Supreme Court of Florida
No. SC2024-0944
JERMAINE FOSTER,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
July 16, 2026
CORRECTED OPINION
PER CURIAM.
Jermaine Foster appeals the circuit court’s order denying his
amended successive motion for postconviction relief under Florida
Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V,
§ 3(b)(1), Fla. Const.; see also State v. Fourth Dist. Ct. of Appeal, 697
So. 2d 70, 71 (Fla. 1997) (holding “that in addition to our appellate
jurisdiction over sentences of death, we have exclusive jurisdiction
to review all types of collateral proceedings in death penalty cases”).
For the reasons below, we affirm.
I
In 1994, Jermaine Foster was convicted of two counts of
first-degree murder, one count of attempted first-degree murder,
and four counts of kidnapping. Foster v. State, 679 So. 2d 747, 751
(Fla. 1996). The crimes were carried out in 1992 by a group of four
codefendants: Foster, Leondra Henderson, Gerard Booker, and Alf
Catholic. The group committed robberies to recoup Booker’s recent
gambling losses. Importantly, “Foster told Henderson, Booker, and
Catholic that if the victims did not have any money, he was going to
kill them.” Id. at 750.
Foster and the codefendants followed a car carrying four
people: Anthony Faiella, Michael Rentas, Anthony Clifton, and
Tammy George. Catholic, who was driving the codefendants’ truck,
rammed the back of the victims’ car to get it to stop. When the
victims got out of their car, the codefendants took out weapons and
demanded money. After the victims stated they did not have any
money, the victims were forced to return to their car. Booker drove
the victims’ car and Henderson held the victims at gunpoint from
the passenger seat. Foster and Catholic followed in their truck.
When the truck began experiencing mechanical problems, the
-2-codefendants turned off the main highway into a vacant field. The
codefendants forced the victims out of the car and demanded
money again. After the victims repeated that they did not have
money, Foster shot Faiella, Rentas, and Clifton (Clifton and Faiella
were killed, but Rentas survived). George was not shot.
All four codefendants were apprehended within days. The
State obtained statements from Rentas and George before the
codefendants were arrested. Rentas gave another statement
describing the crime on December 8, 1992. Henderson gave a
statement to law enforcement after being arrested on December 1,
1992. Henderson gave another statement on December 7, 1992.
Henderson proffered his testimony with the State for a possible plea
agreement on January 11, 1993.
Foster was first tried in federal court on charges from this
crime spree. Id. at 751. He “was there convicted of conspiracy to
commit armed carjacking, armed carjacking resulting in deaths,
armed carjacking, and two counts of use of and carrying firearms
during and in relation to a violent crime.” Id. A state grand jury
thereafter “indicted Foster on two counts of first-degree murder, one
count of attempted first-degree murder, and four counts of
-3-kidnapping.” Id. A jury convicted Foster of all counts. Id. After a
penalty phase hearing, the jury unanimously recommended
sentencing Foster to death for the two murders. Id. 1 The court
sentenced Foster to death. Id. And this Court affirmed Foster’s
convictions and sentences on direct appeal in 1996. Id. at 756.
In 1998, Foster filed an initial motion for postconviction relief.
Foster v. State, 929 So. 2d 524, 527 (Fla. 2006). Following an
evidentiary hearing that included testimony on Foster’s mental
state, but before the postconviction court ruled on the motion, the
United States Supreme Court decided Atkins v. Virginia, 536 U.S.
304 (2002). Foster added a claim under Atkins. Foster, 929 So. 2d
1. The court found four statutory aggravators and one
statutory mitigator. The aggravating factors included that
Foster was previously convicted of another capital felony;
the capital felony was committed while the defendant was
engaged in the commission of a kidnapping; the capital
felony was committed for pecuniary gain; and the capital
felony was committed in a cold, calculated, and
premeditated manner without any pretense of moral or
legal justification.
Foster, 679 So. 2d at 751 n.2 (citing § 921.141(5)(b), (d), (f), (i), Fla. Stat. (1993)). In mitigation, “[t]he trial court found that Foster’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired.” Id. at 751 n.3 (citing § 921.141(6)(f), Fla. Stat. (1993)).
-4-at 531. The postconviction court denied the motion. Id. at 528.
After oral argument, this Court relinquished jurisdiction to the
postconviction court for an evidentiary hearing. Id. The
postconviction court again denied relief. Id. The postconviction
court also reviewed the Atkins claim and found that the evidence
did not support the claim. Id. at 532-33. We affirmed on appeal in
all respects. Id. at 537.
In August 2017, Foster filed his first successive motion for
postconviction relief raising an intellectual disability claim based on
Hall v. Florida, 572 U.S. 701 (2014), and claims based on Hurst v.
Florida, 577 U.S. 92 (2016), and Hurst v. State, 202 So. 3d 40 (Fla.
2016). Foster v. State, 260 So. 3d 174, 178 (Fla. 2018). The
postconviction court summarily denied the motion. Id. But we
reversed and remanded for an evidentiary hearing on the Hall
intellectual disability claim and affirmed the summary denial of the
other two claims. Id. at 181.
Before the Hall hearing, Foster filed his second successive rule
3.851 motion in 2018 raising claims based on Brady v. Maryland,
373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150
(1972), both of which were largely based on Foster’s claim that
-5-Henderson’s testimony was coerced and false. The motion alleged
that Henderson had recanted his statement about Foster planning
to kill someone ahead of time. Foster also pursued a claim based
on Hurst, 577 U.S. 92. 2 The postconviction court granted an
evidentiary hearing on Foster’s Brady and Giglio claims, held in
conjunction with the Hall hearing.
Foster amended his second successive motion for
postconviction relief on September 14, 2021. After this Court’s
decision in Thompson v. State, 341 So. 3d 303 (Fla. 2022), the State
again moved for cancellation of the Hall-compliant hearing. Foster,
395 So. 3d at 129. The postconviction court granted the renewed
motion for summary denial and denied Foster’s intellectual
2. Also before the Hall hearing took place, this Court decided Phillips v. State, 299 So. 3d 1013 (Fla. 2020), where it held that Hall should not be given retroactive application. Foster v. State, 395 So. 3d 127, 129 (Fla. 2024). Relying on Phillips, the State moved to cancel the Hall hearing in Foster’s case and dismiss the intellectual disability claim. Id. However, at the hearing on the State’s motion, the State conceded that based on the intervening decision in State v. Okafor, 306 So. 3d 930 (Fla. 2020), the postconviction court could not deviate from the mandate requiring an evidentiary hearing in Foster’s case. Foster, 395 So. 3d at 129. Accepting the State’s concession, the postconviction court denied the motion for summary denial of Foster’s intellectual disability claim. Id.
-6-disability claim, finding that Phillips constituted an intervening
change in controlling caselaw, Hall did not apply retroactively, and
the State’s concession as to the application of Okafor did not
constitute a waiver of the argument that Hall is not retroactive. Id.
We affirmed on appeal. Id. at 131.
In March 2023, the postconviction court held a Huff 3 hearing
on the amended successive motion for postconviction relief. In May
2023, the postconviction court granted an evidentiary hearing on
Foster’s Brady and Giglio claims but denied two other claims. 4
In November 2023, Foster filed an amendment to his
successive motion for postconviction relief, or in the alternative, a
third successive rule 3.851 motion. The court held an evidentiary
hearing on December 11 and 12, 2023, with Foster presenting
fourteen witnesses. The State did not call any witnesses.
Because Henderson’s testimony about Foster’s intent was key
to his conviction and the cold, calculated, and premeditated
3. Huff v. State, 622 So. 2d 982 (Fla. 1993).
4. The circuit court summarily denied the other grounds in Foster’s motion, which he does not challenge on appeal.
-7-aggravator, much of the evidentiary hearing focused on whether
Henderson’s testimony at the time of Foster’s trial was coerced and
false. In support, Foster presented testimony from several other
individuals who said they spoke to Henderson post-trial. Jeffrey
Ashton, the prosecutor at the time, also testified, during which
Foster’s counsel moved to admit into evidence a letter to Ashton
from Mark O’Mara, counsel for codefendant Booker. The letter
concerned a polygraph test that Booker had taken. The State
objected on the basis of hearsay within hearsay and that polygraph
results were inadmissible as a matter of law. Foster’s counsel
responded that the letter went to Ashton’s knowledge of what
information was available when he offered Henderson a plea
agreement. The court overruled the State’s objection and admitted
the letter into evidence. Foster’s counsel then moved to admit the
polygraph report into evidence. The State objected based on
hearsay and inadmissibility. The court sustained the State’s
objection and did not admit the polygraph report. Foster’s counsel
proffered the report for the record, also seeking clarification of the
decision not to admit. The court responded that “[i]t’s the
contents.”
-8-On April 2, 2024, the postconviction court entered an
Amended Final Order Denying Defendant’s Amended Successive
Motion for Postconviction Relief. In doing so, the court found that
based on the totality of the circumstances, Foster failed to show
that Henderson was coerced into testifying falsely. Acknowledging
the inconsistencies in Henderson’s statements, the court still
concluded that “Henderson’s statement regarding [Foster’s]
premeditation is credible.” The court also concluded that Foster
failed to show that the State suppressed exculpatory evidence and
that the State knew or should have known that Henderson’s
testimony was false. Foster moved for rehearing and the court
denied Foster’s motion on May 1, 2024. Foster timely filed his
notice of appeal on May 30, 2024.
II
In his first and second arguments on appeal, Foster argues the
postconviction court erred in denying his claim that the State
knowingly presented and/or failed to correct Henderson’s false
testimony in violation of Giglio and his Brady claim that was
predicated on Henderson’s allegedly coerced testimony. We address
these claims together because, in our view, resolution of both issues
-9-turns on whether the postconviction court’s credibility
determinations were supported by competent, substantial evidence.
We apply a mixed standard of review to both claims, reviewing
factual findings for competent, substantial evidence and legal
conclusions de novo. Sheppard v. State, 338 So. 3d 803, 827-28
(Fla. 2022) (citing Duckett v. State, 231 So. 3d 393, 400 (Fla. 2017));
see also Sochor v. State, 883 So. 2d 766, 785 (Fla. 2004). “Evidence
is competent if it is ‘sufficiently relevant and material’; evidence is
substantial if there is enough that ‘a reasonable mind would accept
[the evidence] as adequate to support a conclusion.’ ” Gordon v.
State, 350 So. 3d 25, 35 (Fla. 2022) (alteration in original) (quoting
De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957)).
To prevail on a Brady violation, a defendant must show that
“(1) the evidence was either exculpatory or impeaching; (2) the
evidence was willfully or inadvertently suppressed by the State; and
(3) because the evidence was material, the defendant was
prejudiced.” Sheppard, 338 So. 3d at 827 (quoting Duckett, 231 So.
3d at 400). For a Giglio violation, a defendant must show that “(1)
the testimony given was false; (2) the prosecutor knew the
testimony was false; and (3) the statement was material.” Id.
- 10 -(quoting Duckett, 231 So. 3d at 400). “Unlike a Brady claim for
which the defendant bears the burden of proof as to the materiality
prong, ‘[u]nder Giglio, once a defendant has established that the
prosecutor knowingly presented false testimony at trial, the state
bears the burden to show that the false evidence was not
material.’ ” Id. (alteration in original) (quoting Guzman v. State, 868
So. 2d 498, 507 (Fla. 2003)).
In denying Foster’s claims, the postconviction court focused
primarily on the first prongs of the Brady and Giglio tests,
concluding that Henderson’s testimony was not false and likewise
not coerced. In doing so, the postconviction court was tasked with
wading through conflicting testimony. For example, Henderson
confirmed that there was threatening conduct by the state officers
at the proffer. Even so, he explained that he was not pushed to
make the statement about Foster’s intent. Elaine Henderson,
Henderson’s mother, also affirmed that there was yelling and
cursing during the proffer. But Ashton testified that there was
nothing improper about the way the interviewers acted.
Foster called a significant number of witnesses who testified
that Henderson told them that his testimony was coerced.
- 11 -However, Henderson denied speaking to some of these witnesses,
and he also claimed that he made up the story about being coerced
as part of a plan to help Foster. The additional evidence submitted
also conflicted with some of the testimony. For example, the calls
between Henderson and his mother show that they discussed
threatening conduct at the proffer, and Henderson testified that his
mother did not pressure him to change his testimony to help
Foster. At the end of the day though, Henderson stood by his
testimony about Foster’s intent to kill the victims.
Despite the conflicting testimony, there is competent,
substantial evidence to support the circuit court’s conclusion that
Foster failed to demonstrate Henderson was coerced into testifying
falsely. Ashton admitted that they did have to “push” Henderson to
get him to admit to his level of culpability; however, Ashton was
adamant that no one told Henderson what he was expected to say
and that the only threat involved was “the natural threat of
prosecution and eventual sentence.” Ashton also made clear that
he would not have put Henderson on the witness stand had he not
believed his testimony to be truthful in all the material, important
aspects. Likewise, Henderson testified that the yelling was directed
- 12 -at his own involvement in the crime, not his testimony about
Foster. In addition, Henderson’s attorneys were with him during
the proffer.
Foster’s arguments to the contrary invite this Court to reweigh
the evidence. He argues, in part, that Henderson “never clarified
why anyone would be calling him telling him to change his
testimony.” Foster also characterizes Henderson’s testimony as
“incredible.” But Foster cites no legal basis to conclude that the
testimony was insufficient to sustain the postconviction court’s
determination or that Henderson’s testimony was incredible as a
matter of law. So resolving any perceived gaps in Henderson’s
testimony was part of the postconviction court’s credibility
determination—a determination to which we defer given its record
support. See Mosley v. State, 209 So. 3d 1248, 1263 (Fla. 2016)
(“This Court is highly deferential to the postconviction court’s
factual findings and ‘will not substitute its judgment for that of the
trial court on . . . the credibility of the witnesses and the weight to
be given to the evidence.’ ” (omission in original) (quoting Wyatt v.
State, 71 So. 3d 86, 105 (Fla. 2011))); Martin v. State, 311 So. 3d
778, 810 (Fla. 2020) (“[W]e defer to findings of credibility by the
- 13 -factfinder where they are supported by competent substantial
evidence.” (citing Moore v. State, 132 So. 3d 718, 726 (Fla. 2013))).
We will not substitute our judgment “for that of the trial court on
questions of fact, likewise of the credibility of the witnesses as well
as the weight to be given to the evidence by the trial court.”
Hayward v. State, 183 So. 3d 286, 311 (Fla. 2015) (quoting Lowe v.
State, 2 So. 3d 21, 30 (Fla. 2008)).
Foster has not established that the postconviction court erred
in its credibility determination regarding Henderson’s testimony
and its ultimate conclusion that it was not coerced. As a result,
Foster cannot demonstrate error in the postconviction court’s
rejection of his Brady and Giglio claims.5
III
Finally, Foster argues the postconviction court violated his due
process rights when it sustained the State’s objection to the
admissibility of a polygraph report. Although Foster frames this
issue as a due process violation, it is in essence an appeal of a
5. Because we conclude the postconviction court did not err in its credibility determination, we need not address Foster’s remaining arguments related to these claims.
- 14 -ruling on the admission of evidence, which we review for an abuse
of discretion. Baker v. State, 71 So. 3d 802, 816 (Fla. 2011) (citing
Frances v. State, 970 So. 2d 806, 813 (Fla. 2007)). “In order to
preserve a claim based on the court’s refusal to admit evidence, the
party seeking to admit the evidence must proffer the contents of the
excluded evidence to the trial court.” Id. (quoting Blackwood v.
State, 777 So. 2d 399, 410 (Fla. 2000)). “The admission of evidence
is within the sound discretion of the trial court, constrained by the
application of the rules of evidence and the principles of stare
decisis.” Hayward, 183 So. 3d at 325 (citing Davis v. State, 121 So.
3d 462, 481 (Fla. 2013)).
“This Court has repeatedly explained that polygraph evidence
is generally inadmissible in Florida.” Serrano v. State, 225 So. 3d
737, 758 (Fla. 2017) (first citing Duest v. State, 12 So. 3d 734, 746
(Fla. 2009); and then citing Walsh v. State, 418 So. 2d 1000, 1002
(Fla. 1982)). Still, Foster argues that the admissibility of the
polygraph report should have been assessed against the backdrop
of the Brady and Giglio claims as it was offered to demonstrate the
State’s knowledge of Henderson’s falsities, not to prove guilt or
innocence. See, e.g., Rogers v. State, 782 So. 2d 373, 383 n.11 (Fla.
- 15 -2001) (“While the actual police reports may not be admitted as
substantive evidence, they can still serve as the basis for Rogers’
Brady claim to the extent he could have investigated and used the
information contained in the reports.”).
Foster’s reliance on Rogers is misplaced. Foster does not
allege that the State withheld the polygraph report, nor does he
claim it was material under Brady. Instead, Foster sought to admit
the report to undermine Henderson’s credibility and to demonstrate
knowledge by Ashton. Given that “[t]he rule that polygraph
evidence is inadmissible is well established in Florida,” Delap v.
State, 440 So. 2d 1242, 1247 (first citing Zeigler v. State, 402 So. 2d
365 (Fla. 1981); then Sullivan v. State, 303 So. 2d 632 (Fla. 1974);
and then Kaminski v. State, 63 So. 2d 339 (Fla. 1952)), the circuit
court did not abuse its discretion by refusing to admit the
polygraph report. See also State v. Santiago, 679 So. 2d 861, 863
(Fla. 4th DCA 1996) (quashing trial court’s admission of a
polygraph test and certifying question to this Court).
Even if it was error to exclude the report, it was harmless. At
the time the postconviction court refused to admit the report, it had
already admitted Mark O’Mara’s letter to Ashton over the State’s
- 16 -objection. O’Mara’s letter explained that the polygraph report
showed that Henderson was more culpable in the crime. The letter
stated that “Mr. Booker contends that it was in fact Leondra
Henderson who intended on killing Tammy George just after the
shooting of Mr. Clifton, Mr. Rentas and Mr. Faiella.” The letter also
added that “it was Mr. Henderson’s idea to rob the victims and take
their Pathfinder.” Because much of what the polygraph report
would have demonstrated was accounted for in O’Mara’s letter, we
conclude any error did not contribute to the postconviction court’s
decision.
IV
We affirm the postconviction court’s denial of Foster’s motion
for postconviction relief.
It is so ordered.
COURIEL, C.J., and LABARGA, MUÑIZ, GROSSHANS, FRANCIS, and SASSO, JJ., concur.
TANENBAUM, J., did not participate.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Orange County,
Jalal A. Harb, Judge
Case No. 481993CF012001000AOX
- 17 -Linda McDermott and Lauren Rolfe, Office of the Federal Public Defender, Northern District of Florida, Tallahassee, Florida; and Eric Pinkard, Capital Collateral Regional Counsel, and Julissa R. Fontán, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida,
for Appellant
James Uthmeier, Attorney General, Tallahassee, Florida, and Doris Meacham, Assistant Attorney General, Daytona Beach, Florida,
for Appellee
- 18 -