A state appellate court has upheld the second-degree murder conviction of Michial E. Foster, the Deferiet man who had won reversal of an earlier conviction only to be later found guilty a second time of killing Alicia C. VanVranken Wasilewski.
Foster, 56, is serving a sentence of 25 years to life at Attica Correctional Facility for murdering Ms. Wasilewski, 30, his former girlfriend, at her South Meadow Street residence in May 1996. Her body was not discovered for more than a decade; it was found Sept. 15, 2007, in a wooded area off Ives Street Road. Foster was charged in the death two days later.
Following a trial in Jefferson County Court in September 2008, Foster was found guilty of the killing. He appealed the decision, claiming that he should have had the benefit of counsel when he made incriminating statements to a confidential informant who had been placed in his state prison cell by the state inspector generals office. The state Appellate Division, Fourth Department, agreed, reversing his conviction in April 2010 and ordering a new trial.
Following a second trial in October 2010, Foster was again convicted and he again appealed. In a decision released Friday, the appellate court rejected his contention that the conviction was against the weight of the evidence, that he was deprived of effective assistance of counsel and that the court allowed inadmissible hearsay to be entered into testimony against him, among other findings.
Foster maintained that it was impossible for him to have killed Ms. Wasilewski in the time frame outlined by prosecutors. Ms. Wasilewski recently had given birth to a premature boy and was making regular visits to Samaritan Medical Center to nurse the child. It was between scheduled feedings that Foster committed the murder. However, two relatives of Ms. Wasilewski testified that they had seen Foster sweating profusely and breathing heavily at her residence shortly after she left the hospital for the last time.
The couples 17-year-old daughter, who was 3 at the time of the murder, also testified that she had seen Foster roll up her mothers body in a carpet, place it in his van and dump it in a wooded area, telling her that it was just a bunch of trash.
The jailhouse informant, who was allowed to offer limited testimony at the second trial, said Foster had told him the best way to dispose of a body is to wrap it in a blanket and bury it in a grave in a marshy area. Given the consistent testimony, the appellate court determined that an acquittal would have been unreasonable and that the conviction was not against the weight of the evidence.
The court also ruled that Foster had not proved he was provided ineffective counsel based on his contention that his attorney did not cross-examine his daughter about discrepancies in her testimony.
The court further ruled that the lower court did not abuse its discretion in denying a motion by Fosters attorney, John W. Hallett, Watertown, to have a mistrial declared after a witness testified regarding a hearsay statement allegedly made to her by Ms. Wasilewski. The woman, a retired nurse, had been warned by prosecutors not to say that Ms. Wasilewski had told her that if she did not show up for a breast-feeding it was because she was dead.
Oswego County Judge Walter W. Hafner, who presided over the trial, instructed jurors to disregard the statement, and the appellate court ruled that the lower courts prompt curative instruction minimized any prejudice that the improper testimony could have created against Foster.