Kevin Don Foster

Case information

Kevin Don Foster was born Kevin Donald Bates on June 16, 1977, in Amarillo, Texas. He was sentenced to death on May 17, 1998. He was convicted of first-degree murder in the Twentieth Judicial Circuit, Lee County (Case # 96-1362-B). The sentencing judge was The Honorable Isaac Anderson, Jr.

Timeline

• 04/30/96 — Kevin Foster and members of the Lords of Chaos killed Mark Schwebes.
• 05/21/96 — Foster was indicted on one count of First-Degree Murder.
• 05/22/96 — Foster entered a plea of not guilty.
• 03/11/98 — The jury returned a guilty verdict.
• 04/09/98 — The jury recommended a death sentence by a vote of 9-3.
• 05/17/98 — Foster was sentenced to death.

The offence

Kevin Foster was the leader of a group called the Lords of Chaos, a self-styled teen militia group. The stated purpose of the group was to create disorder in the Fort Myers community through criminal acts.

On April 30, 1996, Foster and three of the group’s members—Chris Black, Peter Magnotti and Derek Shields—went to the home of Riverdale High School music teacher Mark Schwebes after Schwebes caught Black preparing to tag the school earlier. Shields was in Schwebes’s class.

Foster shot Mark Schwebes twice, killing him. Foster shot him “in the face” and then “in the pelvis.” Authorities believed the first shot killed Schwebes instantly, and authorities also believed a second shot in the pelvis was fired afterward.

The group 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.

On the evening of the confrontation, Mark Schwebes arrived at the auditorium and confronted the group. Schwebes seized the stolen items and told the group he would report the incident to campus police the next day. Schwebes then left to have dinner with a friend, David Adkins.

Black declared that Schwebes “has got to die,” and Foster replied that if Black could not do it, he would. The group then decided to go to Schwebes’ home and kill him there.

Foster went home to get his shotgun. The group obtained Schwebes’ address and telephone number through a telephone operator. The group verified the address by identifying Schwebes’ voice on the answering machine, and obtained a map to confirm the address. The group obtained gloves, ski masks, and a license plate that had been stolen earlier in order to enable their escape.

At about 11:30 p.m., the group drove to Schwebes’ house. Foster and Shields walked to the door; Foster hid as Shields knocked. When Schwebes answered, Foster stepped between Schwebes and Shields and shot him in the face, 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 and seeing the car drive away. Shields’ car had a bad muffler.

Foster left two spent shotgun shells at the scene. Foster left the shells because he mistakenly believed it was impossible to trace shells back to his shotgun because it was a smooth bore weapon.

A rare look narrative in the record described the murder of a teacher and included a character focus on “Mark Schwebes” as a teacher and a story framing around the aftermath and subsequent events.

Investigation

Lead detectives initially focused on a love triangle they believed Mark Schwebes had been caught up in. Police theorized about a connection to the pellets lodged in the victim’s pelvis and whether there were “sexual connotations in a homicide” and “why is that there?” During the investigation, detectives also examined gossip from the teachers’ lounge about Schwebes being involved with a teacher breaking up from her boyfriend.

After the killing, members of the group and its hangers-on began bragging about the murder. On May 2, Craig Lesh bragged to his ex-girlfriend, Julie Schuchard, that the Lords of Chaos had killed the teacher and that he had been present and was the one who had knocked on the door. On May 3, after a restless night, Schuchard decided that she had to alert authorities and tell them what she knew.

From Schuchard, detectives learned not only about the group’s murder of Mark Schwebes but also about plans to commit an armed robbery at a Hardee’s restaurant where Magnotti and Shields worked. Detectives questioned Craig Lesh and learned he had not actually been present during the murder. Detectives also learned about the Coca-Cola bottling plant bombing, which led to arrests of key members on their way to commit the Hardee’s robbery.

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 group members who participated in the murder and conspiracy cooperated with the State and testified.

Schwebes’ friend, David Adkins, testified that he saw Schwebes’ vehicle parked at the spot where Schwebes had confronted the group.

Arrest

Detectives learned about the murder and conspiracy from Schuchard and then questioned Craig Lesh. Brad Young and Craig Lesh were quickly released with no charges filed against them. Chris Black and Derek Shields were arrested as part of the broader arrests that occurred while the key members were on their way to commit the Hardee’s robbery.

Trial

Parties and legal representation

The case listing included:

• Foster’s sentencing judge: The Honorable Isaac Anderson, Jr.
• Trial attorney: Robert R. Jacobs, II — Assistant Public Defender
• Trial attorney listing also included: Marquin Rinard (associated with Foster’s attorneys)
• Direct appeal attorney: Robert F. Moeller — Assistant Public Defender
• Collateral appeals: Terri Backhus & Leor Veleanu — CCRC-S
• Lee County Prosecutors listed as Marshall King Hall, Bob Lee and Randy McGruther.

Co-defendants and outcomes

Pursuant to plea agreements with the State:

• Chris Black and Derek Shields were sentenced to life imprisonment.
• Peter Magnotti was sentenced to 32 years in prison.
• Christopher Burnett (Burnett) was sentenced to two years in county jail for non-homicidal offenses, received 10 years probation, and was stated to have received restitution.
• Thomas Torrone (Torrone) was sentenced to one year in county jail, ten years probation, one hundred hours of community service, and restitution.

In March 1997, Magnotti pleaded guilty to first degree murder and was sentenced to 32 years—stated as one for each year of Mark Schwebes life—and agreed to testify. Two weeks before Shields’ trial, Shields pleaded guilty to first degree murder and later October by Black; both received life imprisonment.

All co-defendants who participated in the murder and conspiracy cooperated with the State and testified.

Foster’s plea and verdict

• 05/22/96 — Foster pled not guilty.
• 03/11/98 — The jury returned a guilty verdict of first-degree murder.

Sentencing recommendation and sentence

• 05/17/98 — Judge Isaac Anderson agreed with the jury’s recommendation and sentenced Foster to death.

During penalty phase proceedings, the jury decided whether Foster should receive the death penalty or recommend life imprisonment without the possibility of parole. The jury recommended death by 9 to 3.

A recorded quote preserved in the record included the judge’s statement:

Judge Anderson: For the murder for Mark Schwebes, the defendant is hereby sentenced to death. It is further ordered....

Appeals

Foster filed a Direct Appeal with the Florida Supreme Court on 07/06/98. The appeal cited 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,
• disproportionate sentencing in comparison to other cases.

The Florida Supreme Court affirmed the conviction and sentence on 09/07/00.

Foster filed a 3.851 Motion with the Circuit Court on 09/27/01 that was pending.

Other details

The Lords of Chaos group formation and criminal acts

The record described the Lords of Chaos as a self-styled teen militia formed on April 13, 1996, in Fort Myers, Florida. The record stated the group operated in Fort Myers and gained notoriety for a crime spree ending with the April 30, 1996 murder of Mark Schwebes, who served as Riverdale High School’s band director.

A “Formation of the Lords of Chaos” section described additional prior acts:

• On April 13, 1996, Kevin Foster, Pete Magnotti and Chris Black went on a vandalism and arson spree.
• Florida juvenile records were described as showing that only Kevin Foster had prior arrests or any kind of criminal history, primarily driving violations; the other members had no arrest history.
• The first spree was followed by a second that included an attempt to burn a Baptist church bus.
• Subsequently, the burning of a bird cage at The Hut resulted in the deaths of two macaws.
• After the night of destruction, Kevin Foster decided that they should form a militia dedicated to reigning terror upon the community.

The record described the group’s symbol ( ( Ø ) ) as an in-joke: Foster missed a question on a math test, and wrote ( Ø ) as the answer to a question whose answer was “no set,” leading to it being marked incorrect.

The record described core members and nicknames:

• Kevin “God” Foster
• Pete “Fried” Magnotti
• Chris “Slim” Black
• Derek “Mob” Shields

The record listed additional associates:

• Chris “Red” Burnett
• Thomas “Dog” Torrone
• Brad Young
• later Craig Lesh.

Declaration of War manifesto and escalation

The record included an East Lee Tribune article titled “Hell Raising in Buckingham,” quoting a description and insults aimed at unknown vandals calling them: “obviously pea-brained vandals” and “person(s) of less than average intelligence and a cretin’s personality”.

On April 17, 1996, the group wrote a document titled “Declaration of War--Formal Introduction of Lords of Chaos,” which they planned to mail to the Lee County Clerk/Traffic Violations Bureau but ultimately did not.

The record preserved manifesto text: “Lee County is dealing with a formidable foe, with high caliber intelligence, balls of titanium alloy, and a wicked destructive streak. . . . Be prepared for destruction of biblical proportions, for this is the coming of a NEW GOD, whose fiery hand shall lay waste to the populous. THE GAMES HAVE JUST BEGUN, AND TERROR SHALL ENSUE. . .”

In the early morning hour of April 20, 1996, the record described the group destroying a historic 12,300-square-foot (1,140 m²) two-story brick Coca-Cola bottling plant in Fort Myers. It described Foster’s original plan to destroy the building on April 19 in emulation of the Oklahoma City bombing that occurred one year before on April 19, and described Foster’s view of retaliation for the Waco Siege that occurred on April 19, 1993.

The record described that Foster used a can of Pepsi filled with gunpowder with a twenty-five-foot fireworks fuse to destroy the building. It described other boys arranging propane tanks stolen from a local Starvin Marvin around the building. It described an intense explosion about thirteen minutes later and estimated $100,000 in damages. Because a bomb was used, authorities contacted the Bureau of Alcohol, Tobacco and Firearms (ATF).

Armed robbery and carjacking attempt

On April 26, the record described Kevin Foster and Peter Magnotti robbing and carjacking Emory Lewis, Derek Shields’ landlord and owner of the local Alva County Diner. Lewis was uninjured in the attack.

School confrontation and murder sequence details

On April 30, the record described the group deciding to steal clothes at a local Dillard’s for an upcoming “Grad Nite” at Walt Disney World, with Foster planning to steal a character’s costume as a disguise to shoot minorities at the amusement park.

The record described Foster rigging a smoke grenade purchased at an Army/Navy store with fishing wire; it proved to be a dud. The group then decided to vandalize the Riverdale High auditorium. It described stolen items: latex gloves, a fire extinguisher, two staplers, and a bag of canned peaches.

Schwebes, aged 32, caught members on school grounds and confiscated the peaches, staplers and fire extinguisher. Schwebes recognized Black and Torrone and told the boys not to be surprised to get a visit from police in the morning. After Schwebes left, Black stated: “This has to be fixed tonight, because tomorrow's a school day. So. He's gotta die tonight .”

The record described the group obtaining Schwebes’ unlisted telephone number through local directory assistance.

Additional testimony and evidence descriptions

Two spent shotgun shells were described as left at the scene by Foster’s mistaken belief about traceability. Two neighbors described a loud muffler car leaving after the two shots. It also described police finding a ski mask, gloves, and a newspaper clipping of the murder in Magnotti’s car trunk.

Prosecutor offer and Foster’s reaction

The record described Lee County Prosecutors Marshall King Hall, Bob Lee and Randy McGruther offering Foster life without the possibility of parole. The offer was turned down by Foster. Foster told his attorneys Bob Jacobs and Marquin Rinard that he considered life without parole a worse fate than being sent to “Old Sparky,” the state’s electric chair.

Jury deliberation and verdict timing

The record described jury selection beginning on March 3, 1998, presided over by Judge Isaac Anderson. It described closing arguments on March 11, with the jury retiring to deliberate. The jury reached a guilty verdict after two hours and sixteen minutes.

Foster’s childhood and family background

The record described that Foster had no criminal record at the time of the murder and described family history involving:

• John Bates as Foster’s father, who abandoned the family while Foster was an infant, leaving his mother Ruby Catherine Albrittonen to raise him and his half-sister Kelly Denise Newberry.
• Ruby Catherine Albrittonen later married John Foster, and John Foster adopted Kevin when he was twelve, with Foster changing his last name to Foster.
• The record described the family moving to Cuba, Missouri, and later to Fort Myers, Florida when Foster was eight.
• Seven months later, the record described the family moved to Canyon, Texas.
• The record described Foster later idolizing outlaws such as Billy the Kid, Frank and Jesse James, and later claimed connections to Quanah Parker.
• The record described that schoolmates called Foster “Psycho” at Riverdale High School due to his acted behavior and because of the shared birth name with Norman Bates.

The record stated Foster stood 6’3” and 150 pounds during high school years. The record described Foster meeting Pete Magnotti during his freshman year at Riverdale High School. The record described a yearbook joke by another student: “Please don’t kill anyone this summer, because I hear its pretty bad in prison”.

Jail, death row, and additional narrative items in the record

The record included narrative material describing a 2006 Dateline NBC episode about the case. The record also included content describing Dr. Carol Huser, the district medical examiner, as a witness against Kevin in his trial.

The record further described interactions involving Jim Greenhill, described as a crime reporter, and included verbatim dialogue and quoted statements such as:

• “I hate you.”
• “See you in hell.”
• “It was done.”
• “Everybody in town is so far off.”
• “You call all the fckrs up, you say “I’m so and so”... “I’ll give you a grand, come hang out with me for a day, show me around.”
• Ruby Foster: “My problem was the gun item, that’s my biggest worry about the whole thing.”
• Ruby Foster: “I will get you an unregistered off the street gun.”
• Ruby Foster: “I don’t care if you have to dig for them, you don’t leave those shells.”
• “See ya!”

It also described that Ruby Foster was arrested near her workplace and that she was convicted of conspiracy to commit murder and sentenced to five years in prison.

Charges and legal matters involving later plot allegations

The record described that, after the murder plot allegations involving Kevin Foster and Ruby Foster, Jim Greenhill agreed to turn state's evidence. It preserved language about the alleged scheme and described that Kevin and Ruby were said to have been involved in conspiracy to commit murder. It also described that Kevin was moved to maximum management lock-down and included a statement: “Placed in this maximum management lock-down... This is a cage in a box in a huge box in a huge cage... Stay out of trouble, I’ll catch you next time. See ya!”

The record stated that several days later Kevin found out he’d be facing charges described as the same charges as his mother—conspiracy to commit murder.

People named

• Kevin Foster (defendant)
• Kevin Donald Bates (birth name)
• Kevin Foster’s father John Bates (named in family background)
• John Foster (later husband of Ruby and adoptive father)
• Ruby Catherine Albrittonen (mother)
• Kelly Denise Newberry (half-sister)
• Mark Schwebes (victim; Riverdale High School band teacher)
• David Adkins (friend of Schwebes, testified)
• Chris Black (codefendant; life imprisonment)
• Peter Magnotti (codefendant; 32 years)
• Derek Shields (codefendant; life imprisonment)
• Chris Burnett (codefendant; sentenced to two years in county jail for non-homicidal offenses with probation and restitution described)
• Thomas Torrone (codefendant; sentenced to one year in county jail with ten years probation and community service and restitution described)
• Bradley Young (described as a member of the group)
• Russell Ballard (described as a member of the group)
• Craig Lesh (hanger-on; stated to have bragged about the murder and implicated others)
• Julie Schuchard (ex-girlfriend of Craig Lesh; alerted authorities)
• Sheriff John McDougall (led the investigation)
• Detective Chief Inspector name was not provided; the record used the term “deputies” and “Sheriff John McDougall”
• Judge Isaac Anderson, Jr. (sentencing judge and presiding judge for jury selection)
• Prosecutors Marshall King Hall, Bob Lee, Randy McGruther (offered sentence and prosecuted)
• Trial counsel Robert R. Jacobs, II (Assistant Public Defender)
• Direct appeal counsel Robert F. Moeller (Assistant Public Defender)
• Collateral appeals counsel Terri Backhus & Leor Veleanu (CCRC-S)
• Emory Lewis (victim of robbery/carjacking described)
• Dr. Carol Huser (district medical examiner; testified against Kevin)
• Jim Greenhill (crime reporter and later witness narrative)
• Keith Morrison (Dateline correspondent)
• Randy McGruther (prosecutor referenced in direct dialogue)

Verbatim quotations (selected)

Black declared that Schwebes “has got to die,” to which Foster replied that if Black could not do it, he would.

Black stated, “This has to be fixed tonight, because tomorrow's a school day. So. He's gotta die tonight .”