 S.E.2d 792.

The defense in this case centered around Foster's deprived background and his use of drugs and alcohol. Many of the defendant's witnesses were social workers. Part of his defense was that when he was a juvenile he had not been committed to a Youth Development Center for the commission of armed robbery, notwithstanding the contemporaneous recommendation of a psychiatrist that only incarceration and strict discipline could possibly have any "lasting impact" on his anti-social behavior. Instead, he was returned by the state to an unsuitable and harmful family environment which included heavy drug use by his own parents and a girlfriend who "sold [her] body" for cocaine. Foster contended he was mentally ill and, further, that he was involuntarily intoxicated by alcohol, marijuana and cocaine.

The prosecutor was familiar with Foster's background and knew that Foster intended to assert a defense involving mental illness and drug usage. He explained his challenges of the four black prospective jurors as follows, taking them in the order in which they underwent voir dire:

The first juror has a son the same age as the defendant who has been convicted of a misdemeanor theft offense. His wife works at the Northwest Georgia Regional Hospital, a mental health facility. His brother was once a drug consultant. During the Witherspoon questioning, the juror appeared to be reluctant to say that he could vote for a death sentence, and he is a member of a church whose members, in the experience of the prosecutor, tend to be very reluctant to impose the death penalty.

The defendant concedes the prosecutor was justified in striking the second juror, who, among other things, had talked to the defendant's mother before entering the courtroom.

The third juror claimed to be the half-sister of the district attorney's chief investigator (who is black). The investigator, however, denied being related in any way to this juror. Moreover, the juror denied having a friend or relative accused or convicted of a crime of violence and denied knowing anyone with a drug or alcohol problem notwithstanding that her brother is a repeat offender whose crimes involve theft by taking, burglary and drugs, and that her husband has been convicted for carrying a concealed weapon.

The fourth juror is a social worker involved with low-income, underprivileged children. Her first cousin was arrested by the Metro Drug Task force on serious drug charges and the cousin lost her job as a consequence.

The prosecutor explained that he did not want social workers on the jury in a death penalty case, as they tended to sympathize with criminal defendants, especially at the penalty phase. Moreover he preferred not to allow on the jury anyone who was closely related to someone with a drug or alcohol problem, since the defendant in this case planned to blame the crime on his own drug and alcohol problem. He further stated that he could not trust someone who gave materially untruthful answers on voir dire, as did the third juror. Finally, he was prepared to challenge peremptorily any juror who was reluctant to impose the death penalty as a matter of conscience where the juror's opposition to the death penalty did not rise to the level justifying a disqualification for cause.

The prosecutor's explanations were related to the case to be tried, and were clear and reasonably specific. The trial court did not err by finding them to be sufficiently neutral and legitimate. The court's determination that the prosecutor successfully rebutted the prima facie case is entitled to "great deference," Batson supra, 106 S.Ct. at 1724 (fn. 21) and is not clearly erroneous in this case.

3. There was no abuse of discretion in the court's conduct of the week-long voir dire examination of prospective jurors. Childs v. State, 257 Ga. 243(6), 357 S.E.2d 48 (1987).

4. The trial court did not err by denying Foster's post-trial motion to review in camera the state's jury-selection notes. An attorney's work product is generally non-discoverable. A defendant's right to exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), is not involved here, and non-exculpatory information in an attorney's work product does not...