Foster v. State, 33253

Citation242 S.E.2d 600,240 Ga. 858
Decision Date28 February 1978
Docket NumberNo. 33253,33253
PartiesMarcus C. FOSTER v. The STATE.
CourtSupreme Court of Georgia

Rogers & McCranie, Clauye C. McCranie, Walters, Davis, Ellis & Smith, J. Harvey Davis, Ocilla, for appellant.

Thomas H. Pittman, Dist. Atty., Ocilla, Arthur K. Bolton, Atty. Gen., Susan V. Boleyn, Asst. Atty. Gen., Atlanta, for appellee.

BOWLES, Justice.

The appellant, Marcus C. Foster, was indicted, tried and convicted for the murder of Lee Marshall Carver, receiving a life sentence for the offense. He appeals following the denial of his motion for new trial.

1. Appellant contends that the trial court erred in denying his motion for a new trial on the general grounds. We have reviewed the transcript and find that the evidence adequately supports the verdict rendered by the jury.

2. Appellant contends that the trial court erred in refusing to strike, for cause, a prospective juror.

The juror, Mr. Julius Abel, was the owner and proprietor of the funeral home which handled the funeral arrangements for the victim. Appellant made a motion to excuse this juror for cause on the basis of his having witnessed the victim's autopsy and having handled the victim's funeral arrangements. The motion was denied, thus allowing this juror to remain on the panel. The juror, however, was subsequently peremptorily challenged by appellant.

Appellant contends that as a result of the court's refusal to disqualify this juror for cause, prior to his being peremptorily challenged, appellant was not presented with an unbiased panel of jurors from which to select, and, therefore, was forced to exercise one of his twenty peremptory challenges.

In general, where it does not affirmatively appear from the record that a party had exhausted his peremptory challenges at the time the full panel of jurors was accepted and sworn, the appellate court will presume that he was not prejudiced by the action of the court in erroneously disallowing his challenge for cause, and will not grant a reversal for the alleged error.' " Ethridge v. State, 163 Ga. 186, 136 S.E. 72 (1926); Faulkner v. State, 166 Ga. 645(6), 144 S.E. 193 (1928); Bland v. State,210 Ga. 100, 78 S.E.2d 51 (1953); Robinson v. Murray, 198 Ga. 690, 32 S.E.2d 496 (1944); Ford v. State, 12 Ga.App. 288(2), 76 S.E. 1079 (1912). Thus, if a challenge is made and improperly overruled by the court, but the juror so challenged for cause does not serve because subsequently struck by the complaining party, such ruling by the court is not error unless it appears that the party had to exhaust his peremptory challenges in order to strike that juror.

Since it does not appear that appellant was compelled to exhaust his peremptory challenges for the purpose of striking the challenged juror, we find no error.

However, even when considered on its merits, there was no error in the trial court's refusal to disqualify this juror for cause. Appellant's motion to exclude the juror was based upon grounds of "his having witnessed the autopsy in his place of business . . . and . . . the fact that he handled the funeral arrangements for the family . . .", thus rendering him unable to give a fair and just verdict in the case. These do not constitute grounds for disqualifying a juror for cause. (Code Ann. §§ 59-804, 59-806 and 59-807).

3. The defendant contends that the trial court erred in instructing the jury on the manner in which they should deliberate this case, and, in encouraging the jurors to change their opinions to conform to the opinions that other jurors may maintain.

The trial court charged the jury that "(Y)our initial conduct upon entering the juryroom is a matter of importance. It is not wise to express a determination to insist upon a certain verdict. If your sense of pride is aroused you may hesitate to change your position even if you decide you are wrong. Consult with one another and consider each other's views. Each of you must decide this case for yourself, but you should do so only after a discussion and consideration of the case with your fellow jurors. Do not hesitate to change an opinion if convinced it is wrong. However, you should not surrender honest convictions or opinions in order to be congenial or reach a verdict solely because of the opinions of other jurors."

The trial court charged verbatim Number 1-9 of the Criminal Pattern Jury Instructions as approved by the Council of Superior...

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31 cases
  • Willis v. State
    • United States
    • Georgia Supreme Court
    • October 22, 2018 strike that juror." Bradham v. State, 243 Ga. 638, 639 (3), 256 S.E.2d 331 (1979) (emphasis supplied) (quoting Foster v. State, 240 Ga. 858, 859 (2), 242 S.E.2d 600 (1978) ). The Court further relied in Fortson on Kirkland v. State, a case that also acknowledged this Court's presumption ......
  • Devier v. State
    • United States
    • Georgia Supreme Court
    • November 29, 1984 erroneously disallowing his challenge for cause, and will not grant a reversal for the alleged error.' [Cits.]" Foster v. State, 240 Ga. 858, 859, 242 S.E.2d 600 (1978). However, in Blankenship v. State, 247 Ga. 590, 277 S.E.2d 505 (1981), we held that a Witherspoon error is not harmless......
  • Britt v. Smith
    • United States
    • Georgia Supreme Court
    • November 19, 2001
    ...v. State, 179 Ga.App. 519, 347 S.E.2d 337 (1986). 27. Carter v. State, 204 Ga. 242, 244, 49 S.E.2d 492 (1948). See Foster v. State, 240 Ga. 858, 860-861, 242 S.E.2d 600 (1978) (the failure of a trial court to instruct the jury on a defendant's right to the presumption of innocence is error ......
  • Conklin v. State, 41665
    • United States
    • Georgia Supreme Court
    • June 27, 1985
    ...committed reversible error by only telling the jury what a reasonable doubt is not, and not what it is. Compare Foster v. State, 240 Ga. 858 (4), 242 S.E.2d 600 (1978). 7. The trial court did not err by instructing the jury in accordance with the "better practice" outlined in Alexander v. S......
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