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Foster v. State

Supreme Court of Georgia

August 19, 2019

FOSTER
v.
THE STATE.

          NAHMIAS, PRESIDING JUSTICE.

         In 2005, Appellant Calvin Foster shot and killed his estranged wife, Daphne Foster ("Daphne"). He was tried and convicted of malice murder and a firearm offense in 2006, but this Court reversed the convictions in Foster v. State, 283 Ga. 47 (656 S.E.2d 838) (2008). In 2009, Appellant was retried and convicted of the same offenses. After long delays in post-trial proceedings, he now appeals, arguing that there was insufficient evidence to support his convictions and that the trial court gave inconsistent jury instructions. We affirm.[1]

          1. Viewed in the light most favorable to the verdicts, the evidence presented at Appellant's trial in 2009 showed the following. In March 2005, Appellant and Daphne separated, and she moved to a house in Augusta several miles away from Appellant. Despite their separation, Appellant would pick up Daphne from her house to take her to work a couple of times a week. On September 24, Daphne told her sister that she was planning to divorce Appellant.

         On September 27, Daphne's brother saw Appellant at her house at 6:00 a.m. and assumed that he was taking Daphne to work. Around 8:30 a.m., Brenda Riviera, one of Appellant's neighbors, was eating breakfast when she heard someone banging at her front door, ringing the doorbell, and crying loudly for help. Before Riviera could react, she heard a series of loud gunshots. She opened the door and saw Daphne lying on the porch, still breathing but seriously injured. Riviera called 911. After hearing the gunshots, two other neighbors saw Appellant walking around the side of his house to Daphne's car, which was in his driveway. Appellant entered the car and drove off. He appeared to be in no rush. Daphne was taken to the hospital, where she soon died.

         Appellant left a voicemail for Daphne's brother-in-law, in which Appellant said, "I just shot Daphne." Around 9:30 a.m., Appellant called 911, saying that he needed to speak to someone about what he had done; he told the dispatcher, "I shot my wife. . . . I'm getting ready to turn myself [in]." An officer located Appellant on the side of a road about a mile from the crime scene. Appellant was covered in blood. The officer arrested Appellant and attempted to advise him of his rights as required by Miranda v. Arizona, 384 U.S. 436 (86 S.Ct. 1602, 16 L.Ed.2d 694) (1966), but Appellant kept interrupting to ask about Daphne, saying repeatedly, "I didn't mean to do it."

         At trial, the medical examiner who conducted Daphne's autopsy testified that her cause of death was multiple gunshot wounds - one to her head and one to her neck from bullets fired from an indeterminate range, and one to her back from a bullet fired with the gun's muzzle against her skin. Six cartridge casings were found at the scene of the shooting, and DNA collected from Appellant's bloodstained clothes matched Daphne's DNA.

         Appellant presented an insanity defense.[2] He called Dr. James Stark, who was qualified as an expert in forensic psychology. Based on an evaluation of Appellant in May 2006, Dr. Stark testified that Appellant had learning disabilities and an "essentially average IQ"; his "reading, writing, spelling, and arithmetic [were] at fifth through seventh grade levels." Dr. Stark also testified that he thought Appellant had a transitory psychotic episode and did not know the difference between right and wrong at the time of the shooting. On cross examination, however, Dr. Stark admitted that he had come to a different conclusion in his report written in July 2006. In that report, Dr. Stark concluded that at the time of the shooting, Appellant did know the difference between right and wrong and was not acting under a delusional compulsion. Dr. Stark claimed that he had changed his conclusion "after thinking about it and pondering on it more," although he never submitted an addendum to his written report.

         To rebut Appellant's insanity defense, the State called Dr. Elizabeth Donnagan, who was also qualified as an expert in forensic psychology. Dr. Donnagan had evaluated Appellant in September 2006 and had reviewed police reports, witness statements, and Appellant's own statements to the police. Dr. Donnagan concluded that at the time of the shooting, Appellant was able to tell the difference between right and wrong and was not suffering from a delusional compulsion. In addition, Daphne's sister and brother-in-law testified that Appellant had not shown signs of mental illness in the years they knew him. Appellant's neighbors and the arresting officer also testified that on the day of the shooting, Appellant did not appear to be talking to himself or responding to sights only he could see. Appellant did not testify.

         Appellant contends that the evidence presented at his trial was insufficient to support his convictions, because Dr. Stark's testimony that Appellant was unable to discern right from wrong at the time of the shooting created a reasonable doubt as to whether he could form the intent required for malice murder. See OCGA § 16-5-1 (a) ("A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being."). It is the province of the jury, however, to weigh evidence and resolve conflicts in testimony. See Vega v. State, 285 Ga. 32, 33 (673 S.E.2d 223) (2009). The jury in this case considered competing expert testimony along with the other evidence and found Appellant guilty. When viewed properly in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to reject Appellant's insanity defense and to find him guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). See also Bowman v. State, Case No. S19A0428, 2019 WL 2332552, at *3 (decided June 3, 2019) ("[T]here was competing expert testimony concerning [the defendant's] sanity, and the jury was not required to accept the opinion of the defense experts."); Alvelo v. State, 290 Ga. 609, 612-613 (724 S.E.2d 377) (2012).

         2. Appellant also contends that the trial court erred by giving the jury inconsistent instructions regarding its consideration of his punishment. In deciding whether jury instructions were misleading or confusing, we consider the disputed charges in the context of the instructions as a whole. See Carpenter v. State, ____ Ga.____ (827 S.E.2d 250, 253) (2019). We see no error in the instructions the trial court gave.

         (a) As required by OCGA § 17-7-131 - and as we held that the trial court failed to do fully in Appellant's first trial, resulting in the reversal of his convictions, see Foster, 283 Ga. at 48-50 - the trial court gave the jury the following instructions based on Appellant's assertion of an insanity defense:

I charge you that should you find the defendant not guilty by reason of insanity at the time of the crime[, ] the defendant will be committed to a state mental health facility until such time, if ever, the Court is satisfied that he should be released pursuant to law.
Members of the jury, I charge you that if and only if you do not find the defendant not guilty by reason of insanity then you may consider whether or not the defendant was mentally ill. . . . [T]he term mentally ill means having a disorder of thought or mood that significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with ordinary demands of life. The term mentally ill does not include a mental state shown only by repeated, unlawful, or antisocial conduct. . . .
[S]hould you find the defendant guilty but mentally ill at the time of the crime[, ] the defendant will be placed in the custody of the Department of Corrections [w]hich will have responsibility for the mental health needs of the defendant[, ] [w]hich may include at the discretion of the Department of Corrections referral or temporary ...

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