Foster v. State

• Decision Date: 04 May 1989
• Docket Number: No. 46641,46641
• Citation: Foster v. State, 259 Ga. 206, 378 S.E.2d 681 (Ga. 1989)
• Parties: FOSTER v. The STATE.
• Court: Georgia Supreme Court

Page 681

378 S.E.2d 681

259 Ga. 206

FOSTER v.The STATE.

No. 46641.

Supreme Court of Georgia.

May 4, 1989.

M. Muffy Blue, Jonathan J. Wade, Atlanta (Court appointed), for Leonard Foster.

Lewis R. Slaton, Dist. Atty., Benjamin H. Oeklert III, Asst. Dist. Atty., Atlanta, Michael J. Bowers, Atty. Gen., Richard C. Litwin, for State.

CLARKE, Presiding Justice.

Appellant was convicted of the murder of Bobby Spears and sentenced to life imprisonment.¹Testimony at trial indicated that appellant, who had been drinking heavily, quarrelled with the victim, who was later found unconscious.Appellant told various witnesses that he had hit and kicked the victim several times, that he"liked to kill Bobby," and that he did not care if he died.He told police that the victim pulled out a knife, but no weapon was found at the scene.He also told police that he did not realize the extent of the victim's injuries.The victim, taken to the hospital in a comatose state, died about a month afterwards.

1.The evidence in this case was sufficient to meet the requirements of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

2.Appellant argues that the trial court erred in failing to give his requested charge regarding the reputation of the victim for violence.He insists that the victim attacked him first with a knife.He contends that the testimony of a witness for the defense that the victim was drunk and in a violent mood, coupled with appellant's testimony that the victim attacked him, justified a charge on the victim's general reputation for violence.Construing Code Ann. § 38-202(present OCGA § 24-2-2) in Cooper v. State, 249 Ga. 58, 287 S.E.2d 212(1982), we held that although testimony concerning the character of a victim is generally inadmissible in a murder trial, where the evidence shows that 1) the victim was the aggressor, 2) the victim assaulted the defendant, and 3) the defendant was honestly trying to defend himself, evidence of the victim's general reputation for violence is admissible.

The charge requested was: "You, the jury would be authorized to consider the deceased's reputation for violence and turbulence in considering the reasonableness of the accused's apprehension of danger and fear at the time of this incident."The evidence does not support a charge on the victim's reputation for violence.Although the appellant testified that the victim was the aggressor, the police found no evidence to support appellant's allegation that the victim had a knife.The witness upon whom appellant apparently relies to support his claim that the victim had a reputation for violence in the community said the victim was not a violent person.

3.In his third enumeration of error appellant complains of the court's allowing the death certificate in the jury room.He argues that the death certificate contained hearsay material and that the presence of the death certificate in the jury room overemphasized written rather than oral testimony.The death certificate contains the information that the deceased was "beaten in altercation."Under the section of the death certificate concerning immediate cause of death "homicide" was chosen from the choice "accident, homicide, suicide, undetermined."Conclusions in a death certificate are not probative and are not admissible in evidence.However, here the conclusions are supported by other evidence and are merely cumulative and are harmless.King v. State, 151 Ga.App. 762, 261 S.E.2d 485(1979).

4.Finally, appellant contends that the court erred in denying his motion for a directed verdict on...