Shere v. State

• Decision Date: 24 June 1999
• Docket Number: No. 91614.,91614.
• Citation: Shere v. State, 742 So.2d 215 (Fla. 1999)
• Parties: Richard Earl SHERE, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

742 So.2d 215

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

No. 91614.

Supreme Court of Florida.

June 24, 1999.

James H. Walsh, Assistant CCRC and Harry P. Brody, Assistant CCRC, Office of the Capital Collateral Regional Counsel-Middle, Tampa, Florida, for Appellant.

Robert A. Butterworth, Attorney General, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, Florida, for Appellee.

PER CURIAM.

Richard Earl Shere appeals the denial of his motion for postconviction relief filed pursuant to Florida Rules of Criminal Procedure 3.850. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the following reasons, we affirm the denial of Shere's 3.850 motion for postconviction relief.

PROCEEDINGS TO DATE

In 1989, Shere was convicted for the first-degree murder of Drew Paul Snyder. The facts in this case are set forth in greater detail in Shere v. State, 579 So.2d 86 (Fla.1991). There was evidence at trial that Bruce Demo, an acquaintance of Shere, telephoned Shere shortly after midnight on the morning of December 25 advising Shere that he planned to kill Snyder and that he would kill Shere if he did not cooperate. At about 2:30 a.m., Shere went to Demo's house, where they smoked marijuana and drank beer. After loading a shovel into Shere's car, they talked Snyder into going rabbit hunting.

There was contradictory testimony as to what happened during the hunt. Shere maintained that at one point, he placed his.22-caliber rifle on the roof of the car while he went to relieve himself. Suddenly, he heard the weapon discharge and dropped to the ground. When the shooting stopped, he saw that Snyder had been shot. He wanted to take Snyder to the hospital, but before he was able to do so, Demo shot Snyder twice more in the head and the chest. They both then buried the body.

Detective Alan Arick contradicted Shere's accounts. He testified that Demo had told him that it was Demo who had gone to relieve himself. When he heard a shot and turned around, Demo saw Shere fire five or six shots at Snyder. Shere then ordered Demo to finish Snyder off. Ray Pruden, a friend of Shere, also contradicted Shere's accounts. He testified that one night after Christmas, Shere had told him he had killed Snyder while out rabbit hunting and had buried his body. Forensic evidence established that shots were fired in Shere's car and that human blood was found on Shere's boots. After convicting Shere, the jury recommended death by a vote of seven to five. The trial judge followed the jury's recommendation and sentenced Shere to death, finding three aggravating factors¹ and one statutory mitigating circumstance.² This Court affirmed Shere's conviction and sentence.³

On February 1, 1993, Shere filed his initial postconviction motion. This motion was stricken because it was unsworn and legally insufficient. Subsequently, on July 12, 1993, Shere filed a new motion asserting twenty-three claims. The trial court conducted a Huff⁴ hearing on September 13, 1996, and on June 4, 1997, it held an evidentiary hearing to consider claims III (to the extent that it overlapped with claims IV, VI, and XV), IV, VI, and XV.⁵ In an Order Denying Defendant's Motion for Postconviction Relief [hereinafter "Order"] dated August 13, 1997, the trial judge summarily denied all claims except III to the extent mentioned above, IV, VI, and XV, which were all denied on their merits pursuant to the evidentiary hearing. This appeal is from that order.

APPEAL

Shere raises several issues on appeal which we must consider, the majority of which deal with ineffective assistance of counsel at the guilt and penalty phases of the trial.⁶ The remaining issues raised on appeal are either procedurally barred⁷ or without merit.⁸

INEFFECTIVE ASSISTANCE AT THE GUILT PHASE

In order to establish ineffective assistance of counsel, a defendant must prove two elements:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Rutherford v. State, 727 So.2d 216 (Fla.1998); Rose v. State, 675 So.2d 567 (Fla.1996); Wilson v. Wainwright, 474 So.2d 1162 (Fla.1985); Johnson v. Wainwright, 463 So.2d 207 (Fla.1985). In determining deficiency, "a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689, 104 S.Ct. 2052; see also Cherry v. State, 659 So.2d 1069, 1073 (Fla.1995). Moreover, counsel's deficiency prejudices defendant only when the defendant is deprived of a "fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

Shere raises several claims based on ineffective assistance of counsel at the guilt phase. Some of these are procedurally barred,⁹ but others merit discussion. Shere asserts that defense counsel was ineffective for calling Detective Arick as a defense witness because his testimony opened the door for the State to draw from the detective the portions of Demo's statements that conflicted with Shere's account, statements that the jury otherwise would never have heard. After a review of the proceedings below, we can find no error in the way the trial court dealt with this issue in its order. It provided in relevant part:

The record of the trial and the testimony presented during the evidentiary hearing clearly establish that the decision to offer evidence of the codefendant's admissions regarding his own involvement in the murder was a tactical judgment on the part of defendant's trial counsel. At the conclusion of the State's case the defendant was in a desperate situation. Although the defendant blamed the murder on his codefendant in his statement to law enforcement, the State also introduced evidence at trial that the defendant gave several inconsistent statements after his arrest. The State also established that the defendant told his girlfriend [Heidi Greulich] that he had killed the victim himself and that he told a friend, Ray Pruden, that he had shot the victim "ten or fifteen times," that he had buried the victim "where nobody would find him," and that the defendant had made no mention of any involvement by the codefendant. The physical evidence, including projectiles removed from the victim's body that came from defendant's gun, was extremely damaging. The State's case-in-chief did not leave any doubt that the defendant played a major role in the murder and subsequent coverup. It is likely that nothing the defendant or his attorneys could have done at that point would have avoided a conviction for first-degree murder. They had a choice of resting and reserving their right to opening and closing final arguments, or of mounting some kind of defense, weak as it was. Other than the order of final arguments, defendant did not have anything to lose.

If counsel had made a careless or unconcerned decision to introduce the evidence, the court would be concerned. The court would also be concerned if the decision was made by an uninformed and inexperienced attorney. However, defendant was represented by a highly competent and ethical trial attorney who has dedicated his life to defending people who are charged with crimes. He was assisted in trial by an excellent associate. He had the benefit of advice from a highly experienced investigator and experienced attorneys working in his own office. They had the assistance of a reliable mental health professional that his office uses in many cases. They investigated every avenue of defense and mitigation suggested by the evidence, and all information they were furnished by the defendant, his family, his wife, and the psychologist.

Counsel made the tactical decision after considering all of the evidence against his client and after considering all other alternatives. See State v. Bolender, 503 So.2d 1247, 1250 (Fla.1987) ("Strategic decisions do not constitute ineffective assistance if alternative courses of action have been considered and rejected"). Although this strategy may appear futile, this court has seen weaker arguments prevail in front of a jury of untrained citizens. Finally, the fact that introducing portions of the codefendant's statement opened the door to other inculpatory evidence was not of much consequence given the fact that the defendant's statements to law enforcement and his friends were already before the jury and those statements portrayed him as a cold and ruthless killer.

The court finds that the defense attorney's decision to introduce the codefendant's statements was not "a clear, substantial deficiency" that was "outside the broad range of reasonably competent performance under prevailing professional standards." Maxwell, 490 So.2d at 932. The codefendant's statement confirmed that he fired the fatal shot and that the defendant did not act alone. The defense believed these facts would mitigate against a conviction of first-degree murder and more importantly, against a recommendation of death. Also, no matter how the defendant or his attorneys tried to rationalize his involvement in the crime, there was overwhelming evidence that the defendant was guilty of first degree murder. The defendant did not prove that his attorneys' strategy

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