Thanks for visiting! Welcome to a new way to research case law. You are viewing a free summary from Descrybe.ai. For citation and good law / bad law checking, legal issue analysis, and other advanced tools, explore our Legal Research Toolkit — not free, but close.
David Ross Delap, Sr. v. Richard L. Dugger, Secretary, Department of Corrections, State of Florida
Citations: 890 F.2d 285; 1989 WL 140400Docket: 88-3393, 88-3404
Court: Court of Appeals for the Eleventh Circuit; November 20, 1989; Federal Appellate Court
David Ross Delap, Sr. is the petitioner in a habeas corpus case against Richard L. Dugger, Secretary of the Florida Department of Corrections, as both parties appeal a district court's conditional grant of Delap's petition. The case, heard in the Eleventh Circuit on November 20, 1989, involves significant facts surrounding the disappearance of Paula Etheridge on June 30, 1975. On that day, Etheridge was seen at a laundromat around 4:00 p.m. wearing distinctive clothing. She was reported missing the following day. Witnesses, including Ava Leonard and her daughter, observed a man holding a woman in a red top by the neck, while Lois Huff noticed a struggle in a vehicle behind her and attempted to contact authorities. Willy Kelly, a truck driver, also witnessed a car with a woman's motionless arm hanging out, which led him to slow down but ultimately lose sight of the vehicle as it turned onto a side road. Jo Randolph, a classmate of Delap, recalled seeing him around 5:00 p.m. on the same day, noting that he returned to class later with what appeared to be blood on his shirt. Delap claimed the blood was from an injury to his child. Following the report of Etheridge's disappearance, law enforcement began investigating Delap, placing his car under surveillance based on witness descriptions. On July 7, 1975, Sheriff's Deputy Bill Arnold and Chief Investigator Lem Brumley confronted David Ross Delap regarding his involvement in a struggle witnessed by others, noting that his car matched a description provided by witnesses. Delap voluntarily went to the Sheriff's office for questioning while his home was searched under a warrant by Agent Buchannan. During this search, it was determined that none of Delap's children had been injured, contradicting his claims about blood on his shirt. Following intense questioning, Delap led the officers to the victim, Paula Etheridge's body and purse. On August 25, 1975, a grand jury indicted Delap for the premeditated first-degree murder of Etheridge. Pretrial motions were filed, with the motion to suppress the evidence from the home search granted, while the motion to suppress Delap's confession was denied. Delap was convicted on February 27, 1976, and sentenced to death. However, the Supreme Court of Florida reversed the conviction due to incomplete trial transcripts, ordering a new trial in Orange County due to extensive publicity. During the second trial, which included renewed pretrial motions, Delap was again convicted and sentenced to death. His direct appeal raised twelve claims, all but one were rejected; however, due to other existing aggravating factors, the death sentence was upheld. The U.S. Supreme Court denied his certiorari petition in 1984. In 1985, Delap filed for post-conviction relief under Florida Rule of Criminal Procedure 3.850, which was denied without a hearing, and this decision was affirmed by the Florida Supreme Court. His execution was set for October 15, 1987, but he filed a petition for a writ of habeas corpus on September 24, 1987, which was denied. A second post-conviction motion filed on October 9, 1987, was also denied. Delap then sought a writ of habeas corpus in the U.S. District Court for the Middle District of Florida, which granted a conditional writ and a stay of execution on October 13, 1987. Subsequently, the state sought relief from the judgment. On February 24, 1988, Delap filed a motion for reconsideration regarding the Hitchcock issue in his petition. On April 21, 1988, the district court amended its previous order, granting Delap a conditional writ of habeas corpus, requiring the state to either provide a new sentencing proceeding or commute his death sentence to life imprisonment. Delap's appeal presents several arguments: 1. Violation of his Fifth Amendment right to silence and Sixth Amendment right to counsel, as established in *Miranda v. Arizona*. 2. Coercion of his confession. 3. Denial of effective assistance of counsel due to failure to cross-examine two key prosecution witnesses. 4. Suppression of impeachment evidence, violating *Brady v. Maryland* and *Giglio v. United States*. 5. Newly discovered evidence undermining the medical basis for his conviction. 6. Improper ex parte communication by the trial judge before sentencing. 7. Arbitrary application of the death penalty by Florida courts, contravening the Eighth and Fourteenth Amendments. The state of Florida cross-appeals, arguing that the district court mistakenly found a violation of *Hitchcock v. Dugger* at Delap's trial and incorrectly identified an aggravating factor related to the commission of a robbery, kidnapping, or rape. Delap asserts that he invoked his Fifth Amendment right to end questioning before police obtained his confession, claiming this request was disregarded, thereby violating *Miranda*. The *Miranda* ruling mandates that suspects in custodial interrogations be informed of their rights, including the right to remain silent and to legal counsel, and that law enforcement must respect a suspect's decision to terminate questioning. This principle was further clarified in *Michigan v. Mosley*, emphasizing the necessity for officials to honor a suspect's right to control the interrogation process to mitigate coercive pressures. The admissibility of statements obtained after a suspect expresses a desire to remain silent hinges on whether this right was "scrupulously honored." The Supreme Court established that statements made by a suspect after expressing a desire to remain silent are inadmissible unless their right to stop questioning is "scrupulously honored." In the case of Mosley, the Court determined that the police respected the suspect's rights by promptly halting interrogation, waiting a significant time before resuming questioning, re-advising the suspect of their rights, and directing the second interrogation toward different topics. It is established that even a vague request to end questioning necessitates an immediate cessation of interrogation, with any subsequent inquiries strictly aimed at clarifying the suspect's intent to terminate questioning. Questions that appear to seek clarification but are intended to confuse or pressure the suspect are impermissible, as they undermine the right to remain silent. A suspect's unclear request to stop questioning bars any related inquiries for a significant duration unless the suspect initiates further dialogue and waives the right to silence. In the case of Delap, the facts indicate that he was approached by investigators and agreed to accompany them, during which he was read his Miranda rights. Although he mentioned being represented by the public defender in a separate matter, he did not explicitly ask to leave or express a desire to go home during interrogation. Testimony from the investigators confirmed that Delap was not informed he could leave, nor did they obstruct his exit. Delap testified at the suppression hearing regarding his interactions with law enforcement, specifically addressing his perceived freedom to leave during questioning. He confirmed that officers Brumley and Arnold told him he was free to go and that he attempted to leave three times, but was asked to stay for additional questions. Delap believed he could leave at any time, as the officers indicated he was not under arrest and was only answering routine questions. However, he expressed doubts about actually leaving due to the presence of deputies around him. During cross-examination, Delap reiterated his attempts to leave and stated he explicitly communicated his desire to exit. He was told by Brumley that he needed to stay until his questions were answered. Ultimately, Delap made an incriminating statement and led the officers to evidence related to the case. He argues that his attempts to leave constituted an equivocal request to terminate questioning, invoking his Fifth Amendment rights. Delap contends that Brumley's follow-up was not merely a clarification but rather constituted continued interrogation, potentially violating his constitutional rights. The determination of whether Delap's requests were indeed equivocal and whether Brumley’s responses were permissible or improper is crucial in assessing the legality of the interrogation. This evaluation draws parallels to prior case law, specifically referencing Martin v. Wainwright, where the court noted that the suspect's right to terminate questioning was not adequately respected. Testimony from detectives during Martin's interrogation revealed that Martin expressed a desire to postpone questioning until the next day, with one detective acknowledging that Martin's statement, "Can't we wait until tomorrow?" could be interpreted as a request to stop talking. The court found this request to be an equivocal invocation of his right to cut off questioning, deeming the detectives' continued interrogation improper under Miranda rights. In contrast, in the case of Moore v. Dugger, the court ruled that the defendant's inquiry about when he would be allowed to go home did not represent an attempt to terminate questioning. The court distinguished between the contexts: Martin's statement indicated a desire to delay interrogation, while Moore's question was simply about his potential release, which did not constitute an invocation of the right to remain silent. Applying this analysis to the current case involving Delap, the court determined that Delap's questions were analogous to those in Moore and thus did not constitute an equivocal invocation of his Fifth Amendment right to terminate questioning. Consequently, the court upheld the district court's ruling without addressing the permissibility of Brumley's responses. Additionally, Delap argued that questioning continued after he requested an attorney, violating the principles established in Miranda and Edwards. According to Miranda, once an individual requests an attorney, interrogation must cease until the attorney is present. Courts are mandated to interpret a defendant's request for counsel broadly, presuming a request for legal representation at every critical stage of prosecution. This principle applies even if the request is ambiguous or equivocal, which should prompt limited questioning only to clarify the request. In this case, Delap's mention of being represented by the public defender for an unrelated misdemeanor charge did not amount to an equivocal request for counsel. Despite being aware that Delap was represented, Investigator Brumley did not seek clarification on whether Delap wanted his attorney present before continuing the interrogation. Delap's argument that his statement constituted an equivocal request was rejected by the district court, which aligned with previous rulings indicating that non-specific statements do not necessarily invoke the right to counsel. Ultimately, the court concluded that Delap's comments, in context, did not qualify as a request for an attorney. Delap did not request a lawyer during his interrogation; he only mentioned having legal representation for an unrelated misdemeanor, and he did not intend this to signify a request for counsel. During a hearing on his motion to suppress his confession, Delap testified that the thought of calling a lawyer did not occur to him at the time due to his mental turmoil. He acknowledged being aware of his attorney but stated that he was focused on responding to the officers' questions. Delap's argument that his post-request statements should be considered, based on Smith v. Illinois, is incorrect, as the case at hand involves his own testimony rather than responses to further interrogation. The court determined that Delap did not invoke his right to counsel, affirming that the duty to limit questioning was not triggered. Regarding the voluntariness of his confession, Delap claimed that improper interrogation techniques exploited his unstable mental condition, and he alleged coercion through threats and promises of psychiatric treatment. However, the state trial court found no evidence of threats or promises influencing his confession. The federal review applies a presumption of correctness to these factual findings under 28 U.S.C. Sec. 2254(d). After a thorough review, the court concluded that the confession was voluntary, with no improper interrogation tactics or exploitation of Delap’s mental state. His challenge to the confession was deemed without merit and did not require further discussion. Delap asserts his trial counsel provided ineffective assistance by failing to adequately cross-examine two pivotal state witnesses whose testimonies differed significantly between his first and second trials. Dr. Hampton Schofield, the Okeechobee County Medical Examiner, initially could not determine whether a skull fracture or strangulation was the probable cause of death for Paula Etheridge, indicating a skull fracture consistent with a fall. However, in the second trial, he claimed to present a logical cause of death, suggesting strangulation was "the most prominent cause," though he still acknowledged uncertainty and multiple potential causes. Additionally, State Attorney Chief Investigator Lem Brumley's testimony changed from the first trial, where he stated Delap confessed to killing Etheridge by hitting her with an object and strangling her, to the second trial, where he indicated Delap confessed to choking and beating her. Despite these inconsistencies, defense counsel failed to challenge the witnesses' earlier statements or present expert medical testimony to counter Schofield's conclusions regarding the cause of death. Delap argues that these omissions, along with the absence of a coherent defense strategy, resulted in ineffective assistance of counsel, violating his Sixth Amendment rights. The standard for evaluating such claims is set by Strickland v. Washington, which requires showing that counsel's performance was deficient and fell outside the range of competent legal assistance. Strickland establishes that a defendant must demonstrate both deficient performance by counsel and resulting prejudice to prove ineffective assistance of counsel. Prejudice requires showing a reasonable probability that the outcome would have differed if not for counsel’s errors, undermining confidence in the verdict. Courts presume that counsel's conduct is within a professional range and apply a deferential standard, focusing on reasonableness rather than error-free representation. In Delap's case, the district court determined that counsel's performance was competent and that Delap was not prejudiced by any perceived deficiencies. Both the district court and the Florida Supreme Court recognized that the testimonies of Dr. Schofield and Brumley were largely consistent across trials, with only minor differences noted. Delap's counsel effectively cross-examined both witnesses at the second trial, and the critique of counsel's strategy requires inappropriate hindsight analysis. The Sixth Amendment mandates effective counsel to maintain a functioning adversarial process, and the record supports that Delap received such assistance. Given the minimal inconsistencies in witness testimony and the significant weight of Delap's confession, he failed to meet the prejudice requirement of the Strickland test. Additionally, Delap claims the state violated Brady by withholding evidence about a witness’s drug smuggling ties. Chief Investigator Lem Brumley was indicted on November 2, 1981, for conspiracy to import marijuana from Colombia, with alleged activities dating back to before October 1, 1977, and continuing until July 31, 1981. He pleaded guilty on October 29, 1981, receiving a three-year prison sentence and a $5,000 fine in February 1982. Delap asserts that the prosecution had a duty to disclose Brumley's illegal activities, given his role as a key witness. To prove a Brady violation, Delap must show that the prosecution suppressed favorable evidence that was material. The standard for materiality, as established in United States v. Bagley, requires a reasonable probability that disclosure would have altered the trial's outcome. The court found that evidence of Brumley's drug smuggling activities was not material under this standard. The district court noted uncertainties regarding the admissibility of this evidence under Florida law, as Brumley had not been charged or convicted at the time of Delap's trials. Additionally, even if the evidence had been admitted, the court believed the trial's outcome would likely have remained unchanged, regardless of any impeachment of Brumley's testimony. Delap's guilt was supported by substantial evidence, including his confession, blood found on his shirt, eyewitness accounts of a struggle involving Delap and the victim in his car, medical testimony, and a shovel discovered in his vehicle. This evidence was deemed compelling enough that any potential impeachment of Brumley's testimony regarding drug dealings would not likely alter the trial's outcome, leading to the conclusion that Delap's Brady claim was unfounded. In a separate claim of newly discovered evidence, Delap alleged that Dr. Hampton Schofield's testimony was false and misleading, supported by an affidavit from Dr. Ronald L. Reeves indicating that Schofield's conclusions were based on insufficient medical evidence. However, the state court denied Delap's second motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, citing procedural bars due to the motion being filed after the January 1, 1987 deadline, without meeting any exceptions. The Supreme Court of Florida upheld this decision, affirming the procedural bar and noting that Delap did not satisfy the "cause" requirement of the "cause and prejudice" test established in Wainwright v. Sykes. Federal habeas corpus review is typically precluded when a state procedural rule is not adhered to, as supported by precedent. Delap's comparison to State v. Sireci, where a limited evidentiary hearing was granted due to poor psychiatric evaluations, was found insufficient to demonstrate inconsistency in the application of procedural bars in similar cases. Dr. Reeves' affidavit criticized Dr. Schofield's autopsy methodology and conclusions, but Dr. Reeves did not examine the victim himself. Any challenge to Dr. Schofield's testimony could have been made during cross-examination at trial, and there is no evidence suggesting Dr. Schofield committed perjury. Even if Dr. Schofield's strangulation theory was invalidated, evidence existed that the victim, Paula Etheridge, was beaten to death, which could indicate premeditation. Florida law typically denies successive motions for post-conviction relief unless the grounds were unknown at the time of the initial filing. The Supreme Court of Florida determined Delap's case met this requirement. Delap's argument that his claim is not procedurally barred under Florida law due to Sireci was rejected. Under Wainwright v. Sykes, federal courts may excuse noncompliance with state procedural rules if there is cause for the default and resulting prejudice. However, the district court found Delap could not demonstrate the "cause" prong of Sykes, as the "new evidence" could have been discovered earlier. Delap's legal counsel was aware of potential issues with Dr. Schofield's testimony before the second trial. On appeal, Delap did not address the "cause" prong of Sykes, leading to affirmation of the district court's ruling. Rather than proving cause and prejudice, Delap claimed a "miscarriage of justice" due to Dr. Reeves' affidavit suggesting Dr. Schofield's testimony was misleading. The Supreme Court has indicated that a federal habeas court may grant relief in cases of actual innocence without showing cause for procedural default, but courts are hesitant to apply this standard. The district court affirmed that Delap failed to demonstrate a miscarriage of justice by not allowing consideration of the Reeves affidavit. Consequently, Delap's claim of "newly discovered evidence" was procedurally barred under Florida law, and he did not establish the required cause and prejudice or a miscarriage of justice. Additionally, it was noted that the judge at Delap's second trial conducted an ex parte visit to death row while deliberating on his sentence. The judge commented during the February 16, 1979 sentencing hearing that he had taken significant time to consider the case since the trial on October 13, 1978. He personally visited Raiford, interacted with inmates, and examined the facilities, including the electric chair. In his sentencing findings, the judge identified Delap's good behavior on death row as a nonstatutory mitigating factor based on his investigation. Delap contended that this visit breached the due process principles outlined in Gardner v. Florida, arguing that he was denied the chance to contest information the judge acquired during the visit, which could potentially be erroneous. The Florida Supreme Court acknowledged the violation of Gardner but determined it did not affect Delap's substantial rights, as the judge only applied the nonstatutory mitigating factor in Delap's favor. The district court also recognized that the judge considered undisclosed information but concluded it did not influence the death penalty decision, ruling out reversible Gardner error. The state argued that the judge’s visit did not constitute a Gardner violation since visits to death row are common for informational purposes. However, Delap's concern specifically related to the ex parte information gathered about his conduct. Ultimately, the analysis concluded that any Gardner violation was harmless, as the judge's observations were favorable to Delap and Florida law restricts the sentencing judge to considering only statutory aggravating factors in death penalty cases. The trial judge's assessment of statutory aggravating factors in Delap's case was unaffected by his visit to death row, as these factors pertain solely to the crime and the defendant's criminal history. The court emphasized that it did not need to resolve whether a Gardner violation could ever be considered harmless error. It concluded that, due to the structure of Florida's death penalty statute and the specifics of the judge's findings, any potential error stemming from the visit was harmless beyond a reasonable doubt. Delap argued that the jury was improperly instructed to consider only statutory mitigating factors, which he claimed violated the Eighth and Fourteenth Amendments based on precedents set in Lockett v. Ohio and Hitchcock v. Dugger. During the sentencing phase, the judge instructed the jury to determine if sufficient aggravating circumstances existed to justify the death penalty and whether any mitigating factors outweighed these. The jury was presented with statutory mitigating factors, but Delap's request for additional instructions to consider non-statutory mitigating circumstances was denied by the judge. However, the judge did not limit the type or amount of mitigating evidence the defense could present. While the jury deliberated, the judge sent them a copy of the instructions to ensure clarity, despite objections from defense counsel. Delap's claim was subsequently presented to the Supreme Court of Florida, which rejected the Lockett claim, noting that the trial judge did not prevent the defense from introducing evidence of non-statutory mitigation. The Florida Supreme Court addressed Delap's claim regarding jury instructions on mitigating circumstances in light of the Hitchcock ruling. Initially, the court found that while the instruction violated Hitchcock, the error was deemed harmless due to the weak nonstatutory mitigating evidence compared to five statutory aggravating factors. The district court later identified a Hitchcock violation in Delap's federal habeas petition, concluding it was not harmless beyond a reasonable doubt. The jury instruction in Delap's case closely mirrored that of Hitchcock, leading to findings of violation in similar cases. The court emphasized that any error's impact must be evaluated based on the totality of circumstances, considering both the judge's inclusion of nonstatutory evidence and the prosecutor's statements about mitigating factors. Ultimately, the court upheld that the jury's focus on statutory factors undermined the significance of nonstatutory evidence, rendering the sentencing process constitutionally flawed. The trial court's consideration of nonstatutory mitigating circumstances in Delap's sentencing is questioned due to the jury being misled into believing their inquiry was limited. The prosecutor's remarks suggested that the jury should only consider statutory mitigating factors, contradicting the notion that they could assess nonstatutory evidence. Specifically, the prosecutor instructed the jury to base their decision on the evidence and statutory guidelines, emphasizing the need for them to focus on specific aggravating circumstances required for a death penalty recommendation. While the jury was told they could consider mitigating circumstances, the prosecutor later restricted this discussion to statutory factors, explicitly discouraging the consideration of Delap's remorse or mental disturbances as mitigating evidence. The dissenting Justice noted that the prosecutor's argument reinforced the judge’s instructions, leading to the conclusion that the Hitchcock error during sentencing was not harmless beyond a reasonable doubt, as established in relevant case law. Substantial psychological evidence was presented, which the jury was instructed to consider only if it met the threshold for a statutory mitigating factor—specifically, if Delap committed the crime under extreme mental or emotional disturbance (Fla. Stat. Sec. 921.141(6)(b) 1977). The likelihood exists that the jury deemed this evidence insufficient to meet that threshold. The state contends that the jury's rejection of Delap's psychological evidence as a statutory mitigating factor implies a complete dismissal of the evidence; however, it is argued that with proper instruction, the jury might have considered the psychological evidence in mitigation even if it did not satisfy the statutory criteria. Nonstatutory mitigating evidence was also presented, including Delap's remorse, potential for rehabilitation, good behavior in prison, psychological expert testimony regarding mental issues linked to organic brain syndrome, cooperation with authorities, college attendance, and being a father. Any of these factors could have influenced a correctly guided jury to recommend life imprisonment, as supported by references to Caldwell v. Mississippi and Woodson v. North Carolina. The record indicates at least one juror favored life imprisonment, but the overall circumstances suggest that the Hitchcock error was not harmless beyond a reasonable doubt. Regarding the double jeopardy and collateral estoppel issue, Delap asserted in his habeas corpus petition that his acquittal of felony murder in his first trial should prevent the state from pursuing a felony murder aggravating factor in the sentencing phase of his second trial. Although the jury was not instructed on felony murder during the guilt phase of the second trial, the advisory jury was directed to consider the crime's commission during an involuntary sexual battery, robbery, or kidnapping. The sentencing judge found that the crime involved kidnapping, robbery, and rape as aggravating factors. Delap claims this constitutes unconstitutional double jeopardy. The district court initially agreed with Delap and later expanded on its ruling in an amended order, which the state is now appealing. To resolve this claim, it is necessary to confirm the district court's finding that Delap was acquitted of felony murder in the first trial. The district court's determination that Delap was acquitted of felony murder at his first trial is upheld as not clearly erroneous. The analysis proceeds to examine the implications of this acquittal under the principles of double jeopardy and collateral estoppel. The Double Jeopardy Clause of the Fifth Amendment prohibits a person from being tried twice for the same offense. While a defendant can be reprosecuted if a conviction is reversed on appeal, an acquittal—whether by jury verdict or court ruling—cannot be appealed and terminates the prosecution. Specifically, an implicit acquittal occurs if a jury is not instructed on an offense, and retrial is barred when a conviction is overturned due to insufficient evidence, signifying a lack of a viable case against the defendant. The trial judge's characterization of actions does not dictate an acquittal for double jeopardy; rather, the actual resolution of the factual elements of the charge must be assessed. In Delap's case, determining whether he was acquitted of felony murder is complicated by incomplete records from his first trial. The initial indictment included a general charge of premeditated murder, and there were concerns raised about whether the indictment sufficiently informed Delap of the specific offense, including potential theories of premeditated or felony murder. The state successfully argued to the trial judge that Florida law did not require it to specify whether it was pursuing premeditated murder, felony murder, or both in the case against Delap. During the first trial, which began on January 7, 1976, Delap's defense counsel moved for a judgment of acquittal, claiming insufficient evidence for either charge. The trial court focused on premeditation and determined there was enough evidence for the jury to potentially find Delap guilty of premeditated murder, thus denying the motion. Delap's counsel renewed the motion at the close of all evidence, with arguments still centering on premeditation, although the prosecutor mentioned felony murder. The trial judge reiterated that he had not ruled out felony murder but found sufficient evidence for premeditated murder to proceed. The judge emphasized that it was the jury's role to weigh the evidence, and he would not determine the sufficiency of the evidence beyond the premeditation aspect. Significantly, portions of the trial record, including opening and closing arguments, jury voir dire, and jury instructions, have been lost, making it impossible to reconstruct them, as noted in a June 11, 1977 order by the trial judge. Affidavits in the district court confirm that Judge C. Pfeiffer Trowbridge has no notes or memory of Delap's first trial. Delap was convicted of first-degree murder, but the verdict and judgment did not clarify if it was for premeditated or felony murder. Surviving records indicate that the trial judge found the death penalty warranted because the murder occurred during the commission of a felony, yet the court deemed the evidence insufficient for a felony murder conviction, suggesting Delap was effectively acquitted of that charge. The concept of "insufficient" evidence implies the prosecution failed to prove guilt beyond a reasonable doubt. During Delap's second trial, his counsel moved to exclude references to felony murder based on double jeopardy, citing the lack of jury instructions on that theory in the first trial. The prosecution did not contest this assertion but argued that the first trial's specifics were irrelevant. Judge Philip G. Nourse prohibited the use of "felony murder" in the second trial, which proceeded solely on a premeditated murder basis. The state ultimately withdrew its request for a felony murder instruction, which was noted as an unusual step. Delap was acquitted of felony murder during his first trial, as confirmed by the deposition testimony of his attorneys, who recalled that the trial judge deemed the evidence insufficient to support such a charge. The state's attorneys were uncertain if the judge formally granted an acquittal, but various notes and jury instructions in the record did not clarify the matter. The district court concluded that Delap met the burden of proof, demonstrating by a preponderance of evidence his acquittal of felony murder and the absence of jury instructions on it. The state argued that a statement by Judge Trowbridge during Delap's sentencing, which acknowledged insufficient evidence for felony murder, was merely a personal comment and not a legal ruling. The district court rejected this view, asserting that the judge's use of "insufficient" implied a legal conclusion and that there was no indication the jury found Delap guilty of felony murder, as they were never instructed on that charge. The state also contended that the Supreme Court of Florida made a factual finding against Delap's acquittal of felony murder, which the district court did not presume correct. The Florida Supreme Court adopted the state's position regarding the death sentence but did not definitively state that Delap was not acquitted of felony murder. Instead, they recognized that the trial judge found the evidence insufficient for a felony murder conviction, suggesting that the issue of acquittal was not resolved in the state's favor. Thus, the district court maintained that the merits of the factual dispute remained unresolved by the state court. The district court's determination that Delap was acquitted of felony murder is upheld as not clearly erroneous. The implications of this acquittal for double jeopardy and collateral estoppel in Delap's subsequent trial and capital sentencing are examined. The state argues that the Double Jeopardy Clause does not bar retrial after a successful appeal that nullifies a conviction, citing precedents that support this "clean slate" concept. However, the argument overlooks the first trial judge's conclusion of insufficient evidence for felony murder, which constitutes a factual resolution that precludes a retrial under established double jeopardy principles. It is asserted that a finding of insufficient evidence equates to an acquittal that cannot be appealed. The case of Wilson v. Meyer is referenced, where a similar "clean slate" argument was rejected, affirming that retrial for felony murder following an acquittal violates the Double Jeopardy Clause. Wilson establishes that an acquittal for felony murder precludes subsequent reprosecution for that same offense, even if state law classifies murder as a singular offense encompassing both premeditated and felony murder. The Supreme Court’s ruling in Green v. United States illustrates this principle, where a jury’s verdict of a lesser offense implicitly acquitted the defendant of felony murder, preventing further prosecution on that charge after an appellate court reversed the conviction for the lesser offense due to trial errors. Although Delap was acquitted of felony murder, this did not obstruct a later conviction for premeditated murder; however, the determination of insufficient evidence for felony murder constituted an acquittal that barred any appeals or new prosecutions for that crime. The state’s withdrawal of the felony murder instruction at Delap's second trial acknowledged this principle. The acquittal of felony murder also has implications for the capital sentencing phase of Delap's second trial, specifically regarding whether it can serve as a basis for aggravating factors that justify the death penalty. Citing Ashe v. Swenson, the Double Jeopardy Clause incorporates collateral estoppel, which prohibits re-litigation of ultimate factual issues resolved in prior judgments. To invoke collateral estoppel, a party must show that the issue was actually raised and litigated in the earlier proceeding. Collateral estoppel requires that: (1) the issue was actually litigated in the prior case, (2) it was a critical part of the final judgment, and (3) the same issue is present in the subsequent proceeding. In Deweese v. Town of Palm Beach, it was established that collateral estoppel applies to both ultimate and evidentiary facts. Courts often face challenges in identifying conclusively determined facts in criminal cases where collateral estoppel is invoked. When this occurs, courts must review the pleadings, evidence, jury instructions, and relevant materials from the first trial to ascertain whether a rational jury could have reached a verdict based on issues other than those the defendant seeks to bar from consideration. In the case at hand, there was no general verdict of acquittal, making it clear that the trial judge found the evidence for felony murder insufficient. The state did not contest the applicability of collateral estoppel, and it was confirmed that the issue of felony murder was litigated in the first trial, resulting in a final judgment of acquittal on that charge, which could not be appealed. Although Delap was convicted of first-degree murder, it was solely for premeditated murder, not felony murder. The key point requiring analysis was whether the felony murder aggravating factor under Florida's death penalty statute is identical to the felony murder offense. It was concluded that the aggravating circumstance is coextensive with the felony murder theory of prosecution, as defined by Florida Statutes. The capital felony is defined as being committed while the defendant is engaged in or an accomplice to robbery, rape, or kidnapping, as per Fla. Stat. Sec. 921.141(5)(d) (1977). The state argues that the standard of proof for the felony aggravating factor differs and does not require proof beyond a reasonable doubt. However, Florida law mandates that all aggravating circumstances under Sec. 921.141 must be proven beyond this standard, supported by various precedents including Ford v. Strickland and State v. Dixon. The state also contends that the felony murder aggravating factor can be established for both actual commission and attempted commission of a felony, stating this makes it easier to prove than actual felony murder. However, the relevant statute (Fla. Stat. Sec. 782.04 (1976)) clearly states that a person can be found guilty of felony murder while either perpetrating or attempting to perpetrate an enumerated felony. The argument that flight from a felony is not applicable in this case was conceded by the state. The document concludes that the felony murder aggravating circumstance is closely related to the felony murder charge from which Delap was acquitted, invoking the principle of collateral estoppel. This principle, based on equity rather than strict legal precision, suggests that a defendant acquitted of felony murder due to insufficient evidence cannot later be charged with the aggravating circumstance of that felony in a death sentencing proceeding. Thus, the Ashe principle should apply in Delap's case. In Bullington v. Missouri, the Court highlighted the similarities between Missouri's and Florida's capital sentencing procedures, noting that both resemble a trial concerning guilt or innocence. The ruling extended Double Jeopardy protections to the sentencing phase of capital trials, asserting that principles of collateral estoppel, rooted in the Double Jeopardy Clause, should similarly apply. Specifically, if a defendant is acquitted of felony murder due to insufficient evidence, they cannot be charged in the sentencing phase with aggravating circumstances related to that felony. This aligns with double jeopardy principles, which prevent the state from subjecting an individual to repeated prosecutions for the same offense, thereby reducing the potential for undue anxiety and expense. Furthermore, Eighth Amendment considerations support this conclusion, as demonstrated in Johnson v. Mississippi, where a death sentence was reexamined after a prior conviction was vacated. The need for reliable sentencing and the reduction of arbitrary death sentences are critical factors, particularly when a sentence is based on a felony for which the defendant has been acquitted. The ruling also considered Poland v. Arizona but determined it did not address the collateral estoppel issue at hand. The case examines whether the state is barred from pursuing the death penalty during resentencing, rather than whether collateral estoppel prevents the state from relitigating previously decided issues. In Poland, defendants convicted of first-degree murder faced a capital sentencing where the prosecution argued two aggravating factors: the offense was committed for pecuniary gain and was especially heinous, cruel, or depraved. The trial court found the latter factor applicable but determined the former only pertained to contract killings. On appeal, the Arizona Supreme Court ruled the evidence insufficient for the "heinous, cruel, or depraved" factor and opined that the "pecuniary value" factor was broader than just contract killings. Upon retrial, the defendants were again convicted and sentenced to death based on both aggravating factors, along with one defendant's prior violent felony conviction. They contended that the Arizona Supreme Court's previous ruling constituted an "acquittal" of the death penalty under Bullington, but the Supreme Court rejected this, clarifying that the defendants were never "acquitted" of the death penalty, allowing for resentencing. The defendants did not argue collateral estoppel regarding the "heinous, cruel, or depraved" factor at the second sentencing, as the Arizona Supreme Court had again deemed the evidence insufficient. Additionally, the acquittal of felony murder for Delap occurred during the guilt/innocence phase of his first trial, making the collateral estoppel issue moot since that judgment was conclusive. The state also argued that any errors related to the felony murder aggravating circumstance were harmless. The court determined that the Hitchcock error was not harmless beyond a reasonable doubt, necessitating a new sentencing proceeding. The district court's denial of relief regarding Delap's conviction was affirmed, rejecting claims of Miranda rights violations, coercion in obtaining his confession, ineffective assistance of counsel, suppression of impeachment evidence, and doubts cast by newly discovered medical evidence. The court also affirmed the denial of relief concerning Delap's sentence related to Gardner error on harmless error grounds. Furthermore, the state's challenges against the district court's granting of habeas corpus relief based on a Hitchcock violation and the application of collateral estoppel regarding a felony murder aggravating factor were rejected. Delap's Caldwell claim was found to be procedurally barred, and the court declined to address certain issues due to the resolution of the Hitchcock claim. A new sentencing proceeding will follow, with the expectation that the court will adhere to the Florida Supreme Court's prior determinations regarding Delap's actions. Delap acknowledged being advised of his Miranda rights in court. The court must independently assess whether Delap's statements constituted an equivocal request to cease questioning and whether the subsequent questioning appropriately clarified his intentions, ensuring his right to cut off questioning was respected. Subsidiary facts, such as whether officers provided Miranda warnings, are presumed correct. The district court noted that Delap's inquiries about the duration of the interview did not indicate a request for an attorney. It concluded that Delap did not unambiguously or unequivocally invoke his right to counsel, a determination the court affirmed. While the law allows for equivocal requests for counsel, any further questioning must seek to clarify that request until an effective waiver is established, or it violates Miranda. Delap's habeas corpus petition also raised claims regarding an illegal search, denial of the right to confront witnesses, and ineffective counsel, but these arguments were not pursued on appeal and are therefore considered abandoned. The focus of Delap's appeal regarding ineffective assistance of counsel pertains solely to his second trial counsel's failure to adequately challenge the testimonies of two key prosecution witnesses. Delap's first trial resulted in the state pursuing both felony murder and premeditation charges, but the court found insufficient evidence for felony murder. No testimony was presented at the evidentiary hearing; however, Delap provided evidence deemed already part of the record. In Delap's second trial, the judge noted extensive cross-examination of Dr. Schofield. Brumley, a member of the prosecution, may have had knowledge of his illegal activities imputed to the prosecution. Brumley was not the sole officer during Delap's interrogation, meaning other officers could corroborate Delap's confession. Dr. Reeves, as Interim Medical Examiner, submitted an affidavit for Delap's second 3.850 motion, criticizing Dr. Schofield's autopsy as seriously deficient and unsupported. The judge suggested Delap may have exhibited some remorse. The state argued that Delap was procedurally defaulted from raising the Gardner claim due to lack of timely objection, but the state did not assert this in response to Delap's habeas petition, thus waiving the issue. The Florida Supreme Court addressed the Gardner claim on its merits, circumventing procedural default concerns. The document notes that while prosecutor remarks might potentially rectify a jury instruction error, the prosecutor's comments failed to address the constitutionally deficient instruction in this case. The prosecutor argued that no mitigating circumstances applied, dismissing claims of Delap's extreme mental or emotional disturbances, stating that he was merely frustrated and acted out when things did not go his way. Arguments presented assert that while the defendant may have experienced some emotional disturbance, it was not severe enough to excuse his actions or mitigate the penalties. The assertion is made that committing a crime due to emotional issues should not be normalized. Testimonies from three psychiatrists confirm that the defendant understood the criminality of his actions, recognized wrongdoing, and possessed the capability to stop his actions. The defense's claims of emotional distress and extreme duress are challenged, with the argument that stress is inherent in any criminal act. The psychiatrists indicated that the defendant felt guilt and acknowledged his wrongdoing, indicating an understanding of societal punishment. The state highlights five aggravating factors in the case, arguing that the nonstatutory mitigating evidence was weak. There exists a circuit disagreement regarding the habeas court's role in evaluating aggravating versus mitigating evidence in similar cases. Nonetheless, it is concluded that the nonstatutory mitigating evidence was sufficient to deem any error harmless, despite the presence of aggravating factors, which were described as not compelling. Key factors, such as "pecuniary gain," were struck down, and others were deemed speculative or constitutionally improper. The upheld factors of heinousness and prior imprisonment do not meet the threshold of being compelling against the defense's claims. The court refrains from weighing the evidence but asserts that the Hitchcock error was not harmless based on the context of the aggravating and mitigating evidence. Substantial nonstatutory mitigating evidence in this case renders the Hitchcock error not harmless beyond a reasonable doubt. The claim was appropriately presented to the district court, which noted that the state did not assert procedural default or failure to exhaust state remedies. Delap's initial conviction was overturned by the Supreme Court of Florida due to the state's inability to provide a complete transcript for appellate review. The relevant Florida first degree murder statute at the time defined first degree murder as the unlawful killing of a human being with premeditated intent or during the commission of certain felonies, classifying it as a capital felony. The indictment against Delap alleged that he unlawfully killed Paula Etheridge with premeditated intent, citing unspecified means that led to her death. Under Florida law, prosecution can pursue either felony murder or premeditated murder theories when only first degree murder is charged. Delap's defense counsel argued for acquittal on the grounds that the evidence did not support a felony murder charge, as there was no testimony indicating the commission of other felonies such as kidnapping or robbery, thus leaving only premeditated murder as a potential charge, which lacked supporting evidence of intent to kill. Insufficient evidence exists to support an intention to cause death, as the actions taken were aimed at preventing resistance and potential injury. The argument presented indicates that there is not enough evidence to warrant a first-degree murder charge. The prosecution contended that the indictment encompassed both premeditated and felony murder, asserting that evidence of a knife being used indicated intent to abduct and ultimately kill the victim during a struggle. Delap's counsel filed multiple assignments of error post-trial, particularly contesting the denial of a Motion for Judgment of Acquittal. The counsel argued that the judge's decision allowed only the premeditated murder charge to proceed, implying an acquittal on felony murder. The discussion also referenced the Bullington case, which established that a life sentence could be viewed as an acquittal of the death penalty under Missouri law, affirming that the jury's decision limited further pursuit of the death penalty. The excerpt cites relevant case law and procedural nuances concerning sentencing and the treatment of aggravating and mitigating factors in subsequent proceedings. A statement by the Supreme Court of Florida may be treated as a finding of fact, thus receiving the presumption of correctness under 28 U.S.C. § 2254(d), similar to findings by state appellate courts. The determination of whether Delap was acquitted of felony murder at his first trial is not essential, as the district court’s conclusion that he was acquitted is not clearly erroneous. Assuming this finding is a factual question, the clearly erroneous standard applies, yet an independent review of the record confirms the district court's conclusion. The state contends that since premeditated murder and felony murder fall under the same Florida statute, an acquittal on one should not preclude reprosecution on the other. However, both the district court and the current court reject this argument, asserting that these offenses are separate for double jeopardy purposes as established in Blockburger v. United States. Under this test, Delap's acquittal of felony murder would invoke double jeopardy and prohibit any retrial for that charge. The state argues that premeditated murder and felony murder should be treated as the same offense, but even if that were true, the acquittal on felony murder would still trigger double jeopardy protections. The principle of double jeopardy applies even when the defendant is convicted of a lesser included offense, as established in various precedents. Ultimately, whether treated as the same or separate offenses, the finding of insufficient evidence for felony murder in the first trial activates double jeopardy protections, barring any subsequent prosecution for that charge. The distinction of intent murder and felony murder being charged separately does not significantly alter this outcome. The constitutional issues involved should not be influenced by the consolidation of both offenses under one count. In accordance with Florida law, the judge in Delap's second trial identified an aggravating circumstance for imposing the death penalty, stating that the capital felony was committed during the commission of kidnapping, robbery, and rape. If Delap had been convicted of felony murder in his first trial, this would not restrict the application of the felony murder aggravating factor during sentencing. Relevant statutes outline that the only applicable felonies are rape, robbery, and kidnapping. The state argued that the sentencing judge could consider these felonies as motives for the murder; however, Florida law requires that the aggravating circumstance must demonstrate that the capital felony was committed while engaging in the felony, not merely that it served as a motive. Additionally, there was an error in allowing the jury to consider the felony murder aggravating circumstance. The court determined that a defendant cannot receive a death sentence based on an aggravating circumstance that requires proof beyond a reasonable doubt and overlaps with a felony of which the defendant was acquitted. The court does not rule out the admissibility of specific facts related to the felony murder prosecution in a future resentencing, as Delap did not specify any facts that were definitively resolved in his favor by his acquittal. The defendant has not demonstrated that any specific facts he wishes to exclude were conclusively determined in his favor during the initial trial. Consequently, the underlying facts cannot be used to charge him with the felony murder aggravating circumstance due to his previous acquittal of that charge. Courts have generally refrained from applying collateral estoppel to mitigating or aggravating factors in capital sentencing proceedings unless it was established that those factors did not exist in earlier trials. Relevant case law illustrates that a jury's inability to affirmatively determine a factor in a prior trial does not preclude subsequent sentencing on similar issues. The text also references cases where collateral estoppel was deemed inapplicable due to the lack of a definitive ruling on the same issues in subsequent trials. Although some precedents suggest collateral estoppel could apply in death sentencing phases, the document indicates that this issue does not need to be resolved in the current context. Furthermore, the state cites Lockhart v. Nelson, which clarifies that double jeopardy does not bar retrial when a conviction is reversed due to the erroneous admission of evidence, thus necessitating a functional approach to the Double Jeopardy Clause.