Supreme Court of Florida
____________
No. SC19-1512
____________
BILLY JIM SHEPPARD, JR.,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
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No. SC20-422
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BILLY JIM SHEPPARD, JR.,
Petitioner,
vs.
RICKY D. DIXON, etc.,
Respondent.
March 10, 2022
PER CURIAM.
Billy Jim Sheppard, Jr., appeals an order of the circuit court
denying his motion to vacate his conviction of first-degree murder
and sentence of death filed under Florida Rule of Criminal
Procedure 3.851 and petitions this Court for a writ of habeas
corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.
In the proceedings below, the circuit court granted a new
penalty phase and the State has not challenged that ruling.
Therefore, only postconviction claims relevant to the guilt phase
issues are presented on appeal. Sheppard’s petition for writ of
habeas corpus raises two claims of ineffective assistance of
appellate counsel. For the reasons explained below, we affirm the
circuit court’s order and deny the petition for writ of habeas corpus.
BACKGROUND
Sheppard was convicted of the first-degree murders of
Monquell Wimberly and Patrick Stafford. See Sheppard v. State,
151 So. 3d 1154, 1157 (Fla. 2014). The jury recommended the
death penalty for the murder of Wimberly by a vote of eight to four
and life imprisonment without the possibility of parole for the
murder of Stafford. Id. at 1164. The trial court followed the jury’s
recommendations. Id. We affirmed both convictions and the
sentence of death on direct appeal, id. at 1157, and summarized the
relevant facts as follows:
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Dtalya Barrett, a security guard at the Hollybrook
Apartments on King Street in Jacksonville, testified that
on the morning of July 20, 2008, she was working at the
apartment’s entrance gate. When she heard gunshots
shortly after 10 a.m., she ran to the end of the sidewalk
where she saw a person holding a gun out of the
passenger side window of a passing car driving toward
her. The person holding the gun shot a teenage boy,
later identified as sixteen-year-old Monquell Wimberly,
who was riding a bicycle. Barrett ran to call police and
when she returned, she saw the shooter leaning out of
the car window and looking back toward the boy on the
ground. She could not see the driver but could see the
passenger quite well from about ten to twelve feet away,
and she said the shooter was a black male with “dreads.”
When the police arrived, she was placed in the police car
to wait but “ran off” because, as she explained, the police
put her where everyone could see her and “they didn’t
think about whether he can come kill us or whatever . . .
. I wanted to get out and get my kids and leave.” . . .
Barrett did meet with detectives the next day and
was shown a series of photographs on the computer. She
initially picked out one person as “looking like” the
shooter, and although police investigated that person, he
was not arrested. When Barrett met again with
detectives and was shown more photographs she picked
out Sheppard’s photograph, and she identified Sheppard
in court as the man she saw shoot Wimberly. She also
identified Dorsette James’s stolen car as matching the
vehicle in which the shooter was riding.
Khalilah Mejors, a resident at the Hollybrook
Apartments, was standing on the third-floor balcony on
the morning of July 20, 2008, and saw the young man
riding the bicycle. She testified that as a dark gray Ford
Crown Victoria or Mercury vehicle approached the boy
and slowed down, the boy put his hands in the air and
was immediately shot, and he was shot several more
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times while on the ground. She could not see the
shooter’s face or that of the driver but did see the lower
part of an arm sticking out of the passenger side window
holding the gun. She ran to the victim and found him
still alive but not speaking.
Kieva Sherrod was also a resident at the Hollybrook
Apartments on July 20, 2008, where she lived on the
third floor facing King Street. She was standing on the
balcony with her cousin Khalilah Mejors that morning
and also saw Wimberly ride by on a bicycle toward the
entrance to the apartment complex. She saw the vehicle,
which looked like a gray Ford Crown Victoria, drive up to
the person on the bicycle and slow down, and the boy on
the bicycle stopped. She testified that she sat down, but
heard a gunshot and when she looked again, the boy on
the bicycle had his hands up in the air. She saw a gun
pointed out of the window of the car, but she could not
see who was holding the gun, although she could see
that there were two people in the car. Sherrod testified
that the boy was shot several more times and fell off the
bicycle. She ran inside to get her phone to call the police
and then ran down to the boy to see if he was still alive.
She said he was still alive but she did not hear him say
anything. She identified a photograph of the car, which
witnesses later identified as one stolen from Dorsette
James at the Prime Stop convenience store, as the car
she saw that morning.
Approximately one and a half hours before
Wimberly was shot, a car matching the description of the
Wimberly shooter’s car was stolen at gunpoint from
Dorsette James at the Prime Stop Food Store. Willie Lee
Carter, Jr., testified that he was at the store with James,
who was since deceased. Carter, who was outside but
not in the vehicle, heard James exit the store and say,
“Man, don’t do it like that.” When Carter looked, he saw
two men getting into James’s car, a gray Crown Victoria.
One man, described as shorter and with light brown skin
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and dreadlocks, got into the driver’s side of the car. The
other person, a tall man with darker skin, got in the
passenger side and the car drove away. When Carter
asked James why he let them take his car, Carter
testified that James told him one of the men had a gun.
James later picked Sheppard’s photograph out of a
photographic array as the driver and a photograph of
Rashard Evans as the person who got into the passenger
side of the car. Photographs taken from inside the Prime
Stop store showed both Evans and Sheppard at the store
that morning.
The stolen car was recovered that evening near
where the shooting occurred, but no DNA was found for
comparison purposes. Latent fingerprints and palm
prints taken from the stolen car were submitted for
examination and comparison. Fingerprint examiner
Richard Kocik of the Jacksonville Sheriff’s Office testified
that some of the fingerprints taken from the stolen car
were of no value and were not compared to anyone. The
only prints of value taken from the vehicle, palm prints
and some fingerprints, matched Rashard Evans.
....
Before Detective [Bobby] Bowers[, Sr.] arrived to
investigate the Wimberly shooting scene on King Street
on July 20, 2008, he had been investigating the shooting
of Patrick Stafford, which occurred at 6 a.m. that same
morning on Academy Street in Jacksonville. Shamika
Worthey lived on Academy Street and, in the early
morning hours of July 20, 2008, went out to her car to
retrieve some diapers and saw Patrick Stafford asleep in
her brother’s car. She returned to the house and went
back to sleep but was awakened by the sound of
gunshots at about 5:30 or 5:45 a.m. She could not see
anything from the window and woke her uncle and
brother and asked if Stafford had a gun and was told he
did not. She looked again and could then see that
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Stafford was lying by a tree in the yard. He appeared to
have blood on his shirt.
Leporyon Worthey . . . testified that he and Patrick
Stafford, his cousin, arrived at the house on Academy
Street after midnight and that he went to bed around 3
a.m., leaving Stafford sitting on the hood of Leporyon’s
car waiting for a ride. When his sister woke him around
6 a.m., Leporyon found Stafford on the ground, with the
car door open and no one else present. Leporyon said
Stafford tried to speak but could not do so. Crime scene
detective Howard Mac Smith was dispatched to the
Academy Street scene and found a Ford LTD parked in
the yard with the door open and the passenger side
window shattered. Stafford’s body was near the car and
shell casings found around the area were collected for
forensic examination.
Id. at 1158-60 (footnote omitted).
Sheppard was taken into custody and after being read and
waiving his Miranda1 rights, he was interviewed by Detective
Bowers and Detective Glen Warkentien. 2 Id. at 1161. Sheppard
initially denied carjacking James’s car, but he later admitted that
he and Evans took the car for a “joyride.” Id. Sheppard maintained
that he got into the driver’s side and that he later got out of the car
1. Miranda v. Arizona, 384 U.S. 436 (1966).
2. A redacted form of the video of the interview was played for
the jury; Sheppard’s trial counsel did not object to its admission at
trial. Sheppard, 151 So. 3d at 1161.
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while Evans kept it. Id. Sheppard denied taking the car by force
and denied any involvement with the Wimberly or Stafford murders.
Id.
Sheppard’s cellmate, Michael Roberts, gave the following
testimony:
Roberts testified that at one point during their
incarceration, Sheppard asked him how much weight an
eyewitness’s testimony would be given if that witness
identified Sheppard as the shooter, but there was no
other evidence. Roberts testified that he told Sheppard
the testimony would be crucial. Roberts testified that
Sheppard also asked how much weight it would carry if a
codefendant related facts of a crime to a third party when
the other codefendant was not present. Roberts said he
asked about it and Sheppard told him Evans, his
codefendant, was housed on the other side of the jail and
was bragging about a carjacking, saying “the guy bucked
and that they shot him,” referring to the Stafford murder.
Roberts said that when Sheppard was explaining why he
was charged with murder, Sheppard said his codefendant
Evans had talked and it got back to the police, who then
matched the ballistics from the two shootings.
Roberts testified, “Actually he said that—he said
that they were going hard [apparently a reference to
doing drugs] and they were trying to find a car and that
they went to rob a guy for his car and he bucked. They
were trying to take a car from him and he bucked,” which
meant he was not giving up the car. “So he said that him
and Rashard shot him . . . . He said they both put fire on
him,” which meant shooting him. Roberts also testified
that he overheard Sheppard telling some other inmates
that, later on the day of the carjacking attempt, they
“shot that [expletive] from West Jax that was on his bike”
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and with whom Sheppard said he had argued. Roberts
explained that Sheppard said he had been in a big
argument a few days before with “some boys from West
Jax because [Sheppard] and [his associate] Dirt, they’re
from Paxon and PYC,” which are gang references.
Roberts testified that Sheppard later told him
directly about shooting the boy on the bicycle after he
and Evans had shot the man who “bucked” in the
attempted carjacking earlier that morning. Roberts
testified, “And he said that he pulled up to him and he
was on a bicycle. And they slowed down and he hung his
arm out the window and started shooting. And he said
the dude looked at him and was, like—(demonstrating)—
and shot. And he said he went ahead and shot him. He
didn’t say how many times.” Roberts testified that
Sheppard then described the woman who could identify
him:
And then he said whenever they—he shot
the guy. He looked up when they were pulling
away, and there was a lady looking right in his
face. And he said it was just—and I was like:
Well, why didn’t you—you know, why didn’t
you shoot her? Basically I said that. And he
was like: Oh, I wish I would have killed her.
He said because it was—I guess the way he
put it was when they were pulling—when he
looked up—after he shot the guy, he looked up
and she was looking at him but Rashard was
already pulling away.
Roberts testified that Sheppard told him Evans
would not testify against him, but Sheppard was worried
about the woman who could identify him.
Roberts also testified that at the point when his own
charges were about to be dropped, Sheppard asked him
for a favor. When Roberts asked what the favor was,
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Sheppard said, “Man, you know, if she don’t come and
testify on me, they ain’t got no case. You told me yourself
. . . [y]ou said, man, if she don’t come testify, they ain’t
got no case on me at all, other than what my codefendant
told that other guy.” Roberts said Sheppard told him he
would get all the information to Roberts through
Sheppard’s sister and could pay him with his income tax
return. Roberts said he did not want to look weak so he
said he would think about it, but never gave Sheppard an
answer. Roberts said Sheppard asked him several times
after that what he was going to do, and then Sheppard
was moved out of the jail dorm. Roberts testified, “He
wanted me to kill her.” Roberts further testified that he
never told law enforcement about this information while
his own charges were still pending in Duval County and
that he was not promised anything for his testimony,
although he later divulged the information in hopes of a
reduced sentence on subsequent charges in Nassau
County. He testified that he pled guilty to those charges
and, at the time of trial, was facing a possible sentence of
thirty years in prison.
Id. at 1161-62.
The medical examiner who performed the autopsies on
Stafford and Wimberly opined at trial that the cause of death for
both victims was multiple gunshot wounds. Id. at 1160. Though
no firearms were recovered, David Warniment, a firearms examiner
for the Florida Department of Law Enforcement, examined and
compared bullets and shell casings from both the Stafford and
Wimberly shootings. Id. at 1160-61. Warniment testified that two
firearms were used to shoot Stafford and that one was used to
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shoot Wimberly; he testified that “two bullets recovered from
Stafford’s body were fired from the same Smith and Wesson 9mm
caliber pistol that fired three bullets recovered from Wimberly’s
body.” Id. at 1161.
On direct appeal, Sheppard challenged his convictions for both
murders and his sentence of death for Wimberly’s murder, raising
five issues: (1) the admission of Sheppard’s videotaped confession
was fundamental error; (2) the trial court erred in admitting the
out-of-court statement by Evans to Evans’s girlfriend, which elicited
a response from Sheppard that implicated him; (3) the admission of
Barrett’s testimony about her fear of the shooter “constituted
fundamental error in that it inflamed the minds of the jurors,
violated the prohibition against a ‘Golden Rule’ argument, and was
an improper attack on Sheppard’s character by suggesting a
propensity for violence”; (4) the trial court’s handling of juror
misconduct or premature deliberation amounted to fundamental
error; and (5) Sheppard’s sentence of death was not proportionate.
Id. at 1165-75.
We rejected each claim and concluded that there was
sufficient evidence to sustain Sheppard’s convictions. Id. at 1165-
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76. Accordingly, we affirmed Sheppard’s convictions for both
murders and his sentence of death for Wimberly’s murder. Id. at
1175-76.
In April 2016, Sheppard timely filed the initial rule 3.851
motion at issue in this postconviction appeal. He raised the
following claims: (I) his death sentence violates Atkins v. Virginia,
536 U.S. 304 (2002), and Florida’s constitutional prohibition
against cruel and unusual punishment because he is intellectually
disabled; (II) ineffective assistance of counsel during jury selection
for (a) failing to question prospective jurors about aggravating and
mitigating circumstances, (b) failing to conduct a meaningful death
qualification, (c) failing to inquire about racial bias, (d) failing to
ensure the jury was properly instructed of its role during the
penalty phase, and (e) failing to object to a Batson 3 violation; (III)
ineffective assistance of counsel during the guilt phase for (a) failing
to present an insanity defense, (b) failing to present a competent
misidentification defense, (c) failing to effectively cross-examine
Barrett, (d) failing to hire a crime scene reconstructionist, (e) failing
3. Batson v. Kentucky, 476 U.S. 79 (1986).
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to make proper objections, (f) failing to file a motion in limine to
exclude the videotaped interrogation of Sheppard, (g) failing to
challenge the State’s ballistics evidence, and (h) failing to
investigate jury misconduct; (IV) newly discovered evidence of
Roberts’s recantation of his trial testimony; (V) Brady and Giglio 4
violations for withholding information of deals that the State made
in exchange for Roberts’s and Willie Carter’s trial testimony; (VI)
prosecutorial misconduct for presenting evidence of gang affiliation
despite disclosing to trial counsel that the State did not intend to
argue Sheppard’s gang affiliation as an aggravating circumstance;
(VII) ineffective assistance of counsel at the penalty phase for (a)
failing to conduct a competent mitigation investigation and failing to
present mitigation, (b) failing to ensure a competent mental health
evaluation, (c) failing to establish and argue statutory mitigators, (d)
stipulating to an aggravating circumstance, (e) failing to object to
improper jury instructions, and (f) failing to object to the State’s
improper closing argument; (VIII) trial counsel failed to retain a
qualified mental health expert in violation of Ake v. Oklahoma, 470
4. Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United
States, 405 U.S. 150 (1972).
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U.S. 68 (1985); (IX) due process violations because (a) trial counsel
was overextended and failed to provide adequate representation and
(b) trial counsel lost or destroyed Sheppard’s trial records, thereby
prohibiting postconviction counsel from adequately investigating
and pleading claims; (X) cumulative error; (XI) Florida’s capital
sentencing procedure violates Hurst v. Florida, 577 U.S. 92 (2016),
and the Sixth and Eighth Amendments to the United States
Constitution; and (XII) the death penalty is cruel and unusual
because (a) Florida cannot maintain a sufficient supply of drugs to
administer lethal injection and (b) Florida’s use of midazolam as the
first drug in its three-drug protocol is unconstitutional. Sheppard
later filed a motion to amend and add three claims; the trial court
allowed him to include the following two claims: (XIV) newly
discovered evidence that Mejors was smoking marijuana and not
wearing her glasses when she witnessed Wimberly’s murder; and
(XV) the State committed Brady and Giglio violations by failing to
disclose that Mejors was not wearing her glasses when she
witnessed Wimberly’s murder.
The State conceded that Sheppard is entitled to a new penalty
phase under Hurst v. Florida and Hurst v. State, 202 So. 3d 40 (Fla.
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2016), overruled in part by State v. Poole, 297 So. 3d 487 (Fla.
2020), and the circuit court granted a new penalty phase and
dismissed the remaining penalty phase claims as moot, and
Sheppard withdrew several claims. The circuit court conducted an
evidentiary hearing for the remaining claims that involved a factual
dispute, at which several individuals were called to testify, including
Sheppard’s trial counsel, W. Charles Fletcher, and the assistant
state attorney who represented the State at trial, Mark Caliel. After
the evidentiary hearing, the circuit court entered an order denying
Sheppard’s motion for postconviction relief on August 5, 2019.
This appeal follows. On appeal, Sheppard argues that the
circuit court erred by denying: (A) varied claims of ineffective
assistance of trial counsel; (B) two newly discovered evidence
claims; (C) several Brady and Giglio claims; and (D) a claim of
cumulative error. We address Sheppard’s postconviction appeal
first, followed by his petition for writ of habeas corpus, in which
Sheppard alleges that his appellate counsel was ineffective on direct
appeal in two respects.
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ANALYSIS
I. POSTCONVICTION APPEAL
A. Ineffective Assistance of Counsel Claims
To demonstrate ineffective assistance of counsel, a defendant
must show the following:
First, counsel’s performance must be shown to be
deficient. Strickland v. Washington, 466 U.S. 668, 687
(1984). Deficient performance in this context means that
counsel’s performance fell below the standard guaranteed
by the Sixth Amendment. Id. When examining counsel’s
performance, an objective standard of reasonableness
applies, id. at 688, and great deference is given to
counsel’s performance. Id. at 689. The defendant bears
the burden to “overcome the presumption that, under the
circumstances, the challenged action ‘might be
considered sound trial strategy.’ ” Id. (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). This Court has
made clear that “[s]trategic decisions do not constitute
ineffective assistance of counsel.” See Occhicone v. State,
768 So. 2d 1037, 1048 (Fla. 2000). There is a strong
presumption that trial counsel’s performance was not
ineffective. See Strickland, 466 U.S. at 669.
Second, the deficient performance must have
prejudiced the defendant, ultimately depriving the
defendant of a fair trial with a reliable result. Strickland,
466 U.S. at 689. A defendant must do more than
speculate that an error affected the outcome. Id. at 693.
Prejudice is met only if there is a reasonable probability
that “but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694. Both deficient
performance and prejudice must be shown. Id. Because
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both prongs of the Strickland test present mixed
questions of law and fact, this Court employs a mixed
standard of review, deferring to the circuit court’s factual
findings that are supported by competent, substantial
evidence, but reviewing the circuit court’s legal
conclusions de novo.
Bradley v. State, 33 So. 3d 664, 671-72 (Fla. 2010). Because
Strickland requires a defendant to establish both prongs, if one
prong is not met, the Court need not reach the other. Stewart v.
State, 801 So. 2d 59, 65 (Fla. 2001). However, “[w]here trial
counsel is deficient in more than one area . . . we must ‘consider
the impact of these errors cumulatively to determine whether [the
defendant] has established prejudice.’ ” Sparre v. State, 289 So. 3d
839, 847 (Fla. 2019) (quoting Parker v. State, 89 So. 3d 844, 867
(Fla. 2011)).
(1) Failure to Effectively Present a Misidentification Defense
Sheppard first challenges the circuit court’s denial of his claim
that his trial counsel was ineffective in presenting a
misidentification defense because counsel (a) failed to retain a
witness identification expert to opine on the credibility of eyewitness
identification; (b) failed to investigate and present to the jury
eyewitness accounts of the shooting that differed from Barrett’s
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account; and (c) failed to effectively challenge the photo lineup that
the Jacksonville Sheriff’s Office (Sheriff’s Office) presented to
eyewitnesses. We affirm the circuit court’s finding that trial counsel
was not deficient in the presentation of a misidentification defense.
(a) Witness Identification Expert
Barrett was the only witness who identified Sheppard as the
shooter in the Wimberly murder. She observed the shooter for four
or five seconds and made “clear and strong eye contact” with him as
he was leaning out of the passenger side window of a moving vehicle
while holding a gun. She selected his photograph out of a
photospread shortly after the shooting and she identified him at
trial. At trial, Barrett and several other witnesses testified that she
was extremely stressed during the shooting, in part because she
initially believed that the victim was her nephew. Sheppard argues
that there is a reasonable probability that the result of the
proceedings would have been different if trial counsel had retained
an eyewitness identification expert to educate himself or the jury
about the factors that may affect eyewitness identification.
Sheppard’s trial counsel testified at the evidentiary hearing
that, though the main theory of defense at trial was
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misidentification, he believed the inconsistencies in Barrett’s
identification of Sheppard as the shooter were not significant and
that any testimony that a witness identification expert could give
would be “common sense” and would ultimately be of little use
because it could not be used to identify anyone other than
Sheppard as the shooter. Moreover, trial counsel testified that
Sheppard confessed to him that he was the shooter and trial
counsel was concerned an eyewitness expert would bolster Barrett’s
identification.5
We agree with the circuit court’s conclusion that trial
counsel’s strategic decision not to retain an identification expert
was not deficient performance. See Pietri v. State, 935 So. 2d 85, 85
(Fla. 5th DCA 2006) (concluding that a trial court did not abuse its
discretion in denying a claim of ineffective assistance of counsel for
failing to retain an eyewitness expert because the expert’s testimony
related to common sense problems with eyewitness identification).
As noted, Sheppard confessed to trial counsel that he was the
shooter, and trial counsel was understandably concerned that
5. Trial counsel testified that Sheppard told him that “there’s
no way that bitch [meaning Barrett] could have seen me.”
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additional testimony about issues with Barrett’s identification—
issues that the jurors could have relied on their common sense to
resolve—could potentially produce information damaging to his
client.
Moreover, though the circuit court did not address prejudice
with respect to this subclaim, in light of the other evidence of guilt
in the case—including ballistic evidence matching a firearm from
both shootings; witness testimony that Sheppard and Evans stole
Jones’s car, which matched the description of the car used during
the Wimberly shooting; and Sheppard’s video confession to stealing
Jones’s vehicle—there is no reasonable probability that but for trial
counsel’s failure to retain an identification expert the result of the
proceeding would have been different.
Therefore, we affirm the circuit court’s denial of relief.
(b) Eyewitness Accounts
There were several discrepancies in eyewitness descriptions of
the car that was used during the shooting. Barrett vacillated on the
position of a sticker on the back window of the car and ultimately
identified James’s car, which did not have a sticker on the back
window, as the one used during the shooting. Sheppard argues
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that his trial counsel was ineffective for failing to investigate and
call witnesses to bring out inconsistencies in Barrett’s testimony
that would have rebutted Barrett’s identification of Sheppard as the
shooter.
At the postconviction evidentiary hearing, Sheppard presented
several witnesses whose descriptions of the car used during the
shooting varied as to the color of the car and type of license plate.
At the hearing, trial counsel conceded that there were slight
variations in eyewitness descriptions of the car used during the
shooting and that it may have been important to bring out Barrett’s
prior inconsistent statements, but he maintained they were
insignificant and did not overcome the overall consistencies in
eyewitness descriptions of the car and Barrett’s identification of
Sheppard at trial.
We agree with the circuit court’s conclusion that trial
counsel’s failure to challenge Barrett’s description of the car and to
investigate and call certain witnesses at trial to rebut Barrett’s
testimony did not fall below the standard guaranteed by the Sixth
Amendment. As trial counsel explained, attempting to challenge
slight inconsistencies among witness descriptions of the car would
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have highlighted the overall consistency in their identification of
Sheppard. Moreover, the circuit court cited competent, substantial
evidence in support of its determinations that the eyewitness
testimony offered at the postconviction evidentiary hearing,
including by Avery Evans, Asia Ramsey Iszard, and Ava Webb,
either failed to contradict Barrett’s account of the murder,
corroborated Barrett’s account, or was not credible. Credibility
determinations are the province of the trial court and will not be
disturbed so long as they are supported by competent, substantial
evidence, as they are in this case. See Foster v. State, 929 So. 2d
524, 537 (Fla. 2006) (explaining that the trial court is in a better
position to judge the credibility of witnesses).
Therefore, we affirm the circuit court’s denial of relief.
(c) Photospreads
Sheppard argues that the Sheriff’s Office did not follow its own
procedures in administering the photospread to Barrett. Namely,
the officer failed to show the photos to Barrett one at a time and
failed to document her witness statement verbatim. Sheppard
argues that he was prejudiced by trial counsel’s failure to challenge
Barrett’s identification during the photo lineup.
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Because nothing in the record shows that the Sheriff’s Office
breached its own procedure, the circuit court correctly concluded
that trial counsel’s performance was not deficient when he decided
to refrain from questioning Barrett on this point. Postconviction
counsel argued below and on appeal that trial counsel was deficient
for not challenging the failure of the Sheriff’s Office to document
Barrett’s statement verbatim, but counsel does not explain how that
failure would have affected the credibility of Barrett’s identification.
Therefore, this claim is speculative and cannot succeed. See
Bradley, 33 So. 3d at 672.
Even if this claim was not speculative, trial counsel’s
performance was not deficient. Sheppard argues that trial counsel
was deficient when he failed to challenge Barrett’s identification
during the photo lineup. This argument ignores the fact trial
counsel actually did challenge the validity of Barrett’s identification
when he suggested that she may have remembered Sheppard’s face
from the “mugbook” that she was shown earlier. Trial counsel
cannot be deemed ineffective for failing to challenge Barrett’s
identification because he actually did so during trial. See Bates v.
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State, 3 So. 3d 1091, 1106 n.20 (Fla. 2009) (“[C]ounsel cannot be
held ineffective for what counsel actually did . . . .”).
Therefore, this claim was properly denied.
(2) Failure to Effectively Cross-Examine Barrett
Sheppard next challenges the circuit court’s denial of his claim
that trial counsel was ineffective for failing to cross-examine Barrett
on four alleged inconsistencies between her trial testimony and her
previous statements, namely (a) her evolving description of the
shooter; (b) her evolving description of the vehicle used during the
shooting; (c) whether she had seen the shooter and the vehicle in
the apartment complex prior to the shooting; and (d) whether she
knew the victim. We affirm the circuit court’s denial of relief with
respect to each of these claims.
(a) Evolving Description of the Shooter
Sheppard argues that Barrett’s description of him was
inconsistent with his appearance at the time of the shooting and
that trial counsel was ineffective for failing to challenge Barrett
regarding discrepancies in her description of the shooter’s hairstyle.
When Barrett initially spoke to the police, shortly after the
shooting, she described the shooter as having a short haircut.
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Later, at her deposition, she described the shooter as having long
plaits, although she stated that she could not really tell how long
his hair was. Then finally at trial, Barrett testified that the shooter
had dreads that did not go past his shoulders.
At the evidentiary hearing, trial counsel testified that he would
bring to the jury’s attention changes in a witness’s description of
the shooter if the changes were significant. Trial counsel further
testified that he was concerned that pressing Barrett as to certain
aspects of her identification of Sheppard as the shooter would only
provide her with an opportunity to reiterate her certainty that
Sheppard was the shooter.
The circuit court found that “Barrett’s description to the police
of the shooter as having short hair is consistent with the picture of
[Sheppard] with a short haircut and tight dreadlocks” that Barrett
picked out of the photospread in identifying Sheppard as the
shooter, and further ruled that trial counsel’s “strategy was
reasonable in light of the insignificance of the different descriptions
of [Sheppard’s] hairstyle.” Even if Barrett’s prior descriptions of the
shooter’s hairstyle had been admissible as prior inconsistent
statements, see Wilcox v. State, 143 So. 3d 359, 383 (Fla. 2014)
- 24 -
(holding that a prior statement is inconsistent only if it directly
contradicts or materially differs from the trial testimony) (citing
State v. Smith, 573 So. 2d 306, 313 (Fla. 1990)), we agree with the
circuit court’s conclusion that trial counsel’s decision to refrain
from challenging Barrett on her prior descriptions of the shooter’s
hairstyle was reasonable. The record shows that trial counsel’s
strategy was not to challenge insignificant changes to Barrett’s
description of the shooter that would give Barrett the opportunity to
reiterate to the jury her identification of Sheppard as the shooter.
Because reasonable strategy decisions do not constitute
deficient performance, we affirm the denial of relief.
(b) Evolving Description of the Vehicle
Sheppard next argues that trial counsel was ineffective in
cross-examining Barrett regarding her inconsistent descriptions of
the vehicle used in the shooting, which he contends would have
shown that the vehicle Barrett described did not match the vehicle
stolen by Sheppard. Barrett testified at trial that she could not
provide specific details relating to the vehicle’s tag, but that she
could describe what the back of the vehicle looked like. Barrett also
- 25 -
stated that a white decal appeared on the back rearview window of
the vehicle used in the shooting.
The circuit court concluded that Barrett’s inability to provide
specific details relating to the vehicle’s tag did not amount to an
inconsistent statement, and that it was simply a gap in knowledge.
As for the differing statements regarding the decal, the circuit court
concluded that the decal was a minor detail and that it did not
undermine Barrett’s trial testimony; therefore, trial counsel was not
deficient for failing to question her on this point.
The record shows that trial counsel made reasonable strategic
decisions not to challenge Barrett’s descriptions because he did not
want to potentially introduce more damaging evidence against
Sheppard, who had confessed to the shooting, or highlight the
consistencies between the descriptions of the car provided by
Barrett and other witnesses.
Accordingly, because Sheppard failed to establish deficient
performance, we affirm the circuit court’s denial of relief.
- 26 -
(c) Previous Sightings of Shooter at Hollybrook
Apartments
At the evidentiary hearing, Sheppard argued that trial counsel
was deficient for failing to impeach Barrett with her prior
inconsistent statements regarding her having previously seen
Sheppard at Hollybrook Apartments.
Barrett had initially told police that she knew the shooter and
had seen his car around the complex before the shooting. She
suggested that they check the security logs to try to identify the car.
However, she later recanted and told police that she had fabricated
that statement because she was afraid of retribution. Sheppard
contends that his trial counsel should have used Barrett’s initial
statement to impeach her.
We agree with the circuit court’s conclusion that trial
counsel’s strategic decision not to impeach Barrett with her prior
statement was reasonable and therefore not deficient. Cross-
examining Barrett regarding these statements would have provided
her an opportunity to reiterate her certainty that Sheppard was the
shooter and potentially to articulate before the jury facts supporting
a reasonable fear of retribution from him. Trial counsel made a
- 27 -
permissible determination that the risk of allowing Barrett to
bolster or supplement her testimony outweighed any potential
benefit to Sheppard’s defense.
Therefore, we affirm the circuit court’s denial of relief.
(d) Barrett’s Relation to the Victim
Sheppard next argues that stress affected Barrett’s ability to
correctly identify the victim and that trial counsel was ineffective in
cross-examining her on this point. However, the circuit court
correctly concluded that Barrett could not be impeached regarding
her initial fear that the victim was her nephew because she made
no prior inconsistent statements. Barrett first told the police that
she thought her nephew was injured during the shooting. She later
told the police that she initially feared that her nephew was the
victim of the shooting, but that she later realized that he was not
the victim. At trial, Barrett testified that she was initially concerned
that the victim of the shooting was her nephew; however, she
ultimately did not know the victim, but that she “knew of him.”
Trial counsel could not have used Barrett’s statements regarding
her initial fear to impeach Barrett’s trial testimony because they
were not inconsistent statements. See Lowe v. State, 259 So. 3d
- 28 -
23, 43-44 (Fla. 2018); see also Wilcox, 143 So. 3d at 383.
Therefore, because “[t]rial counsel cannot be ineffective for failing to
pursue meritless arguments,” Deparvine v. State, 146 So. 3d 1071,
1093 (Fla. 2014) (citing Owen v. State, 986 So. 2d 534, 543 (Fla.
2008)), we affirm the circuit court’s denial of relief.
(3) Failure to Hire a Crime Scene Reconstructionist
Sheppard next challenges the circuit court’s denial of his claim
that his trial counsel was ineffective for failing to retain a crime
scene reconstructionist to refute Barrett’s account of the crime. We
affirm the circuit court’s denial of relief.
At the evidentiary hearing, Sheppard presented Dr. Michael
Knox, an expert crime scene reconstructionist, to challenge
Barrett’s account of the shooting with measurements of the scene.
In his testimony, Dr. Knox could pinpoint neither the exact location
of the shooting nor Barrett’s location when the shooting began.
Later at the hearing, trial counsel testified that he did not hire a
crime scene reconstructionist because he had knowledge of
Sheppard’s involvement in the shooting; and he feared that an
accurate reconstruction of the crime scene would only prove
Sheppard’s guilt.
- 29 -
We agree with the circuit court’s conclusion that Sheppard
failed to show that trial counsel was deficient for failing to hire a
crime scene reconstructionist. The circuit court found that Dr.
Knox’s reconstruction lacked specificity and did not undermine
Barrett’s trial testimony. Furthermore, the circuit court ruled that
trial counsel’s decision not to retain a crime scene reconstructionist
was reasonable because the use of such an expert would have been
fraught with risk considering Sheppard’s confession to trial counsel.
Accordingly, we affirm the circuit court’s denial of relief.
(4) Failure to Object to Inflammatory Statements
Sheppard also argues that the circuit court erred in denying
his claim that trial counsel failed to object to unduly prejudicial
statements made by Barrett and Detective Bowers at trial regarding
Barrett’s description of the victim and Barrett’s agitated state. We
affirm the circuit court’s denial of relief with respect to this claim.
During Barrett’s trial testimony, she referred to Wimberly as a
“baby” or “little boy” three times. Trial counsel testified at the
evidentiary hearing that these references were not objectionable,
particularly when the jury saw photos of the victim, who was
sixteen years old. We agree with the circuit court’s conclusion that
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trial counsel’s strategy was reasonable and, therefore, not deficient.
Furthermore, Sheppard cannot show prejudice. We agree with the
circuit court’s assessment that, given the brief nature of Barrett’s
description of the victim, and the State’s theory of the case that
Wimberly was a rival gang member who was murdered as a result of
a gang dispute, there is no reasonable probability that but for trial
counsel’s failure to object to these statements the outcome of the
trial would have been different.
Barrett’s other statements at issue were expressions of fear
that the shooter might return and harm her because she witnessed
the crime. This Court considered these statements on direct appeal
in the context of a fundamental error argument. We found no
fundamental error because “Barrett did not know the identity of the
shooter at the time she expressed fear of the shooter’s possible
return.” Sheppard, 151 So. 3d at 1170. We have now considered
these statements under Strickland and find no reasonable
probability that the outcome at trial would have been different had
trial counsel objected to these statements—nor do we find any error
in the circuit court’s conclusion that trial counsel did not perform
- 31 -
deficiently in letting these comments pass without objection. See
Strickland, 466 U.S. at 694.
Regarding deficiency, when assessing a claim of ineffective
assistance of counsel, we must make every effort “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.” See id. at 689. Considering
Barrett’s comments in the context of the entire record, we cannot
say that trial counsel’s decision not to object falls below the
standard guaranteed by the Sixth Amendment. The record shows
that Barrett, who had since identified Sheppard as the shooter,
stated her fear to provide an explanation for her failure to return to
the police to give her statement immediately after the shooting. On
the point of prejudice, Sheppard cannot show that, but for trial
counsel’s failure to object to Barrett’s expression of fear, there is a
reasonable probability that the outcome of the trial would have
been different.
With respect to Detective Bowers’s testimony, the initial brief
vaguely states that Bowers’s testimony was “full of objectionable
statements” which “unduly prejudiced” Sheppard. However, the
- 32 -
brief does nothing more than recite in cursory fashion a portion of
the testimony to which the argument applies and does not
demonstrate error with respect to the circuit court’s ruling as to any
ineffective assistance of counsel claim related to the testimony
summarily recited. We have found similar allegations in a brief
“without any supportive argument or authority with regard to the
manner in which trial counsel’s conduct was deficient or the
prejudice he sustained” insufficient to warrant relief, Hannon v.
State, 941 So. 2d 1109, 1139 (Fla. 2006), and find Sheppard’s
argument regarding Detective Bowers’s testimony similarly lacking.
Consequently, we affirm as to this issue without further
analysis.
(5) Failure to Challenge the Admission of the Video Recording
of Sheppard’s Interrogation
Sheppard further argues that his videotaped interrogation,
which was played for the jury at trial, contained numerous
prejudicial statements by Detective Bowers and that the circuit
court erred in denying his claim that trial counsel was ineffective for
failing to challenge the admission of the video. This Court
considered the admission of the video on direct appeal and
- 33 -
concluded that it did not amount to fundamental error. Sheppard,
151 So. 3d at 1166. Applying Strickland, we now hold that the
circuit court properly denied relief on Sheppard’s claim of ineffective
assistance of counsel because Sheppard failed to establish
deficiency and, moreover, failed to establish prejudice. See
Strickland, 466 U.S. at 687.
Regarding deficiency, the record shows that trial counsel made
a strategic decision not to challenge the admission of the video
because he had already viewed it and redacted the portions of the
video he believed most damaging to Sheppard’s defense. Mere
dissatisfaction with trial counsel’s strategy is not enough to satisfy
Strickland’s deficiency prong where, as here, the strategy was
reasonable. Johnston v. State, 63 So. 3d 730, 737 (Fla. 2011)
(“There is a strong presumption that trial counsel’s performance
was not deficient.” (citing Strickland, 466 U.S. at 690)).
In any event, Sheppard failed to make the showing of prejudice
required by Strickland. In the video, when Bowers offered theories
on how Sheppard committed the murder, Sheppard denied his
involvement in the shooting. In light of the evidence adduced at
trial that pointed to Sheppard’s guilt, including the eyewitness
- 34 -
accounts and the identification of Sheppard as the shooter, there is
no reasonable probability that the outcome of the trial would have
been different had trial counsel been able to successfully preclude
the jury from hearing the portions of the video he now argues
should have been redacted. See Strickland, 466 U.S. at 694.
Therefore, we affirm the circuit court’s denial of relief.
(6) Failure to Challenge the State’s Ballistic Evidence
Sheppard also challenges the circuit court’s denial of his claim
that his trial counsel was ineffective for failing to present an expert
to challenge the State’s ballistics expert. In rejecting this claim, the
circuit court explained:
At the evidentiary hearing, the defense called
William Tobin, a forensic metallurgist material scientist
to testify about toolmark examinations for firearms.
(E.H. at 25-27.) Tobin testified specifically that the
science of toolmark examinations, which Warniment
performed, is not a real science and has no foundational
validity. (E.H. at 50, 57, 67, 76.) Tobin also testified,
however, that the examination Warniment did in this
case is still commonly accepted practice in the forensic
community. (E.H. at 99.)
Julie Schlax, Fletcher’s co-counsel at Defendant’s
trial, testified at the evidentiary hearing that she cross-
examined Warniment at trial. (E.H. at 160-61.)
According to Schlax, she did not want to make an issue
of the science behind Warniment’s testimony. (E.H. at
169.) “[I]f you try to make too large of a deal of the
- 35 -
science on the cross-examination technique when it is so
widely accepted, you run the risk that—it’s almost why
are they protesting so much if they claim it wasn’t him.”
(E.H. at 169.) She testified that based upon her
experience with Warniment, it would not have been
effective to attack his credibility and expertise. (E.H. at
169.) She also testified the defense theory was
“regardless of whether or not the gun was at either scene,
Mr. Sheppard wasn’t the person pulling the trigger at
either scene.” (E.H. at 168.)
Similarly, Fletcher testified he has handled
“hundreds if not thousands of cases [that] involve
ballistic testimony.” (E.H. at 242.) According to Fletcher,
ballistics testimony, “specifically the identification of shell
casings at one location to shell casings at another
location is commonly accepted not only in law
enforcement but in the courts and in the general
public[.]” (E.H. at 242.) He stated it would not be an
effective strategy to try to discredit ballistics testimony
that is so commonly accepted. (E.H. at 242-43.) Fletcher
further testified that Warniment was an excellent State
witness whose testimony is “credible and believable.”
(E.H. at 242.) Like Schlax, Fletcher explained the
defense was primarily that Defendant did not shoot either
Stafford or Wimberly. (E.H. at 243.) “It was not the fact
that those two cases were unrelated, it was the
identification of the person behind the barrel of the
gun[.]” (E.H. at 243.)
Counsels’ strategy not to challenge the science
behind Warniment’s ballistics examinations was
reasonable given the defense’s theory that Defendant was
not the shooter regardless of whether the murders were
related. Moreover, Fletcher and Schlax reasonably
believed that challenging Warniment’s conclusions would
hurt them in front of the jury. Counsel was not
ineffective. See Reynolds, 99 So. 3d at 472 (concluding
counsel not deficient when reasonably believed strategy
- 36 -
was correct); see also Harrington v. Richter, 562 U.S. 86,
111(2011) (“Strickland does not enact Newton’s third law
for the presentation of evidence, requiring for every
prosecution expert an equal and opposite expert from the
defense.”).
The circuit court’s findings are supported by competent,
substantial evidence, and we agree with the circuit court’s legal
analysis. Accordingly, because Sheppard failed to establish
deficient performance with respect to this claim, we affirm the
denial of relief.
B. Newly Discovered Evidence Claims
Sheppard next argues that the circuit court erred in denying
two claims in which he sought relief based on newly discovered
evidence. For the reasons below, we affirm the denial of relief as to
both claims.
(1) Roberts’s Recantation
Sheppard’s first newly discovered evidence claim centers on an
affidavit in which Sheppard’s former cellmate, Michael Roberts,
recanted his trial testimony regarding Sheppard’s inculpatory
statements to Roberts. At the evidentiary hearing, the circuit court
sustained the State’s hearsay objection and properly allowed a
proffer of the affidavit and testimony from members of the defense
- 37 -
team who had witnessed the recantation. The State was also
allowed to proffer rebuttal testimony—witnesses who testified that
Roberts had affirmed his trial testimony after the recantation and
had explained that he only recanted to get Sheppard’s
postconviction counsel to leave him alone. Roberts died prior to the
evidentiary hearing and Sheppard argues on appeal, as he did
below, that the recantation evidence should have been admitted
under the hearsay exception for statements against interest found
in section 90.804(2)(c), Florida Statutes (2020). This statute states:
(2) Hearsay exceptions.—The following are not
excluded under s. 90.802, provided that the declarant is
unavailable as a witness:
....
(c) Statement against interest.—A statement which,
at the time of its making, was so far contrary to the
declarant’s pecuniary or proprietary interest or tended to
subject the declarant to liability or to render invalid a
claim by the declarant against another, so that a person
in the declarant’s position would not have made the
statement unless he or she believed it to be true. A
statement tending to expose the declarant to criminal
liability and offered to exculpate the accused is
inadmissible, unless corroborating circumstances show
the trustworthiness of the statement.
Id.
- 38 -
The circuit court concluded, without analysis, that Roberts’s
statement did not fall within this exception and therefore denied
relief with respect to Sheppard’s claim of newly discovered evidence.
We agree with Sheppard that Roberts’s statement would have been
against his penal interests because his recantation could have
resulted in his prosecution for perjury based upon his testimony at
Sheppard’s 2012 trial. See § 775.15(6), Fla. Stat. (2020) (“A
prosecution for perjury in an official proceeding that relates to the
prosecution of a capital felony may be commenced at any time.”). 6
Accordingly, the circuit court should have next conducted the
“trustworthiness” inquiry required by section 90.804(2)(c) to
determine whether Roberts’s statement fell within the hearsay
6. In Lightbourne v. State, 644 So. 2d 54, 57 (Fla. 1994), this
Court reasoned that no reasonable person “would believe they were
subject to a perjury penalty eight years after providing testimony at
a trial.” The Court in Lightbourne relied on section 775.15(2)(b),
Florida Statutes (1991), which, at the time, set the statute of
limitations at three years for perjury committed in a capital case.
However, in 1997, the Florida Legislature amended section 775.15
to say, “A prosecution for perjury in an official proceeding that
relates to the prosecution of a capital felony may be commenced at
any time.” Ch. 97-90, § 1, at 514, Laws of Fla. (amending
§ 775.15(1)(b), Fla. Stat. (Supp. 1996)). The statute has since been
renumbered, but the language remains the same. See § 775.15(6),
Fla. Stat. (2020).
- 39 -
exception. It did not. It is also true, however, that even assuming
the admissibility of Roberts’s newly discovered statement at retrial,
Sheppard is not entitled to a retrial under the test we apply to
newly discovered evidence.
To succeed on a claim of newly discovered evidence, the
defendant must establish two prongs. See Jones v. State, 709 So.
2d 512, 521 (Fla. 1998). First, the defendant must show that the
evidence was not known by the trial court, the party, or counsel at
the time of trial and it could not have been discovered through due
diligence at the time of trial. Id. at 521. After establishing this
prong, the defendant must show that the newly discovered evidence
is of such a nature that it would probably produce an acquittal on
retrial. Id.; Jones v. State, 591 So. 2d 911, 915 (Fla. 1991). When
analyzing the second prong, “ ‘the trial court is required to “consider
all newly discovered evidence which would be admissible” at trial
and then evaluate the “weight of both the newly discovered evidence
and the evidence which was introduced at the trial” ’ . . . . This
cumulative analysis must be conducted so that the trial court has a
‘total picture’ of the case.” Lightbourne v. State, 742 So. 2d 238,
247 (Fla. 1999) (quoting Jones, 709 So. 2d at 521-22). “Newly
- 40 -
discovered evidence satisfies the second prong . . . if it ‘weakens the
case against [the defendant] so as to give rise to a reasonable doubt
as to his culpability.’ ” Marek v. State, 14 So. 3d 985, 990 (Fla.
2009) (quoting Jones, 709 So. 2d at 526).
This Court applies a mixed standard of review to a lower
court’s rulings on newly discovered evidence claims after an
evidentiary hearing. It reviews findings of fact and credibility
determinations for competent, substantial evidence and it reviews
the application of law to the facts de novo. See Marek, 14 So. 3d at
990.
In Sheppard’s case, even assuming, without deciding, that
Roberts’s statement is admissible7 and that it constitutes newly
discovered evidence, when considered in the total picture of the
case, the statement is not of such a nature that it would probably
produce an acquittal on retrial as required by the second prong of
7. Because recantations are rarely credible, see Armstrong v.
State, 642 So. 2d 730, 735 (Fla. 1994), and given the testimony that
Roberts disavowed the recantation affidavit after signing it, it
appears unlikely that the circuit court would have resolved the
admissibility issue in Sheppard’s favor. However, because
resolution of this issue involves credibility determinations that the
circuit court was in the best position to make, we assume
admissibility for purposes of our analysis.
- 41 -
Jones. The evidence of Sheppard’s guilt is overwhelming and
includes that Barrett witnessed Wimberly’s murder and identified
Sheppard as the shooter, Sheppard, 151 So. 3d at 1158-59; that
ballistic evidence connected the Wimberly and Stafford murders by
“show[ing] that the gun that fired two of the three projectiles
recovered from Stafford’s body was the same gun that killed
Wimberly,” id. at 1157; and that witnesses identified the car used
during Wimberly’s murder as the car that Sheppard and his
codefendant were seen stealing, id. at 1159, which Sheppard later
confessed to taking for a “joyride,” id. at 1161. Considering
Roberts’s statement alongside additional evidence favorable to
Sheppard developed on postconviction such as that relating to
Mejors, which we address below, and comparing it to the
overwhelming evidence of Sheppard’s guilt from multiple sources
that corroborate each other, Roberts’s statement, although certainly
not without impact, does not create reasonable doubt. See Marek,
14 So. 3d at 990. Therefore, we affirm the circuit court’s denial.
(2) Khalilah Mejors’s Eyesight and State of Mind
Sheppard next argues that the circuit court erred in denying
relief based on his claim of newly discovered evidence that Mejors
- 42 -
was smoking marijuana and not wearing her prescription glasses
when she witnessed the Wimberly shooting. He also argues that
the circuit court erred in denying his motion to continue the
postconviction hearing in order to present Mejors’s live testimony.
We affirm the circuit court’s denial on the merits for the reasons
explained below, and because the circuit court addressed this claim
on the merits based upon its acceptance of Sheppard’s proffer of
Mejors’s expected testimony by affidavit, we find no abuse of
discretion in the circuit court’s denial of the continuance. See Diaz
v. State, 132 So. 3d 93, 118 (Fla. 2013) (explaining that a trial
court’s ruling on a motion for continuance is reviewed for abuse of
discretion and that “[a]n abuse of discretion is generally not found
unless the court’s ruling on a continuance results in undue
prejudice to the defendant” (quoting Randolph v. State, 853 So. 2d
1051, 1062 (Fla. 2003))).
Turning to the merits, Mejors described the car used during
the shooting as a “dark gray . . . Ford Crown Vic or Mercury.” She
also testified that the gun came out of the front passenger window
and it was held by an African-American male; she could not see the
shooter’s face. According to Mejors, the gun was black and may
- 43 -
have been a Glock. She identified James’s car as the car in which
the shooter appeared. At the time of the shooting, Mejors was on a
third-floor balcony smoking a “cigar.”
Postconviction counsel discovered that Mejors was smoking
marijuana at the time of the shooting and was not wearing her
prescription glasses. The circuit court considered this proffered
testimony and concluded that, though Mejors’s new testimony
constituted newly discovered evidence, Sheppard would not be
entitled to relief because Mejors’s testimony at trial was cumulative
of the testimony of Sherrod, Carter, and Barrett.
We agree with the circuit court that this potential
impeachment evidence would not entitle Sheppard to a new trial
because it is not of such a nature that it would probably produce an
acquittal on retrial. See Jones, 709 So. 2d at 521. Mejors’s
description of the car was cumulative of other evidence and
consistent with the descriptions provided by other witnesses. Her
testimony that the shooter was African-American was similarly
cumulative. Impeachment of her testimony that the shooter was
holding what appeared to be a Glock, though not cumulative, would
not probably produce an acquittal on retrial given that Mejors did
- 44 -
not see more than one weapon being fired from the car during the
shooting and that the State presented expert testimony that the
shooter used a Smith and Wesson; and finally, because Sheppard’s
defense was misidentification and none of Mejors’s trial testimony
identified Sheppard as the shooter, any limited impeachment value
of the newly discovered evidence does not weaken the case against
Sheppard so as to give rise to a reasonable doubt as to his
culpability. Marek, 14 So. 3d at 990.
Therefore, we affirm the circuit court’s denial of this claim.
C. Giglio and Brady Violations
Sheppard next argues that the circuit court erred in finding
that Brady and Giglio violations did not occur at his trial with
respect to (1) Michael Roberts, (2) Willie Carter, and (3) Khalilah
Cook Mejors. We affirm the circuit court’s denial with respect to
these claims.
“To establish a Brady violation, the defendant has the burden
to show that: (1) the evidence was either exculpatory or impeaching;
(2) the evidence was willfully or inadvertently suppressed by the
State; and (3) because the evidence was material, the defendant was
prejudiced.” Duckett v. State, 231 So. 3d 393, 400 (Fla. 2017)
- 45 -
(quoting Davis v. State, 136 So. 3d 1169, 1184 (Fla. 2014)). To
establish materiality or prejudice under Brady, the defendant “must
demonstrate . . . a reasonable probability that the jury verdict
would have been different had the suppressed information been
used at trial.” Smith v. State, 931 So. 2d 790, 796 (Fla. 2006)
(citing Strickler v. Greene, 527 U.S. 263, 289 (1999)).
“To establish a Giglio violation, it must be shown that: (1) the
testimony given was false; (2) the prosecutor knew the testimony
was false; and (3) the statement was material.” Duckett, 231 So. 3d
at 400 (quoting Guzman v. State, 868 So. 2d 498, 505 (Fla. 2003)).
Unlike a Brady claim for which the defendant bears the burden of
proof as to the materiality prong, “[u]nder Giglio, once a defendant
has established that the prosecutor knowingly presented false
testimony at trial, the state bears the burden to show that the false
evidence was not material.” Guzman, 868 So. 2d at 507. “This
requires the State to prove that the presentation of false testimony
was ‘harmless beyond a reasonable doubt,’ id. at 506, or in other
words, that ‘there is no reasonable possibility that the error
contributed to the conviction.’ ” Ponticelli v. State, 941 So. 2d 1073,
- 46 -
1088 (Fla. 2006) (quoting Guzman, 868 So. 2d at 506, and then
State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986)).
This Court applies a mixed standard of review to the lower
court’s determination of Brady and Giglio claims. It reviews the
factual findings for competent, substantial evidence and reviews the
legal conclusions de novo. Duckett, 231 So. 3d at 400.
(1) Roberts
The facts supporting Sheppard’s Brady and Giglio claims for
Roberts’s testimony are the same as the facts supporting the newly
discovered evidence claim concerning Roberts’s recantation. As
noted above, Sheppard produced an affidavit and two witnesses to
testify about Roberts’s recantation. At the evidentiary hearing, the
State presented Roberts’s defense attorney, who testified that
Roberts was not promised a deal on his pending charges in
exchange for his testimony. The assistant state attorney who
represented the State at Sheppard’s trial, Caliel, also testified at the
evidentiary hearing that he told Roberts that he could not make him
any specific promises regarding his pending criminal charges. In
support of his argument that the State had a deal with Roberts,
Sheppard notes that Roberts’s pending criminal charges were
- 47 -
resolved favorably, but he does not present evidence that this was
due to any undisclosed deal that Roberts made with the State in
exchange for his testimony.
Consistent with Caliel’s postconviction testimony, the trial
record also suggests that Roberts did not have an undisclosed deal
with the State. Roberts testified at trial that his Duval County
charge was dropped before Sheppard’s trial began. Roberts also
candidly testified that he was seeking reduced sentences in
exchange for his trial testimony; the fact that he later received
favorable sentences, without more, does not establish Sheppard’s
claim that Roberts entered into a specific deal with the State in
exchange for his testimony. Moreover, Roberts’s affidavit recanting
his testimony is not inconsistent with his testimony at trial that he
entered an open plea in the hope that the State would inform the
court of his substantial assistance in Sheppard’s case.
Though the circuit court denied the Brady and Giglio claims
based on its ruling that Roberts’s affidavit was not admissible
evidence, we uphold denial of these claims on an alternative basis,
namely that Sheppard did not show that the State willfully or
inadvertently suppressed favorable evidence as necessary to prevail
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under Brady or that the State presented testimony that it knew was
false as required to prevail under Giglio. See Robertson v. State, 829
So. 2d 901, 906 (Fla. 2002) (explaining that an appellate court may
affirm when the trial court reaches the right result for the wrong
reason so long as there is a basis in the record to support the trial
court’s ruling).
(2) Willie Carter
At trial, Carter testified that he witnessed Sheppard and Evans
steal James’s car. He identified Sheppard as the person who
entered the driver’s side of James’s car. Carter was incarcerated
during his testimony, but he testified that he did not have charges
pending at the time of his testimony. On redirect, he clarified that
he was serving a twelve-year sentence on a cocaine charge that was
unrelated to his testimony. Sheppard argues that the State had a
deal with Carter to recommend a sentence reduction in exchange
for favorable testimony in Sheppard’s case. To support this
argument, Sheppard notes that the State filed a substantial
assistance motion for Carter after he testified in Sheppard’s trial
and Carter received a reduced sentence. During the hearing on the
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motion for reduction of sentence, the State mentioned that Carter
had recently testified in Sheppard’s case.
At Sheppard’s postconviction hearing, Caliel testified that
Carter was convicted and sentenced for his charges before his
testimony in Sheppard’s case and the motion for sentence reduction
was for a separate matter. Caliel further explained that he became
aware of the sentence reduction after the motion was filed and he
did not provide testimony or attend the hearing. Moreover, Carter’s
trial testimony was consistent with his deposition testimony, which
he gave before he was arrested on the charges that resulted in the
twelve-year sentence.
Carter could not have been offered a deal for his testimony
because he was not facing criminal charges when, during his
deposition, he identified Sheppard as one of the people who stole
James’s car. Moreover, Caliel testified that he was unaware of any
sentence reduction motion until after it had been filed by another
state attorney. Therefore, we agree with the circuit court’s legal
conclusion that the facts are insufficient to show that the State
violated Brady or Giglio.
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(3) Khalilah Cook Mejors
The facts of this claim are substantially similar to the facts of
the newly discovered evidence claim related to Mejors. The only
additional fact is that shortly after the shooting, Mejors told police
that she was not wearing her prescription glasses when she
witnessed the shooting. However, this information did not appear
in any police reports, and the State only inquired about her vantage
point, not her vision, during trial. Sheppard argues that the State
knowingly concealed information of Mejors’s nearsightedness
because police knowledge is imputed to the prosecutor.
We agree with the circuit court that, even if Sheppard could
show that the State withheld favorable evidence about Mejors’s
nearsightedness so as to violate Brady and that the State knowingly
presented testimony that was false under Giglio, Sheppard would
still not be entitled to relief. Mejors’s testimony was cumulative,
and her nearsightedness would not discredit her overall testimony,
which was consistent with the testimony of other witnesses. Even
presuming that Mejors’s testimony about her vantage point was
false within the meaning of Giglio for omitting that she was not
wearing her prescription glasses, the error was harmless beyond a
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reasonable doubt, as there is no reasonable possibility it
contributed to the conviction. See Ponticelli, 941 So. 2d at 1088.
Also, even assuming the State’s suppression of favorable evidence,
having failed under the more “defense friendly” materiality prong of
Giglio, Sheppard cannot meet his burden to show “a reasonable
probability that the jury verdict would have been different had the
suppressed information been used at trial” as required to establish
materiality under Brady. Smith, 931 So. 2d at 796. Therefore, we
affirm the circuit court’s denial of relief.
D. Cumulative Error
In the final issue of his appeal, Sheppard challenges the
circuit court’s denial of his cumulative error claim, in which he
argued that “when considered as a whole,” the “sheer number of
types of errors in [his] guilt and penalty phases” deprived him of the
fundamentally fair trial to which he was entitled under the Sixth,
Eighth, and Fourteenth Amendments to the United States
Constitution. We affirm the circuit court’s denial of relief.
As explained above, trial counsel was not deficient in any
respect; therefore, there is no cumulative prejudice to analyze with
respect to Sheppard’s ineffective assistance of counsel claims. See
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Sparre, 289 So. 3d at 847 (explaining that where trial counsel is
deficient in more than one area that the Court must “consider the
impact of these errors cumulatively” (quoting Parker, 89 So. 3d at
867)).
Although we assumed violations of both Brady and Giglio with
respect to Mejors, we conducted the required materiality analysis
for both claims, and there are no additional Brady or Giglio
violations to address. See Smith v. Sec’y, Dep’t of Corr., 572 F.3d
1327, 1334 (11th Cir. 2009) (“Considering the undisclosed evidence
cumulatively means adding up the force of it all and weighing it
against the totality of the evidence that was introduced at trial.
That is the way a court decides if its confidence in the guilty verdict
is undermined where a suppressed-evidence type of Brady claim is
involved, or if [a violation of Giglio] was harmless beyond a
reasonable doubt . . . .”).
In affirming the circuit court’s denial of the newly discovered
evidence claim related to Mejors, we affirmed the circuit court’s
legal conclusion that the newly discovered evidence is not of such a
nature that it would probably produce an acquittal on retrial, which
required a cumulative consideration of the newly discovered
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evidence in light of a total picture of the case. See Lightbourne, 742
So. 2d at 247. We conducted the same cumulative consideration in
affirming the denial of the newly discovered evidence claim related
to Roberts on the basis that, even if admissible, and even if newly
discovered, Roberts’s statement is not of such a nature that it
would probably produce an acquittal on retrial.
Accordingly, we affirm the circuit court’s denial of Sheppard’s
cumulative error claim.
II. HABEAS PETITION
Sheppard presents two claims of ineffective assistance of
appellate counsel in his petition for writ of habeas corpus.
Ineffective assistance of appellate counsel claims are properly
raised in a habeas petition and are governed by the Strickland
standard of ineffective assistance of trial counsel. See Frances v.
State, 143 So. 3d 340, 358 (Fla. 2014) (“[T]his Court’s ability to
grant habeas relief on the basis of appellate counsel’s
ineffectiveness is determined by the defendant’s ability to meet both
the deficiency and prejudice prongs of Strickland.”). “It is the
defendant’s burden to allege a specific, serious omission or overt act
upon which the claim of ineffective assistance of counsel can be
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based.” Id. at 357 (citing Brown v. State, 846 So. 2d 1114, 1127
(Fla. 2003)).
A. Prosecutorial Misconduct
Sheppard argues that appellate counsel was ineffective for
failing to argue on direct appeal that prosecutorial misconduct
amounted to fundamental error. The alleged misconduct is that the
State made multiple references to Sheppard’s gang affiliation during
the guilt phase after promising trial counsel that it would not
pursue gang affiliation as an aggravator during the penalty phase.
Appellate counsel may be ineffective for failing to raise claims
of fundamental error. See Spencer v. State, 842 So. 2d 52, 73 (Fla.
2003) (explaining that “an exception” to the rule that “appellate
counsel will not be deemed ineffective for failing to raise issues not
preserved for appeal” exists “where appellate counsel fails to raise a
claim which, although not preserved at trial, presents a
fundamental error”). Moreover, prosecutorial misconduct can
constitute fundamental error. See Greer v. Miller, 483 U.S. 756,
765 (1987) (“[P]rosecutorial misconduct may ‘so infec[t] the trial
with unfairness as to make the resulting conviction a denial of due
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process.’ ” (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974))).
However, the prosecutor in Sheppard’s case did not engage in
misconduct by presenting evidence of Sheppard’s alleged gang
affiliation to the jury during the guilt phase. Sheppard does not
identify instances where the prosecution engaged in impermissible
opening or closing argument or introduced inadmissible evidence
during his trial. Sheppard references the video of his interrogation
that was introduced at trial, which contains suggestions by the
police officer that Sheppard was in a gang, but this Court
considered the admission of that video on direct appeal and
concluded that it did not amount to fundamental error. Sheppard,
151 So. 3d at 1165-68. Therefore, because this Court has already
ruled that admission of the video was not fundamental error,
Sheppard cannot establish that appellate counsel was ineffective.
See Breedlove v. Singletary, 595 So. 2d 8, 11 (Fla. 1992)
(“[A]ppellate counsel is not ineffective for not raising nonmeritorious
issues.”); cf. Spencer, 842 So. 2d at 74 (“[A]ppellate counsel raised
this very issue on appeal and cannot be deemed ineffective for
failing to prevail on a claim raised and rejected on appeal.”).
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For the foregoing reasons, the claim is denied.
B. Roper v. Simmons 8
Sheppard next claims that his appellate counsel was
ineffective for failing to argue that Roper should be extended to
preclude twenty-one-year-olds, Sheppard’s age at the time of the
murders, from receiving the death penalty. However, he
acknowledges that a Roper extension claim cannot succeed on the
merits under the law. See Barwick v. State, 88 So. 3d 85, 106 (Fla.
2011) (“[T]he Court has expressly rejected the argument that Roper
extends beyond the [United States] Supreme Court’s
pronouncement that the execution of an individual who was
younger than eighteen at the time of the murder violates the eighth
amendment.” (citing England v. State, 940 So. 2d 389, 406-07 (Fla.
2006))). Therefore, his claim must fail because appellate counsel
cannot be ineffective for failing to bring a meritless claim. See
Breedlove, 595 So. 2d at 11.
8. Roper v. Simmons, 543 U.S. 551 (2005).
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CONCLUSION
For the reasons stated above, we affirm the circuit court’s
order denying postconviction relief for all guilt phase claims and
deny the petition for writ of habeas corpus.
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ,
COURIEL, and GROSSHANS, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Duval County,
Linda F. McCallum, Judge
Case No. 162008CF011059BXXXMA
And an Original Proceeding – Habeas Corpus
Robert S. Friedman, Capital Collateral Regional Counsel, Dawn B.
Macready, Assistant Capital Collateral Regional Counsel, North
Region, Tallahassee, Florida, and Stacy R. Biggart, Special Assistant
Capital Collateral Regional Counsel, Gainesville, Florida,
for Appellant/Petitioner
Ashley Moody, Attorney General, and Michael T. Kennett, Assistant
Attorney General, Tallahassee, Florida,
for Appellee/Respondent
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