The Commission on Capital Cases updates this information regularly. This information, however, is subject to change and may not reflect the latest status of an inmate’s case and should not be relied upon for statistical or legal purposes.
FOSTER, Kevin D. (W/M)
DC Y01561
DOB: 06/16/77
Twentieth Judicial Circuit, Lee County Case # 96-1362-B
Sentencing Judge: The Honorable Isaac Anderson, Jr.
Attorney, Trial: Robert R. Jacobs, II – Assistant Public Defender
Attorney, Direct Appeal: Robert F. Moeller – Assistant Public Defender
Attorney, Collateral Appeals: Terri Backhus & Leor Veleanu – CCRC-S
Date of Offense: 04/30/96
Date of Sentence: 05/17/98
Circumstances of Offense:
Kevin Foster was the leader of a group called the Lords of Chaos, of which Peter Magnotti, Christopher Black, Derek Shields, Christopher Burnett, Thomas Torrone, Bradley Young, and Russell Ballard were all members. The stated purpose of the group was to create disorder, through criminal acts, in the Fort Myers community.
On 04/30/96, the members decided to vandalize Riverdale High School and set the auditorium on fire. While the others remained outside, Foster, Black, and Torrone entered the high school and stole staplers, canned goods, and a fire extinguisher to enable them to break into the auditorium. Around 9:30 p.m., Riverdale’s band teacher, Mark Schwebes, arrived at the auditorium and confronted the group. Schwebes seized the stolen items and told them that he would report the incident to the campus police the next day. Schwebes then left to have dinner with a friend, David Adkins.
Black declared that Schwebes “has got to die,” to which Foster replied that if Black could not do it, he would. The group decided to go to Schwebes’ home and kill him there. Foster went home to get his shotgun, and the group obtained Schwebes’ address and telephone number through a telephone operator. After verifying the address by identifying Schwebes’ voice on the answering machine, the group obtained a map to confirm the address, gloves, ski masks, and a license plate that had been stolen earlier, so as to enable their escape.
Black, Shields, Magnotti, and Foster agreed to participate in the murder, and at
11:30 p.m., the group drove to Schwebes’ house. Foster and Shields walked to the door, and Foster hid as Shields knocked on the door. When Schwebes answered the door, Foster stepped between Schwebes and Shields and shot Schwebes in the face and then shot him again in the pelvis.
Two of Schwebes’ neighbors testified to hearing a car with a loud muffler leave immediately after hearing the two shots fired and seeing the car drive away. Shields’ car had a bad muffler. Police found Foster’s shotgun, a ski mask, gloves, and a newspaper clipping of the murder in the trunk of Magnotti’s car. Foster’s fingerprints were found on the shotgun, the gloves, and the newspaper. Burnett and Magnotti’s fingerprints were also found on the newspaper.
All of the group members who participated in the murder and conspiracy cooperated with the State and testified to the facts of the case. Schwebes’ friend, David Adkins, testified that he saw Schwebes’ vehicle parked at the spot where Schwebes had confronted the group.
Codefendants Information:
Pursuant to plea agreements with the State, Black and Shields were sentenced to life imprisonment; Magnotti was sentenced to thirty-two years imprisonment; Burnett was sentenced to two years in county jail for non-homicidal offenses; Torrone was sentenced to one year in county jail, ten years probation, one hundred hours of community service, and restitution.
Additional Information:
At the time of the murder, Foster had no criminal record, but his current prison record shows other crimes, related to the evening of the murder, that were the subject of another case (96-1361).
|
Offense Date |
Offense |
Sentence Date |
County |
Case No. |
Prison Sentence Length |
|
|
|
04/19/1996 |
ARSON,WILLFUL DAMA.STRUCT. |
02/05/1999 |
LEE |
9601361 |
4Y 0M 0D |
|
|
|
04/26/1996 |
ROBBERY W/FIREARM OR D/WEAPON |
02/05/1999 |
LEE |
9601361 |
4Y 0M 0D |
|
|
|
04/30/1996 |
1ST DG MUR/PREMED. OR ATT. |
06/17/1998 |
LEE |
9601362 |
DEATH SENTENCE |
|
|
|
05/03/1996 |
ROBBERY W/FIREARM OR D/WEAPON |
02/05/1999 |
LEE |
9601361 |
4Y 0M 0D |
|
|
Trial Summary:
05/21/96 Indicted on one count of First-Degree Murder
05/22/96 Pled not guilty
03/11/98 Jury returned a guilty verdict
04/09/98 Jury recommended a death sentence by a vote of 9-3
05/17/98 Sentenced to death
Appeal Summary:
Florida Supreme Court – Direct Appeal
FSC# 93,372
778 So.2d 906
07/06/98 Appeal filed
09/07/00 FSC affirmed conviction and sentence
01/22/01 Rehearing denied
02/26/01 Mandate issued
Circuit Court – 3.851 Motion
CC# 96-1362-B
(Pending)
09/27/01 Motion filed
Factors Contributing to the Delay in Imposition of Sentence:
The Direct Appeal was pending from 07/06/98 – 02/26/01.
Case Information:
Foster filed a Direct Appeal with the Florida Supreme Court on 07/06/98, citing the following errors: denial of numerous pretrial motions for change of venue, permitting the State to elicit hearsay testimony of several witnesses, prejudging of the case by the trial court, improper inclusion of the avoid arrest aggravating circumstance, admitting charging information at the Spencer hearing, failure to properly consider mitigating circumstances, and disproportionate sentencing in comparison to other cases. The FSC affirmed the conviction and sentence on 09/07/00.
Foster filed a 3.851 Motion with the Circuit Court on 09/27/01 that is pending.
________________________________________________________________________
Report Date: 12/05/01 JFL
Approved: 12/17/01 WS
Updated 05/03/04 JFL