Delap v. State, No. 56235

• Court: Florida Supreme Court
• Writing for the Court: ADKINS; ALDERMAN
• Citation: 440 So.2d 1242
• Docket Number: No. 56235
• Decision Date: 15 September 1983
• Parties: David Ross DELAP, Appellant, v. STATE of Florida, Appellee.

Page 1242

440 So.2d 1242 David Ross DELAP, Appellant,
v.
STATE of Florida, Appellee. No. 56235. Supreme Court of Florida. Sept. 15, 1983.
Rehearing Denied Dec. 14, 1983.

Page 1245

Richard L. Jorandby, Public Defender and Margaret Good, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for appellant.

Jim Smith, Atty. Gen. and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.

ADKINS, Judge.

Appellant (David Ross Delap), hereinafter referred to as defendant, was adjudged guilty of murder in the first degree and, as recommended by the jury, sentenced to death. This appeal resulted. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Defendant was first convicted and sentenced to death in Okeechobee County in 1976. His conviction was reversed because of the state's inability to provide a sufficient transcript for appellate review. Delap v. State, 350 So.2d 462 (Fla.1977). After remand, venue was changed to Orange County.

Sometime after 4:00 p.m. on June 30, 1975, the victim, Paula Etheridge, went to a laundromat to wash her clothes. She was wearing a red top and shorts. The next day the sheriff's office received a report that she was missing.

Between 5:30 and 6:00 p.m. on June 30, 1975, Ava Leonard and her daughter saw a slow-moving car with the front passenger door open traveling on Highway 70. The car swerved into the Leonard yard. A girl wearing a red top and "tan or brown" shorts was hanging out of the door of the car, screaming, "Help me, God, somebody help me." A man was holding her by the neck so she would not jump.

Lois Huff testified that on June 30, 1975, between 5:15 and 6:30 p.m. while driving east on Highway 70 with her three daughters, she noticed something unusual in her rearview mirror. The car behind hers contained a man and woman who were struggling. The man was holding the woman's

Page 1246

head in the crook of his arm. Ms. Huff was behind a Walpole truck and all three vehicles were going in the direction of West Palm Beach. Ms. Huff stopped at a service station to call the sheriff. When no one responded within a few minutes, she tried to overtake the car. Although she drove all the way to West Palm Beach and did not pass the Walpole truck, she did not find the car.

The Walpole truck driver, Willy Kelly, saw a 1975 Plymouth or Dodge of faded color proceeding at approximately forty to fifty miles per hour. He saw an arm that was not moving hanging out the passenger door. Kelly slowed to see what was happening and the car took a left turn. He saw the passenger door come all the way open and a man stopped the car right after the turn in the middle of the road. The man got out and walked around the car, as Kelly drove on to West Palm Beach.

Jo Randolf, at the time a student at Okeechobee Community College, knew the defendant. On June 30, 1975, she saw defendant after 5:00 p.m. prior to a class she had with him. Defendant left but returned after class began, during the break. When defendant returned he had blood on his shirt. She overheard defendant say his child had been in an accident and that defendant had taken the child to a hospital for medical assistance. Defendant said the blood on his shirt came from the child's cut.

When a missing person report was received on July 1, 1975, Lt. Arnold investigated the report of a man and woman struggling in a car. Defendant's car was pointed out to him by Lois Huff and the car was placed under surveillance. State attorney investigator Brumley was told defendant's car fitted the description of the auto observed by witnesses as being involved in the disappearance. Brumley investigated defendant's background and obtained additional information. On July 7, 1975, Brumley sought to discuss the case with defendant. Brumley confronted defendant with the fact that he matched the description of the man seen struggling with a female and that his car matched the description given by witnesses. Defendant was also confronted with the fact that blood had been seen on his shirt the same evening and that his claim that between 6:00 and 8:00 p.m. he had taken one of his children to the hospital in Sebring, 52 miles away, had the child treated, and returned to the college was incredible.

Defendant agreed to accompany Lt. Arnold and Investigator Brumley to the sheriff's office, where he was questioned. Eventually the defendant gave a statement and took the officers to the place where he had hidden the victim's body.

In his first issue, defendant contends that his attorney-client privilege was violated when, at his first suppression hearing prior to the first trial, the trial judge overruled his objection to a question propounded to public defender investigator Coppock. At the hearing defendant called Coppock to testify in his attempt to suppress the confession. The defense established that Coppock, a trained polygraph examiner, examined the defendant. The purpose of the polygraph examination was to determine whether defendant had been given Miranda warnings and whether he had been promised psychiatric help prior to his confession. The state's objection to the introduction of the polygraph examination was sustained.

Defense counsel then proceeded to elicit from the witness Coppock that during the polygraph examinations, pursuant to questions, defendant denied making any statement that he had not been offered psychiatric help or that he had been advised of his rights. On cross examination the prosecutor asked Coppock whether he had asked defendant about a statement wherein defendant told chief of police Statts that he confessed because he trusted and liked Chief Statts. The objection of defendant to this question was overruled. Defendant now claims that the court's failure to sustain these objections was a violation of confidential attorney-client communications.

The prosecution may not make the defense counsel's investigator a state witness so that the accused's confidential communication to his attorney's investigator

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are exposed in the courtroom and used by the state against the defendant. As with all privileged communications, the justification for the privilege lies not in the fact of communication, but in the interest of the persons concerned that the subject matter should not become public. But when a party himself ceases to treat the matter as confidential, it loses its confidential character. Savino v. Luciano, 92 So.2d 817 (Fla.1957). See Tibado v. Brees, 212 So.2d 61 (Fla. 2d DCA 1968); Soler v. Kukula, 297 So.2d 600 (Fla. 3d DCA 1974). Defendant sought to elicit from Investigator Coppock only testimony which would aid him in having the confession suppressed, while selectively blocking inquiries concerning his state of mind at the time of the confession which were not beneficial to his cause. The trial judge properly overruled defendant's objection to the question.

At the hearing on defendant's motion to suppress statements and confessions, defendant attempted to introduce Coppock's testimony on the results of a polygraph examination administered to the defendant. The state objected on the ground that such testimony was incompetent and wholly inadmissible. The rule that polygraph evidence is inadmissible is well established in Florida. Zeigler v. State, 402 So.2d 365 (Fla.1981), cert. denied, 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982); Sullivan v. State, 303 So.2d 632 (Fla.1974), cert. denied 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976); Kaminski v. State, 63 So.2d 339 (Fla.1952). Such evidence is admissible where the parties stipulate or agree to its admissibility. Anderson v. State, 241 So.2d 390 (Fla.1970), vacated, 408 U.S. 938, 92 S.Ct. 2868, 33 L.Ed.2d 758 (1972); State v. Brown, 177 So.2d 532 (Fla. 2d DCA 1965). Defendant challenges this stipulation or consent requirement as an arbitrary evidentiary rule which operates to deny him a full and fair hearing on the voluntariness of his confession by preventing him from adducing important favorable evidence regarding the effect of the officer's interrogation tactics.

Where evidence is based solely upon scientific tests and experiments, it is essential that the reliability of the test be recognized and accepted by scientists or that the demonstration pass from the stage of experimentation to that of reasonable demonstrability. Rodriguez v. State, 327 So.2d 903 (Fla. 3d DCA), cert. denied, 336 So.2d 1184 (Fla.1976). Polygraph testing has not passed the reliability threshold. State v. Curtis, 281 So.2d 514 (Fla. 3d DCA 1973), cert. denied, 290 So.2d 493 (Fla.1974).

The use of a polygraph examination as evidence is premised on the waiver by both parties of evidentiary objections as to lack of scientific reliability. The evidence fails to show that the polygraph examination has gained such reliability and scientific recognition in Florida as to warrant its admissibility. The Florida rule of inadmissibility reflects state judgment that polygraph evidence is too unreliable or too capable of misinterpretation to be admitted at trial. However, the court does recognize that the parties may waive their evidentiary objection. Defendant's constitutional rights have not been violated by the exclusion of inadmissible polygraph evidence.

Defendant contends that the trial judge committed error when he admitted defendant's confession into evidence, arguing that the confession should have been suppressed on the grounds that it was coerced and that it was the fruit of an illegal search.

After a week's investigation of the victim's disappearance, state attorney investigator Brumley and Deputy Arnold approached Delap at the community college before 9:00 p.m. on July 7, 1975. The officers had already secured search warrants for Delap's home and car from a county judge. The defendant was not informed of this when he agreed to accompany Arnold and Brumley to the sheriff's office. The evidence is sufficient to sustain the finding of the trial judge...