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Ploof v. State

Supreme Court of Delaware

August 15, 2013

GARY PLOOF, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

Submitted: March 6, 2013.

Corrected: August 15, 2013.

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

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. STEELE, Chief Justice for the Majority:

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

STEELE, Chief Justice for the Majority:

In this appeal of a denial of a postconviction relief motion, we examine whether defense counsel were ineffective during a defendant's first-degree murder trial. We hold that the attorneys' alleged failure to consult with a forensic pathologist or toxicologist, to present more evidence regarding the victim's dominant hand, to investigate ballistics issues, appeal certain issues, and to object to the dismissal of jurors who indicated that they could not impose the death penalty did not prejudice the defendant during his trial's guilt phase. During the penalty phase, however, the postconviction hearing judge failed to reweigh the aggravating evidence against the total mix of mitigating evidence in determining whether the attorneys' failure to present additional evidence during the penalty phase prejudiced the defendant. Accordingly, we AFFIRM in part and REMAND in part so that the postconviction judge can supplement his opinion for further review.

I. FACTUAL AND PROCEDURAL BACKGROUND[1]

A. Heidi Ploof's Death

This case arises from the 2001 death of Heidi Ploof (Heidi). Heidi and her husband, Defendant–Appellant Gary Ploof (Ploof), lived in Hartly, Delaware. Ploof primarily worked as an aircraft mechanic at Dover Air Force Base, while Heidi worked at a grocery store in Maryland. By late 2001, Ploof had begun an extramarital affair with Adrienne Hendricks, a coworker at his part-time job.

On November 1, 2001, the United States Air Force began providing employees with $100, 000 in life insurance coverage for their spouses. The policies automatically became effective unless an employee opted out. After Ploof's supervisor informed him of the program, Ploof told her he planned to opt out, but he took no action to do so.

Sometime during the evening of November 3, 2001, Heidi left her job early after having an argument with her supervisor. She never returned home. Later that evening, Ploof reported that Heidi was missing.

On the morning of November 4, Ploof called Hendricks and his friend Richard Jackson to tell them that Heidi was still missing. Hendricks, Jackson, and Jackson's wife went to Ploof's home to assist him. Some time after Jackson arrived, Ploof gave Jackson his .45-caliber automatic pistol and its case and asked Jackson to keep them for a while.

That same morning, a passerby discovered Heidi's body in the driver's seat of a car in the parking lot of a Dover discount store. Heidi had been shot in the left ear and the bullet had passed through her right cheek. The police found a .357-caliber bullet in the car, along with a bullet jacket. The store's security camera recorded Heidi's car entering the parking lot on the evening of November 3. The video footage showed a car driving into the lot, a man standing beside the driver's side of the car after it was parked, and that same man walking away from the car toward the highway.

When the police informed Ploof of Heidi's death later that day, they noted that while he appeared to be crying, he did not shed any tears. The officers interviewed Ploof but allowed him to return home later that evening. The investigating officer also noted that Ploof ceased crying after he informed Ploof of the store's security footage.

On the evening of November 5, the police asked Ploof to return to the station for another interview. Before leaving for the interview, Ploof gave Jackson an empty gun case, which Jackson put in his vehicle. While the police were interviewing Ploof, another team of officers executed a search warrant on Ploof's property. When the police searched the premises, they found a concealed .357 Ruger Security Six Revolver and .357 shell casings. Ploof had denied owning any guns. The police later matched the bullet jacket in the car to the Ruger. Once the police discovered the gun, they arrested Ploof for Heidi's murder. After learning of Ploof's arrest, Jackson called the police and turned over the .45-caliber pistol and gun cases he had been keeping for Ploof. A grand jury later indicted Ploof on the charges of Murder in the First Degree[2] and Possession of a Firearm During the Commission of a Felony.[3]

While Ploof was incarcerated, investigators obtained two letters purporting to be from Heidi's killer. These letters stated that they were written by a man who had been having an affair with Heidi, described details of Heidi's death, and stated that Ploof was innocent. Officers found Ploof's fingerprints on the letters.

B. Ploof's Guilt-Phase Trial

Ploof's guilt-phase trial lasted nine days. The State presented testimony from police officers, experts, an eyewitness, and Heidi's and Ploof's friends and coworkers.

Deborah Jefferson, who worked at the discount store, testified for the State. Jefferson testified that while taking a break in front of the store on the evening of November 3, she saw a woman driving a car into the parking lot with a man in the passenger seat. According to Jefferson, the woman drove the car to the side of the store, and the man walked back to the front of the store toward the highway roughly ten minutes later. Jefferson recognized Ploof's clothing, and her description matched the image on the security camera's footage.

Dr. Judith Tobin, a state medical examiner, served as an expert witness for the State.[4] She had performed Heidi's autopsy and described for the jury how Heidi had died. Tobin described the bullet's probable trajectory and opined that the markings on Heidi's body indicated that the bullet had been fired six to seven inches away from Heidi's left side. Because family members had told Tobin that Heidi was right-handed, Tobin opined that it would be extremely difficult for a right-handed person to shoot herself from her left side. She testified that women seldom kill themselves with firearms and that she thought Heidi had been murdered.

Hendricks testified that she had been having an affair with Ploof before Heidi's death. She stated that Ploof had told her that Heidi planned to move out of Ploof's home and that she should move in on November 5. Hendricks saw no boxes or other signs that Heidi planned to leave when she visited Ploof on November 4, however. Although Ploof appeared to cry intermittently throughout that day, Hendricks also never saw any tears.

Several witnesses testified that Ploof owned a Ruger and had recently told them that his money problems would soon be over. Ploof's supervisor testified that she had told Ploof about the Air Force's plan to offer life insurance for spouses. Jackson testified that his wife became upset after hearing Ploof make a phone call shortly after Heidi's death to see if he could collect Heidi's life insurance.

Ploof's counsel during his trial (Trial Counsel)[5] presented evidence she argued showed that Heidi had committed suicide. Ploof testified that Heidi was upset because a court had terminated her parental rights over a daughter from a previous relationship, and because the adoptive parent had recently warned her not to contact the child. Trial Counsel also presented testimony that Heidi had previously used drugs and was listed on Delaware's Adult Abuse Registry[6]because she had struck a resident at a nursing home. She had lost her job at the nursing home because of the incident. Also, Heidi had been rebuffed by a deliveryman after kissing him once and hugging him several times.

Ploof stated that Heidi was unhappy with her job at the grocery store. On the night of her death, she was upset after arguing with her supervisor and wanted Ploof to meet her in Dover. Heidi met Ploof at a location near the Dover discount store where a passerby later found her body. According to Ploof, Heidi began crying about all her problems, especially the termination of her parental rights. After Heidi refused to come home, Ploof began walking away from the car and heard Heidi shoot herself. He stated that Heidi was ambidextrous and shot herself with her left hand. Upon seeing his wife commit suicide, Ploof decided to move Heidi's body to the discount store's parking lot so that the police would find her quickly. He claimed he did not report the suicide because he did not want people to know about the termination of Heidi's parental rights and her other problems. Ploof hoped that the police would treat Heidi's death as an unsolved murder. To accomplish this plan, he took the Ruger, ammunition, and gun case and put them in his truck. Then he got into the driver's seat of Heidi's car—with her body still in the same seat—and drove the car to the nearby discount store. He denied owning the Ruger. Ploof claimed he took it because he knew a gun dealer and hoped that he and the gun dealer could trace the gun's origin to find out how Heidi acquired it.

Ploof testified that he wrote the letters purporting to be from Heidi's real killer because his cellmate had told him that the police would have to release him if he did so. He denied that he had serious money problems and denied ever owning a Ruger, though he admitted owning the .45-caliber pistol.

The State presented rebuttal witnesses after the defense rested. Notably, Heidi's left-handed brother testified that Heidi was right-handed and that he remembered because he had to adjust his fishing pole so that Heidi could use it.

After deliberating for two hours, the jury found Ploof guilty of Murder in the First Degree.[7]

C. Ploof's Penalty-Phase Trial and Direct Appeal[8]

Because the jury found Ploof guilty of Murder in the First Degree, the trial judge conducted the penalty hearing 11 Del. C. § 4209 requires.[9] The State relied on two statutory aggravating factors in seeking the death penalty: (1) murder for pecuniary gain and (2) murder that was premeditated and the result of substantial planning.[10] Defense Trial Counsel relied on twelve mitigating circumstances, including Ploof's background and his history of gainful employment. Trial Counsel also argued that Ploof had a distinguished military career and was unlikely to commit any future violent crimes. The State presented testimony regarding Ploof's previous encounters with the law, his conduct in prison, and from Heidi's family.

The jury unanimously found that Ploof killed Heidi for pecuniary gain.[11]The jurors also unanimously recommended that all the aggravating evidence outweighed all the mitigating evidence. The trial judge reviewed the recommendation, found that the aggravating circumstances outweighed the mitigating circumstances, and imposed the death penalty.[12]

Ploof's counsel (Appellate Counsel) appealed the conviction, claiming that: (1) the trial judge erroneously refused to suppress evidence tainted by a Miranda v. Arizona[13] violation, (2) two of the State's peremptory challenges violated Batson v. Kentucky, [14] (3) the prosecutor's reference to Ploof's "public defender" prejudiced him, (4) the trial judge erroneously denied Ploof's motion to bifurcate the sentencing hearing, and (5) Ploof's death sentence was disproportionate to sentences imposed in similar cases.[15] We rejected each argument and affirmed the conviction.[16]

D. Postconviction Proceedings

On July 6, 2005, Ploof filed a pro se motion for postconviction relief under Superior Court Criminal Rule 61. After the State filed an answer to Ploof's motion, Ploof was assigned counsel who supplemented Ploof's pro se motion and replied to the State's answer. That attorney was excused because of a conflict, and a new attorney was appointed and was eventually excused without having filed anything further. Finally, another attorney was assigned and further amended and supplemented Ploof's motion.

At the postconviction relief hearing, Ploof offered the testimony of Ashley Hurley, Ploof's daughter from a previous marriage. Hurley testified that she saw Heidi every other weekend and that they had a close relationship. She also testified that Heidi was left-handed and unhappy after losing her parental rights over her daughter. When Hurley heard that Heidi had died, she immediately suspected that Heidi had killed herself. Ploof's postconviction counsel also presented testimony from Dr. Werner Spitz, a forensic pathologist, who disagreed with aspects of Tobin's trial testimony and stated that it was possible that Heidi had committed suicide.[17]

At the postconviction hearing, Ploof presented new mitigation evidence about his childhood and his military record. Trial Counsel had investigated Ploof's upbringing, but Ploof had reported a normal childhood and his parents, Gerald and Shirley Ploof, had corroborated his story. Although Trial Counsel had a document indicating that the State of New York had involuntarily closed the Ploofs' foster home in 1984, she did not recall seeing the specific page describing the closure. Trial Counsel testified about her investigation, suspicions, and decision-making process during her representation of Ploof.

Ploof's postconviction counsel presented testimony from several former Ploof foster children and expert testimony from a psychologist. The former foster children testified that Ploof's father, Gerald Ploof (Gerald), had sexually abused them and physically abused Ploof. Ploof's mother, Shirley Ploof (Shirley), was extremely strict and distant from the family. The State of New York closed the ...


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