Emmitt Foster

Case information

• Defendant: Emmitt Foster
• Victim: De Ann Keys and her boyfriend Travis Walker
• Alias used by Foster (as known to Keys): “John Lee”
• Accomplice: Michael Phillips

Timeline

• 1968 08/08 — Foster was sentenced to 18 months in the Federal Youth Correctional Center at Englewood California for Unlawful Possession of U.S. Mail.
• 1970 10/20 — Foster was sentenced to the Missouri Department of Corrections for two counts of Robbery I by Means of a Dangerous and Deadly Weapon from the City of St. Louis; sentence was six years on each count to run concurrently; sentence commuted on April 11, 1974.
• 1975 06/12 — Foster was sentenced to the Missouri Department of Corrections for two counts of Robbery I by Means of a Dangerous and Deadly Weapon from the City of St. Louis; sentence was 15 years on each count to run concurrently; sentence commuted on August 12, 1982.
• 1983 11/20 — Travis Walker was shot to death in St. Louis County; Foster was arrested two days later and charged with Capital Murder.
• 1984 4/30 — Foster was indicted in St. Louis County on the charge of capital murder for the shooting death of Travis Walker.
• 1984 9/14 — Foster was found guilty of capital murder in the Circuit Court of St. Louis County; jury recommended a sentence of death.
• 1984 11/30 — Motion for a new trial was denied and Foster was sentenced to death for killing Travis Walker.
• 1984 12/10 — A notice of appeal was filed.
• 1985 11/21 — The Missouri Supreme Court affirmed Foster’s conviction and sentence.
• 1986 6/9 — The United States Supreme Court denied certiorari.
• 1986 9/23 — Foster filed a Rule 27.6 motion for post conviction relief in the Circuit Court of St. Charles County.
• 1987 5/20 — The motion for post conviction relief was denied.
• 1988 3/29 — The Missouri Court of Appeals, Eastern District, affirmed the denial of post conviction relief.
• 1988 7/1 — Foster filed a petition for writ of habeas corpus in the United States District court for the Eastern District of Missouri.
• 1992 10/8 — The petition for writ of habeas corpus was denied.
• 1993 4/22 — The United States Court of Appeals for the Eighth Circuit reversed the district court’s order and granted the petition for writ of habeas corpus.
• 1994 2/22 — Rehearing granted by the United States Court of Appeals for the Eighth Circuit.
• 1994 11/7 — The Eighth Circuit Court of Appeals, sitting en banc, upheld the district court’s judgment and affirmed Foster’s conviction and sentence.
• 1995 4/17 — The United States Supreme Court declined review of the Eighth Circuit Court of Appeal November 7th decision.
• 1995 4/18 — The Missouri Supreme Court set May 3, 1995, as Foster’s execution date.
• 1995 5/3 — Foster was executed by lethal injection in Missouri.

Background

De Ann Keys and her boyfriend Travis Walker were awakened at 2:00 a.m. on November 20, 1983 by a phone call from friends of Walker. Keys and Walker shared a home in St. Louis County.

Walker received a telephone call from Michael Phillips at approximately 2:00 a.m., stating that he needed assistance with a flat tire.

Keys lived with Walker and was familiar with Michael Phillips and with Foster under the name “John Lee.”

The offence

After the phone call, two men arrived at the residence. A short time later, one of the men was identified as Michael Phillips, and the other was known to Keys as “John Lee.” That second person was later identified as Emmitt Foster.

• Walker went into the living room with the two men, while Keys remained in the bedroom.
• Phillips returned to the bedroom and forced Keys at gunpoint to come into the living room and to lie next to Walker on the floor.
• Keys saw Foster (“Lee”) standing over Walker with a pistol in his hand.
• Phillips ransacked the apartment.
• Before the two men left, they shot both Walker and Keys.
• After the attack, Keys regained consciousness, went outside to seek help, and later returned to the apartment.
• Keys wrote the names Michael Phillips and John Lee on an envelope.
• When police arrived, they found Walker dead on the living room floor and Keys in the bedroom lying on the bed.
• Police ascertained from Keys that the names on the envelope were those of the perpetrators.
• Keys survived the attack.

Investigation

• Keys later identified photos of Phillips and Foster as the assailants.
• Forensic and ballistics analysis established that the bullets which killed Walker came from a different weapon than those that injured Keys, indicating one of the criminals killed Walker while the other wounded Keys.
• Police never recovered the weapons.
• Medical and police observations included that Keys suffered a fractured skull and jaw and had several broken facial bones and teeth.

Arrest and charges

Foster was arrested two days after November 20, 1983 and was charged with Capital Murder. Foster was indicted in St. Louis County on April 30, 1984, for capital murder for the shooting death of Travis Walker.

Trial

Separate trial of accomplice

Phillips and Foster were tried separately in the Circuit Court of St. Louis County.

A jury convicted Phillips of first-degree murder and sentenced him to life imprisonment without the possibility of parole.

Foster’s guilt phase

During the guilt phase of Foster’s bifurcated jury trial:

• Foster did not testify in his own defense on counsels’ advice.
• Counsel called eight witnesses to support Foster’s alibi.
• The jury found Foster guilty of capital murder.

Foster’s punishment phase

During the punishment phase:

• Foster again did not testify.
• The jury recommended a sentence of death.
• The judge followed the jury’s recommendation and sentenced Foster to death for killing Travis Walker.

Sentencing

Foster was sentenced to death on November 30, 1984.

Appeals and post-conviction proceedings

Missouri Supreme Court and certiorari

Missouri post-conviction relief

• Rule 27.6 motion was filed on 9/23 (post-conviction proceedings in the Circuit Court of St. Charles County).
• 5/20/1987 — The motion for post conviction relief was denied.
• 3/29/1988 — The Missouri Court of Appeals, Eastern District, affirmed the denial.

Federal habeas corpus

• Foster filed a petition for writ of habeas corpus in the United States District court for the Eastern District of Missouri on 7/1/1988.
• 10/8/1992 — The petition for writ of habeas corpus was denied.

Eighth Circuit and en banc disposition

• 4/22/1993 — The United States Court of Appeals for the Eighth Circuit reversed the district court’s order and granted the petition for writ of habeas corpus.
• 2/22/1994 — Rehearing was granted by the United States Court of Appeals for the Eighth Circuit.
• 11/7/1994 — Sitting en banc, the Eighth Circuit upheld the district court’s judgment and affirmed Foster’s conviction and sentence.

United States Supreme Court

• 4/17/1995 — The United States Supreme Court declined review of the Eighth Circuit Court of Appeals’ November 7, 1994 decision.

Stay of execution and subsequent proceedings

• Foster’s execution date was set for May 3, 1995 on 4/18/1995.
• A motion for a stay of execution was addressed through expedited appeals.
• The court granted a stay of execution and reversed and remanded on the merits of the petition, instructing the district court to conduct an expedited evidentiary hearing on new evidence.
• The record also included later en banc orders regarding the stay:
  • May 1, 1995 — The appellee’s petition for rehearing before the panel was denied, and thereafter rehearing en banc and motion to vacate stay of execution were granted (with votes reflected among judges).

Outcome

Foster was executed by lethal injection in Missouri on May 3, 1995.

Other details

Statements attributed to Foster near execution

The New York Times reported that Foster, maintaining his innocence to the end, said in his final statement:

“I do have remorse for the legal system,” the condemned man, Emmitt Foster, said in his final statement, “because I did not commit this particular murder.”

The execution was described as delayed in part due to medical observations, including that Foster’s veins had apparently collapsed because of long-term drug use, and that he was not pronounced dead until after the injections.

Proceedings involving Muhammad and juror instruction issues (as described in the appellate record)

The appellate record included claims and rulings regarding:

• ineffective assistance of counsel related to Foster’s right to testify at the punishment phase,
• post-conviction procedural issues,
• jury instruction claims,
• and alleged evidentiary and prosecutorial issues.

Key citations and identified statutory references in the record

The appellate proceedings referenced:

• State v. Foster, 700 S.W.2d 440 (Mo. banc 1985),
• Foster v. State, 748 S.W.2d 903 (Mo. Ct. App. 1988),
• Mo. Rev. Stat. Sec. 565.001 (1978) (repealed 1983),
• Mo. Rev. Stat. Sec. 565.003 (1978) (repealed 1983),
• and 28 U.S.C. Sec. 2254, among other cited federal and state authorities contained in the record.

Victim count and identity at trial

The shootings involved Travis Walker and De Ann Keys. Walker died; Keys survived. The record described four gunshots to Walker’s head and four gunshots to Keys’s head.