Foster v. State
| Decision Date | 03 May 2012 |
| Docket Number | No. 02A04–1107–PC–398.,02A04–1107–PC–398. |
| Citation | 967 N.E.2d 579 |
| Parties | Gregory FOSTER, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent. |
| Court | Indiana Appellate Court |
967 N.E.2d 579
Gregory FOSTER, Appellant–Petitioner,
v.
STATE of Indiana, Appellee–Respondent.
No. 02A04–1107–PC–398.
Court of Appeals of Indiana.
May 3, 2012.
Appeal from the Allen Superior Court; The Honorable Frances C. Gull, Judge; Cause No. 02D04–0604–PC–51.
Joseph M. Cleary, Collignon & Dietrick, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
RILEY, Judge.
Appellant–Petitioner, Gregory Foster (Foster), appeals the post-conviction court's denial of his petition for post-conviction relief.
We affirm.
Foster raises three issues on appeal, which we consolidate and restate as the following two issues:
(1) Whether the post-conviction court erred in finding that he received the effective assistance of counsel; and
(2) Whether the post-conviction court erred in denying his petition for postconviction relief despite Foster's claim of newly discovered evidence.
In Foster v. State, 795 N.E.2d 1078, 1082–84 (Ind.Ct.App.2003), trans. denied., we outlined the facts of this case as follows:
On November 18, 2000, at approximately 3:00 a.m., S.J. was walking from her apartment to visit a friend. S.J. lived in the Eden Green Apartments in Fort Wayne, Indiana. As S.J. walked down the street, Foster drove by in a white Toyota Canny, and called out the name “Diane,” thinking that S.J. was her aunt. S.J. informed Foster that she was not Diane and told him her first name. Foster offered S.J. a ride because it was late at night and she was walking alone. S.J. accepted the ride and entered the car. Once S.J. entered the car, Foster drove in the opposite direction of S.J.'s intended destination.
As a result, S.J. informed Foster that he was going in the wrong direction. Foster told S.J. that he had to take care of some business first and encouraged her to calm down. At this point, S.J. became worried, but she was not scared. However, S.J. asked Foster several times to stop in order to let her out of the car. Foster ignored her requests and continued to drive to the Canterbury Green Apartments, on the other side of town. Foster parked in a carport and left the car for about five minutes. S.J. testified that she remained in the car for the following reasons: (1) it was late, (2) she did not know the area, (3) it was dark, and (4) mostly white people, who she did not think would help her, inhabited the Canterbury Green Apartments.
When Foster reentered the car, he placed a black handgun on the dashboard and drove to Shoaff Park located in Fort Wayne, Allen County, Indiana. After seeing the handgun, S.J. was scared, and she began to cry. Again, S.J. informed Foster that she wanted to go home. Foster told S.J. to shut up. Then, Foster parked the car in a dark area of Shoaff Park surrounded by trees. He ordered that S.J. perform oral sex on him. When Foster threatened to use the handgun, S.J. performed oral sex on him as he requested. Afterwards, Foster instructed S.J. to pull her pants off and sit back in her seat. When S.J. complied, Foster lay on top of her, and engaged in sexual intercourse with her. S.J. testified that she cried and asked Foster to stop, but that he just told her to shut up and stop crying. Foster ejaculated on S.J.'s thigh and ordered her out of the car. S.J. testified that she refused to exit the car because she thought Foster would kill her if she exited the car. When S.J. refused to exit the car, Foster drove her back to her apartment. As Foster drove away, S.J. remembered the license plate number of the car Foster was driving.
As S.J. stood outside, she saw Fort Wayne Police Officer James King (Officer King) in a store parking lot. S.J. approached Officer King and told him that she had been raped. S.J. was hysterical and Officer King calmed her down before taking her statement. S.J. provided Officer King with a description of her attacker, and a description of the car he was driving with the license plate number. Officer King contacted the medics for S.J. S.J. was taken to the Sexual Assault Treatment Center and examined by Nurse Stephanie Good (Nurse Good). Nurse Good completed a rape kit for S.J. S.J. reported that her upper arms were tender. There were also fresh bruises on her lower extremities. In the meantime, Officer King ran the license plate number provided by S.J. and discovered that the car was registered to Shirley Foster, Foster's mother. S.J. later identified Foster from a photo array.
Indiana State Police DNA Analyst, Mary Reed [ (DNA Analyst Reed) ], performed a DNA analysis on several of the samples from S.J.'s rape kit. The swab taken from S.J.'s left thigh was consistent with Foster's DNA. [DNA Analyst Reed] testified that one African–American in fifty-eight billion would match the DNA found on S.J.'s left thigh and external genitalia. The vaginal and cervical swabs were consistent with S.J., Foster, and an unknown third contributor. The swab taken from S.J.'s right groin area was also consistent with both S.J. and Foster.
On November 21, 2000, Fort Wayne Detective Hilda Williams (Detective Williams) interviewed Foster. Detective Williams testified that, at first, Foster denied that he picked up a girl during the early hours of November 18, 2000. However, Detective Williams testified that Foster later claimed that he picked up a girl, on November 18, 2000, and drove her one block up the street, but that no sexual contact occurred.
On February 16, 2001, the State of Indiana filed [an Information], charging Foster with Count I, rape, a Class A felony; Count II, criminal deviate conduct, a Class A felony; and Count III, criminal confinement, a Class B felony. On March 5, 2001, a warrant was issued for Foster's arrest. Foster was arrested pursuant to the warrant on March 7, 2001. On March 9, 2001, the trial court held Foster's initial hearing. On April 25, 2001, the State filed an additional [I]nformation alleging that Foster was a habitual offender, I.C. § 35–50–2–8.
* * *
A jury trial was held on April 23–24, 2002. On April 24, 2002, during a hearing held outside of the presence of the jury regarding final instructions, Foster objected to the State's tendered final instruction providing that a conviction can rest on the uncorroborated testimony of the victim, if believed beyond a reasonable doubt. The trial court gave the instruction over Foster's objection. On the same date, the jury found Foster guilty of rape, criminal deviate conduct, and criminal confinement. The jury also determined that Foster was a habitual offender.
On May 20, 2002, a sentencing hearing was held. The trial court sentenced Foster to the Indiana Department of Correction for a period of fifty (50) years on Count I, enhanced by a term of thirty (30) years due to his habitual offender status; fifty (50) years on Count II; and twenty (20) years on Count III, for an aggregate sentence of 150 years; each sentence to run consecutively to the others.
On appeal, Foster raised three issues with respect to his conviction and sentence: (1) whether the trial court committed reversible error when it instructed the jury that the sole and uncorroborated testimony of the alleged victim, if believed beyond a reasonable doubt, was sufficient to support a conviction; (2) whether the trial court properly denied Foster's motions for discharge pursuant to Indiana Criminal Rule 4; and (3) whether Foster's 150–year sentence was proper. Id. at 1082. On September 17, 2003, we affirmed his conviction and sentence. Id.
On April 27, 2006, Foster filed a petition for post-conviction relief, which he subsequently amended on January 19, 2010. In his amended petition, Foster alleged that (1) his trial and appellate counselors had provided him with ineffective assistance; (2) the State had failed to disclose material exculpatory evidence; and (3) there existed newly discovered material and exculpatory evidence that warranted a new trial for Foster.1 On August 27, 2010, the post-conviction court held an evidentiary hearing on Foster's petition, and on June 15, 2011, the post-conviction court denied the petition.
Foster now appeals. Additional facts will be provided as necessary.
On appeal from the denial of post-conviction relief, a petitioner stands in the position of one appealing from a negative judgment. Mauricio v. State, 941 N.E.2d 497, 498 (Ind.2011). In such cases, a petitioner must show that the evidence, taken as a whole, leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Id. We do not defer to the post-conviction court's legal conclusions, but we will reverse only on a showing of clear error. Id. Moreover, this court will only consider the probative evidence and all reasonable inferences therefrom that support the post-conviction court's determination. Bigler v. State, 732 N.E.2d 191, 194 (Ind.Ct.App.2000), trans. denied. We will not reweigh the evidence. Id.
Foster first contends that he received ineffective assistance from both his trial and appellate counsel. The effective assistance of counsel is a right that is guaranteed to all criminal defendants by the Sixth Amendment to the United States Constitution and Article I, section 13 of the Indiana Constitution. In order to establish ineffective assistance of counsel, a defendant must fulfill both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reh'g denied. Specht v. State, 838 N.E.2d 1081, 1087 (Ind.Ct.App.2005), trans. denied. First, the defendant must prove that his or her counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms, and, second, that there is a reasonable probability that, but for counsel's failure to meet prevailing...
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