Fults v. State

• Decision Date: 11 June 2001
• Docket Number: No. S01P0641.,S01P0641.
• Parties: FULTS v. The STATE.
• Court: Georgia Supreme Court

548 S.E.2d 315

274 Ga. 82

FULTS v. The STATE.

No. S01P0641.

Supreme Court of Georgia.

June 11, 2001.

Reconsideration Denied July 16, 2001.

Sullivan & Sturdivant, Harold A. Sturdivant, Michelle W. Ogletree, Griffin, for appellant.

William T. McBroom III, Dist. Atty., Daniel A. Hiatt, Asst. Dist. Atty., Thurbert E. Baker, Atty., Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Karen A. Johnson, Asst. Atty. Gen., for appellee. THOMPSON, Justice.

Kenneth Earl Fults pled guilty to charges of malice murder, kidnapping with bodily injury, burglary, and possession of a firearm during the commission of a crime.¹ The jury fixed the sentence for the malice murder at death, finding beyond a reasonable doubt that the murder was committed during the commission of the capital felony of kidnapping with bodily injury, was committed during a burglary, and was outrageously and wantonly vile, horrible, or inhuman in that it involved depravity of mind. OCGA § 17-10-30(b)(2) and (7). The jury fixed the sentence for the kidnapping with bodily injury at life imprisonment without parole, finding beyond a reasonable doubt that the kidnapping with bodily injury was committed during the commission of the capital felony of murder, was committed during a burglary, and was outrageously and wantonly vile, horrible, or inhuman in that it involved depravity of mind. Id. For the reasons set forth below, we affirm the convictions and sentences.

1. The evidence adduced at Fults' sentencing trial showed that he carried out a week-long crime spree which was centered, at least in part, upon his desire to murder a man who was engaged in a relationship with his former girlfriend. Fults first committed two burglaries, obtaining several handguns. After a failed attempt at murdering his former girlfriend's new boyfriend with one of the stolen handguns, Fults then burglarized the home of his next-door neighbors. After the male neighbor left for work, Fults forced his way through the front door wearing gloves and a hat pulled down over his face. Fults confronted the female occupant of the home, Cathy Bounds, brandishing a .22 caliber handgun he had stolen during one of the burglaries. Ms. Bounds begged for her life and offered Fults the rings on her fingers. Fults turned Ms. Bounds around toward the bedroom, either taped or forced her to tape her eyes closed by wrapping over six feet of electrical tape around her head, forced her into the bedroom, placed her face-down on her bed, placed a pillow over her head, and shot her five times in the back of the head.

A search of Fults' trailer home revealed a boastful letter he had written in gang code in which he described the murder with some alterations of detail. Upon being confronted with this letter by a law enforcement officer, Fults confessed to killing Ms. Bounds but maintained that he had shot her by accident while in a dream-like state. The murder weapon was recovered from under Fults' trailer home, and .22 caliber shell casings shown to have been fired by the murder weapon as well as items from the earlier burglaries were found behind Fults' trailer home.

Viewed in the light most favorable to the State, we find that the evidence adduced at trial was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that statutory aggravating circumstances existed as to both the murder and kidnapping with bodily injury charges. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); OCGA § 17-10-30(b)(2) and (7).

Pretrial

2. Fults contends that his trial counsel, who is now deceased, rendered ineffective assistance by failing to investigate more fully Fults' claim that other persons were involved and were more culpable in the murder than he was. We conclude that Fults has failed to show either deficient performance by his trial counsel or actual prejudice stemming from counsel's alleged ineffectiveness, both of which are required elements of an ineffective assistance claim. See Strickland v. Washington, 466 U.S. 668, 687(III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. Francis, 253 Ga. 782, 783(1), 325 S.E.2d 362 (1985).

Fults testified in the evidentiary hearing held on remand that he informed his trial counsel approximately two weeks before jury selection began that several other persons were involved in the burglary of the victim's trailer home and that another person, identified by Fults in the evidentiary hearing as "D." and as "Derrick Smith," did the actual shooting at the behest of someone identified as "K. G." Fults further testified, however, that he would not have allowed trial counsel to present this theory about the crime at trial and that he had informed his trial counsel that he would not testify about the alleged co-perpetrators because he feared for the safety of his daughter.

The private investigator employed by defense counsel for pretrial preparation testified at the evidentiary hearing that Fults indeed had made a claim to the investigator and trial counsel about "D." and "K. G." and that the investigator never attempted to locate these two men. However, the investigator's testimony also confirmed Fults' testimony that Fults would not have allowed the theory to be presented at trial. The investigator also testified that Fults had admitted his guilt to him on two separate occasions. Finally, the evidence gathered by the State, including Fults' confession and an encoded letter he had written to a friend, pointed toward Fults as the sole perpetrator of the burglary, kidnapping, and murder.

Although Fults has shown that he at some point made claims that, if true, would have shown he was less culpable, we find that he has failed to show that his trial counsel's conduct fell below professionally reasonable standards in failing to investigate Fults' claims against his wishes and when the evidence belied those claims. Id. Furthermore, in light of the strong evidence of Fults' guilt and in light of the unsupported nature of Fults' claims that other persons were involved, we find that Fults has failed to show that his trial counsel's actions, even if assumed professionally unreasonable, resulted in prejudice sufficient to support his ineffective assistance claim. Id.

Jury Selection

3. Fults contends that the trial court erred in finding prospective juror Huckaby qualified to serve as a juror. Ms. Huckaby indicated during questioning by defense counsel that she had been exposed to newspaper reports about the murder and the arrest of Fults. She admitted that she had formed an initial opinion of Fults' guilt, but she also indicated that she understood the presumption of innocence under law, that she would find the defendant not guilty if the State failed to prove its case, that she would base her decision solely on the evidence presented in court, and that her initial opinion was not fixed. In response to additional questioning by the trial court, she indicated that she would "certainly try" to set aside any prior opinions and to base her decision solely on the evidence presented at trial.

A prospective juror who holds some opinion about the guilt of a criminal defendant need be excused only when it is shown that the opinion is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence and the charge of the trial court. Whether a prospective juror is able to set an opinion aside falls within the sound discretion of the trial court. Holmes v. State, 269 Ga. 124, 126(2), 498 S.E.2d 732 (1998); McClain v. State, 267 Ga. 378, 380(1)(a), 477 S.E.2d 814 (1996); Garland v. State, 263 Ga. 495, 496(1), 435 S.E.2d 431 (1993). A trial court is not required to excuse a prospective juror automatically simply because the juror states that she or he will "try" to set aside an opinion. Corza v. State, 273 Ga. 164, 166-167(3), 539 S.E.2d 149 (2000); Brady v. State, 270 Ga. 574, 575(2), 513 S.E.2d 199 (1999); Holmes, 269 Ga. at 126(2), 498 S.E.2d 732; Garland, 263 Ga. at 496(1), 435 S.E.2d 431. The trial court did not abuse its discretion in finding Ms. Huckaby qualified to serve.

4. A trial court's control of the scope of voir dire is reviewed under an abuse of discretion standard, and a trial court does not err by "limiting repetitive, misleading, and irrelevant questions." Gissendaner v. State, 272 Ga. 704, 709(4), 532 S.E.2d 677 (2000); see Barnes v. State, 269 Ga. 345, 351-352(10), 496 S.E.2d 674 (1998). We find that the trial court did not abuse its discretion in refusing to allow defense counsel to ask a juror who had previously stated that she would be unable to vote for a death sentence whether she understood that she would cast her vote as a member of a jury. Although any verdict must be unanimous, each juror's vote must be his or her own, and, if a death sentence is selected by a jury, each juror is called upon publicly and individually to confirm his or her vote in open court. See Unified Appeal Outline of Proceedings, III(B)(3)(b). Accordingly, the trial court correctly focused voir dire on the individual juror's ability to cast a vote for the death penalty under any circumstances.

5. Fults contends that his now-deceased trial counsel rendered ineffective assistance by failing to question five prospective jurors during voir dire, namely prospective jurors Harpe, Harris, Bass, Hester, and Entrekin. Because we conclude that Fults has failed to show actual prejudice stemming from counsel's allegedly deficient performance, Fults' claim fails. See Strickland, 466 U.S. at 687(III), 104 S.Ct. 2052; Smith, 253 Ga. at 783(1), 325 S.E.2d 362.

Through trial counsel's selective use of jury strikes, each of the prospective jurors detailed in Fults' claim was either stricken or never reached, thus there could have been no actual harm resulting directly from any alleged failure of trial counsel to question those jurors. We also find that Fults has failed to show...