Shrader v. State
| Decision Date | 07 September 2016 |
| Docket Number | Case No. 2D13-2712 |
| Parties | GEORGE O. SHRADER, DOC #101103, Appellant, v. STATE OF FLORIDA, Appellee. |
| Court | Florida District Court of Appeals |
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
Appeal from the Circuit Court for Hillsborough County; Emmett L. Battles, Judge.
Howard L. Dimmig, II, Public Defender, and Richard J. D'Amico, Special Assistant Public Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.
George O. Shrader challenges his judgment and sentences for one count of first-degree felony murder and two counts of sexual battery with the use of a deadly weapon or actual physical force likely to cause serious personal injury following a jury trial. We conclude that the trial court did not abuse its discretion in denying Mr. Shrader's motion for mistrial made after the fleeting exposure of a few of the jurors to a newspaper article that referenced Mr. Shrader's prior murder conviction. However, because the State failed to prove that the victim did not consent to the sexual contacts or that she sustained her injuries contemporaneously with the sexual acts, we reverse the convictions for sexual battery. The reversal of the sexual battery convictions requires reversal of the felony murder conviction, which was based upon the jury's findings of guilt on the sexual battery counts. Thus, we remand for a new trial for second-degree murder.
The charges against Mr. Shrader arose from the killing of a young woman in the early morning hours of January 27, 1986, in Hillsborough County. The victim was last seen at the 18 Wheeler Bar in Gibsonton, Florida, around midnight on January 26, 1986.1 Her partially nude body was discovered at 7:24 a.m. on January 27, 1986, in the middle of a dirt road at Whiskey Stump, an undeveloped peninsula of land south of Gibsonton that juts into Tampa Bay. The investigation of the victim's murder went cold within a few weeks after it had begun.
Twenty-one years later, in March 2007, Detective Chris Fox of the Hillsborough County Sheriff's Office and Agent James Noblitt of the Florida Department of Law Enforcement decided to reopen the case and to review the physical evidence. They sent two soil samples taken from the crime scene that contained apparent blood tothe FDLE lab for DNA testing, along with anal, oral, and vaginal swabs taken from the victim. Both soil samples tested positive for blood, and a partial DNA profile was developed for one soil sample. Partial DNA profiles were found in both the epithelial cell fraction and the sperm cell fraction of the rectal swab, with the profile from the sperm cell fraction being consistent with the partial profile from the soil sample.
The partial DNA profiles were entered into CODIS,2 which presented no immediate hits. But in 2010, after Mr. Shrader was convicted on an unrelated charge that required him to submit a DNA sample, CODIS matched Mr. Shrader's known DNA profile with the partial profiles developed from the soil sample and rectal swab in the victim's case. Ultimately, on May 19, 2011, a grand jury returned an indictment against Mr. Shrader on the following charges: first-degree premeditated murder of the victim with a weapon, a violation of section 782.04(1)(a), Florida Statutes (1985); one count of sexual battery of the victim (penetration or union of penis with vagina) with a deadly weapon or physical force likely to cause serious personal injury, a violation of section 794.011(3), Florida Statutes (1985); and one count of sexual battery of the victim (penetration or union of penis with anus) with a deadly weapon or physical force likely to cause serious personal injury, a violation of section 794.011(3).
At Mr. Shrader's trial, the State presented evidence of the victim's activities on January 26, 1986, which was Super Bowl Sunday, including her visits to the Happy Days Lounge, the East Side Lounge, and the 18 Wheeler Bar in Gibsonton.Although there was evidence that Mr. Shrader also patronized the 18 Wheeler Bar and the East Side Lounge on occasion, no witness placed him at either of these locations on January 26 or 27, 1986, and no witness saw Mr. Shrader and the victim together that night. In addition, there was no direct evidence about how or when the victim came to be at Whiskey Stump.
The evidence reflected that the victim was found around 7:24 a.m. on January 27 in the middle of a dirt road at Whiskey Stump undressed except for a yellow T-shirt. There was no other clothing at the scene. Earlier that night, the victim had been seen wearing jeans, a blue shirt with writing, and a black, silky jacket. There was no explanation of how the victim came to be clad in the yellow T-shirt. She had been stabbed thirty-six times, including four defensive-type wounds to her left arm and right hand. Although the temperature was below or near freezing when a sheriff's deputy discovered the body, the body was still warm. There were tire tracks that were casted, but were never linked to any vehicle. However, soil samples taken from around the body included Mr. Shrader's blood. And when Mr. Shrader appeared at the courthouse for fingerprinting in an unrelated case on January 27, the officer was not able to take fingerprints of his right hand because it had been lacerated. Later, Mr. Shrader gave several inconsistent stories about how he had cut his hand.
The medical examiner, Dr. Charles Diggs, testified that the first stab wounds occurred to the victim's chest area and that she was moving around as she was stabbed multiple times. He also stated that the victim was likely to have been attacked and killed where her body had been found because of the amount of the blood at the scene and because the attacker's blood was apparently also found at the scene. Dr.Diggs observed that it was common for an attacker stabbing a victim to injure himself or herself during the attack.
The State introduced evidence at trial that Mr. Shrader's sperm cells were found in both the victim's vagina and anus. However, Dr. Diggs testified that "there was no physical evidence of bruising, lacerations, or tearing in any of the orifices, such as the vagina or rectum" to suggest a sexual battery. But the fact that there was no evidence of such trauma did not mean that a sexual battery did not take place. Many victims of sexual battery do not have evidence of sexual trauma.
The State also introduced evidence that when Detective Fox and Agent Noblitt confronted Mr. Shrader, he denied remembering the victim or being with her on the night of the murder. He denied that he had sex with her, and he denied that he knew of or had ever been to Whiskey Stump. The State's theory was that Mr. Shrader drove himself and the victim from the 18 Wheeler Bar to Whiskey Stump where he committed the two sexual batteries on her at knifepoint and then killed her by stabbing her. However, Mr. Shrader, who was nineteen years old at the time, did not own a vehicle, and there was no proof that he had access to one.
At the conclusion of the State's case, Mr. Shrader moved for a judgment of acquittal on the two sexual battery counts and the felony murder theory, citing Bigham v. State, 995 So. 2d 207 (Fla. 2008), and arguing that the State's evidence failed to establish that any sexual battery had occurred. More specifically, defense counsel argued that the State had failed to prove that there was any evidence of sexual trauma to the victim or that any sexual contact between the victim and Mr. Shrader was not consensual. Defense counsel argued Further, counsel argued that "[s]imply because there was DNA found . . . it in no way means that they did not have consensual sex prior to any killing occurring, which would not be felony murder."
The trial court denied the motion as to the two sexual battery counts and the related theory of felony murder. The jury returned a verdict in which it declined to find Mr. Shrader guilty of premeditated murder, but instead found him guilty of felony murder based upon its finding of guilt on the two sexual battery counts. Because the jury found Mr. Shrader guilty of first-degree felony murder based upon its findings of guilt on the two sexual battery counts, the jury did not address whether the State had established that Mr. Shrader possessed the requisite intent for second-degree murder. The trial court denied Mr. Shrader's motion for new trial and for judgment of acquittal after the verdict.
Mr. Shrader's trial began on April 29, 2013, and lasted for five days. On the morning of May 1, 2013, the third day of the trial, the trial court raised the issue with the parties that some of the jurors may have seen an article about Mr. Shrader and the trial in a newspaper.3 The article in question was titled, "He thought he got away with it." The article featured a photograph of Mr. Shrader at the trial with a caption that read,"George Shrader, 46, convicted of second-degree murder in 1986 for killing his uncle in a bar fight, faces another murder charge this week."
The trial court brought in one of two bailiffs at the trial who stated that she saw several jurors standing around a table with the newspaper article open on the table. The bailiff stated that one juror, Juror 12, had the article open and one or two other jurors were looking at it. But the jurors told her that they had just seen the article and had not read it. It did not appear that any discussions were occurring. The bailiff then confiscated the newspaper. The parties agreed to bring the fourteen members of the...
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