Shrader v. State

• Decision Date: 23 August 2019
• Docket Number: Case No. 2D13-2712
• Parties: George O. SHRADER, DOC #101103, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

278 So.3d 270

George O. SHRADER, DOC #101103, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D13-2712

District Court of Appeal of Florida, Second District.

Opinion filed August 23, 2019

EN BANC

BADALAMENTI, Judge.

Florida Rule of Appellate Procedure 9.331 authorizes a district court of appeal to rehear, on its own motion or on motion of a party, a prior panel's decision. The rule calls for a majority of the judges in active service to agree to rehear a case en banc, which, for our court, is nine judges. See Fla. R. App. P. 9.331(a), (d)(1). Thirteen judges of this court concurred with a decision to proceed en banc and, accordingly, withdrew the panel opinion in Shrader v. State, 41 Fla. L. Weekly D2080 (Fla. 2d DCA Sept. 7, 2016), withdrawn 42 Fla. L. Weekly D2455b (Fla. 2d DCA Nov. 17, 2017). For the reasons explained, we grant the State's Motion for Rehearing En Banc.

I. INTRODUCTION

A grand jury returned a three-count indictment charging George Shrader with one count of first-degree murder and two counts of sexual battery with a deadly weapon (a knife or any other sharp object) or actual physical force likely to cause serious personal injury. A jury convicted Shrader of both sexual battery counts and of the first-degree felony murder count. See §§ 782.04(1)(a)(2)(c), 794.011(3), Fla. Stat. (1985). The court subsequently sentenced him to a term of life imprisonment on each of the three counts. After careful review of the trial record, the appellate briefs, and the parties' supplemental briefs addressing Knight v. State, 186 So. 3d 1005 (Fla. 2016), we affirm Shrader's felony murder and sexual battery convictions and corresponding life sentences.

II. FACTUAL BACKGROUND

The evidence adduced at trial, viewed in the light most favorable to the State, established the following facts: Three decades ago in the early morning hours of January 27, 1986, a law enforcement officer discovered the dead body of a female victim lying in the middle of a dirt road. She had been stabbed thirty-six times and was wearing only a T-shirt. She lay in a pool of her own blood, and her body was still warm to the touch despite it being bitterly cold that morning. The officer noticed that there were signs of a struggle in the area where the victim lay.

Crime scene technicians collected swabs from the victim's vagina and anus as part of a rape kit protocol. They also collected soil samples containing drops of blood leading away from her body. Those drops of blood did not belong to the victim. The investigation went cold. In 2007, a cold case committee consisting of current and former law enforcement officers, representatives of the State Attorney's and Medical Examiner's offices, and the Biology and Forensics Division of Florida's Department of Law Enforcement recommended that the Hillsborough County Sheriff's Office reopen the case of the unsolved murder of the victim described above. Three years later, a Florida statewide DNA database yielded a match between the DNA collected from the victim's rape kit and Shrader's DNA.

The State brought Shrader to trial in 2013. During the State's case-in-chief, it presented physical evidence and the testimony of seventeen witnesses. Sergeant Robert King of the Hillsborough County Sherriff's Office testified that he discovered the victim's dead body on the early morning of January 27, 1986. The victim's body lay in the middle of a dirt road in an undeveloped peninsula in Hillsborough County known as Whiskey Stump.

Sergeant King described that morning as "bitterly cold" and the temperature as being in the "high 20s, low 30s." Despite the low temperature, the victim's neck was warm to the touch, and Sergeant King observed steam emanating from the victim's dead body. Moreover, the victim was not dressed for cold weather. She was almost completely nude, save for a yellow T-shirt. In fact, the victim was not dressed in any of the clothing witnesses observed her wearing earlier in the evening, when she was hitching a ride from an establishment known as the Happy Days Lounge to another establishment known as the East Side Lounge.

Sergeant King testified that when he observed the crime scene, he saw "signs of what appeared to be a struggle right there." The State published photographs to the jury of the crime scene and of the victim's slain body. She had been stabbed thirty-two times in the front, side, and back of her body, and she was found lying in a large pool of her own blood, which stained her bare buttocks and thighs. The photographs also displayed four additional wounds—three to her left upper arm and one to her right hand—which the medical examiner testified were defensive in nature. The State presented evidence demonstrating that Shrader's DNA matched not only blood drops leading away from the victim's body, but also semen found inside the victim's vagina and anus.

When cold case investigators Detective Chris Fox and Special Agent James Noblitt interviewed Shrader on January 31, 2011, and February 18, 2011, Shrader denied ever knowing the victim and denied ever having been to Whiskey Stump. And when they showed him a photograph of the victim, Special Agent Noblitt noticed that Shrader immediately looked away without even examining the photo. At the conclusion of their second interview, Special Agent Noblitt invited Shrader to call them if he remembered being with the victim. Despite having repeatedly denied knowing the victim throughout the interview, Shrader responded that he would "meditate and think and see" if he could "figure out what's going on."

The State further presented evidence that Shrader's right hand bore newly acquired cuts to his pinky and ring fingers on January 27, 1986, which was the very same day that Sergeant King had found the victim's body. On that day, Shrader had those cuts sutured at Tampa General Hospital, and when he appeared at the Hillsborough County Courthouse that day to have his fingerprints taken for an unrelated matter, Shrader was unable to give any prints from his right hand because of those recently sutured cuts.

Shrader told a doctor that he received the cuts while working as a roofer. But when one of Shrader's then-roommates inquired as to how he cut his fingers, Shrader told her a different story—that he injured his hand on a nail sticking up from a bannister at their apartment. The roommate testified that she had never gotten more than a scratch from the nail in question and that even her children managed to avoid getting injured by the nail on the bannister.

When Detective Fox and Special Agent Noblitt asked Shrader in February 2011 about the cuts he received on his right hand back in 1986, Shrader claimed that he cut his hand on a knife while reaching into a dishwasher. But Shrader's roommate from that time would testify that they did not even own a dishwasher and that, at any rate, Shrader never washed dishes. And when the cold case investigators asked Shrader where he received his sutures back on January 27, 1986, Shrader responded: "At the hospital." But when asked which hospital, Shrader hesitantly claimed that he did not recall. Shrader then changed his story and claimed that he never received sutures at all, before finally answering that he did not remember one way or another.

At the close of the State's case-in-chief, Shrader moved for judgment of acquittal on the two sexual battery counts and the felony murder theory, arguing that the State's evidence failed to establish that any sexual battery had occurred. Specifically, defense counsel argued:

It is a reasonable hypothesis to assume that at some point, if the [S]tate is arguing that Mr. Shrader killed this decedent, that there's no evidence produced by the [S]tate to prove that they did not have consensual sex; and, then ultimately, later, she was killed. That activity of sex would have occurred before the killing and therefore would not be sexual battery if it was consensual in nature.

Defense counsel continued: "The State is trying to prove sexual battery, I would argue, through circumstantial evidence." The trial court denied Shrader's motion, ruling that after "[l]ooking at the evidence in the light most favorable to the [S]tate, ... there is competent, substantial evidence for this to go forward." The court thus submitted the case to the jury for its consideration. The jury returned verdicts of guilty as charged.

III. APPELLATE PROCEDURAL HISTORY

A split panel of our court reversed Shrader's convictions and sentences. See Shrader, 41 Fla. L. Weekly at D2082 -83.¹

The thrust of the panel's opinion centered on the State's purported lack of evidence to prove that the sexual intercourse between the slain victim and Shrader was nonconsensual. See id. at D2082-83. The panel's dissenting opinion cited the supreme court's opinion approving the Fifth District Court of Appeal's decision in Knight v. State, 107 So. 3d 449 (Fla. 5th DCA 2013), approved, 186 So. 3d 1005 (Fla. 2016).

The State timely filed a motion for panel rehearing and, alternatively, a motion for rehearing en banc, asserting that this case is one of exceptional importance and was in conflict with decisions of this court. The State set forth its two core concerns in its introductory paragraph of its motion for rehearing. Specifically, it argued that the panel opinion was contrary to decisions of our court because it effectively (a) retried the case or reweighed the evidence and (b) did not heed the principle of law that a "victim's consent is a jury issue." Motion for Rehearing, Rehearing En Banc (Sept. 22, 2016) (citing Bradford v. State, 460 So. 2d 926 (Fla. 2d DCA 1984) ; State v. Hudson, 397 So. 2d 426 (Fla. 2d DCA 1981) ). On November 9, 2016, the panel granted the State's motion for panel rehearing. But the panel's order did not vacate its prior panel opinion.² The panel solely sought supplemental briefing on Knight v. State, 186 So. 3d 1005 (Fla. 2016), and gave no indication in that order that it would address the core issues raised by ...