Ploof v. State

• Citation: 75 A.3d 840
• Decision Date: 30 October 2013
• Docket Number: 2012.,No. 108,108
• Parties: Gary PLOOF, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: United States State Supreme Court of Delaware

75 A.3d 840

Gary PLOOF, Defendant Below, Appellant,

v.STATE of Delaware, Plaintiff Below, Appellee.

No. 108, 2012.

Supreme Court of Delaware.

Submitted: July 16, 2013.

Decided: Oct. 30, 2013.

Court Below: Superior Court of the State of Delaware in and for New Castle County, Cr. ID No. 0111003002.

Upon appeal from the Superior Court after Remand. AFFIRMED.

Patrick J. Collins (argued), Collins & Roop, Wilmington, Delaware; Kathryn J. Garrison, Schmittinger & Rodriguez, P.A., Dover, Delaware, for appellant.

John Williams, Department of Justice, Dover, Delaware, for appellee.

Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS, Justices and STRINE, Chancellor ^* constituting the Court en Banc.

STEELE, Chief Justice for the Majority:

This appeal addresses whether a defendant received ineffective assistance of counsel during the penalty phase of his first-degree murder trial. We previously rejected the defendant's claims arising from his trial's guilt phase, but we remanded his penalty phase claims for the postconviction judge to reweigh the aggravatingcircumstances against the mitigating circumstances established at trial and in the postconviction proceedings. ¹ The defendant contends that his attorneys were ineffective because they failed to uncover evidence that the defendant's father sexually abused foster children staying with the defendant's family and also physically abused the defendant himself. We hold that the defendant's attorneys should have investigated certain “red flags” indicating that the defendant's childhood home was not as benign as initially portrayed. We conclude, however, that the attorneys' failures did not prejudice the defendant. Therefore, we AFFIRM the judge's denial of Ploof's postconviction relief petition.

I. FACTUAL AND PROCEDURAL BACKGROUND ²

A. Heidi Ploof's Death and Gary Ploof's Conviction ³

We described the circumstances surrounding Heidi Ploof's ⁴ death in our opinion resolving Defendant–Appellant Gary Ploof's direct appeal:

Gary W. Ploof was a U.S. Air Force Staff Sergeant stationed with his wife, Heidi, at Dover Air Force Base during 2001. Beginning that year, Ploof had an affair with Adrienne Hendricks, a colleague with whom he worked part-time at a towing service. Ploof learned that effective November 1, 2001, the U.S. Air Force would provide $100,000 [in] life insurance for military spouses. He was informed that he would be automatically enrolled unless he took affirmative action to disenroll. Ploof told his supervisor of his intent to refuse the policy coverage, but he took no action to do so. Ploof also told Hendricks that she should plan to move in with him starting November 5, 2001 because he and Heidi were having marital problems, and Heidi was preparing to move out.

In truth, Heidi was not planning to move out nor did Ploof have any intention of rejecting the spousal U.S.A.F. life insurance coverage. Instead, Ploof intended to murder his wife soon after the life insurance policy became effective on November 1. On November 3, 2001, Ploof drove with Heidi to the parking lot of Dover Wal–Mart where he shot her in the head with a .357 magnum revolver. He did that in a way that (he believed) would suggest that she committed suicide. He also developed a scheme to mislead the police in the event that a homicide investigation ensued. Security videotape of the Wal–Mart parking lot on the day that Heidi's body was found showed Ploof hurriedly walking away from her vehicle. Ploof also constructed an elaborate alibi by making numerous frantic phone calls feigning his concern for his missing wife. One of the calls prompted a friend to search for Heidi on the dark country roads on which she would have driven home from work. Ploof even called Heidi's cell phone in an attempt to deflect suspicion of his involvement. He then hid the murder weapon on his property and asked friends to hold on to another pistol and a gun case so that they would not be found by the police. Finally, he lied to police about his mistress, Hendricks, (suggesting that she was just a friend), about his weapons (maintaining that he owned no pistols), and about a life insurance policy in which Heidi was recently enrolled (insisting that he had no knowledge of the policy).⁵

In 2003, a Superior Court jury convicted Ploof of Murder in the First Degree. Because the State sought the death penalty, the trial judge conducted a penalty hearing in accordance with 11 Del. C. § 4209.

B. The Aggravating and Mitigating Circumstances Presented at the Penalty Hearing

At the penalty hearing, the State sought to prove two statutory aggravating circumstances: (1) “[t]he murder was committed for pecuniary gain” and (2) “[t]he murder was premeditated and the result of substantial planning.” ⁶ In Delaware, the jurors must find unanimously the presence of at least one statutory aggravating circumstance for a defendant to be eligible to receive the death penalty.⁷ The State also attempted to establish several nonstatutory aggravating circumstances: (i) Ploof murdered Heidi without provocation, (ii) Heidi was defenseless, (iii) Ploof had a prison disciplinary record and a criminal history, (iv) evidence established that Ploof committed third-degree assault on a former girlfriend, (v) Ploof would be dangerous in the future, (vi) Ploof intimidated a witness, and (vii) Heidi's death impacted her family.⁸

Ploof's attorneys (Trial Counsel) ⁹ relied on twelve mitigating circumstances: (i) Ploof's life history, (ii) his relationship with his family members, (iii) his potential positive impact upon his family members, (iv) his history of gainful employment and usefulness as a productive member of society, (v) his potential positive impact on the prison population, (vi) his adjustment to prison life since his incarceration, (vii) his lack of a substantial prior criminal record, (viii) his lack of a criminal record involving violence, (ix) his lack of a prior record of felony convictions, (x) his capability to follow rules and regulations and to do well in a structured environment, (xi) his lack of a future propensity for violence, and (xii) the impact on his loved ones if he were executed.

1. The Aggravating Circumstances

During the penalty hearing, the State reiterated the trial evidence that Ploof had murdered Heidi in order to obtain the proceeds from a $100,000 life insurance policy so that he could ameliorate his financial problems. The State also introduced evidence that Ploof had a criminal record for tractor theft, and that the Air Force had reprimanded him for dereliction of duty and punished him for having an adulterous affair. The State also attempted to show that Ploof assaulted a former girlfriend. A prison administrator testified that Ploof's prison record contained several minor violations and a major violation for possessing a shank (which Ploof claimed he used for engraving). Finally, Heidi's uncle described his niece's generosity and kindness, and he stated that he missed Heidi like he would miss his own daughter.

2. Military Service Record and Future Dangerousness Testimony

Trial Counsel's mitigation case emphasized Ploof's military service. Ploof's former supervisor, Keith Frye, testified that Ploof was a “good worker” with an excellent reputation. Frye described the various medals Ploof earned during his lengthy Air Force career, including Ploof's work helping to launch over 3,000 missions in Operation Desert Storm.¹⁰ Frye also noted Ploof's two Air Force Achievement Medals, which Ploof had earned by making emergency repairs to an aircraft in Mogadishu, Somalia, and ensuring the launch and recovery of 126 C–5 missions during Operation Joint Endeavour.¹¹

Abraham Mensch, Ph.D., a psychologist, noted that Ploof's record established that Ploof had a commendable career and was a highly effective leader. Mensch also stated that Ploof had no psychiatric disorder that would predispose him to violence and concluded that Ploof would not be a danger to society in prison.

3. Shirley Ploof's Mitigating Testimony

Ploof's mother, Shirley Ploof, testified that Ploof's brother, Kevin Ploof, had severe mental and physical handicaps as well as behavioral problems throughout his life. She described how Ploof would protect Kevin. She also described Kevin's various medical problems during Ploof's childhood. Shirley further explained that, beginning when Ploof was seven years old, over thirty foster children cycled through the Ploofs' home, although never more than three at any one time. These foster children often had behavioral and psychological issues. Shirley admitted being a strict disciplinarian, stating that “if [Kevin and Ploof] asked for a slap, they got it.” Although she admitted spanking the foster children until she was told not to do so, she denied otherwise hitting them. Shirley was very distressed by her son's potential execution, and she planned to move so that she could visit him more often.

C. The Jury's Recommendation and the Trial Judge's Decision

After the testimony concluded, Ploof spoke briefly and expressed remorse for Heidi's death. He said that he was sorry that Heidi would never see her daughter and that he was sorry for both Heidi's family and his family. The jurors then retired to deliberate. After eight hours, the jurors unanimously concluded that Ploof murdered Heidi for pecuniary gain and that the aggravating circumstances outweighed the mitigating circumstances.¹²

In his sentencing opinion, the trial judge concluded that Ploof murdered Heidi without provocation and that Heidi was defenseless. The trial judge found that the State had shown that Ploof was disciplined in prison for “minor offenses” and for possessing a shank. The Air Force had also disciplined Ploof for having an extramarital affair. The trial judge noted Ploof's tractor theft and his arrest for conduct that would have established third-degree assault. In addition, the trial judge found that Heidi's death had significantly impacted her...