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Foster v. State

The trial court properly found that the defendant did not show that his counsel was ineffective in failing to investigate and call a certain witness.

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After a jury trial, Omari Foster was convicted of one count of armed robbery. At the hearing on Foster’s motion for a new trial, the trial court found that although Foster’s counsel’s performance was deficient, Foster was not prejudiced by that performance. Foster appeals, contending that his counsel was ineffective in failing to investigate and call a witness, and that the trial court erred in finding that this witness’ testimony was based upon “rumored hearsay” and “impeachment evidence” and thus presented no reasonable probability of a different outcome at trial. For the reasons that follow, we affirm.

To prevail on an ineffective assistance of counsel claim, a criminal defendant must show both that his counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.1 The trial court already has determined that Foster’s counsel’s performance was deficient. For Foster to show prejudice, however, “the likelihood of a different result must be substantial, not just conceivable.”2 “We accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”3

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