Shere v. Secretary, Florida Dept. of Corrections

• Decision Date: 07 August 2008
• Docket Number: No. 07-13768.,07-13768.
• Parties: Richard Earle SHERE, Jr., Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

537 F.3d 1304

Richard Earle SHERE, Jr., Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.

No. 07-13768.

United States Court of Appeals, Eleventh Circuit.

August 7, 2008.

Patrick D. Doherty (Court-Appointed), Brown & Doherty, P.A., Frank Louderback (Court-Appointed), St. Petersburg, FL, for Shere.

Kenneth Sloan Nunnelley, Dept. of Legal Affairs, Daytona Beach, FL, for Respondents-Appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, BLACK and WILSON, Circuit Judges.

BLACK, Circuit Judge:

Richard Earle Shere, Jr., a Florida death row inmate, appeals the district court's denial of his petition for a writ of habeas corpus. During the penalty phase of Shere's state criminal trial, the prosecutor¹ made Biblical references on three separate occasions while cross-examining defense mitigation witnesses. Shere now contends his appellate counsel was ineffective for failing to raise a challenge to these Biblical references on direct appeal. After review, we affirm the district court's denial of Shere's habeas petition.

I. BACKGROUND

Shere was convicted of first degree murder and sentenced to death for his role in the murder of Drew Snyder. The facts underlying Shere's conviction are set forth in the Florida Supreme Court's decision affirming his conviction and sentence and need not be repeated here. See Shere v. State, 579 So.2d 86, 88-89 (Fla.1991). For purposes of this appeal, what is relevant is what happened during the penalty phase of Shere's trial.

Shere called 14 witnesses to testify on his behalf during the penalty phase. He presented a mitigation theory based on his being a generally good and religious person, who had been hurt by his parents' divorce and who was more prone to lead than to follow. Of particular importance to this appeal are the direct and cross-examinations of three witnesses who discussed Shere's religious beliefs and practices: Shere's sister, Deanne Judith Simpson; Shere's pastor, Rose Grindheim Sims; and Shere himself. The relevant parts of their exchanges with defense counsel and the prosecutor are as follows:

A. Deanne Judith Simpson

1. Direct Examination

DEFENSE: Okay. What do you know about Rick's religious beliefs and his faith in God?

SIMPSON: I know that he believes in God and I know that if he goes to the electric chair, he will be in heaven with me.

DEFENSE: Have you done any— SIMPSON: But that won't happen because he's a good man and I love him to death.

DEFENSE: What have you done to try to bring him closer to God yourself?

SIMPSON: I've prayed with him a lot since I married him and Heidi to give their son a reputable name and a good life.

2. Cross-Examination

PROSECUTOR: Okay. And you've described your brother as a religious man. Is that right? He believes in God?

SIMPSON: Yes.

PROSECUTOR: He believes in God's Law?

SIMPSON: He does now.

PROSECUTOR: Yes, ma'am. Do you know whether or not he's aware of the Ten Commandments, the commandment against taking another human life?

DEFENSE: I'm going to object to that, Your Honor. She can't say what he's aware of. It's irrelevant.

THE COURT: Objection sustained.

B. Rose Grindhein Sims

1. Direct Examination

DEFENSE: What can you tell the jury about Rick's belief in God, about his religious faith?

SIMS: I first met Richard's grandmother when she came to our church, and then I called on her and then I called on Richard, Sr. And then he began bringing Richard to church with his wife, Pam.

. . . .

I probably have known Richard better than most other people have in the last three years because I've counseled with him over and over and over again. And when I counsel with him, I counsel that he accept Christ as his savior, and Richard did this. After a great struggle, both he and [his first wife] Pam accepted Christ.

And the day that they accepted Christ, Pam said, "Does this mean that I have to stay with Richard?" I said, "God isn't going to keep you out of heaven if you get a divorce. You have to try to make it work," but both he and Pam accepted Christ. And the second Sunday after that, I think, with great sincerity, both he and Pam came forward to profess their faith in Christ. He has never rejected that decision that he made. I baptized him.

. . . .

He was a brand new Christian. He was stumbling. He was growing. He was trying to do God's will and we shared together in many ways.

2. Cross-Examination

PROSECUTOR: Reverend Sims, you indicated earlier, I think, that you counseled with Rick—

SIMS: Yes.

PROSECUTOR:—about Christ and his Christian faith. Is that correct?

SIMS: Yes, I sure did.

PROSECUTOR: And that was sometime prior to December of 1987. Is that correct?

SIMS: Yes, sir.

PROSECUTOR: And correct me if I'm wrong. I'm Baptist and I think basically we believe the same thing.

SIMS: I was a Baptist minister's wife for many years.

PROSECUTOR: When you counseled with him, you explained to him, did you not, that he has personal responsibility for his sins. Is that right?

SIMS: Absolutely.

PROSECUTOR: And that he is responsible before God and everybody else for the sins he's committed. Is that correct?

SIMS: Yes. That we confess them to Christ and he forgives them.

PROSECUTOR: And he understood that concept.

SIMS: He understood that one sin, but all of us have sinned. All of us have done things wrong.

PROSECUTOR: Absolutely. And the wages of sin is death.

SIMS: Exactly.

PROSECUTOR: Did you discuss with Rick, I'm sure, sins and the Ten Commandments, and that one of the sins is thou shall not kill or commit murder. Correct?

SIMS: Sir, I said to him that no sin that you commit or that anyone commits is any different, that God forgives all sins equally. That's why I said if they were divorced, God would not hold that sin any worse than any other sin.

PROSECUTOR: Right. But nonetheless, that is a sin, is it not?

SIMS: Each transgression is a sin.

PROSECUTOR: Okay.

SIMS: Yours and mine.

PROSECUTOR: Right. So regardless of Christ's acceptance of him and Christ's forgiveness of him,—

SIMS: Yes.

PROSECUTOR:—does not the [B]ible teach, I'm sure you explained to Rick, that regardless of that forgiveness, he still has personal responsibility for the act that he committed on Christmas of 1987. Is that correct?

DEFENSE: Objection. That's been asked and answered, his personal responsibility.

THE COURT: Objection overruled.

PROSECUTOR: Is that correct, ma'am?

SIMS: Sir, I have never said that he committed an act on Christmas Eve.

PROSECUTOR: If this jury has found that he committed murder on Christmas, 1987, is he not, before God and everybody else, personally responsible for that act?

SIMS: You're an attorney.

PROSECUTOR: Ma'am,—

SIMS: The law says that. Right?

PROSECUTOR: Is that correct?

SIMS: Each person is responsible for anything that we do.

PROSECUTOR: Right?

SIMS: Life does not hold us irresponsible just because you're a Christian.

PROSECUTOR: That's correct.

SIMS: And I'm not indicating that.

PROSECUTOR: Okay. I just want to make sure that we understand that we're talking about two different responsibilities.

SIMS: Absolutely. I understand that.

PROSECUTOR: Okay. Do you hold a personal belief about the death penalty?

SIMS: I don't believe that's the question here, and I don't think that that is—

PROSECUTOR: Ma'am,—

SIMS: Yes.

PROSECUTOR:—I'm sorry. I don't mean to interrupt, but—

DEFENSE: Your Honor, I'm going to have to object to this question.

THE COURT: Objection overruled.

PROSECUTOR: Would you answer the question, please, ma'am?

SIMS: I don't believe that is the question here. I think there's a whole lot of difference between a Bundy and a boy like this.

PROSECUTOR: Your Honor, would you instruct the witness— THE COURT: Ma'am, just answer the question. It calls for a yes or no, or if you feel like a yes or no is inadequate, then I'll let you explain it.

SIMS: I think a yes or no is inadequate.

THE COURT: Then you've got to say one or the other and then explain it.

SIMS: Okay. I believe that there are circumstances.

PROSECUTOR: Yes, ma'am.

SIMS: Right.

PROSECUTOR: Circumstances that would warrant a death penalty.

SIMS: Yes. When there is absolute evidence, when there are fingerprints,—

C. Richard Shere, Jr.

1. Direct Examination

DEFENSE: I want you to tell me about your religious beliefs. I know it's hard for you and it's hard to testify here today, but tell the jury what are your religious beliefs. How do you feel about the Lord?

SHERE: Well, it's kind of hard growing up in a world of material things all your life and then having to adapt to a spiritual world, but I'm very close to God and I'm starting to really understand him. In the last three years I've really took on a lot of what it's all about, you know, got a whole lot of understanding about what the Lord and the [B]ible is about. I've read a lot on it and I've proven to myself that the [B]ible is true and everything in it is true.

DEFENSE: Who's helped you come closer to God? Can you tell the jury what you've done, what kind of things you've done to work on your faith and become deeper in your faith?

SHERE: Well, in the last three years I've been involved in a lot of church activity and that's helped me out a lot because I like building things. My pastor has coached me through everything in the last three years, and I feel that she's helped me more than anybody as far as getting involved in that type of environment, and I've really liked it. It's been very beneficial to me.

DEFENSE: Would you like to have the opportunity to bring other people closer to God?

SHERE: Yes.

DEFENSE: How would you like to do that?

SHERE: I talk to people all the time, other inmates and stuff. I try to keep most everybody happy and out of trouble. I see a lot of bad people in there. I never thought there was that many bad people.

. . . .

DEFENSE: How often do you pray,...