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
