Delap v. Dugger, 71194

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM; McDONALD; BARKETT, J., dissents with an opinion with which KOGAN; BARKETT; KOGAN
• Citation: 513 So.2d 659,12 Fla. L. Weekly 517
• Parties: 12 Fla. L. Weekly 517 David Ross DELAP, Sr., Petitioner, v. Richard L. DUGGER, etc., Respondent.
• Docket Number: No. 71194,71194
• Decision Date: 08 October 1987

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513 So.2d 659 12 Fla. L. Weekly 517 David Ross DELAP, Sr., Petitioner,
v.
Richard L. DUGGER, etc., Respondent. No. 71194. Supreme Court of Florida. Oct. 8, 1987.

Gerry S. Gibson of Steel, Hector & Davis, Miami, and Richard L. Jorandby, Public Defender, Fifteenth Judicial Circuit, and Craig S. Barnard, Chief Asst. Public Defender, West Palm Beach, for petitioner.

Robert A. Butterworth, Atty. Gen., and Lee Rosenthal, Richard Bartmon, and Amy Lynn Diem, Asst. Attys. Gen., West Palm Beach, for respondent.

PER CURIAM.

David Ross Delap, Sr., under a sentence and warrant of death, petitions this Court for a writ of habeas corpus, seeking a new sentencing hearing. He also moves the Court to stay his execution which is set for October 15. We have jurisdiction. Art. V, § 3(b)(9), Fla. Const.

Delap was twice found guilty of the abduction, robbery, sexual abuse and murder

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of Paula Ethridge in Okeechoobee. ¹ Upon his second conviction, he appealed to this Court, which affirmed the judgment and sentence. Delap v. State, 440 So.2d 1242 (Fla.1983), cert. denied, 467 U.S. 1264, 104 S.Ct. 3559, 82 L.Ed.2d 860 (1984). This Court rejected Delap's argument that the requirements of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), had been violated. Thereafter, this Court affirmed the denial of a motion under rule 3.850, Florida Rules of Criminal Procedure. Delap v. State, 505 So.2d 1321 (Fla.1987).

Delap now argues that this Court should rehear his Lockett claim in light of Hitchcock v. Florida, 467 U.S. ----, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), wherein the Supreme Court of the United States held that when a judge and jury are limited in their consideration of mitigating evidence a new sentencing hearing is mandated under the principles of Lockett. Because Hitchcock represents a substantial change in the law occurring since we first affirmed Delap's sentence, we are constrained to readdress his Lockett claim on its merits. Downs v. Dugger, 514 So.2d 1069 (Fla. 1987); Thompson v. Dugger, 515 So.2d 173 (Fla. 1987).

THE BACKGROUND

The facts of the murder.

A complete account of the crime is set out at 440 So.2d 1245-46, but we will provide a precis here. Delap was accused in 1975 of abducting Ms. Ethridge from a coin laundry, forcibly holding her in his car to prevent her desperate attempts to escape and driving her to a secluded area, where he robbed her of her purse, committed involuntary sexual battery upon her, and killed her, either through strangulation, beating, or a combination of the two.

The circumstances of the trial.

Delap was brought to trial a second time in 1979. In the penalty phase, the court placed no limitations on what the defense could present, but, in fact, only one witness, a psychiatrist-neurologist, testified for the defense. He testified that while Delap was sane, he had an "essentially unstable personality, with sociopathic features." The doctor expressed the opinion that he suffered from a mild organic brain disorder and that he had abused drugs and alcohol on the day of the murder, exaggerating his tendency to commit the crime and making him less aware of the consequences of his actions. There was no evidence that Delap had, in fact, used drugs on the day of the murder other than Delap's recent statement to the doctor, and the doctor admitted that Delap had failed to point this out in previous interviews. The state presented two doctors who said that Delap was not under the influence of extreme mental or emotional duress and did not have impaired mental faculties at the time of the crime.

At the charge conference defense counsel made several objections to the jury instructions but did not, at that time, object to the fact that they did not explain that the jury could consider nonstatutory mitigating circumstances. ² The prosecutor did, however, point out to the judge that while the state could rely only on the statutory aggravating circumstances, the defendant was "not limited to the enumerated mitigating circumstances." In closing arguments the prosecutor discussed the list of statutory mitigating factors but told the jurors they were not limited to considering them. After the closing arguments but before the judge was to begin reading the jury instructions, defense counsel, at a sidebar conference out of the hearing of the court reporter, apparently moved the court to give an instruction that informed the jury it could consider any evidence in

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mitigation. The court refused and later put on the record that it did so because the motion was not timely made. The then-existing standard jury instructions were read, and the jury was not instructed by the court that it could consider factors beyond those in the instructions. Upon the request of the jury, the judge later furnished the jury with a copy of the entire jury instructions, and Delap's lawyer objected to the lack of reference to nonstatutory mitigating circumstances. Finally, the jury, by a majority, recommended death.

The trial judge did not sentence Delap for more than four months. During that time he received written memoranda from counsel arguing the merits and demerits of the death penalty and made a trip to the state prison, where he toured the facility and checked Delap's conduct during his stay on death row. ³ The court found six aggravating factors, of which five survived appellate review: that the murder was committed by a person under sentence of imprisonment, that Delap was previously convicted of another felony involving the use or threat of violence to the person, that Delap created a great risk to many persons in the commission of the crime, that the crime was committed while engaged in the commission of a kidnapping, robbery and rape, and that the killing was especially heinous, atrocious or cruel. In his written findings in conformity with section 921.141(3), the court found that none of the statutory mitigating factors applied but did find Delap's behavior at trial and in prison and the possibility of remorse as mitigating factors.

THIS PETITION

The standard jury instruction given in this case was similar to the one which the United States Supreme Court in Hitchcock ruled inadequate because it failed to explain that the jury could take into consideration nonstatutory mitigating evidence. ⁴

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The fact that Delap's request for a proper instruction was late is not significant to our decision because in Hitchcock the impropriety of the instruction was not even raised at the trial. Delap argues that because the jury was improperly instructed on the law, the entire sentencing process was tainted. The state responds that the ultimate focus is on the judge, not the jury, and the record clearly shows that the judge was aware that he had to consider all mitigating evidence and did in fact consider mitigating evidence. The state further points out that while this Court has reversed some death sentences for Hitchcock violations, in each case there was an additional element that required reversal besides the faulty jury instruction. ⁵

The state urges this Court to adopt the approach to the Hitchcock issue recently taken in Elledge v. Dugger, 823 F.2d 1439 (11th Cir.1987), in which the Eleventh Circuit Court of Appeals stated that "Hitchcock did not create a per se rule of reversal when the...