Foster v. Lockhart

• Decision Date: 19 November 1993
• Docket Number: 93-3884,Nos. 92-3702,s. 92-3702
• Citation: 9 F.3d 722
• Parties: David A. FOSTER, Appellee, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellant. David A. FOSTER, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 722

9 F.3d 722

David A. FOSTER, Appellee, v. A.L. LOCKHART, Director, Arkansas Department of Correction,

Appellant.

David A. FOSTER, Appellant, v. A.L. LOCKHART, Director, Arkansas Department of Correction, Appellee.

Nos. 92-3702, 93-3884.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 16, 1993.

Decided Nov. 19, 1993.

Darnisa Evans Johnson, Little Rock, AR, argued, for appellant.

Craig Lambert, Little Rock, AR, argued, for appellee.

Before FAGG, BOWMAN, and LOKEN, Circuit Judges.

FAGG, Circuit Judge.

A.L. Lockhart, director of the Arkansas Department of Correction, appeals the district court's order granting the habeas petition of David A. Foster, a man convicted of rape in Arkansas state court. Lockhart also appeals the district court's order releasing Foster on bail. We affirm.

Although we prefer not to repeat the graphic testimony at Foster's trial and evidentiary hearing, the explicit details of the rape victim's story and Foster's impotency show the failure of Foster's trial attorney to investigate, develop, and present the strong defense of Foster's impotency amounted to ineffective assistance of counsel.

At trial, the victim testified that the rape happened in the following way. Foster, a friend of the victim's daughter, had come to the victim's home between four and five o'clock in the morning on August 16, 1986. Foster stated he was looking for the victim's daughter, who had borrowed his car and not yet returned it. The victim had seen Foster once before and invited him inside. Foster sat on a chair several feet from the victim, then suddenly jumped up, ran over to her, and ripped off her blouse. The victim struggled with Foster, but he removed her shorts and panties. The victim broke free and ran out the front door, down some steps, and around to the back of the house. Foster chased her outside, caught her, shoved her onto the ground, jumped on her, penetrated her vagina with his penis, and ejaculated. The incident lasted "just a few minutes," and afterwards, Foster left "real fast." The victim did not notice anything wrong with the rapist's legs. After the rape, the victim contacted the police, described her attacker, and identified him as "David." She later identified Foster in a photographic lineup and at trial.

Other witnesses also testified for the prosecution. The doctor who examined the victim about four hours after the alleged rape found nonmotile sperm inside her, but no evidence of traumatic intercourse. The doctor stated sperm are motile for up to forty-eight hours. A forensic serologist testified about blood typing tests performed on the victim's vaginal sample that showed Foster could have been the rapist. Although 89% of the male population could have produced the semen found in the victim, the State incorrectly argued that only 16% of the male population could have produced it. The police officer who investigated the rape also testified and said that when she arrested Foster, he was wearing a leg brace.

A state public defender represented Foster at trial and presented an alibi defense. Foster testified and denied raping the victim or going to her house on the morning of the rape. Foster explained his activities that morning and said he was at home sleeping during the hour of the rape. Foster also explained his physical impairments resulting from a car accident in 1980 and an earlier motorcycle accident. Foster said he is partially paralyzed in his saddle area, down the backs of his legs, and across his feet and toes. Foster always wears a leg brace on his right leg. Foster testified he is sexually dysfunctional, has "bad nerve damage," and "it takes a lot to get [him] ready for sex."

Foster's father testified Foster was in the house asleep during the hour of the rape. He also said Foster got around fairly well on level ground, but limps and cannot run. Foster's mother corroborated this testimony. In addition, a physical therapist testified Foster was admitted to the rehabilitation center where she works after his automobile accident in 1980. Foster's diagnosis was injury to the roots of his spinal nerves and severe injuries to his right lower leg, including severance of his right heel cord. The therapist had last treated Foster in October 1984, and stated Foster never recovered from the heel cord severance, his injury is permanent, he walks with a limp, and it would be difficult for him to run. Foster's attorney attempted to admit Foster's medical records through this witness, but was unsuccessful.

A jury convicted Foster of rape. See Ark.Code Ann. Sec. 5-14-103 (Michie 1987). The Arkansas Supreme Court affirmed Foster's conviction, Foster v. State, 294 Ark. 146, 741 S.W.2d 251 (1987), and in an unpublished opinion, denied Foster's petition for postconviction relief. Foster then filed this habeas petition in federal district court asserting, among other things, that he received ineffective assistance of counsel because his attorney did not seek an impotency test or present other evidence showing Foster is impotent and could not have committed the rape as the victim alleged.

At an evidentiary hearing, Foster presented uncontradicted medical testimony that he is physically impotent and it is very unlikely that he could have committed the alleged rape. A urologist testified that Foster was given a nocturnal penile tumescence test (sleep test) in April 1987, a month after his trial. The test showed Foster is physically impotent. The urologist testified the test has been in use for twenty years and is the recognized test for impotence. According to the urologist, a person with Foster's condition would need help from his sexual partner to achieve an erection, it would have been very difficult for Foster to achieve an erection and ejaculate in a few minutes with a willing partner, and even more difficult for Foster to do so with an unwilling partner. The urologist reviewed the victim's testimony and said that based on Foster's test results, it was "highly, highly unlikely" that Foster could have committed the rape.

Foster also presented the testimony of two former girlfriends who had relationships with Foster in 1985 and early 1987. Both women testified about their attempts to have intercourse with Foster. Most attempts failed. A few attempts were partially successful with one of the women, with her patience and assistance. The woman said that, based on her experience, there was "no way" Foster could penetrate and ejaculate in just a few minutes.

Foster also testified at the evidentiary hearing. Foster said he told his attorney that although he was capable of having sex, he had some serious problems in that area and could not have sex anytime he wanted. Foster asked the attorney about getting a scientific test to prove he was not physically capable of raping anyone because of his sexual dysfunction. Foster also gave his attorney the names of former girlfriends who could testify about his great difficulty engaging in sex. The attorney told Foster that pursuing an impotency defense would be a waste of time because of the alibi defense, that the evidence would "clutter" the trial, that it would be expensive to have a test performed, and that the alibi and impotency defenses were inconsistent. Foster said the attorney told him, "First, you wanted me to prove you were not there. Now you want to prove that if you were there you could not have done it." Foster's sister, a police officer who was present during two of Foster's meetings with his attorney before the trial, confirmed Foster's testimony.

Foster's trial attorney testified that Foster and his sister told him about Foster's impotency, but the attorney believed Foster's main defense was alibi. The attorney said that he did not pursue the impotency defense or arrange a sleep test because Foster told him he could have sex and because an unidentified doctor told him an impotent person could produce sperm. The attorney admitted he may have told Foster and his sister that the defenses of alibi and impotency are inconsistent.

After conducting the evidentiary hearing, the district court ordered that a writ of habeas corpus should issue unless the State retried Foster within 120 days. Foster v. Lockhart, 811 F.Supp. 1363, 1372 (E.D.Ark.1992). The district court held Foster's trial attorney was ineffective for failing to pursue the defense that Foster's impotence rendered him incapable of committing the rape in the manner the victim and State alleged. Id. at 1368-70. The district court also held Foster was denied due process as a result of the prosecution's presentation of false serological evidence. Id. at 1370-72.

To prove ineffective assistance of counsel, Foster must show his attorney's performance was deficient and the deficient performance prejudiced his defense. Alexander v. Armontrout, 985 F.2d 976, 978 (8th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 224, 126 L.Ed.2d 180 (1993). The performance of Foster's attorney was deficient if the attorney's representation was less than objectively reasonable. Id. The attorney's performance prejudiced Foster's defense if there is a reasonable probability that Foster would not have been found guilty of rape in the absence of the deficient performance. Id. A reasonable probability is a probability sufficient to undermine confidence in the trial's outcome. Id.

Lockhart asserts the performance of Foster's attorney was not deficient because the attorney's failure to obtain a sleep test and otherwise pursue an impotency theory was a reasonable choice of trial strategy. We disagree.

Reasonable performance of counsel includes an adequate investigation of facts, consideration of viable theories, and development of evidence to support those theories. An attorney must make a reasonable investigation in preparing a case or make a reasonable decision not to conduct a particular investigation. Kenley v. Armontrout, 937 F.2d 1298,...