Sheppard v. State

338 So.3d 803

Billy Jim SHEPPARD, Jr., Appellant,

v.STATE of Florida, Appellee.

Billy Jim Sheppard, Jr., Petitioner,

v.Ricky D. Dixon, etc., Respondent.

No. SC19-1512

No. SC20-422

Supreme Court of Florida.

March 10, 2022

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

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:

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 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 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 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 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

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