Elledge v. Dugger

• Decision Date: 20 July 1987
• Docket Number: No. 86-5120,86-5120
• Parties: William Duane ELLEDGE, Petitioner-Appellant, v. Richard L. DUGGER, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1439

823 F.2d 1439

William Duane ELLEDGE, Petitioner-Appellant, v. Richard L. DUGGER, Respondent-Appellee.

No. 86-5120.

United States Court of Appeals, Eleventh Circuit.

July 20, 1987.

Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender, West Palm Beach, Fla., Richard H. Burr, III, New York City, for petitioner-appellant.

Robert A. Butterworth, Atty. Gen., Robert L. Bogen and Richard Bartmon, Asst. Attys. Gen., West Palm Beach, Fla., for respondent-appellee.

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

Before RONEY, Chief Judge, and HATCHETT and EDMONDSON, Circuit Judges.

PER CURIAM:

Defendant-petitioner William Duane Elledge appeals a district court order denying him federal habeas corpus relief; he raises six bases for relief. Because we find that Elledge has shown that his constitutional rights were violated in one respect, we vacate the district court's judgment and remand with instructions.

Elledge was involved in three killings that occurred in a 36 hour period in August, 1974, ¹ although only the first murder--of Margaret Anne Strack--is at issue on appeal. Strack was raped and killed in Hollywood, Florida, on August 24, 1974; the two subsequent murders occurred in Jacksonville, Florida. Early in the morning of August 26, 1974, Jacksonville police arrested Elledge for the third homicide. He then was interrogated four times between 4:30 a.m. and 10:30 a.m. that morning; the police properly informed Elledge of his rights on each occasion. See generally Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). During the course of their questioning and investigation, the Jacksonville police determined that Elledge was a suspect in the Strack homicide and questioned him about it as well. At the last interrogation, Elledge orally confessed to all three murders. The next day he again confessed to the Strack murder after follow-up interrogation by Hollywood police investigators; this confession was tape recorded.

Elledge's public defender adopted the following strategy: (1) plead insanity if possible; (2) if that defense was not available, suppress the confession and plead not guilty; and (3) if the confession could not be suppressed, plead guilty and seek mercy. The insanity defense proved fruitless when psychiatrists found Elledge to be sane; efforts to suppress the confessions on the grounds that Elledge was physically coerced because he confessed without sleep or food and was still under the influence of drugs and alcohol also failed. Under advice of counsel, Elledge then entered a plea of guilty, leaving sentencing as the sole issue to be determined.

Although a sentence of death was entered after the first sentencing hearing (in 1975), the Florida Supreme Court overturned that sentence and remanded the case for a new sentencing hearing. Elledge v. State, 346 So.2d 998 (Fla.1977). The same state trial judge presided over the second sentencing hearing; he appointed the same attorney, who by this time was in private practice, to represent Elledge. This second sentencing hearing, held in 1977, is the sentencing hearing referred to in the balance of this opinion.

Elledge's taped confession was played at the sentencing hearing; additionally, a variety of witnesses testified. Defendant took the stand in his own behalf and detailed his harsh childhood and early addiction to and abuse of alcohol and drugs. A jury considered the evidence and recommended death; the judge agreed and, thus, entered a sentence of death. A series of unsuccessful state appeals followed. ² After exhausting all state remedies, Elledge filed a petition for a writ of habeas corpus with the United States District Court for the Southern District of Florida. That court held an evidentiary hearing and concluded that, while counsel's performance at the sentencing hearing was inadequate, no prejudice resulted from counsel's unreasonable performance. The district court then denied the petition, and this appeal followed.

Elledge makes these contentions on appeal: (a) counsel's performance in challenging the confession was inadequate and prejudiced Elledge; (b) the district court's conclusion that no prejudice arose from counsel's inadequate representation at the sentencing phase was erroneous because the court failed to consider that the evidence not adduced would have altered the entire evidentiary picture; (c) Elledge did not receive an individualized capital sentencing determination because the trial judge refused to consider any nonstatutory factors that mitigated against imposing the death penalty; (d) the death penalty was applied mechanistically under Florida's felony murder rule without regard for whether Elledge intended that a life would be taken; (e) the death penalty is applied in an arbitrary and discriminatory manner in Florida as evidenced by empirical studies that indicate a disproportionality in death sentences based on the race and/or sex of the victim; and (f) the trial court's decision to shackle Elledge at the sentencing hearing was inherently prejudicial.

I. Effectiveness of Representation in Seeking to Suppress the Confessions.

As a threshold matter, effective assistance of counsel is a two-prong issue. The petitioner must establish both that counsel's performance was not reasonably adequate and that petitioner was prejudiced by that unreasonable performance to the point that he did not receive a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Elledge's basic claim is that his counsel was ineffective because he failed to use the proper theory in challenging the confessions. The two confessions require different analytic frameworks; therefore, we will discuss each separately.

A. The first, untaped confession

Elledge's counsel sought to suppress the first confession, arguing that it was involuntary because it was physically coerced. Counsel maintained that Elledge had no sleep the night of his arrest and interrogation, had no food and drink during his interrogation, confessed while hung over and under the residual impact of drugs and alcohol, and was in a general "daze" at the time of his confession. ³ Counsel did not argue, however, that Elledge's fifth amendment rights were violated when the police repeatedly reinterrogated and rewarned him of his Miranda rights despite Elledge's alleged invocation of his right to silence. This omission was unreasonable representation according to Elledge. We disagree.

The test for the performance prong of Strickland is objective "reasonableness under prevailing professional norms." Id. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. A reviewing court conducting such an examination must view the performance at the time it occurred, avoid the "distorting effects of hindsight," id., and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance...." Id. at 689, 104 S.Ct. at 2066, 80 L.Ed.2d at 694.

Until Michigan v. Mosley, 423 U.S. 96, 102-04, 96 S.Ct. 321, 326, 46 L.Ed.2d 313, 320-22 (Dec. 9, 1975), repeated reinterrogation in conjunction with repeated Miranda warnings was not recognized as a potentially coercive technique. Elledge's counsel sought to suppress the first confession in March, 1975; obviously, he did not have the benefit of Mosley at that time. Furthermore, as of March, 1975, no Florida courts had held that such procedures were coercive. Reasonably effective representation cannot and does not include a requirement to make arguments based on predictions of how the law may develop. See Sullivan v. Wainwright, 695 F.2d 1306, 1309 (11th Cir.), aff'd, 464 U.S. 109, 104 S.Ct. 450, 78 L.Ed.2d 266 (1983) (per curiam). Thus, Elledge's claim fails on the first, performance prong of Strickland.

B. The second, taped confession

Even if we assume, arguendo, that counsel's performance was unreasonable because he did not attack the police's alleged failure to honor Elledge's invocation of his right to remain silent, ⁴ we find that no prejudice attached as a result, because the second confession was admissible--under either of two alternative grounds--even if the first confession was not.

A confession that follows on the heels of an involuntary confession may be tainted thereby and thus inadmissible. See Martin v. Wainwright, 770 F.2d 918, 928 (11th Cir.1985), modified on other grounds, 781 F.2d 185 (11th Cir.1986). The taint transfers, however, only if the first confession was inadmissible as involuntary, i.e., coerced and not the product of a free will. See Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 1294, 84 L.Ed.2d 222, 231 (1985); Martin, 770 F.2d at 928. This circuit has held that not honoring a request to stop questioning is no different from failing to give the Miranda warning in the first place; while both are "technical" violations of Miranda, neither violates the fifth amendment. Martin, 770 F.2d at 928-29 (relying on Elstad, 470 U.S. at 308, 105 S.Ct. at 1293, 84 L.Ed.2d at 231). Thus, confessions obtained by such violations, while inadmissible because they run afoul of Miranda 's per se bar, are not "involuntary" ⁵ and do not taint any subsequent confessions. Id. Therefore, the second, taped confession was not made inadmissible even if the first confession resulted from technical Miranda violations.

Furthermore, even if the first confession was both violative of Miranda and involuntary, Elledge cannot prove he was prejudiced by admission of the second confession because it was sufficiently distinct from the first confession and, therefore, admissible. See Elstad, 470 U.S. at 309, 105 S.Ct. at 1294, 84 L.Ed.2d at 232-33 (dicta). When an earlier confession has been coerced and, thus, was involuntary, a court seeking to determine whether a subsequent confession is tainted thereby must look to "the time that passes between confessions, the change in...