Curtis Foster v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 27, 2017
• Docket: 49A02-1603-CR-541
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 27 2017, 8:38 am

regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Johnson Curtis T. Hill, Jr. Darren Bedwell Attorney General of Indiana Marion County Public Defender Ian McLean Appellate Division Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Curtis Foster, January 27, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1603-CR-541 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Robert York, Judge Pro Tempore Trial Court Cause No. 49G06-1404-MR-18875

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-541 | January 27, 2017 Page 1 of 12 [1] Following a jury trial, Curtis Foster (“Foster”) was convicted of murder 1 and

was sentenced to fifty-five years executed. He appeals, raising the following

issue: whether the State committed fundamental error by engaging in

prosecutorial misconduct during closing arguments.

[2] We affirm.

Facts and Procedural History [3] On April 9, 2014, Jerome Warren (“Warren”) and his wife, Genean Hoskin

(“Genean”), along with other family members, were in the front yard of their

home on East 20th Street in Indianapolis, Indiana. Also present were Genean’s

son, Daniel Kelly (“Kelly”), her daughter, Shenean Kelly (“Shenean”), and

Shenean’s young children, and Warren’s son, Jerome Warren, Jr. (“Junior”).

Foster, who was known to the parties on the front yard because he lived in an

apartment complex near Genean’s sister, drove up to the end of the driveway in

front of the house in a black Grand Am. Foster was in the driver’s seat of the

Grand Am, and he had a passenger in the car, who Kelly knew only as

“Oodie.” Tr. at 59.

[4] Kelly and Junior approached Foster’s car and spoke with Foster for a few

minutes. Warren, who did not like Foster, walked over to the car and told

Foster to leave. When Foster did not leave, Warren and Foster exchanged

1 See Ind. Code § 35-42-1-1(1).

Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-541 | January 27, 2017 Page 2 of 12 some heated words, and Warren slapped Foster in the face. Foster then drove

away.

[5] After this incident, Shenean decided to take her children into the house, and as

she came back to the door of the house, she saw Foster returning in his car and

screamed, “Mom, here he comes.” Id. at 203. Foster pulled up in front of the

house at the end of the driveway, and when he stopped, he pointed a handgun

at Kelly and in the direction of the house. Foster tried to fire a shot, but the gun

did not fire on the first attempt. Kelly was able to observe the gun and believed

it to be a .40 caliber handgun. Foster then attempted to shoot the gun again,

and this time, the gun fired. He fired at least four shots, one of which hit

Warren.

[6] Kelly pulled out his own handgun, which was a 9 millimeter semiautomatic,

and returned fire at Foster. Foster drove away as Kelly continued to fire at the

car. Foster lost control of the car at a nearby intersection, crashing into a ditch.

Foster and his passenger exited the car and fled in different directions. Andrew

Lash (“Lash”), who lived nearby and was returning home at the time, saw

Foster’s car lose control and crash. Lash then observed Foster run past him

carrying a handgun.

[7] The shot that hit Warren struck him in the head and passed through his skull,

killing him almost instantly. The bullet was never located. Genean went to

assist her husband, and two neighbors attempted to perform CPR on him.

Genean called 911, but gave the phone to Shenean to complete the report to

Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-541 | January 27, 2017 Page 3 of 12 dispatch. Police were dispatched to the residence at 4:23 p.m., and one

Indianapolis Metropolitan Police Department (“IMPD”) officer arrived at 4:25

p.m. The passenger from Foster’s car was located nearby and detained. Foster

was not arrested until July 17, 2014.

[8] The State charged Foster with murder, unlawful possession of a firearm by a

serious violent felon as a Class B felony, and with a sentencing enhancement for

using a firearm in an offense causing serious bodily injury or death. A jury trial

was held, during which the defense argued that Kelly, not Foster, had shot

Warren. Foster relied on three witnesses for this assertion, Anquinten Brown

(“Brown”), Pamela Atkins (“Atkins”), and an investigator paralegal employed

by defense counsel. Brown, a lifelong friend of Foster’s, testified that Kelly had

called him and asked him to “come and get [Foster]. [Foster] on some

bullshit.” Tr. at 385. Brown alleged that he went to the scene of the crime and

saw Warren lying on the ground in front of the house and Genean in the yard,

“with nobody kneeling down trying to do nothing.” Id. at 398. Brown testified

that Kelly was “trying to say that [Foster] shot his daddy.” Id. at 387. Brown

claimed that he stayed at the scene for about six to ten minutes until he heard

the police approaching, and then he left. Id. at 426. Brown also alleged that

Kelly asked him to meet later in the day and that Kelly said, “Either I shot

[Warren] or [Foster] shot him.” Id. at 390.

[9] Atkins testified that she had a child with Warren and had been in a relationship

with him for many years at the time of his death. She also testified that she had

a conversation with Kelly about a year after the shooting. Atkins stated that

Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-541 | January 27, 2017 Page 4 of 12 Kelly approached her and stated, “I didn’t kill him. I didn’t kill him,” referring

to Warren. Id. at 432. Atkins responded, “The word on the street is that you

shot him.” Id. Although Dr. Joyce Carter, the Marion County Coroner’s Chief

Pathologist who presented Warren’s autopsy findings at trial, had testified that

Warren’s head wound provided insufficient information to determine the

trajectory of the bullet that killed him, an investigator paralegal from defense

counsel’s office testified to measurements he had made, including the height of

the window in a vehicle like the one Foster was driving. Defense counsel later

argued that, according to these measurements, it “would have been impossible

for whoever was in that car” to have fired a shot with the trajectory that killed

Warren. Id. at 474-75.

[10] During closing argument, the State made the following statements:

But like we talked about in voir dire, the witnesses that come up here and tell you what happened, they get the presumption that they are telling you the truth and until they give you a reason to believe otherwise, you are to believe them. Now what did we hear? There were some inconsistencies. But, again, like we talked about in voir dire, people remember things differently.

Id. at 457. Foster did not object to these statements. The State argued that its

witnesses were more credible based partly on corroboration by the physical

evidence. The State also asserted that Foster’s witnesses were less credible due

to inconsistencies in their testimony. In addressing Brown’s testimony, the

State noted that Brown testified that he had been at the scene for six to ten

minutes before the police showed up, but the IMPD records showed that an

Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-541 | January 27, 2017 Page 5 of 12 officer responded two minutes after the 911 call. Further, while Brown stated

that no one was attending to Warren’s body, testimony from other witnesses

established that Genean and two neighbor women were administering CPR. At

the conclusion of the trial, the jury found Foster guilty on the murder charge,

and the State moved to dismiss the remaining counts. The trial court sentenced

Foster to fifty-five years executed. Foster now appeals.

Discussion and Decision [11] When reviewing an allegation of prosecutorial misconduct, we make two

inquiries. First, we determine by reference to case law and rules of conduct

whether the prosecutor engaged in misconduct, and if so, we next determine

whether the misconduct, under all of the circumstances, placed the defendant in

a position of grave peril to which he or she would not have been subjected

otherwise. Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014). The gravity of the peril

is measured by the probable persuasive effect of the misconduct on the jury’s

decision rather than the degree of impropriety of the conduct. Id.

[12] Generally, in order to properly preserve a claim of prosecutorial misconduct for

appeal, a defendant must not only raise a contemporaneous objection but must

also request an admonishment; if the admonishment is not given or is

insufficient to cure the error, then the defendant must request a mistrial. Neville

v. State, 976 N.E.2d 1252, 1258 (Ind. Ct. App. 2012), trans. denied. Here, Foster

concedes that he did not object to the challenged statements made by the

prosecutor during closing argument. Where a defendant does not raise a

Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-541 | January 27, 2017 Page 6 of 12 contemporaneous objection, request an admonishment, or, where necessary,

request a mistrial, the defendant does not properly preserve his claims of

prosecutorial misconduct. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006).

[13] “To prevail on a claim of prosecutorial misconduct that has been procedurally

defaulted, the defendant must establish not only the grounds for the

prosecutorial misconduct, but also the additional grounds for fundamental

error.” Neville, 976 N.E.2d at 1258. Fundamental error is an “extremely

narrow exception” to the contemporaneous objection rule that allows a

defendant to avoid waiver of an issue. Cooper, 854 N.E.2d at 835. “For a claim

of prosecutorial misconduct to rise to the level of fundamental error, it must

‘make a fair trial impossible or constitute clearly blatant violations of basic and

elementary principles of due process and present an undeniable and substantial

potential for harm.’” Neville, 976 N.E.2d at 1258-59 (quoting Booher v. State,

773 N.E.2d 814, 817 (Ind. 2002)). The element of harm is not shown by the

fact that a defendant was ultimately convicted. Id. Instead, it depends upon

whether the defendant’s right to a fair trial was detrimentally affected by the

denial of procedural opportunities for the ascertainment of truth to which he

would have been entitled. Ryan, 9 N.E.3d at 668 (quotation marks omitted).

[14] Foster argues that the prosecutor engaged in misconduct when she made certain

statements during closing argument regarding the presumption that witnesses

are telling the truth. He contends that the prosecutor’s statements were a

misstatement of the law, “invaded the province of the jury in determining

witness credibility, and conflicted with [his] constitutional right to the

Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-541 | January 27, 2017 Page 7 of 12 presumption of innocence.” Appellant’s Br. at 11. Foster alleges that it is

inappropriate for counsel to misstate the law and that an erroneous statement of

the law is misconduct. He further claims that the jury instructions given by the

trial court did not cure the harm done by the prosecutor’s misstatement of the

law and that the prosecutor’s statements constituted impermissible vouching.

Foster asserts that the prosecution’s case depended on the jury believing the

State’s witnesses and that the misstatement of the law, telling the jury had a

legal duty to believe every witness was telling the truth, violated his

presumption of innocence and right to a fair trial.

[15] Foster specifically asserts that the prosecutor committed misconduct by making

the following comments in the State’s closing argument:

But like we talked about in voir dire, the witnesses that come up here and tell you what happened, they get the presumption that they are telling you the truth and until they give you a reason to believe otherwise, you are to believe them. Now what did we hear? There were some inconsistencies. But, again, like we talked about in voir dire, people remember things differently.

Tr. at 457. The State continued to argue that its witnesses were more credible

based partly on corroboration by the physical evidence presented. The State

further contended that Foster’s witnesses were less credible due to

inconsistencies in their testimony, particularly Brown’s, where he (1) claimed to

have been at the scene for six to ten minutes before the police showed up,

although the IMPD records established that an officer responded two minutes

after the 911 call, and (2) stated that no one was attending to Warren’s body at

Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-541 | January 27, 2017 Page 8 of 12 the time he was present, although other testimony established that Genean and

two neighbor women were administering CPR to Warren. Id. at 461-62.

[16] Foster relies on Castillo v State, 974 N.E.2d 458 (Ind. 2012), for his argument

that a prosecutor’s erroneous statement of the law is misconduct even if such

statement is only a “small part of a much longer exposition by the prosecutor in

closing argument, was not repeatedly reiterated, and was countered by a correct

statement of the law in the final instructions.” Id. at 469. In that case, the

defendant was sentenced to life without parole after the prosecutor’s statement

during the penalty phase that “told the jury not to compare the mitigating and

aggravating factors” and “implored the jury to consider the defendant’s

unsavory character” in a “colloquy on the defendant’s character [that]

comprised nearly one-third of the prosecutor’s closing statements to the jury.”

Id. at 468-69. Our Supreme Court held that these statements were misconduct

because the prosecutor urged the jury to act contrary to law in ignoring the

mitigating and aggravating factors and in considering the defendant’s character,

which was not one of the statutory factors to be considered in making its

sentencing decision. Id. at 469-70.

[17] Although, pursuant to the holding of Castillo, a prosecutor’s erroneous

statement of the law is misconduct, we do not find that the prosecutor’s

statements in the present case were erroneous statements of the law. The

Indiana Supreme Court has previously held that jury instructions that inform

the jury “to presume that every witness was telling the truth” are proper and not

error. Timberlake v. State, 690 N.E.2d 243, 258-69 (Ind. 1997), cert. denied, 525

Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-541 | January 27, 2017 Page 9 of 12 U.S. 1073 (1999). Here, as the prosecutor’s statements in closing argument

were not misstatements of the law, we conclude they were proper. The

prosecutor did not engage in misconduct; therefore, Foster was not placed in a

position of grave peril as a result of the prosecutor’s comments. 2

[18] Notwithstanding that we conclude that there was no prosecutorial misconduct,

even had there been, Foster must prove that the State’s actions reached the level

of fundamental error. “In evaluating the issue of fundamental error, our task in

this case is to look at the alleged misconduct in the context of all that happened

and all relevant information given to the jury -- including evidence admitted at

trial, closing argument, and jury instructions -- to determine whether the

misconduct had such an undeniable and substantial effect on the jury’s decision that a

fair trial was impossible.” Ryan, 9 N.E.3d at 668 (emphasis in original).

[19] In looking at the challenged comments in light of these things, we do not

believe that the statements by the prosecutor had a substantial effect on the

jury’s decision, making a fair trial impossible. The remarks that Foster takes

issue with were simply a statement that the jury should start with the theory

that all witnesses were telling the truth; the prosecutor did not specify that the

2 Foster also contends that the prosecutor’s statements during closing constituted improper vouching for the credibility of a witness. “It is inappropriate for the prosecutor to make an argument which takes the form of personally vouching for a witness.” Lainhart v. State, 916 N.E.2d 924, 938 (Ind. Ct. App. 2009). Vouching occurs when an attorney states a personal opinion as to the credibility of a witness. Gaby v. State, 949 N.E.2d 870, 880-81 (Ind. Ct. App. 2011). Here, the prosecutor did not state any personal opinions concerning the credibility of any of the witnesses and, therefore, did not engage in improper vouching.

Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-541 | January 27, 2017 Page 10 of 12 jury should presume only the State’s witnesses were telling the truth.

Therefore, the statements suggested to the jury that it should initially presume

that both the State’s and Foster’s witnesses were telling the truth, and until the

witnesses gave reason to believe otherwise, the jury was to believe them. The

prosecutor’s remarks were mentioned only once and not made repeatedly.

[20] The jury was instructed that Foster was presumed innocent and that the

presumption continued throughout the trial. The jury was given the following

instruction:

If the evidence in this case is susceptible to two (2) constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the guilt of the Defendant and the other to his innocence, it is your duty under the law to adopt that interpretation which is consistent with the Defendant’s innocence and to reject that which points to his guilt.

Appellant’s App. at 83. The jury was also instructed that it should not disregard

the testimony of any witness without a reason and without careful

consideration and that if it found conflicting testimony, it must determine

which witness to believe and which to disbelieve. Id. at 85.

[21] The jury is presumed to follow the trial court’s instructions and not law recited

by counsel during arguments. Laux v. State, 985 N.E.2d 739, 750 (Ind. Ct. App.

2013), trans. denied. See also Chandler v. State, 581 N.E.2d 1233, 1237 (Ind. 1991)

(observing that it is presumed that a jury will obey a trial court’s instructions);

Hudgins v. State, 451 N.E.2d 1087, 1091 (Ind. 1983) (holding that “[a]ny

misstatements of law during closing argument are presumed cured by final Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-541 | January 27, 2017 Page 11 of 12 instruction”). Absent evidence to the contrary, we generally presume the jury

follows the trial court’s instructions in reaching its determination. Gibson v.

State, 43 N.E.3d 231, 241 n.5 (Ind. 2015), cert. denied, 137 S. Ct. 54 (2016). We,

therefore, conclude that in the context of all that occurred during the trial and

all relevant information given to the jury, the alleged misconduct did not have a

substantial effect on the jury’s decision, and it has not been proven that a fair

trial was impossible. Foster has not shown that error, if any, was fundamental.

[22] Affirmed.

May, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-541 | January 27, 2017 Page 12 of 12