Foster v. State, SC17-2198

260 So.3d 174

Jermaine FOSTER, Appellant,

v.STATE of Florida, Appellee.

No. SC17-2198

Supreme Court of Florida.

December 28, 2018

Christopher J. Anderson of Law Office of Christopher J. Anderson, Neptune Beach, Florida; and Billy H. Nolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender, Northern District of Florida, Tallahassee, Florida, for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Doris Meacham, Assistant Attorney General, Daytona Beach, Florida, for Appellee

PER CURIAM.

This case is before the Court on appeal from an order denying a successive motion to vacate two sentences of death under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Foster contends that the postconviction court erred in summarily denying the three claims raised in his motion. The first claim is one of intellectual disability, raised pursuant to the United States Supreme Court's decision in Hall v. Florida , 572 U.S. 701, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014), and the second and third claims seek relief pursuant to Hurst v. Florida , ––– U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and this Court's decision on remand in Hurst v. State , 202 So.3d 40 (Fla. 2016), cert. denied , ––– U.S. ––––, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). For the reasons explained below, we reverse the denial of the Hall claim and remand for an evidentiary hearing, but we affirm the denial of Hurst relief.

FACTS AND PROCEDURAL BACKGROUND

Foster was convicted of the first-degree murders of Anthony Clifton and Anthony Faiella and sentenced to death for each of the murders. Foster v. State , 679 So.2d 747, 750-51 (Fla. 1996) ( Foster I ).¹ These convictions arose out of events that occurred at the end of a crime spree in which Foster and three other males (Gerard Booker, Leondra Henderson, and Alf Catholic) participated. Id. We have described the facts of the crimes as follows:

On the morning of November 28, 1993, Gerard Booker came to the trailer shared by [Jermaine] Foster and Leondra Henderson and stated he wanted to recoup his recent gambling losses by committing robberies. The trio proceeded to Auburndale to a place called "The Hill." Armed with a .38 caliber handgun, a .9 millimeter handgun, and an Uzi-type automatic weapon, Foster and Booker, who were joined by Alf Catholic, approached three unknown men who were selling drugs from their truck. After forcing the victims to remove their clothing and lie on the ground, Foster, Catholic, and Booker stole the victims' cash, jewelry, crack cocaine, and red Ford pickup truck. Henderson then joined the group, and they [left the scene to] conceal[ ] the stolen truck for future use.

Foster and Catholic returned to The Hill and sold some of the stolen drugs; however, the proceeds of the robbery were not sufficient to cover Booker's gambling losses. The group of Foster, Catholic, Booker, and Henderson agreed to find a local drug dealer and rob him. Then they retrieved the stolen red truck and loaded the guns [they had used in] the earlier robbery into it. When the group was unable to locate their intended victim, they drove to Osceola County to visit a girlfriend of Catholic and to find other victims to rob.

At the girlfriend's house, the group decided to accompany the girlfriend and some of her friends to the Palms Bar in St. Cloud. Catholic and Foster rode in the car driven by Catholic's girlfriend, and Henderson and Booker followed in the stolen red truck. Both drivers stopped their vehicles in route to the bar, and Catholic's girlfriend bought some liquor. Testimony revealed that Foster and Catholic drank liquor and smoked marijuana during the trip. Then the two drivers pulled over so the girlfriend could buy some gas. It was determined at that time that there were problems with the truck's fan belt, which had caused the truck to overheat and smoke during the trip. Booker stated that they would have to steal another car in which to return home that night.

Once at the Palms Bar, Foster and Catholic drank liquor, and Foster played a video game and danced. After a while, the group went outside, and Booker detailed a plan to rob the entire bar. Foster told Booker the plan was "crazy" because it was unknown what "those boys got in there." As the group headed back into the bar, Henderson noticed a black Nissan Pathfinder that was in the parking lot. Henderson determined that Anthony Faiella and Mike Rentas had come to the bar in that vehicle.... Faiella and Rentas came to the bar to meet Anthony Clifton, who was with Tammy George. Henderson pointed out Faiella, Rentas, and Clifton to Booker as possible victims to rob of their money and their vehicle. The group decided upon a plan to follow the potential victims when they left the bar in the Pathfinder. Foster told Henderson, Booker, and Catholic that if the victims did not have any money, he was going to kill them.

At around 1:30 a.m., Faiella, Rentas, Clifton, and George left the bar in the Pathfinder. The other group followed them in the red truck. Catholic was driving the truck and rammed into the back of the Pathfinder to get that vehicle to stop. When the victims stopped and got out of the Pathfinder to inspect the damage, the group in the red truck took out their weapons and demanded money from the occupants of the Pathfinder. After the victims stated that they did not have any money, the victims were forced to return to the Pathfinder. Booker drove the Pathfinder, and Henderson held the victims at gunpoint from the passenger seat. The others followed in the red truck.

On the outskirts of Kissimmee, the red truck again began experiencing mechanical problems. Catholic turned off the main highway and drove a short distance into a vacant field; Booker and the victims followed in the Pathfinder. All four of the victims were ordered out of the Pathfinder, and Tammy George was separated from the three male victims. The group again demanded money from the male victims. When these victims did not produce any, they were ordered to remove their clothes, and Foster had the men place their underwear and hands on their heads and lie face down on the ground.

At this point, Foster, from a position beside and to the rear of Anthony Clifton, shot Clifton in the back of the head, killing him. Foster then approached Rentas and fired at his head. The bullet hit him in the hand, and Rentas pretended to be dead. Foster next walked to Faiella and shot him in the head, killing him. After this, Foster approached George as if to kill her, but Booker talked him out of it.

Id.

After a penalty phase, Foster's jury unanimously recommended that Foster be sentenced to death for each of the two murders. Id. at 751. The trial court followed this recommendation, finding four statutory aggravators² and one statutory mitigator.³ In conjunction with the statutory mitigator, the trial court found that Foster is "mildly mentally retarded," id. at 755, based on evidence that Foster had an IQ score of 75 and showed deficits in adaptive functioning. However, at that time, "mental retardation," which is now known as intellectual disability,⁴ was not a bar to execution. See Penry v. Lynaugh , 492 U.S. 302, 340, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). This Court affirmed Foster's convictions and sentences on direct appeal. Foster I , 679 So.2d at 756.⁵

Thereafter, Foster filed his initial motion for postconviction relief and was permitted to amend and supplement it. Among the claims raised was ineffective assistance of trial counsel for failure to present a voluntary intoxication defense and, in support of that defense, to put on evidence of the enhanced effect intoxicating substances would have had on him due to his intellectual disability. Foster v. State , 929 So.2d 524, 527-28 (Fla. 2006) ( Foster II ).⁶ The postconviction court held a hearing on the motion and denied it. Id.

Between the evidentiary hearing and the date the postconviction court denied Foster's initial postconviction motion, the United States Supreme Court issued Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), imposing a bar to the execution of individuals with intellectual disability, and Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), setting forth the requirement that all facts necessary to render a person eligible for the death penalty be found by a jury. During the rehearing period for the denial of Foster's initial motion for postconviction relief, Foster raised claims under both of these decisions. The postconviction court denied the claims on the merits. Foster II , 929 So.2d at 531-32. Foster then appealed from the denial of his motion for postconviction relief, including the Atkins and Ring claims, and this Court affirmed the denial of each claim. Id. at 531-33, 537.

Foster later filed the successive postconviction motion at issue in this appeal, raising three claims. As noted at the outset, the first claim is that Foster is intellectually disabled and therefore ineligible for the death penalty under Hall v. Florida , which invalidated this state's prior position that a person who cannot produce an IQ test score of 70 or below does not qualify as intellectually disabled, 134 S.Ct. at 1990, and case law applying that decision. The second and third claims seek relief in light of Hurst v. Florida and Hurst v. State . The postconviction court summarily denied each claim, and Foster now appeals those rulings.

INTELLECTUAL DISABILITY

A claim of intellectual disability as a bar to execution requires the defendant to establish three prongs: "(1) significantly subaverage general intellectual functioning, (2) concurrent deficits in adaptive behavior, and (3) manifestation of the condition before age eighteen." Salazar v. State , 188 So.3d 799, 811 (Fla. 2016). As noted above, this state formerly required proof of an IQ score of 70 or below to establish the first prong, and failure to produce such...