State v. Foster6/12/2003
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Heard April 1, 2003
AFFIRMED
We granted the State's petition for a writ of certiorari to review the Court of Appeals' opinion in State v. Foster, Op. No. 2001-UP-321 (Ct. App. filed Feb. 6, 2001). We affirm.
FACTS/ PROCEDURAL BACKGROUND
Respondent Randall Scott Foster was indicted for murder and possession of a weapon during the commission of a violent crime. The victim was his wife, Marilyn, who died from a single gunshot wound to her head. At trial, the jury was instructed on self-defense, accident, involuntary manslaughter, voluntary manslaughter and murder. The jury convicted Foster of voluntary manslaughter and the weapon charge, and the trial court sentenced him to twenty years and five years, concurrent. In an unpublished decision, the Court of Appeals reversed and remanded for a new trial. State v. Foster, supra.
Foster and Marilyn lived in their Prosperity home with Marilyn's three children and Foster's daughter. On Saturday night, April 25, 1998, Foster and Marilyn went out drinking and dancing. They returned home sometime after two a.m. on April 26. Very shortly thereafter, Marilyn was fatally shot.
The testimony at trial as to exactly what transpired was conflicting. Marilyn's son, Steven, and her daughter, Michelle, both testified for the State. Steven said he was sleeping on the couch when he was awakened by Foster and Marilyn arguing. He heard Marilyn say, "Are you going to shoot me?," Foster say "yes," and the gun go off. On cross-examination, Steven was questioned about a statement he made to police on the day of the shooting that he heard Foster ask Marilyn if she was going to shoot him. Steven responded he was in shock and unsure of what he said. On redirect, the State published Steven's entire statement. According to Steven's statement, Marilyn got her gun, told Foster "to get out," and Foster asked if she was going to shoot him. Then, Foster and Marilyn "started fighting over the gun," and after Michelle walked into the room, the gun went off.
Michelle, Marilyn's oldest child at age 14, testified that she witnessed the shooting. Michelle was also awakened by the couple's argument. She followed Foster into the bedroom where Marilyn was undressing. According to Michelle, Marilyn was by the dresser and "had the gun out." Foster asked Marilyn if she was going to shoot him and then took the gun away from her. Marilyn asked "Are you going to shoot me now?" Foster replied yes, raised the gun to her head, and shot her. Michelle testified there was no scuffle over the gun.
According to Foster, who testified in his own defense, he and Marilyn enjoyed a normal evening out, drinking, dancing, and socializing with friends. They began arguing during the car ride home because Marilyn was angry Foster had danced and flirted too much with their friend, Linda. After entering the house, Marilyn told him to get his daughter and leave. He said no and wanted to go to bed. Marilyn replied, "Well, I have something that will make you leave" and pulled the gun out of her drawer. Foster then said, "What are you going to do, shoot me?" Foster went over to Marilyn, grabbed the gun, and they struggled over the gun. Foster testified that he had one hand on the gun and Marilyn's hands were on his hand. He was trying to pull the gun away from her, he pulled it up, and the gun went off only inches from her head. Immediately after shooting Marilyn, Foster called 911.
The police showed up within minutes of the 911 call and apprehended Foster without incident. They bagged his hands to preserve any gunshot residue.
Various aspects of
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