Foster v. State, No. SC11-1761

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM
PartiesKEVIN DON FOSTER, Appellant, v. STATE OF FLORIDA, Appellee.
Docket NumberNo. SC11-1761
Decision Date17 October 2013


No. SC11-1761

Supreme Court of Florida

October 17, 2013


Kevin Don Foster appeals an order of the circuit court denying his motion filed under Florida Rule of Criminal Procedure 3.850 to vacate the judgment of conviction of first-degree murder and sentence of death. Because the order concerns postconviction relief from a capital conviction for which a sentence of death was imposed, this Court has jurisdiction under article V, section 3(b)(1), Florida Constitution. For the reasons that follow, we affirm the circuit court's order denying postconviction relief.

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Kevin Foster was convicted of the April 1996 first-degree murder of Mark Schwebes, the Riverdale High School band teacher, in Fort Myers, Florida. Foster, eighteen years of age, did not attend Riverdale High School at the time. However, he was the leader of a group that called itself "Lords of Chaos," which did include students from that school. In furtherance of a mission to carry out widespread vandalism in the community, Foster and five other members of the group decided to vandalize Riverdale High School and set its auditorium on fire on the night of April 30, 1996. That plan was interrupted, however, when Schwebes drove up to the auditorium and confronted two members of the group—Christopher Black and Thomas Torrone—about the vandalism. Foster was not confronted because he had run away. Later, after Black told Foster that Schwebes was planning to contact the school resource officer the next day, Foster agreed with Black that Schwebes "must die." Foster, along with Black and Lords of Chaos members Peter Magnotti and Derek Shields, went to Foster's home where Foster obtained a shotgun which he loaded with #1 buckshot, a map to locate Schwebes' home, gloves, and ski masks. After calling Schwebes' telephone number to confirm he was home, Foster, Black, Magnotti, and Shields went to Schwebes' home. On the way to Schwebes' home they stopped and placed a stolen license tag on Shields' vehicle. When Schwebes answered their knock on the door, Foster shot him in the face with

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the shotgun that he brought with him. Foster then shot Schwebes a second time in the pelvis.

After a jury trial at which the members of the Lords of Chaos who had participated in the murder and the conspiracy testified against Foster in exchange for plea deals, Foster was convicted of first-degree murder. The penalty phase resulted in a jury recommendation of death by a nine-to-three vote. After finding two aggravating factors1 and rejecting or attaching little to no weight to the twenty-three mitigators offered by Foster,2 the trial court sentenced Foster to death. Foster appealed and this Court affirmed in Foster v. State, 778 So. 2d 906 (Fla. 2000).

Foster raised seven issues on direct appeal: (1) his numerous pretrial change of venue motions were improperly denied; (2) the court erred in permitting the State to elicit hearsay testimony of several witnesses; (3) comments of the trial judge during the guilt phase demonstrated that the court had prejudged the case;

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(4) the avoid arrest aggravator should not have been submitted to the jury in the penalty phase; (5) the trial court erred in admitting charging information concerning other crimes at the Spencer hearing; (6) the trial court failed to properly consider the mitigating circumstances and its findings are unclear; and (7) the sentence was disproportionate in comparison to other cases. See Foster, 778 So. 2d at 912 n.8.

As to the motions for change of venue, this Court held that although there was a "great deal of publicity about the case in the local community," the trial court properly denied the motions for change of venue. Id. at 913. We concluded that "the media coverage as a whole did not reach such an inflammatory level to have irreversibly infected the community so as to preclude an attempt to secure an impartial jury." Id. We also noted that the jurors who were impaneled in Foster's case did not indicate they had been exposed to the "more egregious" examples of publicity cited by Foster. Id. at 914.

Foster raised several hearsay claims on appeal. As to the first hearsay claim, Foster contended that the trial court erred in admitting double hearsay contained in the statements of Magnotti, Shields, and another member of the group, Bradley Young, that Black told them Schwebes had threatened to go to the Riverdale High School campus police. Id. at 915. We held that this testimony was properly admitted to establish knowledge and motive, not the truth of the matter asserted.

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Foster, 778 So. 2d at 915. Foster also contended that the testimony of Young, Magnotti, and Shields that Black said Schwebes "had to die" was inadmissible hearsay. Id. We held this testimony was not inadmissible hearsay because it was not admitted to prove Schwebes had to die, but was admitted to establish the conspiracy and Foster's part in it, pursuant to the hearsay exception in section 90.803(18)(e), Florida Statutes (1997). Id. For this same reason, other testimony about planning and carrying out the killing, such as that relating to finding Schwebes' address, replacing the birdshot in the shotgun with more lethal ammunition, and subsequent conversations about the murder, was also properly admitted. Id.

Foster also challenged the testimony of David Adkins, whom Schwebes had dinner with shortly after the confrontation at the auditorium. Adkins testified that Schwebes told him he planned to report the group. Although we held this testimony to be inadmissible hearsay, we concluded it was harmless. Id. at 916. In the next hearsay claim, Foster challenged the redirect testimony of Shields about a prior consistent taped statement he gave to law enforcement immediately after his arrest and before any plea negotiations. We held that the testimony was not improper hearsay because it was offered to rebut an express or implied charge made in cross-examination of Shields that his testimony resulted from the improper influence of his plea deal. Id. The last hearsay claim on direct appeal concerned

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the testimony of Peter Magnotti's mother, who related a telephone conversation she had with Ruby Foster, Foster's mother, in which Ms. Foster attempted to persuade Ms. Magnotti to help create an alibi for Foster. See id. at 917. We held that this testimony was improper hearsay but concluded that the error was harmless. Id. Foster's other claims on direct appeal were found to be without merit.

Because the postconviction claims for which Foster was given an evidentiary hearing concern the penalty phase of trial, we briefly review that portion of the trial proceedings next. A discussion of the defense evidence in the penalty phase of the trial is set forth in this Court's direct appeal opinion, in pertinent part, as follows:

The defense presented numerous witnesses who presented a picture of Foster as a kind and caring person. May Ann Robinson, Foster's neighbor, testified that he once helped her start her car and offered to let her borrow a lawn mower. Robert Moore, another neighbor, testified that Foster was well-mannered and a hard worker. Shirley Boyette found Foster to be very caring, intelligent, and well-mannered. Robert Fike, Foster's supervisor at a carpentry shop, and James Voorhees, his co-worker, found him to be a reliable worker. Voorhees also testified that Foster was very supportive to Voorhees' son who suffered from and eventually died of leukemia. Similarly, Raymond and Patricia Williams testified that Foster was very nice to their son who suffered from spina bifida. Peter Albert, who is confined to a wheelchair, related how Foster had helped Albert's mother care for him after his wife died. Foster also helped Albert in numerous other ways, including preparing his meals, fixing things around the house, and helping Albert in and out of his swimming pool.

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There was additional testimony that described Foster's involvement with foreign exchange students. Foster was also known to have given positive advice to young children. Foster's sister, Kelly Foster, testified to how he obtained his GED after dropping out of high school and that he obtained a certificate for the completion of an "auto cad" program at a vocational-technical school. Finally, Foster's mother testified that he was born prematurely and suffered from allergies, and that Foster's father abandoned him a month after birth. On cross-examination, many of the witnesses who testified to Foster's kindness admitted that they had not been in contact with him for a number of years.

Foster, 778 So. 2d 911-12. Foster's mother also presented a lengthy photographic slide show created by her and the defense team containing photographs of Foster during his childhood and with family and friends. The photographs depicted Foster's childhood as normal and one in which he had the advantages of a loving family, vacations in America and abroad, and many friends.

After the penalty phase of trial, a Spencer3 hearing was held at which the victim's sister testified to victim impact evidence. Over objection, the State also submitted a copy of the charges brought against Foster in a separate case— charging Foster with twenty-seven crimes allegedly committed by Foster and the Lords of Chaos—as evidence going toward proof of the avoid arrest aggravator. On direct appeal, we concluded that...

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