Shere v. State

• Citation: 16 Fla. L. Weekly 246,579 So.2d 86
• Decision Date: 04 April 1991
• Docket Number: No. 74352,74352
• Parties: 16 Fla. L. Weekly 246 Richard Earl SHERE, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 86

579 So.2d 86

16 Fla. L. Weekly 246

Richard Earl SHERE, Jr., Appellant, v. STATE of Florida, Appellee.

No. 74352.

Supreme Court of Florida.

April 4, 1991.

Rehearing Denied June 4, 1991.

Edward L. Scott and Don Gleason of Edward L. Scott, P.A., Ocala, for appellant.

Robert A. Butterworth, Atty. Gen. and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.

BARKETT, Justice.

Richard Earl Shere, Jr., appeals his conviction of first-degree murder and sentence of death. We affirm. ¹

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 ² rights, made a series of statements, and led detectives to various scenes involved in the murder. ³

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, ⁴ 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. In its written findings to support the death sentence, the trial court found three aggravating circumstances: 1) the murder was committed to disrupt or hinder the lawful exercise of a governmental function or the enforcement of laws by eliminating a witness; ⁵ 2) the murder was especially evil, wicked, atrocious, or cruel; ⁶ and 3) the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. ⁷ In mitigation, the court wrote that it considered numerous possible mitigating circumstances, rejected some, and found that "the aggravating circumstances far outweighed the mitigating circumstances."

Shere raises eleven issues. ⁸ We begin with issues related to the testimony presented at trial.

First, Shere claims that the trial court erred in denying his motion for mistrial because the state implied that Shere was facing other, unrelated criminal charges. Before trial, the court granted Shere's motion to bar the state from presenting evidence that detectives first contacted Shere at a courthouse where Shere appeared on other criminal charges. Despite that order, the prosecutor adduced testimony from Detective Arick that he located Shere "at the courthouse." However, the jury heard nothing to suggest that Shere's presence "at the courthouse" related to any other criminal charges against him. Shere objected and moved for a mistrial. The trial court sustained the objection but denied the motion for a mistrial. We conclude that although the prosecutor's endeavor to elicit that testimony despite the court's prior order may be questionable, there was no abuse of discretion by the trial court under these circumstances.

Shere next argues that the trial court erred in denying the motion to suppress his statements to detectives. The record shows that detectives first approached Shere on January 13, 1988. They took him to the sheriff's office where he waived his Miranda rights, made no inculpatory admissions, and invoked his right to silence. Detectives immediately ceased the interrogation and incarcerated Shere. The next day, detectives advised Shere that Demo had implicated him in Snyder's murder. Shere again waived his Miranda rights in accord with Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), this time inculpating himself in a detailed series of statements about the killing. Shere argues that his inculpatory statements were not voluntary when considered in the totality of the circumstances. Specifically Shere makes reference to the fact he previously had invoked his right to silence; that detectives advised him it would be better to cooperate, and that it would be bad or irreversible if he did not; that he made the statements without benefit of counsel; that he had not been taken before a judge; that the second interrogation took place in jail; and that he had been told by a law enforcement officer that Demo implicated Shere as the murderer.

We find no evidence in the record to support Shere's claim that either any single act by detectives, or the totality of the circumstances, compelled him to make involuntary statements in violation of his fifth amendment rights. The trial court found that Shere had been advised of his rights and waived them in accordance with Miranda and Mosley. We find no abuse of discretion.

In Shere's final evidentiary claim, he contends that the trial court erred by calling Greulich to testify as a court witness pursuant to section 90.615(1) of the Florida Statutes (1987). ⁹ We agree that the trial court abused its discretion, thereby permitting the state to introduce inadmissible evidence through improper cross-examination and impeachment. However, under the circumstances of this case, we find the error to be harmless. The evidence against Shere came largely from his own mouth, including his self-incriminating statements and the physical evidence which those statements helped to identify. The jury viewed evidence of the crime scene that was produced directly because of Shere's cooperation with investigators. Demo's statement and Pruden's testimony were very damaging. Moreover, portions of Greulich's incriminating testimony would have been admissible anyway had the error not been committed. Thus, the quality and quantum of incriminating evidence properly admitted at trial compel us to conclude beyond a reasonable doubt that there is no reasonable possibility that erroneously calling...