Foster v. State, 132 So. 3d 40

Background

Kevin D. Foster (age 18 at offense) led a group (“Lords of Chaos”) that planned vandalism; Foster shot and killed teacher Mark Schwebes in April 1996 with a shotgun and was convicted of first-degree murder and sentenced to death after a 9–3 jury recommendation.
Trial admitted co-defendant statements and other evidence establishing conspiracy, motive, and planning; defense presented extensive "humanizing" mitigation (24 witnesses, photos) but court found two aggravators: avoid-arrest and cold, calculated, premeditated.
On direct appeal this Court affirmed conviction and sentence (Foster v. State, 778 So.2d 906 (Fla. 2000)), finding most trial rulings proper and some hearsay errors harmless.
Foster filed a Rule 3.850 motion asserting multiple ineffective-assistance, juror-misconduct, newly discovered evidence, and Eighth Amendment (lethal injection/death-penalty system) claims; the circuit court held an evidentiary hearing on a subset of penalty-phase ineffective-assistance claims and denied relief.
Postconviction evidentiary hearing developed competing expert opinions on neuropsychological impairment; trial counsel had obtained early psychiatric evaluation and family uniformly denied mental-illness, abuse, or head-injury history prior to trial.
The circuit court found counsel’s investigation and penalty strategy reasonable, credibility determinations favored the State’s experts on several points, and no prejudice under Strickland; this Court affirms the denial of the 3.850 motion.

Issues

Issue	Foster's Argument	State/Respondent's Argument	Held
Counsel abdicated mitigation to mother	Trial counsel delegated mitigation investigation to Foster’s mother and failed to probe or verify her version	Counsel and Foster made strategic choices; defense conducted investigation, presented humanizing mitigation, and family gave no adverse leads	Denied — no deficient performance; strategy reasonable and no prejudice shown
Counsel failed to investigate/present mental/neuro testing	Counsel should have pursued neuropsychological testing and presented brain-injury/bipolar/depression evidence	Early psychiatric evaluation showed no red flags; family denied mental issues; later experts relied on self-reporting; no objective records indicating need	Denied — no obligation to investigate every conceivable lead; no reasonable probability of different outcome
Juror misconduct / Brady/Giglio (undisclosed prior DUI; pretrial publicity)	Juror nondisclosures and media exposure were material and withheld/improperly allowed	The undisclosed DUI was remote/nonmaterial; juror media claims speculative and concerns about deliberations inhere in verdict; Brady/Giglio not established	Denied — allegations legally insufficient or refuted by record; no materiality or prejudice shown
Challenge to forensic evidence and expert testimony (ballistics, tool-mark)	Trial counsel should have retained/excluded experts; Frye/Federal standards should have been demanded; modern critiques of forensics show unreliability	Tool-mark/ballistics methods used are long-established; claims are conclusory; 2009 NAS report not newly discovered or case-specific	Denied — methods not novel; claim conclusory and no showing of material unreliability
Lethal injection / Eighth Amendment challenge	Use of pentobarbital (procurement/regulatory issues) creates substantial risk of severe pain; evidentiary hearing needed	Prior decisions uphold pentobarbital use absent evidence of imminent risk; allegations speculative and non-specific	Denied — Court’s precedent rejects speculative Eighth Amendment challenge
Cumulative error and jury instruction/burden-shifting claims	Multiple errors collectively denied a fair trial; standard jury instructions diluted jury role or shifted burden	Many claims were previously raised or are procedurally barred; standard instructions upheld in precedent	Denied — cumulative-error claim fails where component claims are meritless or barred; instructions constitutional

Key Cases Cited

Foster v. State, 778 So.2d 906 (Fla. 2000) (direct appeal affirming conviction and penalty)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong ineffective assistance standard: deficient performance and prejudice)
Porter v. McCollum, 558 U.S. 30 (U.S. 2009) (prejudice standard for penalty-phase ineffective assistance)
Sochor v. State, 883 So.2d 766 (Fla. 2004) (mixed questions of law and fact for Strickland review)
Jones v. State, 998 So.2d 573 (Fla. 2008) (when indicia of mental problems exist, evaluation is fundamental)
Baze v. Rees, 553 U.S. 35 (U.S. 2008) (Eighth Amendment risk standard for method of execution)
Brady v. Maryland, 373 U.S. 83 (U.S. 1963) (prosecution's duty to disclose favorable evidence)
Giglio v. United States, 405 U.S. 150 (U.S. 1972) (prosecutor must correct false testimonial evidence)