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Foster v. State

Evidence, including defendant's IQ tests before age 17 and school performance, supported jury's finding that he was not mentally retarded.

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Timothy Tyrone Foster was convicted and sentenced to death by a jury in Floyd County in 1987. His conviction and sentence were upheld on appeal. Foster v. State, 258 Ga. 736 374 SE2d 188 1988. Subsequently, this Court addressed Foster’s claim seeking a writ of habeas corpus on the basis that he was mentally retarded. Zant v. Foster, 261 Ga. 450 406 SE2d 74 1991. Pursuant to our remand of the case, the trial court conducted a trial on the mental retardation issue. A jury determined that Foster was not mentally retarded and he filed this appeal. Finding no reversible error in the enumerations he asserts, we affirm.

1. Based on our prior ruling in his case, Foster had the burden of proving his mental retardation by a preponderance of the evidence. Id. at 5. See also Stephens v. State, 270 Ga. 354 2 509 SE2d 605 1998. Evidence was adduced from which the jury could have found that IQ tests administered to Foster when he was 10 and nearly 17 years old showed that he was not mentally retarded; that Foster’s subsequently lower IQ scores resulted from depression or malingering; that Foster’s school grades and class assignments did not reflect any sign of mental retardation; and that Foster’s interaction with others, his letter writing, newspaper reading, and sports activities all indicated that Foster did not meet the statutory definition of mental retardation. OCGA § 17-7-131 a 3. Construing the evidence in favor of the verdict, a rational trier of fact could have found that Foster failed to prove by a preponderance of the evidence that he was mentally retarded. Accordingly, the trial court did not err by denying Foster’s motion for a new trial on the basis that the verdict was contrary to the evidence.

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