Shere v. Moore

• Decision Date: 12 September 2002
• Docket Number: No. SC00-1960.,SC00-1960.
• Citation: Shere v. Moore, 830 So.2d 56 (Fla. 2002)
• Parties: Richard Earl SHERE, Jr., Petitioner, v. Michael W. MOORE, etc., Respondent.
• Court: Florida Supreme Court

830 So.2d 56

Richard Earl SHERE, Jr., Petitioner, v. Michael W. MOORE, etc., Respondent.

No. SC00-1960.

Supreme Court of Florida.

September 12, 2002.

Rehearing Denied October 28, 2002.

Bill Jennings, Capital Collateral Regional Counsel-Middle, Robert T. Strain, Assistant CCRC, April E. Haughey, Assistant CCRC, and Elizabeth A. Williams, Staff Attorney, Tampa, FL, for Petitioner.

Robert A. Butterworth, Attorney General, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, FL, for Respondent.

PER CURIAM.

Richard Earl Shere petitions this Court for writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. For the reasons stated below, we deny his petition for habeas relief.

PROCEDURAL BACKGROUND

Shere and Bruce Demo were charged with the murder of Drew Snyder, and in April 1989, Shere was convicted of first-degree murder. The jury recommended a sentence of death by a vote of seven to five. Upon submission of memoranda by the parties and a Spencer¹ hearing, the trial court sentenced Shere to death. In the meantime, and before Shere was sentenced, Demo was convicted of second-degree murder and sentenced to life imprisonment. Shere's counsel unsuccessfully urged the trial court to consider Demo's life sentence as a reason to sentence Shere to life.² Shere's conviction and death sentence were affirmed on direct appeal without reference to Demo's sentence. See Shere v. State, 579 So.2d 86 (Fla.1991). This Court did not discuss the proportionality of Shere's sentence in its opinion. However, of the three aggravators found by the trial court, this Court struck the heinous, atrocious, and cruel (HAC) aggravator, and sustained the cold, calculated, and premeditated aggravator (CCP) and the aggravator concerning hindrance of law enforcement. See id. at 95-96.

In 1993 and 1997, pursuant to Florida Rule of Criminal Procedure 3.850, Shere filed a number of claims for postconviction relief. Subsequent to an evidentiary hearing on one of the claims, the trial court denied Shere's claims. In 1999, the trial court's denial of relief was affirmed by this Court. See Shere v. State, 742 So.2d 215 (Fla.1999). Shere now files this petition for habeas corpus relief, alleging several claims of ineffectiveness of appellate counsel in his initial appeal.

BACKGROUND

As described by this Court on direct appeal, the circumstances of this crime were established at trial:

The victim, Drew Snyder, was reported missing in December 1987, and the ensuing investigation led to Shere, whom police contacted three weeks after Snyder's disappearance. Shere waived his Miranda rights, made a series of statements, and led detectives to various scenes involved in the murder.

According to those statements, Shere said Bruce "Brewster" Demo told him on December 24 that Snyder was going to inform the police about Demo's and Snyder's theft of some air conditioners. Demo also advised Shere that Snyder was a "big mouth" who "had ratted out" on Shere as well. Shortly after midnight on the morning of December 25, Shere received a telephone call from Demo advising him that Demo was thinking about killing Snyder, and Demo threatened to kill Shere if he did not help. Shere then went to Demo's house where Demo loaded a shovel into Shere's car. They smoked marijuana, drank beer, went to Snyder's house at about 2:30-3:00 a.m., and talked Snyder into going rabbit hunting.

At some point during the hunt in the early morning hours, Shere placed his.22-caliber pump action rifle on the roof of the car so he could relieve himself. Suddenly, Shere said, Demo grabbed the rifle, and Shere heard the weapon discharge. Shere dropped to the ground and heard Snyder say, "Oh, my God, Brewster," followed by several more shots. When the shooting stopped, Shere got up and saw Snyder, still breathing, lying on the back seat of the car. Shere said he wanted to take Snyder to the hospital, but Demo took out his own gun, a .22-caliber pistol, and shot Snyder in the forehead, pulled him out of the car, and shot Snyder again in the chest. After the last shot was fired, they loaded Snyder's body into the trunk and drove to a nearby location where Shere said Demo made him dig a hole and bury the body. Then Shere took Demo home, drove to his own house, cleaned up, and burned the bloodied back seat of his car in the back yard.

At Demo's suggestion, Shere said, he and his girlfriend, Heidi Greulich, went to Snyder's house later that day, gathered some of Snyder's belongings, then drove to Clearwater to dump the belongings, hoping to leave the impression that Snyder had suddenly left town. Shere also said he traded the .22-caliber rifle after the murder. Detectives recovered the rifle and Shere identified it as one of the weapons used to shoot Snyder

Contradicting Shere's account, Demo made a statement to detectives in which he accused Shere of firing the first shots. Detective Alan Arick testified in the defendant's case without objection that Demo said he turned his back to the car to relieve himself when he heard a shot. He turned and saw Shere pointing the rifle at Snyder, then Shere fired at Snyder five or six times through the car's window. Demo said Shere pointed the gun at him and told him to finish off Snyder, Arick testified. Demo said he fired the pistol two times into Snyder's head and one time to the heart, including "the fatal shot." Demo told Arick he made Shere dig the grave because he was upset by what Shere had done to Snyder.

Greulich testified as a court witness about a statement she made to detectives in January 1988. In her statement she told detectives that she overheard Shere's end of the telephone conversation with Demo in the early hours of December 25. Shere reportedly said to Demo "I can't believe Drew would turn state's evidence against me." When Shere returned home on the morning of December 25, Greulich told detectives, she saw blood on Shere's jeans and on the back seat of Shere's car. Greulich testified that Shere told her he alone killed Snyder, but he said that only to protect her, because "[i]f I knew Brewster was out there, Brewster would have hurt me."

Shere's friend, Ray Pruden, testified that one night after Christmas Shere told him he shot Snyder to death while out rabbit hunting. He said he shot him ten or fifteen times, then buried the body. Shere did not say that Demo was involved, Pruden testified.

Medical testimony established that Snyder was shot to death with ten gunshots. Three shots were fired into his head, one shot was fired through the chest, and other shots were fired into the back, the buttocks, the right thigh, and the right forearm. Death could have been caused by gunshot wounds to the head or chest. The medical examiner testified that any of the shots could have caused pain had Snyder been conscious, but there was no evidence that Snyder was conscious.

Seven projectiles were removed from the body during the autopsy. Ballistics evidence showed that shots fired into Snyder's head came from the pistol, one bullet recovered from Snyder's leg was fired from the rifle, and others could not be clearly identified. Other forensic evidence established that shots had been fired in Shere's car, that human blood was found on Shere's boots, and that a hair from Snyder was found on Shere's jacket.

The jury found Shere guilty and recommended the sentence of death by a vote of seven to five.

Shere, 579 So.2d at 88-89 (footnotes omitted).

HABEAS CLAIMS

In this petition, Shere argues appellate counsel was ineffective for failing to raise the following issues on appeal: (1) whether the State's improper remarks and biblical references during the penalty phase rendered Shere's death sentence unreliable and in violation of his constitutional rights; (2) whether Shere's death sentence was disproportionate, especially when considered in conjunction with the life sentence received by the codefendant, Demo; and (3) whether the trial court failed to find the statutory mitigator of no significant prior criminal history. Shere also asserts that his constitutional right to be free of cruel and unusual punishment will be violated if he is executed as he is incompetent and hence ineligible for execution.

ANALYSIS

Initially, we have thoroughly reviewed three of Shere's claims and find them to be without merit. As to Shere's first claim, we find no ineffectiveness of appellate counsel in the failure to claim error in the prosecution's use of religious references during the penalty phase. The record reflects not only the defense's failure to object in many instances, but also that the defense itself interjected the issue of religious belief into the proceedings. While we have cautioned against such practice, we find no deficiency by appellate counsel here in light of the record. In his third claim, Shere argues that the trial court improperly failed to find the mitigating circumstance of "no significant prior criminal history." The record reflects, however, that the trial court properly found that Shere's own admission of prior criminal behavior negated a finding of this mitigating circumstance. As to Shere's claim that he may be incompetent at the time of execution, Shere admits this issue is not ripe for state court proceedings, but is raised solely to prevent a bar for potential federal habeas relief.

We also find Shere's second claim to be without merit but warranting discussion. Shere claims that although his codefendant, Demo, was tried separately and sentenced to life imprisonment before the trial court sentenced Shere, appellate counsel failed to raise Demo's lesser sentence and the proportionality of Shere's death sentence on direct appeal.³ Shere claims that although the trial court was aware of Demo's life sentence, the trial court did not consider it in mitigation of Shere's sentence, and Shere's jury was never informed of Demo's life sentence. Shere further contends that under this Court's case law, Shere...