Shere v. State
Decision Date | 24 June 1999 |
Docket Number | No. 91614.,91614. |
Citation | 742 So.2d 215 |
Parties | Richard Earl SHERE, Jr., Appellant, v. STATE of Florida, Appellee. |
Court | Florida Supreme Court |
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.
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.
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.
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
In order to establish ineffective assistance of counsel, a defendant must prove two elements:
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:
(). 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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