The Commission on Capital Cases updates thisinformation regularly.  This information, however, is subject to changeand may not reflect the latest status of an inmate’s case and should not berelied 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 PublicDefender

Attorney, Direct Appeal: Robert F. Moeller – AssistantPublic Defender

Attorney, Collateral Appeals:  Terri Backhus & LeorVeleanu – 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 ofChaos, of which Peter Magnotti, Christopher Black, Derek Shields, ChristopherBurnett, Thomas Torrone, Bradley Young, and Russell Ballard were allmembers.  The stated purpose of the group was to create disorder, throughcriminal acts, in the Fort Myers community. 

On 04/30/96, the members decided to vandalize Riverdale HighSchool and set the auditorium on fire.  While the others remained outside,Foster, Black, and Torrone entered the high school and stole staplers, cannedgoods, and a fire extinguisher to enable them to break into theauditorium.  Around 9:30 p.m., Riverdale’s band teacher, Mark Schwebes,arrived at the auditorium and confronted the group.  Schwebes seized thestolen items and told them that he would report the incident to the campuspolice the next day.  Schwebes then left to have dinner with a friend,David Adkins. 

Black declared that Schwebes “has got to die,” to whichFoster replied that if Black could not do it, he would.  The group decidedto go to Schwebes’ home  and kill him there.  Foster went home to gethis shotgun, and the group obtained Schwebes’ address and telephone number througha telephone operator.  After verifying the address by identifyingSchwebes’ voice on the answering machine, the group obtained a map to confirmthe address, gloves, ski masks, and a license plate that had been stolenearlier, so as to enable their escape. 

Black, Shields, Magnotti, and Foster agreed to participatein the murder, and at

11:30 p.m., the group drove to Schwebes’ house.  Fosterand Shields walked to the door, and Foster hid as Shields knocked on thedoor.  When Schwebes answered the door, Foster stepped between Schwebesand Shields and shot Schwebes in the face and then shot him again in thepelvis. 

Two of Schwebes’ neighbors testified to hearing a car with aloud muffler leave immediately after hearing the two shots fired and seeing thecar drive away.  Shields’ car had a bad muffler.  Police foundFoster’s shotgun, a ski mask, gloves, and a newspaper clipping of the murder inthe trunk of Magnotti’s car.  Foster’s fingerprints were found on theshotgun, the gloves, and the newspaper.  Burnett and Magnotti’sfingerprints were also found on the newspaper. 

All of the group members who participated in the murder andconspiracy cooperated with the State and testified to the facts of thecase.  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 andShields were sentenced to life imprisonment; Magnotti was sentenced tothirty-two years imprisonment; Burnett was sentenced to two years in countyjail for non-homicidal offenses; Torrone was sentenced to one year in countyjail, ten years probation, one hundred hours of community service, andrestitution.

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 themurder, that were the subject of another case (96-1361).

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 ofSentence:

The Direct Appeal was pending from 07/06/98 –02/26/01. 

Case Information:

Foster filed a Direct Appeal with the Florida Supreme Courton 07/06/98, citing the following errors:  denial of numerous pretrialmotions for change of venue, permitting the State to elicit hearsay testimonyof several witnesses, prejudging of the case by the trial court, improperinclusion of the avoid arrest aggravating circumstance, admitting charginginformation at the Spencer hearing, failure to properly consider mitigatingcircumstances, and disproportionate sentencing in comparison to othercases.  The FSC affirmed the conviction and sentence on 09/07/00. 

Foster filed a 3.851 Motion with the Circuit Court on09/27/01 that is pending.

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Report Date:    12/05/01          JFL

Approved:        12/17/01         WS

Updated         05/03/04          JFL