Richard Earl SHERE, Jr., Petitioner,
v.
Michael W. MOORE, etc., Respondent.
Supreme Court of Florida.
*57 Bill Jennings, Capital Collateral Regional Counsel-Middle, Robert T. Strain, Assistant CCRC, April E. Haughey, Assistant CCRC, and Elizabeth A. Williams, Staff Attorney, Tampa, FL, for Petitioner.
Robert A. Butterworth, Attorney General, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, FL, for Respondent.
PER CURIAM.
Richard Earl Shere petitions this Court for writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. For the reasons stated below, we deny his petition for habeas relief.
PROCEDURAL BACKGROUND
Shere and Bruce Demo were charged with the murder of Drew Snyder, and in April 1989, Shere was convicted of first-degree murder. The jury recommended a sentence of death by a vote of seven to five. Upon submission of memoranda by the parties and a Spencer[1] hearing, the trial court sentenced Shere to death. In the meantime, and before Shere was sentenced, Demo was convicted of second-degree murder and sentenced to life imprisonment. Shere's counsel unsuccessfully urged the trial court to consider Demo's life sentence as a reason to sentence Shere to life.[2] Shere's conviction and death sentence were affirmed on direct appeal without reference to Demo's sentence. See Shere v. State,
In 1993 and 1997, pursuant to Florida Rule of Criminal Procedure 3.850, Shere filed a number of claims for postconviction relief. Subsequent to an evidentiary hearing on one of the claims, the trial court denied Shere's claims. In 1999, the trial court's denial of relief was affirmed by this Court. See Shere v. State,
BACKGROUND
As described by this Court on direct appeal, the circumstances of this crime were established at trial:
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 rights, made a series of statements, and led detectives to various scenes involved in the murder.
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, 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 *59 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.
Shere,
HABEAS CLAIMS
In this petition, Shere argues appellate counsel was ineffective for failing to raise the following issues on appeal: (1) whether the State's improper remarks and biblical references during the penalty phase rendered Shere's death sentence unreliable and in violation of his constitutional rights; (2) whether Shere's death sentence was disproportionate, especially when considered in conjunction with the life sentence received by the codefendant, Demo; and (3) whether the trial court failed to find the statutory mitigator of no significant prior criminal history. Shere also asserts that his constitutional right to be free of cruel and unusual punishment will be violated if he is executed as he is incompetent and hence ineligible for execution.
ANALYSIS
Initially, we have thoroughly reviewed three of Shere's claims and find them to be without merit. As to Shere's first claim, we find no ineffectiveness of appellate counsel in the failure to claim error in the prosecution's use of religious references during the penalty phase. The record reflects not only the defense's failure to object in many instances, but also that the defense itself interjected the issue of religious belief into the proceedings. While we have cautioned against such practice, we find no deficiency by appellate counsel here in light of the record. In his third claim, Shere argues that the trial court improperly failed to find the mitigating circumstance of "no significant prior *60 criminal history." The record reflects, however, that the trial court properly found that Shere's own admission of prior criminal behavior negated a finding of this mitigating circumstance. As to Shere's claim that he may be incompetent at the time of execution, Shere admits this issue is not ripe for state court proceedings, but is raised solely to prevent a bar for potential federal habeas relief.
We also find Shere's second claim to be without merit but warranting discussion. Shere claims that although his codefendant, Demo, was tried separately and sentenced to life imprisonment before the trial court sentenced Shere, appellate counsel failed to raise Demo's lesser sentence and the proportionality of Shere's death sentence on direct appeal.[3] Shere claims that although the trial court was aware of Demo's life sentence, the trial court did not consider it in mitigation of Shere's sentence, and Shere's jury was never informed of Demo's life sentence. Shere further contends that under this Court's case law, Shere was entitled to have his sentence reduced to life because Demo was the instigator of the murder and was at least equally, if not more, culpable in the killing. Shere asserts that counsel's failure to raise this issue on direct appeal constitutes ineffective assistance of appellate counsel.
This Court has established specific criteria for considering claims of ineffective assistance of appellate counsel:
The criteria for proving ineffective assistance of appellate counsel parallel the Strickland standard for ineffective trial counsel: Petitioner must show 1) specific errors or omissions which show that appellate counsel's performance deviated from the norm or fell outside the range of professionally acceptable performance and 2) the deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result. Johnson v. Wainwright,463 So.2d 207 (Fla.1985).
Wilson v. Wainwright,
This Court has an independent obligation to review each case where a sentence of death is imposed to determine whether death is the appropriate punishment. See Morton v. State,
In this case, however, we cannot conduct a true relative culpability analysis because the codefendant was convicted of second-degree murder. We cannot make a true comparison of a first-degree murder conviction and a second-degree murder conviction. See Steinhorst v. Singletary,
This situation is not unlike the one we addressed in Larzelere v. State,
On the other hand, equally culpable connotes the same degree of blame or fault. In order to have that same degree of blame or fault the codefendants must, at a minimum, be convicted of the same degree of the crime; third-degree murder does not connote the same degree of blame or fault as second-degree murder, which does *62 not connote the same degree of blame or fault as first-degree murder. It is the crime for which the defendant is convicted that determines his or her culpability, and in this case that decision has been made by the trier of fact.
Under section 921.141, Florida Statutes (1987), a defendant is eligible for a sentence of death only if he or she is convicted of a capital felony. This Court has defined a capital felony to be one where the maximum possible punishment is death. See Rusaw v. State,
Therefore, once a codefendant's culpability has been determined by a jury verdict or a judge's finding of guilt we should abide by that decision, and only when the codefendant has been found guilty of the same degree of murder should the relative culpability aspect of proportionality come into play. Moreover, the codefendant should not only be convicted of the same crime but should also be otherwise eligible to receive a death sentence, i.e., be of the requisite age and not mentally retarded.[6]
We have decided numerous cases where we have addressed the proportionality of defendants' death sentences based on the argument that an equally culpable codefendant received a lesser sentence.[7] However, in only ten of those cases did the proportionality analysis involve codefendants who received immunity or codefendants whose lesser sentences were based on convictions for second-degree murder or third-degree murder.[8]See Howell v. State,
Even if appellate counsel should have made an argument concerning the codefendant's sentence and relative culpability, appellate counsel cannot be ineffective because the codefendant's culpability for this murder has been determined to be less than Shere's, and thus there is no prejudice in failing to raise the issue. For the reasons expressed, we deny the petition for writ of habeas corpus.
It is so ordered.
SHAW, WELLS, LEWIS, and QUINCE, JJ., and HARDING, Senior Justice, concur.
ANSTEAD, C.J., concurs in part and dissents in part with an opinion, in which PARIENTE, J., concurs.
ANSTEAD, C.J., concurring in part and dissenting in part.
I cannot agree with the majority's analysis and disposition of Shere's claim wherein he alleges that his codefendant's life sentence should have been an important factor in assessing Shere's sentence and should have been argued by his counsel on appeal. I am especially concerned about the effect of the majority's holding on our established law that the sentence received by a codefendant must be considered in determining an appropriate sentence.
Shere was individually tried before a jury in April of 1989, while his codefendant, Demo, was tried separately, and sentenced to life imprisonment, after Shere had been tried and convicted, but before Shere was sentenced. Shere asserts that although the trial court was aware of Demo's life sentence, the trial court erroneously failed to consider it as a mitigating circumstance, and Shere's jury was never informed of the codefendant's life sentence. Even without knowledge of his codefendant's sentence, Shere's jury recommended a death sentence by a vote of seven to five, only one vote short of a life recommendation.
Shere now claims that although the record reflects that his codefendant Demo was tried and sentenced to life before the trial court sentenced Shere, appellate counsel failed to raise his codefendant's lesser sentence and its effect on the proportionality of Shere's death sentence on direct appeal. Shere further contends that under this Court's case law, he was entitled to have his sentence reduced to life because codefendant Demo instigated the *64 murder and was at least equally, if not more, culpable in the killing. Because the issue of Demo's lesser sentence was raised below and thereby preserved for appeal, Shere asserts, counsel's failure to raise this on direct appeal constitutes ineffective assistance of appellate counsel.
LAW
Due to the uniqueness and the finality of death, this Court addresses the propriety of all death sentences in a proportionality review upon appeal. See Porter v. State,
While the first analysis focuses on the larger universe of death sentences that have been imposed, the latter analysis homes in on the smaller universe of the perpetrators and participants in a given capital murder. We explained the principle in Slater v. State,
The record in this case reflects the possibility that Hall [codefendant] was the shooter. Hall was injured during the shootout with Lindsey, and the placement of the wounds suggests that Hall was facing Lindsey with his arm raised in a shooting position. At a minimum, Ray and Hall are equally culpable. Both men actively participated in planning the robbery, in executing the robbery, and in stealing the car. During their escape from the robbery, they stopped to attend to a mechanical problem with the getaway vehicle, and a gun battle with Lindsey ensued. Forensic evidence shows gun residue on Ray's hands, injuries to Hall from Lindsey's gun, and Hall's blood on the murder weapon. After Lindsey was killed, both men continued their flight until they were apprehended.
Much of the evidence points to Hall as the dominant player in the crimes. It is undisputed that Hall did nearly all the talking during the robbery and appeared to be in command of the operation. In addition, only Hall had shotgun injuries caused by the officer. Finally, Hall's statements and questions to paramedics suggest that he was responsible for shooting the officer. During sentencing the State argued that although Hall instigated the gun battle, both Hall and Ray shot Lindsey. The State sought the death penalty for both. The trial judge's own remarks in sentencing Hall reflect that, at a minimum, he believed Ray and Hall to be equally culpable in the shooting. It seems clear that the judge would have imposed equal sentences but for his belief that a failure to abide by the jury's recommendation would result in a reversal on appeal. Under these circumstances, the trial *65 court's entry of disparate sentences was error.
Ray,
Ray and Slater are two of numerous cases, going back some twenty-five years, in which this Court has acknowledged the principle that the relative culpability and punishment of a codefendant is an important factor to be considered in considering a capital defendant's sentence. See, e.g., McDonald v. State,
In Scott v. Dugger,
This Court has applied this same analysis in case after case. See, e.g., Fernandez,
THIS CASE
Based on the foregoing analysis, I would find appellate counsel's failure to raise a proportionality claim on direct appeal, and particularly to assert such a claim as it relates to Demo's comparative culpability, to have been ineffective as a specific omission outside the range of professionally acceptable performance. See Wilson v. Wainwright,
The propriety of the death penalty is in every case an issue requiring the closest scrutiny. Any appellate counsel who, after being ordered to address the issue, responds with such inadequate, unpartisan brief has failed to grasp the vital importance of his role as a champion of his client's cause. We do not approve of counsel urging frivolous claims, nor do we require that every colorable claim, regardless of relative merit, be raised on appeal. However, the basic requirement of due process in our adversarial legal system is that a defendant be represented in court, at every level, by an advocate who represents his client zealously within the bounds of the law. Every attorney in Florida has taken an oath to do so and we will not lightly forgive a breach of this professional duty in any case; in a case involving the death penalty it is the very foundation of justice.
Id. Proportionality is an issue that should be raised in every death penalty case. In fact, when it is not raised by counsel, this Court will often discuss the issue on its own.
Further, as noted above, case law from this Court has long established, well before the initial appeal in this case, that the comparative culpability of a codefendant who received the lesser sentence is an important factor bearing on a defendant's sentence. Under that case law, appellate counsel had a clear responsibility to argue proportionality and to bring to this Court's attention the life sentence imposed on the codefendant Demo. The record clearly reflects that trial counsel had asked the trial court to consider Demo's sentence in determining Shere's sentence.[12] Because the issue was raised below, and because it was important, appellate counsel had the responsibility to keep the issue alive on appeal.
PREJUDICE
Of course we must also consider the merits of Shere's claim in order to determine whether he was actually prejudiced by appellate counsel's omission to argue proportionality, especially as to Demo's life sentence. If the record reflected that Demo played a minor role in the crime, a disparate sentence would be justified. However, the record reflects substantial evidence that Demo was at least as culpable as Shere, and therefore that appellate counsel's failure to consider Demo's lesser punishment as a mitigator did prejudice Shere in the sentencing calculations and proportionality review.
*68 Indeed, it appears that Demo initiated the idea and formed the plan to kill the victim and that he participated equally with Shere in carrying it out. His conduct included forcing Shere at gunpoint to bury the body. From the record, it is clear that both Shere and Demo shared the motive to commit this murder and both of them went out that night to kill the victim. The trial court found as much in its analysis of the avoid arrest aggravator in its sentencing order when it stated, "While on pretrial release in a pending case, Richard Shere agreed with another defendant, Bruce Demo, to pick up Drew and `make sure he doesn't say anything' in response to information from Bruce Demo that Drew had `ratted them out' on another charge by giving state's evidence."[13] This Court, too, emphasized the role of both defendants throughout our opinion affirming Shere's conviction. See Shere v. State,
The evidence does not rise to that level in this case. The record shows that Snyder had no way of knowing before the first shot was fired that Demo and Shere took him hunting to murder him, so there was no prolonged apprehension of death. Without warning, either Shere or Demo or both fired a rapid succession of gunshots at Snyder from close range with two weapons. The killing took place quickly, and there is no evidence that Snyder experienced *69 pain or prolonged suffering. There is no evidence that he remained conscious throughout the shooting, and the first shot could have struck his head. Likewise, there is no evidence to suggest that Shere desired to inflict a high degree of pain. Four of the wounds were potentially fatal, which is an indication that they tried to kill him, not torture him. There was no testimony that any of the wounds were defensive in nature. Moreover, the fact that multiple gunshot wounds were inflicted is not, by itself, sufficient to support a finding of heinous, atrocious, or cruel. Thus, there is insufficient evidence in this record to conclude that this aggravating circumstance was proved beyond a reasonable doubt.
Id. at 96 (emphasis added).
In addition, and perhaps of critical importance, is the fact that the only aggravating circumstances this Court relied upon to approve Shere's sentence were circumstances that applied with equal force to both Demo and Shere. See id. at 95-96. Those circumstances were premised on the fact that both Demo and Shere planned to kill and killed the victim because they believed the victim was a witness to their participation in another crime:
Shere's last claim attacks the trial court's penalty-phase instructions and findings. Initially, Shere argues that the court erred by instructing the jury to consider whether the murder was committed to disrupt or hinder the lawful exercise of a governmental function or law enforcement. See § 921.141(5)(g), Fla. Stat. (1987). We disagree. Substantial competent evidence properly introduced at trial supports beyond a reasonable doubt the finding that Shere and Demo plotted to kill Snyder because they believed Snyder had become a witness against them in an unrelated criminal case. See, e.g., Francis v. State,473 So.2d 672 , 677 (Fla.1985), cert. denied,474 U.S. 1094 ,106 S.Ct. 870 ,88 L.Ed.2d 908 (1986); Lara v. State,464 So.2d 1173 (Fla.1985). The trial court did not err in instructing the jury on a circumstance that was supported by the evidence.
Shere also argues that the trial court erred by finding the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. § 921.141(5)(I), Fla. Stat. (1987). Again we find substantial competent evidence to support the trial court's finding. This circumstance requires proof of heightened premeditation, that is, "the evidence must prove beyond a reasonable doubt that the defendant planned or arranged to commit murder before the crime began." Porter v. State,564 So.2d 1060 , 1064 (Fla.1990); see also, e.g., Rogers,511 So.2d at 533 . There is no evidence to reasonably suggest that Shere and Demo had any motive other than to kill Snyder. They discussed killing Snyder before the murder, they obtained a shovel to bury the body, then they took Snyder to an isolated location where Snyder was shot ten times. See, e.g., Francis,473 So.2d at 677 ; Lara,464 So.2d at 1173 .
Id. at 95. It was established by the medical examiner that some ten shots were fired into the body of the victim. The record also reflects that Shere and Demo used the same caliber of weapon in committing the murder, Shere with a .22 caliber rifle, and Demo with a .22 caliber pistol. However, due to the contamination of the victim's body, the medical examiner was unable to establish the order of the shots, or which of the shots was the fatal one. This is significant in light of the fact that the codefendant Demo admitted in his confession to the police that he fired the fatal shot into the victim.
*70 Perhaps the most telling observation of all in the record on this issue is that of the trial judge, who concluded: "The exact nature of Shere's participation in the murder will never be known, but it is clear that Drew Snyder was shot ten times with.22 caliber firearmssix times with a rifle belonging to Richard Shere and four times with a pistol belonging to Bruce Demo." (Emphasis supplied.)[14] Hence, at most, the record reflects a classic case of two equally culpable codefendants. One of them received a life sentence, the other received a death sentence.
This case bears a remarkable similarity to the circumstances involved in Scott v. Dugger, a case discussed above, where the codefendant's sentence was reduced to life after Scott was sentenced, and this Court, finding at least equal culpability, then reduced Scott's sentence to life. The case is also similar in many respects to the facts described in our opinion in Ray v. State, wherein we also reduced a death sentence on the same issue.
Another instructive case is Brookings v. State,
It is clear from our review of the record in this case that the jury's recommendation of life was based on the disparate treatment accorded Murray and Lowery. Appellant's counsel's closing argument during the penalty phase centered almost exclusively on the role Murray and Lowery played in this murder and the different treatment given to these two when compared with the penalty sought against appellant. The trial court, by finding the disparate treatment as mitigating factors, recognized that the treatment of Lowery and Murray were reasonable factors to consider. We are presented here with a factual picture arising from the not infrequent difficult choices confronting prosecuting authorities when deciding who to prosecute and who to plea bargain with. In this case, the testimony of Lowery and Murray was essential to ensure a conviction against appellant. We are not critical of the state's strategic decision here to strike "deals" with Lowery and Murray in order to ensure a conviction against a violent criminal who would murder another human being for money. This kind of deal making is simply a fact of life in our criminal justice system. The issue before us is whether it was reasonable for this jury to consider the treatment given Murray and Lowery when determining what sentence to recommend to the trial court.
This Court has upheld a jury recommendation of life which could have been based, to some degree, on the treatment accorded another equally culpable of the murder. See, e.g., McCampbell v. State,
We find here that the jury could reasonably consider the treatment of Lowery and Murray and therefore, under the Tedder v. State,322 So.2d 908 (Fla. 1975) standard, the trial court's override was improper. The jury heard both Lowery and Murray testify about their roles in this homicide. Murray testified that she hired appellant to kill Sadler in order to protect her son from murder charges, and provided appellant and Lowery with money, lodging and transportation both before and after Sadler was killed. Lowery testified that she helped appellant purchase the murder weapon and ammunition, helped devise the plan to lure Sadler from his home in order for appellant to ambush the victim, drove Murray's car to and from the murder scene and ran over Sadler's body after the killing was accomplished. In short, although appellant pulled the trigger, Murray and Lowery were also principals in this contract murder, helping to plan and carry out this crime. That Murray would escape any chance of the death penalty and that Lowery would walk away totally free while the ultimate penalty was sought against appellant, are facts that could reasonably be considered by the jury. Since reasonable people could differ as to the propriety of the death penalty in this case, the jury's recommendation of life must stand.
Id. at 142-43. Thus, we have repeatedly recognized the treatment of codefendants as relevant circumstances for the jury, the judge, and for this Court to consider in determining an appropriate penalty in a capital case.
CONCLUSION
Significantly, nowhere in our prior opinion in Shere's case did this Court consider the life sentence of Demo or his relative culpability. This failure, of course, can be traced directly to appellate counsel's failure to brief the issue. As to prejudice, I would conclude the deficiency in appellate counsel's performance here indeed "compromised *72 the appellate process to such a degree as to undermine confidence in the correctness of the result." Teffeteller v. Dugger,
Under these circumstances, I would conclude Shere has established the requisite inadequacy of counsel and prejudice. Accordingly, under our abundant case law requiring like sentences for like culpability, I would find Shere is entitled to relief. To do otherwise is to wholly ignore the substantial body of case law we have developed on this issue and to invite confusion in the trial courts as to the proper manner in which this issue should be assessed in future cases.
PARIENTE, J., concurs.
NOTES
Notes
[1] Spencer v. State,
[2] While the sentencing court noted that Demo received a life sentence in its evaluation of the statutory mitigator concerning duress or domination, it did not appear to evaluate the relative culpability of the two defendants or otherwise take Demo's sentence into account in determining Shere's sentence.
[3] Demo was tried separately and sentenced to life imprisonment after Shere had been tried and convicted, but before Shere was sentenced.
[4] Black's Law Dictionary explains the concept of culpability as follows:
"The concept of culpability is used as a reference point to assess the defendant's guilt and punishment even though, in the two contexts, culpability denotes different aspects of the defendant and the murder. At the guilt phase, culpability is most often used to refer to the state of mind that the defendant must possess. Also at the guilt phase, culpability may reflect a broader judgment about the defendant: when he is culpable for his conduct, it means that he is blameworthy and deserves punishment. At the punishment phase, the concept of culpability stands as the benchmark for when the death penalty is an appropriate punishment." Phyllis L. Crocker, Concepts of Culpability and Deathworthiness, 66 Fordham L.Rev. 21, 35-36 (1997).
Black's Law Dictionary 385 (7th ed.1999).
[5] In Buford v. State,
[6] Even in situations where codefendants are both convicted of first-degree murder, there may be legal obstacles to imposition of the same sentence. For example, in Henyard v. State,
In this context, then, Smalls' less severe sentence is irrelevant to Henyard's proportionality review because, pursuant to Allen v. State,
Henyard v. State,
[7] We have identified more than seventy cases which fall into this category.
[8] In Coleman v. State,
[9] In Garcia v. State,
[10] Foster v. State,
[11] This Court has rejected proportionality claims where the defendant was determined to be the more culpable. In Jennings,
Likewise, in Sexton v. State,
[12] Prior to sentencing, defense counsel filed a sentencing memorandum asserting:
Proportionality in the treatment of defendants and co-defendants has been the basis of a major non-statutory mitigating circumstance. On May 4, 1989, co-defendant Bruce Michael Demo was found guilty of Second Degree Murder by a jury and sentenced by Judge John Futch to life imprisonment. Obviously this was based on the same facts and circumstances as proven in Shere's case.
[13] Detective Alan Arick testified that he interviewed Darlene O'Donnel and Bruce Demo. Arick testified that Ms. O'Donnel stated:
Bruce was in the bedroom and she was out in the living room, but there was a thin wall between the two of them and she could hear Bruce sounding like he was angry talking to someone, saying he was angry with Drew, something to the effect that he was tired of Drew's bullshit or something like that. And she was later awake when and then I go into how she was awake when Rick came over to pick up Bruce.
As to the confession he secured from Demo, Arick testified:
Q. After the statement that Mr. Blade said, what was the first thing and how did he begin his confession? What were his exact words? I believe it's a quote in your report.
A. Okay. After he stated that, "he ran out of bullets. That's why he didn't shoot me," he thenMr. Demo realized that he had made an incriminating statement regarding his involvement in the case. So he then made another statement shortly after that.
I guess he was thinking things over in his mind, and he said, "I fired the fatal shot."
Q. What other shots did Mr. Demo tell you he inflicted on Drew Paul Snyder?
A. He told me that he fired two shots into the head of Drew Snyder and a third shot into Mr. Snyder's heart, into the chest area.
Q. Did he tell you where in the head he shot him?
A. Yes. He indicated that the first shot that he fired, Mr. Snyder was laying in the back seat of the car and he believed that he was laying face down, and he fired one shot into the back of Drew Snyder's head.
Q. Did he say he noticed any blood at that time?
A. He said that when the shot was fired, he noticed blood spurting up from Mr. Snyder's head.
Q. What was the next shot he told you he fired?
A. He said that Drew was then pulled from the vehicle. He said they pulled him out. I don't think we clarified which one of them pulled him from the vehicle, but once Drew was on the ground laying face up, then he fired another shot into Mr. Snyder's forehead, into the front of his head.
Q. And then he told you he fired another shot?
A. Yes. He said he fired a third shot into his chest.
Q. Did he tell you who dug the grave?
A. Yes. He said that Richard Shere dug the grave.
Q. Did he say Rick did that voluntarily or that he made him do it?
A. He told us that he made Richard dig the grave.
[14] The State itself emphasized the joint efforts of Demo and Shere during its opening statement:
The evidence will show that there are 10 bullets [sic] wounds or were 10 bullet wounds in the body of Drew Snyder. Seven bullets were recovered from his body. After they shot him, they let him to [sic] die. They loaded him into the trunk of the car and drove him within a mile in the same Ridge manor area to another location.
[15] Note that in Eutzy, the Court was apparently distinguishing between anyone who was or could have been a principal in the first-degree from anyone who might have been an accomplice:
This Court has upheld the reasonableness of jury recommendations of life which could have been based, to some degree, on the treatment accorded one equally culpable of the murder. McCampbell v. State,
Had it disbelieved Laura's testimony entirely, the jury could have inferred from the facts before it that Laura knew the defendant had taken the gun from her purse. This does not suffice to make her a principal in the first degree, equally as culpable of the homicide as the defendant.
Id. at 759 (emphasis supplied).