Delap v. State, 68266

• Citation: 12 Fla. L. Weekly 149,505 So.2d 1321
• Decision Date: 26 March 1987
• Docket Number: No. 68266,68266
• Parties: 12 Fla. L. Weekly 149 David Ross DELAP, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 1321

505 So.2d 1321

12 Fla. L. Weekly 149

David Ross DELAP, Appellant, v. STATE of Florida, Appellee.

No. 68266.

Supreme Court of Florida.

March 26, 1987.

Rehearing Denied May 21, 1987.

Gerry S. Gibson, of Steel, Hector & Davis, Miami, for appellant.

Robert A. Butterworth, Atty. Gen., and Lee Rosenthal, Asst. Atty. Gen., West Palm Beach, for appellee.

ADKINS (Ret.), Justice.

David Ross Delap, a state prisoner under sentence of death, appeals the trial court's denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 without an evidentiary hearing. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm the trial court's order.

Delap was convicted in February 1976 of the first-degree murder of Paula Etheridge and sentenced to death. This Court reversed that conviction, as no complete trial transcript was produced for appellate review. Delap v. State, 350 So.2d 462 (Fla.1977). Upon remand, Delap was once again convicted and sentenced to death. The conviction and sentence were affirmed in 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).

In December 1985, Delap sought collateral review pursuant to Florida Rule of Criminal Procedure 3.850, and the trial court denied all relief without an evidentiary hearing. Upon examining the motion, the files, and the record, we agree that no evidentiary hearing was required. Fla.R.Crim.P. 3.850; State v. Zeigler, 488 So.2d 820 (Fla.1986); Mann v. State, 482 So.2d 1360 (Fla.1986).

Delap first contends that trial counsel rendered ineffective assistance in failing to adequately cross-examine two key state's witnesses whose testimony allegedly changed dramatically between Delap's first and second trials. Because the testimony in question established the cause and manner of death as strangulation, and therefore established premeditation, it is argued, counsels' failure to point out the inconsistencies crippled the truth-seeking adversarial process and deprived Delap of a fair trial. We disagree.

An examination of the statements in context, we believe, indicates that the testimony given in the two trials was substantially consistent. Additionally, the record at the second trial illustrates an effective impeachment of the testimony complained of. Delap first points, for example, to alleged changes in the testimony of Dr. Schofield, the Okeechobee County Medical Examiner. At Delap's first trial, the witness testified that "I have considered the probable cause of death was by strangulation, but I have no findings to corroborate or sustain it." This testimony reflected Dr. Schofield's findings at the first trial that evidence of both a skull fracture and strangulation existed, and his conclusion that he could not with certainty establish either as the single cause of death.

Contrary to Delap's assertions, we find no inconsistency in his testimony at the second trial. There, he testified that "I think I can present a logical cause of death ... a combination of happenings in this instance." While he did indeed testify that the medical findings were "consistent with strangulation," he had testified in the first trial that certain markings found on the victim's neck were indicative of strangulation. Beyond this lack of inconsistency in Dr. Schofield's testimony, we note that in the second trial the doctor was forced to repeatedly admit on cross-examination that he could neither be certain nor prove that the death was caused by manual strangulation.

We similarly reject Delap's claims as to the testimony of Lem Brumley, then the state attorney's chief investigator for the Nineteenth Judicial Circuit. Brumley's testimony at the second trial that Delap...