Delap v. Dugger

Decision Date20 November 1989
Docket NumberNos. 88-3393,88-3404,s. 88-3393
PartiesDavid Ross DELAP, Sr., Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Department of Corrections, State of Florida, Respondent-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Richard G. Bartmon, Joan Fowler, Asst. Attys. Gen., West Palm Beach, Fla., for Dugger.

Janet Munn, Steel Hector & Davis, Gerry S. Gibson, Greg Anderson, Miami, Fla., for Delap.

Appeal from the United States District Court for the Middle District of Florida.

Before FAY, VANCE and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

Petitioner David Ross Delap, Sr. and Respondent Richard L. Dugger both appeal the district court's conditional grant of Delap's petition for a writ of habeas corpus. For the reasons set forth below, we affirm.

I. BACKGROUND
A. Facts

On June 30, 1975, Paula Etheridge was seen washing clothes at a laundromat in Okeechobee, Florida, at approximately 4:00 p.m. She was wearing a red top, light colored shorts, and red tennis shoes. Paula Etheridge was reported missing to the Sheriff's office the next day.

Between 5:30 and 6:00 p.m. on June 30, Ava Leonard and her daughter watched a car travel down Highway 70 and swerve into their yard. The front passenger door was open and the Leonards saw a man holding a woman wearing a red top and tan or brown shorts by the neck. The woman was screaming for help.

Lois Huff was driving eastbound, behind a truck, on Highway 70 with her three daughters. Between 5:15 and 6:30 p.m. on June 30, Mrs. Huff noticed a struggle in the car behind her vehicle. The man was holding the woman's head in the crook of his arm. Because she feared that the car behind her was going to hit her car, Mrs. Huff pulled off the road. The other car hit a bridge and kept going. Mrs. Huff attempted to contact the Sheriff's office, but no one responded, so she attempted to follow the automobile she had seen. She was unable to catch the car.

Willy Kelly, the truck driver, recalled seeing what he thought was a 1975 Dodge or Plymouth traveling around fifty miles per hour. The passenger side door was open, and a woman's motionless arm was hanging out of it. Kelly slowed down to see what was happening. Before he got a chance to see into the car, however, it turned onto a side road and stopped. Both the driver's and passenger's doors came open, and Kelly saw a man walk around to the passenger's side of the car. Kelly drove on to West Palm Beach.

Jo Randolph was a classmate of David Ross Delap's from Okeechobee Community College. Randolph saw Delap at approximately 5:00 p.m. on June 30, 1975, before their speech class started. Delap did not attend the first part of class, but he returned to class later with what appeared to be blood on his shirt. Randolph overheard Delap state that his child had been injured in an accident and that he had to leave class to take the child to the hospital. She heard him say that the blood on his shirt came from his child's cut.

After the Sheriff's office received the missing person's report on Paula Etheridge, investigators checked into the report of the man and woman struggling in a car. Lois Huff pointed out Delap's car to a deputy, and the car was placed under surveillance while investigators checked Delap's background and obtained additional information.

On July 7, 1975, Sheriff's Deputy Bill Arnold and Chief Investigator for the State's Attorney Lem Brumley confronted Delap with the fact that Delap matched the description of the man seen struggling with a woman and that Delap's car matched the car described by witnesses. Delap agreed to go to the Sheriff's office for questioning. While Arnold and Brumley were questioning him, Delap's home was being searched pursuant to a warrant by Agent Buchannan. Buchannan questioned Delap's wife and determined that none of the Delap children had been injured or cut recently. Buchannan informed Brumley of this, and Brumley then called in Police Chief Statts to help with the interrogation of Delap. The officers told Delap that his explanation of the blood on his shirt and his child's injury was a lie, since the hospital where Delap claimed to have taken his child was too far away for him to drive and return to the college in such a short time and since his wife stated that none of his children had been injured. Delap then gave a statement and took the officers to the purse and body of the victim who was later identified as Paula Etheridge.

B. Procedural History

An Okeechobee County grand jury indicted David Ross Delap on August 25, 1975, for the premeditated first degree murder of Paula Etheridge. Delap's attorneys filed various pretrial motions, including a motion to suppress Delap's confession and a motion to suppress all evidence obtained during the search of Delap's home. The motion to suppress the fruits of the search of Delap's home was granted; the motion to suppress Delap's confession was denied.

Delap was convicted of first degree murder in the Nineteenth Judicial Circuit of Florida on February 27, 1976 and sentenced to death. The Supreme Court of Florida reversed Delap's conviction and remanded the case for a new trial because of the state's inability to provide a complete transcript of the trial for appellate review. Delap v. State, 350 So.2d 462 (Fla.1977).

Delap was tried again, this time in Orange County, Florida, in the Ninth Judicial Circuit, because of extensive publicity. Delap's counsel renewed all previous pretrial motions to suppress. Delap was again found guilty of first degree murder and sentenced to death.

Delap raised twelve grounds for relief in his direct appeal to the Supreme Court of Florida. The court rejected all of Delap's claims except for his challenge to the finding that the felony was committed for pecuniary gain. Because five other statutory aggravating factors existed, however, the court affirmed Delap's death sentence. Delap v. State, 440 So.2d 1242 (Fla.1983). Delap's petition for certiorari to the United States Supreme Court was denied on June 25, 1984. Delap v. Florida, 467 U.S. 1264, 104 S.Ct. 3559, 82 L.Ed.2d 860 (1984).

On December 19, 1985, Delap filed a motion for post-conviction relief in the trial court under Florida Rule of Criminal Procedure 3.850, which was denied without an evidentiary hearing. The Supreme Court of Florida affirmed the decision. Delap v. State, 505 So.2d 1321 (Fla.1987).

Delap's execution was scheduled for October 15, 1987. On September 24, 1987, Delap filed a petition for writ of habeas corpus and an application for stay of execution with the Supreme Court of Florida. The petition and application were denied on October 8, 1987. Delap v. Dugger, 513 So.2d 659 (Fla.1987).

Delap filed a second 3.850 motion for post-conviction relief in the Florida trial court on October 9, 1987. The court denied relief on October 12, 1987. Delap again appealed to the Supreme Court of Florida, which affirmed on October 13, 1987. Delap v. State, 513 So.2d 1050 (Fla.1987).

On October 12, 1987, Delap then sought a writ of habeas corpus before Judge Patricia Fawsett in the United States District Court for the Middle District of Florida. On October 13, 1987, the court granted a conditional writ of habeas corpus, Delap's motion for a certificate of probable cause, and his motion for a stay of execution. Delap v. Dugger, No. 87-907-CIV-ORL-19 (M.D.Fla. October 13, 1987) ("District Court Order"). The state filed a motion for relief from judgment and/or motion to amend, alter, or reconsider judgment, and/or motion for new trial on October 22, 1987. On February 24, 1988, Delap filed a motion for reconsideration and rehearing of the Hitchcock issue raised in his petition. On April 21, 1988, the district court entered an amended order, incorporating by reference its earlier order, granting Delap's conditional writ of habeas corpus. Delap v. Dugger, No. 87-907-CIV-ORL-19 (M.D.Fla. April 21, 1988) ("District Court Amended Order"). The court ordered the state to provide Delap with a new sentencing proceeding or to commute his sentence of death to life imprisonment.

Delap raises several grounds on appeal, 1 arguing that:

1) the state denied his Fifth Amendment right to remain silent and Sixth Amendment right to counsel as recognized in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966);

2) his confession was coerced;

3) he was denied his Sixth Amendment right to effective assistance of counsel when his attorneys failed to cross-examine changed testimony of two key prosecution witnesses;

4) the state suppressed impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972);

5) newly discovered evidence demonstrates that the medical evidence used to convict him had no basis in fact;

6) the trial judge sentenced him to death after an improper ex parte visit to death row; and

7) the Florida courts applied the death penalty in an arbitrary, capricious, and unpredictable manner in violation of the Eighth and Fourteenth Amendments by:

a) applying an unconstitutionally vague construction of the "great risk of death to many persons" aggravating factor; 2

b) improperly relying on a "pecuniary gain" aggravating factor; 3 and

c) allowing consideration of prior charges which did not result in convictions. 4

The state of Florida cross-appeals on two grounds:

1) that the district court erred in finding that a violation of Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), occurred at Delap's trial; and

2) that the district court erred in finding that the trial court improperly found as an aggravating factor that the crime occurred during the commission of a robbery, kidnapping, or rape.

We address these contentions in turn below.

II. MIRANDA ISSUES

A. Right to Terminate Interrogation

Delap contends that before the police obtained his confession, Delap...

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