Petition — ELLEDGE v. FLORIDA (No. 83-5463)

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No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1983

WILLIAM DUANE ELLEDGE,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

RICHARD L. JORANDBY

Public Defender

15th Judicial Circuit of Florida

224 Datura Street/13th Floor

west Palm Beach, Florida 33401

(305) 837-2150

CRAIG S. BARNARD

Chief Assistant Public Defender

RICHARD H. BURR, ill

Of Counsel

Counsel for Petitioner

QUESTION PRESENTED

whether the outcome determinative test 1S an appropriate

measure of prejudice in the analysis of a claim of the denial of

the Sixth Amendment cight to effective assistance of counsel,

where that claim is based upon counsel's substantial failure to

investigate compelling mitigating circumstances due to the trial

court's failure to allow sufficient time for preparation?

er LL

TABLE OF CONTENTS

PAGE

Question Presented ..ceeecceessseesseeseseseeee i

Authorities Cited eeesoeeeeeeenreneneeeeeneeeeeeeeenrr ff « iii

Citation to Opinions Below .wseesencces TeTTTTT l

JTUTISGICtiON .ccccccccesesesssessesscesecs eeece l

Constitutional and Statutory Provisions

TNVOLVER cccccccccceceececeesesececesececese ne

Statement OF the CASE wise esseeesesseseessseses 2-3

Statement of the PactS weseseseseseseseceees ees 3-5

Reasons for Granting the Writ:

CERTIORARI SHOULD BE GRANTED TO RESOLVE

WHETHER "“OUTCOME-DETERMINATIVE” IS THE

PROPER STANDARD FOR ANALYZING PREJUDICE

RESULTING FROM THE DENIAL OF EFFECTIVE

ASSISTANCE OF COUNSEL WHEN SUCH DFNIAL IS

CAUSED, AT LEAST IN PART, BY THE COURT'S

REFUSAL TO INVESTIGATE COMPELLING EVIDENCE

IN MITIGATION. wccccccccsssssccseseceesseces 5-13

CONCLUSION cccccccccseceesecesesesesesecesseseses 14

AUTHORITIES CITED

CASES CITED

Rehearing denied January 10, 1983 U.S.

U.S.L.W. 3510

Elledge vs. Graham, 432 So.2d 35 (Pla. 1983)

Elledge vs. State, 346 So.2d 998 (Pla. 1977)

Elledge vs. State, 408 So.2d 1021 (Pla. 1982)

Geders vs. United States, 425 U.S. 80 (1976)

Glasser vs. United States, 315 U.S. 60 (1942;

Hintz vs. Beto, 379 F.2d 937 (Sth Cir. 1967)

Knight vs. State, 394 So.2d 997 (Pla. 1981)

Lockett vs. Ohio, 438 U.S. 586 (1978)

Powell vs. Alabama, 287 U.S. 45 (1932)

(Pebruary 22, 1983) (No. 82-6609)

United States vs. Cronic, 675 P.2d 1126

(10th Cir. 1982)

United States vs. Decoster, 624 P.2d 196

(b.C. Cir 1976)

Ungar vs. Sarafite, 376 U.S. 575 (1964)

Washington vs. Strickland, 693 P.2d 1243

(Sth Cir. 1982)

Woodson vs. North Carolina, 428 U.S. 280 (1976)

Elledge vs. Florida, U.S. , 103 S.Ct. 316 (1982),

Strickland vs. Washington, U.S. 51 U.S.L.HW.

3865 (June 6, 1983) (No. 82-1554)

United States vs. Cronic, U.S. » 32 Os

PAGE

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Sixth, Eighth, and Pourteenth

Amendments to the Constitution of the United States. It further

involves Section 921.141, Florida Statutes (1977), entitled

"Sentence of death or life imprisonment for capital felonies;

further proceedings to determine sentence.” Because of its

length, the statute is set out in its entirety at Appendix C.

STATEMENT OF THE CASE

Petitioner was charged by indictment with the rape and first

degree murder of Margaret Strack. On March 17, 1975, following

denial of his motions to suppress custodial statements, peti-

tioner pled guilty to both offenses and was so adjudged. A

sentencing trial was held, at the conclusion of which the jury

recommended death. The sentencing judge sentenced petitioner to

death for first degree murder and fifty years imprisonment for

rape.

Thereafter, petitioner appealed his conviction and sentence

to the Supreme Court of Plorida, which affirmed the conviction

but reversed the death sentence and remanded for a new sent-

encing. Elledge v. State, 346 So.2d 998 (Pla. 1977).

Immediately prior to commencement of the resentencing

proceeding, counsel moved for a continuance. The motion was

denied, the resentencing proceeded and petitioner was again

sentenced to death. The FPlorida Supreme Court affirmed the

sentence. Elledge v. State, 406 So.2d 1021 (Pla. 1962). After

denial of rehearing, a petition for writ of certiorari was filed

with this Court. That petition was denied, Elledge v. Plorida,

__—s«U«. Se, «103 S. Cth. 316 (1982), and rehearing was denied on

January 10, 1983, U.S.___, 51 U.S.L.W. 3510 (1983).

On January 25, 1983, executive clemency proceedings were

held before the Governor and Cabinet. On February 15, 1983 the

Governor signed a deéth warrant ordering petitioner's execution

between noon March 11, 1983 and noon March 18, 1983. Peti-

tioner's execution was scheduled for 7:00 a.m., March 15, 1983.

Petitioner then commenced the post-conviction proceedings

which have led to the petition filed with the Court today.

Petitioner filed a motion to vacate judgment and death sentence

“No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1983

WILLIAM DUANE ELLEDGE,

’ Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

SSSS SSS SSS SS SSS SSS SS SSS SS SSS SSS sSSssssesseeseee Sees sseeeee22e222===

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

Petitioner prays that the writ of certiorari issue to review

che judgment of the Florida Supreme Court filed March 10, 1983,

upon which rehearing was denied on June 22, 1983.

CITATION TO OPINIONS BELOW

The opinion of the Supreme Tourt of Plorida which is the

subject of this petition is reported as Elledge v. Graham, 432

So.2d 35 (Fla. 1983) and is set out as Appendix A tu this

petition, Rehearing with, respect to this opinion was denied,

and the order denying rehearing is attached as Appendix B to this

petition.

JURISDICTION

The judgment of the Supreme Court of Plorida was filed on

March 10, 1983, and petitioner's timely motion for rehearing was

denied on June 22, 1983. The Honorable Lewis F. Powell, Sr.,

Associate Justice of the Supreme Court of the United States,

granted petitioner an extension of time until September 20, 1983,

to file this petition for writ of certiorari. Jurisdiction of

this Court is invoked pursuant to 28 U.S.C §1257(3), peti ioner

having asserted below and asserting herein the deprivation of

rights secured to him by the Constitution of the United States.

pursuant to Pla.R.Crim.P. 3.850 in the trial court, along with an

application for stay of execution. An evidentiary hearing was

held on March 9, 1983 with respect to petitioner's claim that his

counsel during resentencing had rendered ineffective assistance.

The trial court issued an order on March 10, 1983 denying the

motion to vacate judgment and sentence and denying the appli-

cation for stay of execution.

Pollowing denial of his appeal to the Florida Supreme Court,

Elledge v. Graham, 433 So.2d 35 (Fla. 1983), petitioner timely

filed in this Court for certiorari review.

STATEMENT OF THE PACTS

This case involves the death of Margaret Strack in peti-

tioner's apartment after an alleged rape on August 26, 1974. Ms.

Strack first met Mr. Elledge in a bar in Hollywood, Plorida.

After talking and drinking for a whiie with Mr. Elledge, Ms.

Strack voluntarily accompanied him to his nearby apartment, where

they continued drinking and began to smoke marijuana. Ms. Strack

then undressed and initiated sexual activity with Mr. Elledge.

When Mr. Elledge began to respond to Ms. Strack's overtures,

however, Ms. Strack refused to continue. At that moment, Mr.

Elledge “freaked out” and while in such a state choked Ms.

Strack, forcing her to engage in intercourse. (Transcript of

Guilty Pleas Proceedings, March 17, 1975, at 13) While Mr.

Elledge was still in this mental and emotional state, Ms. Strack

again resisted him, and he “just kind of blacked out, and lost

ail control of what [he] was doing” and choked Ms. Strack until

he realized, some time later, that she was dead. (Ibid.)

At the hearing on his post-conviction motion to vacate, Mr.

Elledge claimed that he was denied the effective assistance of

counsel at resentencing because of counsel's substantial in-

ability to prepare for the proceeding. Mr. Elledge claimed that

counsel's inability was caused by the court's denial of a

continuance; counsel thus failed to prepare for trial through no

strategic choice but rather through the interference of the

State. The evidence adduced in support of this claim over-

whelmingly demonstrated that as 2 result of this court-imposed

lack of preparation, petitioner, not unlike the petitioners in

Powell v. Alabama, 287 U.S. 45, 69 (1932) was deprived of “the

guiding hand of counsel at every step in the proceedings against

him."

Two witnesses testified at the hearing on effective assist-

ance. Robert McCain, petitioner's counsel for the trial and

resentencing, discussed his theories of defense and his con-

versations with Mr. Elledge. His theory of defense prior to Mr.

Ellecge's guilty plea was essentially two-fold. The first was a

plea of not guilty by reason of insanity, but when two court-ap-

pointed psychiatrists returned a report finding Mr. Elledge

competent that defense was abandoned. The second defense was

suppression of the custodial Statements made by petitioner. When

this motion was denied, the fall back defense was to enter a plea

of guilty and “go to the mercy of the court." After the denial

of the mction to suppress, he advised Mr. Elledge to plead guilty

and the pleas were entered the same day.

Regarding the penalty trial, in 1977, Mr. McCain testified

that he was definitely not prepared and that there were addi-

tional specific matters that he needed to investigate in order to

properly represent Mr. Elledge. He testified that these matters

related to petitioner's mental condition at the time of the

offense, including the the fact that Elledge had been placed on

"mind drugs” at the prison. Counsel testified that without a

continuance, he was left with virtually no defense except for his

client, in essence, saying what he said in the prior trial.

Counsel had wanted to investigate the fact that Mr. Elledge was

on Mellaril and an epilepsy drug while in prison and wanted to

bring in several witnesses concerning Elledge's background. Mr.

McCain said that he thought Elledge was “crazy” and thought that

if he were able to investigate the ¢sychiatric defense it would

“bear fruit”.

Mr. Elledge also testified at the hearing as to his con-

versations with Mr. McCain about the case. He consistently told

Mr. McCain that at the time of the offense, he was “not in his

right mind”, “in a complete daze." He said that Mr. McCain

advised him to plead guilty and “throw himself on the mercy of

the court" after the competency issue had been decided and the

suppression had been denied. Mr. McCain did not discuss with him

the elements of the offense or possible defenses prior to entry

of the plea.

Prior to the 1977 sentencing trial, Mr. Elledge had been in

the jail a week or two before he saw Mr. McCain. He Saw Mr.

McCain, only a few days before trial, as a result of Mr.

Elledge's telephoning Mr. McCain, who had not known that Elledge

had been returned to the Broward jail. He told Mr. McCain about

having received drugs and psychiatric treatment in prison. Mr.

McCain told him he was going to move for a continuance. The

continuance was denied, and thus the only preparation was reading

over his testimony of the first trial.

In addition to the testimony below, Mr. Elledge proffered

certain testimony and records. A proffer was made of the report

of Dr. Dorothy Otnow Lewis, M.D. as to her extensive evaluation

of Mr. Elledge. Also proffered was the testimony of certain

members of Elledge's family. The purpose of the proffer was to

establish the evidence that would have been available had counsel

been able to conduct an investigation.

The trial court reserved ruling on the motion, and then on

March 10, 1983 issued his ruling denying the motion.

REASONS FOR GRANTING THE WRIT

CERTIORARI SHOULD BE GRANTED TO RESOLVE

WHETHER "OUTCOME-DETERMINATIVE” IS THE PROPER

STANDARD FOR ANALYZING PREJUDICE RESULTING FROM

THE DENIAL OF EFPPECTIVE ASSISTANCE OF COUNSEL

WHEN SUCH DENIAL IS CAUSED, AT LEAST IN PART,

BY THE COURT'S REFUSAL TO ALLOW COUNSEL

SUPPICIENT TIME TO INVESTIGATE COMPELLING

EVIDENCE IN MITIGATION.

This petition presents the question of the proper standard

for determining prejudice in the context of a capital sent-

encing proceeding where ineffective assistance of counsel

results from judicial interference with the attorney-client

relationship. This Court presently has before it the issue of the

constitutional standards for judging claims of the denial of

effective assistance of counsel when the state is blameless for

the resulting ineffectiveness. See Strickland v. Washington,

U.S. , 51 U.S.L.W. 3865 (June 6, 1983) (No. 82-1554)

{granting certiorari in Washington v. Strickland, 693 F.2d 1243

OS ————

(Sth Cir. 1982) (Unit B) (en banc)}, and United States v. Cronic,

U.S. , 51 U.S.L.W. 3598 (Pebruary 22, 1983) (No. 82-6609)

{granting certiorari in United States v. Cronic, 675 F.2d 1126

(10th Cir. 1982)]. Because it provides an Opportunity co resolve

important, recurring, questions concerning state-induced in-

effective assistance of counsel which are not presented by

Washington and Cronic, Mr. Elledge's ineffective assistance of

counsel claim is especially ripe for review by this Court. After

showing why his case is a necessary companion to Washington and

Cronic, Mr. Elledge will discuss the historical facts underlying

his constitutional claim to demonstrate the appropriateness of

deciding the issue he presents “on the record of his case.

A. Issues Requiring Resolution by this Court

Two aspects of this case merit review by this Court. Pirst,

here it was the court's action, the circumstances Surrounding its

appointment of counsel and then its denial of a continuance

needed to develop crucial mitigating evidence, that caused

counsel to be ineffective. This case thus presents the question

of the proper standard of ineffective assistance and prejudice

required when the ineffectiveness resulted from judicial inter-

ference with the attorney-client relationship. Secondly, mr.

Elledge's case squarely raises the appropriateness of an

“outcome-determinative" test of prejudice in ineffective assist-

ance cases, The Florida courts, in rejecting mr. Elledge's

claim, relied upon the outcome determinative Standard for

evaluating prejudice that the Plorida Supreme Court established

in Knight v. State, 394 So.2d 997, 1001 (Pla. 1981) .Elledge v.

Graham, supra, 432 S0.2d at 37. The United States Court of

Appeals for the Fifth Circuit in Washington v. Strickland, 693 PF.

2d 1243 (Sth Cir. 1983) (en banc) rejected the Knight test

applied in Plorida. There is hence a direct conflict between the

standard applied by the federal court, and presently under review

by this Court, and the standard followed to affirm mr. Elledge's

death sentence.

Mr. Elledge was denied the effective assistance of counsel

at his resentencing due to his counsel's total inability to and

failure to investigate mr. Elledge's one plausible line of

defense. The facts,as developed during the state evidentiary

hearing and discussed in more detail below, demonstrate that (1)

counsel made no investigation regarding the one plausible defense

- Mr. Elledge's mental condition; (2) this lack of investigation

was caused by the lack of time allowed to prepare for the

resentencing; it did not result from a strategic or tactical

decision by counsel; (3) this lack of investigation was extremely

prejudicial; had such investigation and preparation been done,

significant and compelling evidence could have been presented on

mr. Elledge's behalf.

It is the second element, the reason for the ineffective

representation, which raises iffportant sixth amendment issues and

which makes this an excellent companion to the two ineffective

assistance cases presently pending in this Court.Unlike counsel

in Washington and Cronic, counsel in Mr. Elledge's case was

prevented by judicial action from effectively representing hin.

Mr. Elledge's trial counsel was unable to prepare because the

court appointed him at the eleventh hour and then denied his

motion for a continuance.!

Specific cases of ineffective assistance and prejudice fall

along a continuum based, in part, upon the degree cu which the

state is responsible for the resulting deficiencies of defense

counsel and calibrated to the degree of prejudice which must be

shown before a new sentencing is mandated. On one pole are cases

where a state procedure places a disability upon counsel that

pervades his entire conduct of the defense. Cases at this

extreme of the spectrum include Geders v. United States, 425 U.S.

80 (1976) (defense counsel not permitted to confer with client

during overnight mid-trial recess); Herring v- New York, 422 U.S.

853 (1975) (statute barred final summation by defense counsel);

1 mr. Elledge readily acknowledges that in general a court's

dispositon of a motion for continuance, though it must comport

with requirements of due process, Ungar v.- Sarafite, 376 U.S.

575, 589 (1964), is a matter within ee Sound discretion of the

trial court. But the question now presented is a violation of

the sixth amendment right to counsel, and the standards are

significantly stricter: the inquiry now must focus on the

quality of represention actually received by Mr. Elledge, and

here that inquiry is inseparable from the question of the

propriety of the continuance. The issue is the proper inter-

relationship between the court's power over continuances and the

effect the exercise of such power may have upon 4 criminal

defendant’s right to effective representation.

a a -

Glasser v. United States , 315 U.S. 60 {iv42j} (aerendants witn

conflicting interests); Powell v. Alabama, 287 U.S. 45 (1932)

(counsel denied adequate opportunity to confer with defendants

and to prepare for trial).

In these cases, defense counsel was appointed but prevented

by agents of the state from discharging functions vital to

effective representation of the clients. The state-created

procedures in these cases were what impaired the accused's

enjoyment of the sixth amendment guarantee “by disabling his

counsel from fully assisting and representing him. Because these

impediments constitute direct state interference with the

exercise of a fundamental right, and because they are sus-

ceptible to easy correction by prophylactic rules, a categorical

approach is appropriate.” United States v. Decoster, 624 F.2d

196, 201 (D.C. Cir. 1976) ‘en banc). Reversal in such cases is

required, without need of showing prejudice, for the reasons

discussed in Holloway v. Arkansas, 435 U.S. 475, 490-91 (1978).

At the opposite pole of the ineffectiveness spectrum are

claims that counsel committed certain discrete errors of omission

and commission that reasonably effective counsel would not have

committed; these errors resulted from counsel's own shortcomings

rather than from actions by the State. This type of ineffective

representation may just as seriously jeopardize the rights of a

critinal defendant as the ineffectiveness discussed above,but

they are less offensive to our sense of fairness because here the

state is not the cause of the breakdown of the attorney-client

relationship. In part for this reason, courts decline to find

per se prejudice in this type of case. The Court's recent grants

of certiorari in Washington and Cronic have provided an

opportunity for the Court to address the critical issue of the

degree of prejudice required to be shown in connection with a

claim of ineffective assistance when counsel is alleged to have

committed discrete errors.

The lower courts have divided into three groups concerning

the measure of prejudice in this category of ineffective

assistance of counsel claims. The tenth circuit in Cronic held

that where the claim involves lack of preparation and experi-

ence, prejudice “cannot be nicely weighed." 675 F.2d at 1128.

The fifth circuit, by contrast, held in Washington that a

petitioner asserting ineffective assistance must show that that

his representation resulted in “actual and substantial dis-

advantage to the cause of his defense." 693 P.2d at 1128. The

most extreme position is that developed by the District of

Columbia Circuit in Gaited States v. Decoster, 624 F.2d at 208,

211-12, adopted by the Florida Supreme Court in Knight v. State,

394 So.2d 997, 1001 (Fla 1981) and applied by the PFloriza Supreme

Court in this case: that a defendant suffering inadequate counsel

must show, to receive a new trial or sentencing that adequate

counsel would change the resulfé on tetrial.

Even assuming that the validity of the outcome determinative

test is squarely before this Court in Washington, Mr. Elledge's

case presents a dimension of the prejudice issue not raised by

Washington or Cronic. This case presents the issue of whether

the outcome determinative test is too stringent a standard of

prejudice for ineffectiveness caused, in part, by governmental

interference with the right to counsel. Thus, this case falls

somewhere between the two polar extremes discussed above. The

governmental interference arguably was not so severe that a new

trial should be granted automatically. Yet it was sufficiently

severe to preclude a conclusion that defense counsel was unhamp-

ered in his conduct of Mr. Elledge's case. The requisite showing

of prejudice should be less where the denial of effective

assistance of counsel results from interference by the state with

that right. Regardless of the level of State involvement,

however, Florida appears determined to apply its outcome deter-

minative test of prejudice. This is an issue requiring resolution

by this Court.

B. Petitioner's Claim of Ineffective Assistance of Counsel

Mr. Elledge's trial attorney testified below that he had

only a few days (3 or 4) in which to prepare for the resentencing

trial and that this was wholly insufficient for proper pre-

paration, consultation and investigation. This lack of time

arose from the lawyer not knowing that the scheduled trial date

of August 2, 1977 was firm, not knowing that the Plorida Supreme

Court had denied rehearing or issued a mandate, and not being

informed or otherwise aware that Mr. Elledge had been returned to

Broward County and thus was available for consultation. 2

Counsel did not learn that Mr. Eliedge was in the county

jail until July 28, 1977 when he received a call from Mr. Elledge

who wanted to know why counsel had not come to see him. In their

first meeting counsel and Mr. Elledge discussed the case briefly

and counsel then prepared a motion for continuance which he filed

on July 29, 1977. Defense counsel thought the motion would be

granted because he could not see any reason it should not be

--there was no speedy trial problem, there was no question of

bail, there were no other pendfng charges, and most importantly

because he was telling the court that he needed more time to

prepare and that he needed to investigate and call witnesses. The

continuance was not granted and the trial proceeded over coun-

sel's protestations that he was not prepared. Consequently, he

was forced to proceed to trial without any substantive witnesses,

with only Mr. Elledge's uncorroborated testimony, and with

pretrial preparation limited to going over Mr. Elledge'‘s

testimony in the prior trial.

The facts showing prejudice under these circumstances are

compelling. Counsel did have specific, concrete information

bearing upon sentencing that he was unable to present to the

fact-finders. And, had counsel been able to investigate this

information, it is now known that dramatic evidence would have

been found in mitigation of punishment. None of this evidence,

however, was able to be presented on Mr. Elledge's behalf The

2 Counsel's involvement with the case had ended more than two

years previously (he did not represent Mr. Eliedge on appeal).

Sometime near the middle of July, 1977, the trial judge asked

counsel to represent Mr. Elledge at the resentencing trial and

indicated that August 2nd was the scheduled date. Counsel agreed

to do so.

Upon agreeing to represent Mr. Elledge at the new sentencing

trial, counsel assumed that the August 2nd trial date was only

tentative and that he could move for additional time if needed.

Counsel's view of the tentativeness of the date was also re-

inforced by the fact that he knew that a rehearing had been filed

in the Plorida Supreme Court and was under the erroneous im-

pression that the Plorida Supreme Court had not issued its

mandate. Counsel also was unaware that Mr. Elledge had been

returned to Broward County and was available for conferences and

consultation.

capitel sentencing of Mr. Elledge is thus neither individualized

nor reliable, as it omitted the major aspects of Mr. Elledge's

character and the circumstances of the offense.

Counsel emphatically reiterated at the hearing below what

he told the judge during the hearing held on his motion to

continue: that he was not ready to proceed on August 2, 1977.

There were a number of important facts that counsel needed to

investigate and confirm. When he met with Mr. Elledge in those

few short days before trial, Mr. Elledge had informed counsel

that while in prison the doctors had prescribed and placed Mr.

Elledge on “mind drugs" such as “Mellaril and another drug used

for epilepsy [dilantin].” Counsel testified that this was

critically important because for the first time there might be

concrete evidence to support his belief (and his only line of

defense) that Mr. Elledge was “crazy.” Counsel did not mention

this evidence in his motion for continuance because he needed

more time to investigate it (and because he thought the continu-

ance would be granted). See Hintz v. Beto, 379 F.2d 937, 942 (5th

Cir. 1967) Counsel also wanted to find and present witnesses

concerning Mr. Elledge's "early upbringing". Counsel believed

that if he would have had time to prepare, the "psychiatric

evidence would bear fruit." Counsel testified emphatically that

he was “not prepared” in his representation of Mr. Elledge at the

penalty trial. Thus, there were specific areas that r«quired

investigation. These areas related directly to the only plausible

line of defense. Counsel however could not investigate these

matters sufficiently to present these matters at trial.

The hearing below established the dramatic and compelling

evidence that could have been discovered and presented had

counsel been able to conduct the investigation he believed

essential. This evidence is of such a quality as to provide a

powerful defense to the imposition of the death penalty.3

3 The evidence that could have been discovered with adequate

investigation was proffered below. [The witnesses could not be

present to testify because the trial judge denied the motion’ by

Mr. Elledge to provide the funds necessary to secure their

attendance at the proceedings below.]

- — —— ~ ~ -- I=

First, Dr. Dorothy Lewis conducted a complete psychiatric

evaluation of Mr. Elledge and concluded, as suspected by Mr.

Elledge's trial counsel, that at the time of the offense Mr. :

Elledge was suffering from a severe mental disorder inat caused

him to act the way he did and precluded him from controlling his

actions. Dr. Lewis found that for a long time before th»

offense, as well as at the time of the cffense, Mr. Elledge was

severely mentally ill as a result of central nervous system

disorders as pervasive and potentially as documentable as a brain

tumor. She described his illness as consisting of three severe,

interactionally related disorders: an organic impairment of his

brain, which was most akin to*( and which may have been) psycuo-

motor epilepsy; episodic dyscontrol, a scvere dysfunction of the

electrical system of the brair precipitated by the ingestion of

drugs and alcohol; and psychotic paranoia. In Dr. Lewis’ opinion,

all three of these disorders combined to produce uncontrollable

violent outbursts resulting in the sexual assault upon and

homicide of Margaret Strack.[A copy of Dr. Lewis' report is set

out in Appendix D}

Second, these findings of Dr. Lewis were firmly supported

by Mr. Elledge's documented biological vulnerabilities, his

family history and background and his environment. The testi-

mony of members of Mr. Elledge's family that would documert the

specifics of the family life and environment was proffered b=2low

in detail, more completely than ever before. 4

4 Although Mr. Elledge was evaluated prior to his original

trial by two psychiatrists, these evaluations focused only on the

narrow issues of competency and sanity (as a guilt-innocence

defense). Moreover, the evaluations were quite perfunctory and

were not based on the extensive information which could have been

developed -~had counsel been provided adequate time -- and which

was available to Dr. Lewis. With the information available to Dr.

Lewis, and with Dr. Lewis' evaluation of Mr. Elledge in light of

that information, counsel testified at the post-conviction

hearing that he could have effectiely countered any effort by the

state to use the earlier psychiatric evaluations to defeat his

claim that Mr. Elledge was severely impaired at the time of the

homicide.

ll ~~

Third, confirming trial counsel's firm belief that adequate

investigation of Mr. Elledge's mental state would “bear fruit,”

this evidence expiained -- in a mitigating way ~~ why Mr. Elledge

committed the homicide. Mr. Elledge assaulted and killed

Margaret Strack because her perceived sexual teasing --in his

life long context of sexual abuse and brutalization -- triggered

his latent psychotic paronia. While the psychosis caused him to

attack Ms. Strack, his ingestion of drugs and alcohol, along with

the stress of Ms. Strack's perceived rejection, also triggered

the abnormal electrical activity in his brain which produced an

outpouring of rage which he had absolutely no means of con-

trolling. His loss ot memory for the several hour period

following the rage attack of Ms. Strack further confirmed the

brain dysfunction underlying the homicide. Accordingly, at the

time of the homicide Mr. Elledge was severally mentally ill, and

his illness ébeclutely foreclosed any possibility of his con-

forming his behavior to the requirements of law.>

Thus, the investigation which Mr. Elledge's counsel did not

undertake had extraordinarily serious consequences for Mr.

Elledge. His counsel did not -- and could not -- present on his

behalf evidence which thoroughly explained -- and mitigated -- a

crime which appeared to be the kind of crime that ought to be

punished by death. What were in truth the acts of a terribly

impaired, ill man were thus seen by the jury and the judge as the

acts of a terribly evil man, because defense counsel was not

given the opportunity to investigate and develop facts which came

to his attention on the eve of trial.

5 priefly, it should be mentioned that Dr. Lewis' credentials

are unassailable. Her curriculum vitae was proffered below and

is available for this Court's review. In addition, as also

proffered, Dr. Lewis has been selected to author the chapter

concerned with delinquency, violence, and central nervous system

disorders in the leading textbook of psychiatry, The Comprehen-

sive Textbook of Psychiatry. She is undoubtedly among the

current leaders, not the leader, in the nation in this field

which seeks to understand the causes of delinquent and violent

/ behavior, She has authored two books, more than forty7eight

articles and book chapters in her field, and has presentes more

than sixty papers at conferences and symposia all over the

country.

eee

Surely Mr. Elledge was prejudiced by this. Yet no one can

say that the outcome of his sentencing trial would have been

altered if counsel had been able to investigate these facts and

present the kind of evidence described in the preceding para-

graphs. What can be said, with certainty, is that Mr. Elledge's

character and the circumstances of the offense would have been

much more thoroughly considered had these facts been investigated

and presented. What can also be said, with certainty, is that a

capital sentencing proceeding which omits from the sentencer's

consideration the kind of evidence discussed herein cannot

"ensure the reliability, under the Eighth Amendment standards, of

the determination that ‘death is the appropriate punishment in a

specific case.'" Lockett v. Ohio, 438 U.S.586, 601 (1978),

quoting Woodson v. North Carolina, 428 U.S. 280, 305 (1976).

Accordingly, the Court should grant certiorari to determine

the constitutionally proper measure of prejudice in the analysis

of a claim that counsel provided ineffective assistance in a

capital sentencing trial because, in part, the state prevented

coursel from conducting the investigation which would have

produced relevant, compelling evidence in mitigation.

CONCLUSION

Por the reasons expressed herein, the petitioner, WILLIAM

DUANE ELLEDGE, respectfully requests that this Court grant his

petition for writ of certiorari.

Respectfully Submitted,

RICHARD L. JORANDBY

Public Defender ;

15th Judicial Circuit of Plorida

224 Datura Street/13th'P r

West Palm Beach, Florid 33401

(30 837-2150

vn ; |

~ / \

BY (MPa | ate \

CRAIG S, .BARNARD

Chief Assistant Public Defender

‘«i2 had . Run

RICHARD H. BURR

Of Counsel.

APPENDIX

ELLEDGE v. GRAHAM

t la >

Cite as 432 Sa2d 35 (Fla 1943)

William Duane ELLEDGE,

Petitioner/Reiator,

Robert GRAHAM, Gw:-ernor, State of

Florida; Losie L. Wainwright, Secre-

tary, Florida Department of Corrections,

Respondents.

William Duane ELLEDGE, Petitioner,

’.

Leuie L. WAINWRIGHT, Secretary,

Florida Department of Corrections, ,

Respondent.

William Duane ELLEDGE, Petitioner,

STATE of Florida, Respondent.

William Duane ELLEDGE, Appellant,

¥.

STATE of Fiorida, Appellee.

Nos. 63344, 63345, 63387, 63388.

Supreme Court of Florida

April 14, 1983.

Rehearing Denied June 22, 1983.

Petitioner convicted of first-degree

murder urged Supreme Court to issue its

writ of haheas corpus to permit appellate

review of denial by the Circuit Court, Bro-

gari County, M. Daniel Futch, Jr., J., of his

motion to suppress custodial statements

god, in addition, to issue writs of quo war-

ranto and/or habeas corpus to prevent exe-

gtion of death warrant. Petitioner also

sppealed denial ef his motion to vacate

jocgment and sentence and, further, peti-

toned for leave to file late petition for writ

d error coram nobis and/or for extraordi-

gry relief with regard to capital penalty

tral. The Supreme Court held that: (1)

jtioner was not entitled to appellate re

rew of trial court's denial of his motion to

gppress his confessions, and (2) petitioner

gas not entitled to vacation of judgment

wd sentence.

Order accordingly.

1. Criminal Law 1219

When death sentence was

posed upon existing life sentence, petitioner

had no legal right Ww serve life sentence

before death sentence could be carried out

Suparimn-

2 Criminal Law 1026, 1140

Petitioner was not entitled to appellats

review of tral court's denial of his motion

to suppress confessions, where he plead

guilty and did not raise this ixsue on hi

previous appeals. .

3. Criminal Law 1026

A guilty plea cuts off any right to an

appeal from court rulings that proceeded the

plea with the exception of a limited class of

issues which occur contemporaneously with

the entry of the plea, namely, the subjeet-

matter jurisdiction, the illegality of the ser-

tence, the failure of the government to

abide by the plea agrcement, and the volun-

tary amd intelligent character of the ples

4. Criminal Law 997.8

Petitioner was not entitled w writ of

error coram nobis on ground of newly «is-

covere! evidence, in that facts were cither

available or could heave been obtained at

time of sentencing.

5. Criminal Law 2-998(7, 8)

Petitioner was not entitled te vacation

of judgment and sentence, in that his con-

fessions and guilty plea were properly a«!-

tnitted and allegation of ineffective ussist-

ance of counsel had not been shown

West's F.S.A. RCrP Rule 3.450.

Richard L. Jorandby, Public Defender;

Craig S. Barnard, Chief Asst. Public De-

fender, and Richard H. Burr, II], Asst. Put

lic Defender, Fifteenth Judicial Circuit,

West Palm Beach, for petitioner/relator, i:

No. 63344, petitioner in No. 63345 and 62.47

and appelice in Nv. 63338.

Jim Smith, Atty. Gen. and Joy B. Shear-

er, Asst. Atty. Gen., West Palm Beach, for

respondents in No. @3344 and 6245 and

appellee in No. 63388.

36 Fla

PER CURIAM.

Petitioner urges this Court to issue its

writ of habeas corpus to permit appellate

view of the lower court's denial of his

motion t& suppress custodial statements

and, in addition, to issue writs of quo war-

rante and/or habeas corpus to prevent the

execution of the death warrant. Petitioner

also appeals the denial of his rule 3.450

motion to vacate judgment and sentence

and, further, petitions for leave to file a

petition for writ of error coram nobis

and/or for extraordinary relief with regard

to the capital penalty trial We have juris

diction. Art V, § SMT) & (9), Fla Const

We find no merit in petitioner's argumen’s,

deny al! petitions and affirm the denis! of

his motion to vacate judgment and sen-

lence

On March 17, 1975, in the Seventeenth

Judicial Cireuit in and for Broward County,

petitioner Wille Duane Elledge moved to

suppress certain custodial statements

Upon the denial of his motion, he entered

pleas of guilty to first-degree murder and

rape, and on March 27, 1975, was sentenced

to death, On direct appeal, this Court af-

firmed petitioner's conviction but vacated

the death sentence, ordering the tria! court

v. State, 346 So 2d 998 (Fla. 1977) Follow-

ing that tral, petitioner was resentenced to

death on August 3, 1977. On appeal this

Court affirmed the death sentence. £)-

ledge v. State, 408 So2d 1021 (Fila 1981),

cert. denied, —— US. ——, 103 S.Ct. 316,

74 LEd2d 233 (1982) On February 15,

1983, the Governor of Florida signed a

Geath warrant ordering petitioner's execu-

on a

QUO WARRANTO AND/OR

HABEAS CORPUS

[1] Petitioner contends that since his

1977 death sentence contained a provision

that the sentence run consecutive to a sen-

tence of life imprisonment imposed in Case

No. 74-3811, in which petitioner also plead-

ed guilty to first-degree murder, the death

sentence cannot be carried out until after

the expiration of the life sentence, which

42 SOUTHERN REPORTER. 2d SERIES

carnes a mandator; m:nmum of tweet?

five calendar years We [ind ths pew?

wholly without meril When a death =?

tence 3 superimposed upon an erssting

sentence, the defendant has no legal re@

to serve the life sentence. Bilitch ». &

chanan, 100 Fla. 1242, 132 So. 474 (1809

and Whitney v State, 132 So2d 599 (Fs

1961)

HABEAS CORPUS

{2,3} Relying on Anderson v. State, @

So.2d 574 (Fla 1982), petitioner also org®

that he now is entitled to appellate revie®

of the trial court's denial of his motion @

suppress his confessions, even though be

pleaded guilty and did not raise, this svt

en his previous appeals. We disagree - A

guilty plea cuts off any right to an appeal

from court rulings that preceded the pia

with the exception of a limited class of

issues which oceur contemporaneously wit

the entry of the plea: (1) the subject mat

ter jurisdiction, (2) the illegality of the se>-

tence, (3) the failure of the government &

abule by the plea agreement, and (4) the

voluntary and intelligent character of the

plea. Robinson v. State, 373 So.2d 698 (Fla

1979). The petitioner's challenge falls

this latter category because it is base! of

the assertion that he would not have plead-

ed guity had the confessions teen sup

pressed. A proper challenge to the volun

tary and intelligent character of a guilty

plea is presented to the trial court by 6

motion to withdraw the pica A denial of

such motion would be subject to review on

direct appeal. Robinson So far as we are

aware, the petitioner has not previously

sought to withdraw his guilty plea nor did

he raise the issue on the direct appeal of his

death seatence. We accorded the petitioner

automatic review as we do in all death

cass, and affirmed his conviction and sen

tence of death Elixig’ Il & 921.144).

Fla Stat. (1975) Petitioner since has raised

the wsue of the voluntariness of his guilty

plea tefore the trial court by means of a

rule 3.850 motion, which we address below

We know of no other right of review w

which the petitioner is cntutled.

ERROR CORAM NOBIS

Elledge's petition presents whai is pur-

ported to be newly-available evidence:

trol his behavior at the time of the

murder was seriously unpaired.”

2 A series of conclusions by petifioner's

counsel based eon personal and tele-

phonic interviews with various mem-

bers of Eliedge’s family. Counsel

concludes that there is “some organic

vulnerability to violent behavior in

petitioner's family; and ... petition-

er's thinking may also stem from an

inberited tendency toward disorya-

nized thought processes.”

[4] The “facts” on which Dr. Lewis and

counsel rely are not new: they were cither

available or could have been obtained at the

time of sentencing. We note that Elledge

was examined by two peychiatrists pnor to

trial and both stated that at the time of the

rape/murder he understood amd could ap

preiate the nature and consequences of his

acts. Petitioner fas presented no new in-

formation—merely a psychisinst who

draws different qonclusions. Booker ¥.

State, 413 So.2d 736 (Fla 1982); Hallman v

State, 371 So.2d 482 (Fla. 1979)

RULE 3850

Elledge appeals the denial cf his rule

3.350 motion He presents five issues for

our consideration:

l. Ineffective assistance of counsel.

2 The voluntarivess of his guilty plea

3. Alleged error by the trial court in

sinking grounds for relief.

4 Denial of equal ~rotection and a fair

hearing by denia) of funds for expert

and lay witnesses.

5. The wnconstitutionality of Florkia’s

death penalty as applied.

Fla 37

[5] Our review of the record convinces

us that the appellant's confessions and

guilty plea were properly admitted and that

the allegation of ineffective assistance of

counsel has not been shown Knight +

State, 334 So.2d 997 (Fla 1981); Williams v

State, 316 Sol 267 (Fla 1975} We have

fully reviewed the remaining issues ras!

by the appellant and find them to be with-

out merit.

The petition’ for quo warranto, haleas

corpus, and leave to file @ writ of error

coram nobis are denied. The denia!

appellant's 3.550 motion is af twaed.

f «3

vt ihe

It is so ordered.

ALDERMAN, CJ. and ADKINS, BOYD,

OVERTON, McDONALD, EHRLICH and

SHAW, JJ., auncur

Supreme Court of Florida

WEDNESDAY, JUNE 22, 1983

WILLIAM DUANE ELLEDGE, *

Petitioner/Relator, ad

v- : * CASE NO. 63,344

ROBERT GRAHAM, Governor, State *

of Florida; LOUIE L. WAINWRIGHT, ,

Secretary, Florida Department

of Corrections, ®

Respondents. e

-<_ te vs ae ot <5 Soe ee ee ee Se oe eS

WILLIAM DUANE ELLEDGE, *

Petitioner, * ad

Ve °* * CASE NO. 63,345

LOUIE L. WAINWRIGHT, Secretary *

Plorida Department of Corrections,,

Respondent. a

.@- 6-698 - 6 2 2-2-8 0-0 © 8 2.8.9.5

WILLIAM DUANE ELLEDGE, 2

Petitioner, °

v. * CASE NO. 63,387

STATE OF FLORIDA, *

Respondent.

7. = = 7 ? _ = vu — = 2 = = ? = = rs

WILLIAM DUANE ELLEDGE, s

nopellant, * CASE NO. 63,388

7. * Circuit Court No. 75-0987CF

STATE OF FLORIDA, « (Broward)

Appellee. ad

-=_ aS OF ee se & @ 6-3-3 82 2-2

Upon consideration of the Motion for Rehearing filed in

the above causes by attorney for Petitioner/Appellant, and response

Hhorea*s

se os ~~ fF

IT IS ORDERED that said Motion be and the same is hereby

A True Copy TC

cc: Hon. Robert E. Lockwood, Clerk

TEST: Hon. M. Daniel Futch, Jr., Judge

Craig S. Barnard, Esquire

Richard H. Burr, III, Esquire

Sid J. White Robert L. Bogen, Esquire

Clerk, Supreme Court Joy B. Shearer, Escuire

Sharon Lee Stedman, Esquire

(aqrole

ite /

Ch. 921 SENTENCE

921.141 Sentence of death or life imprison

ment for capital felonies; further proceedings t

determine sentence.— ‘

1) SEPARATE PROCEEDINGS ON ISSUE OF ss

PENALTY.—Upon conviction

r BC 4G 4 +}

guilt of a defendant of . r

snail conduct a sepa Zz proces na “

determine whether th shou es

. “7

Ch. 921 SENTENCE Ch. 921

sentence of life imprisonment in accordance with s Nete.—Forme

775 382

4) REVIEW OF JUDGMENT AND SEN.

TENCE.—The judgment of conviction and sentence

of Geath shall be subject to autornatic review by the

Suprerze Court of Florida within 60 days after cert

cation by the sentencing court of the entire record

uniess the time us extended ‘or an additional period

not to exceed 30 days by the Supreme Court for good

cause shown. Such review by the Supreme Court

shall have priority over all other cases and shal! be

heard im accordance with rules promulgated by the

supreme court

5: AGGRAVATING CIRCUMSTANCES*—Ag

gravating circu

wing

3 i he Capita: felony was committed oy a persor

uncer sentence of imprisonment

’ TT. Apator ~* — — . i

> The defencant was previously c ad

another capita! feiony or of a feiony involving the

use or threat of + ence t

TT - ’ “~- - 7

‘ne cele a x A risa

= Geath to many person

| ihe capital feiony was committed whiie

Gelencant was engaged. or Was an aCcomMpiice t

mmission ‘ ra sttemopt t commit - ght

o _—_— ein —— n ‘ —" o ooh

a er _ ra 4 ot * ” a , >

ber rape. are Urgiary. a:Gnapo a fr aircrat

. , - ‘ . , 7

acy r ne ¥wiu r ~ Zz. Diac g r dis

harging of a destructive device or bornt

- ine p " ¢ - “as om tte 2 er 2

puse avoiding or preventing @ iawtu! arres r

7 r ™ — ]

e! a! -_ - stug + .

5 fhe pit , Ws Tifr ec r i

ary gain

TT . . >

. ihe capita ‘ ny was Comm ec ru

r minder the wu «exer any govern erta

furction or the enforcement of _

n ihe apita ié n> Was espe Livy nemou

atrocious r crue

cry Tr} torr * rar ra us

gating circumstances sha 2 the f wing

2 ihe Getendant as sigt ant mastor

ior Crimin ,

P : ’ ¥

> The casita! felon was mmitted e t?

jefendant was under the influence xtreme n

ta r emotuona: Cisturdance . .

The ctim was @ Darticipant in the defend

pnt s neuct or nsented the act

4 The defer ~~ . ——- -~ +)

3 ; seit 22 was ar of © aE

. ny committed by another person and s par

pation was relatively minor

. ihe Gefencant actec uncer extreme duress or

under the substar torr stion of another persor

T> . +> ~ A ‘* rr .

i Mh pac e Gelendcer apprec

he cris tw of his nduct or to conform his cor

' the requirements of law was substantial y

mpaire

ine age ' ne Gelendan?t [ ~e time the

r -

Mistery as 66d 056 "

5 =hiatric Renart or 91 < ac eine

- Ge i cry & “ = Sese

° <- 7 in - akhiateir ronnr ? . . ae - i 4 + m4 »

t c “= J] = - » ’ ‘ft ¥ — ~~ ~ oe « »~ '' -

C - s rel ee 2c e 4 - 2) - - es

i * ve : oc o acting anoroxima te , 4 no ob - enhone » -

2 J 2

+ rae nat#rhor > rovis ~* wr -- ‘ - ~-=* es ertfor ,

ait S$ other, @ revicw vu europsyCnolOy ite C , perro G by cil2

J 2 J

— > -* nana = . of éh t-7 :

Tearncerint of Mr c ecce's ceatdec ‘ ro ¢ Pian

ss onse ye Y , CiieCyge S&S slew e's » ae A - s oJ arcic

aed Prahation Commissior

. alifornia snartment of — Bue oY . . >

. . .

errr... ‘ Line +> rorar . <

4°36” —

e - “y

wnaAties woror Si nei da taee Ors > . .

+. ecice ecorc, Fil G8 otdte Cc ’ e/3 tO presene

c Seicaner'e £17 — . - > " ' or ,

-- so $ - (excerpts), ) Ga ota sc G-lO-/3 tO pre

‘ => ~ ~ . y iA - +

n am Ellegge iS @ vec yee! Viv ' te a as vec U CAC

> — « - > > Oe cnr = - oF, . > . Ps - ‘ 4

3 e J GE Gece 30 aS ul pase eryne g ’ ° ‘ urce a

72 Te +. o 7 -+ 6 ‘ r ’ y ‘ +)

4 ” S ~ ~¥ Cyvyeltwetl ¢ - ~ ° L ~ LY ue “

J ‘

. . a'e Sane +torne , c

- ecye > itye Serens attorney verever & Cepiseocic aiure 9U

“ “ - aie + s- +e —~* r - ~l¢ > > Ps e +

a rr {

L. cge Ss VIOIENL SCs aiiv Ss aditerec Stdits sciousness SsuLusCuuU ‘

ene ~- +e

ece a

cot Ch wes

oa ~> mic *trer

ee Go > 4

———

. . 7 ~ te > + - thre - + “ lac res P

3 4 J J

at a a rarnn* e erfar<c th _?* > ~ to r , - 7 nae > °

Ccwe- “ www -- ~~ oO co stood w i iwee G)'} - ~ 0 ' 2 CxAtLreore

ece Aten) - co >) whic tar?) .

oY 2c ecice 6nG stAve histories.

ws SVinde tha ar ct of aan ‘ . ; :

r. Elledge was we p ouUc r @ preyne ,;1Catce vy e vic

» - ao piezing #r ~ an + 4 +o S| a ror rer + ~ - or

tefan? ae Ki rth » cick?) Cuee sn fant dif wl ¢n enothe

v. Ae | SB SiILAlF Moos ' - - rGe Vie V owve

Apparently, on one occasion, his mother was so creinec and angered by tne

infant, that she attempted to throw him out @ Car wincow, but was stoppec

by her husband. This episode was but the earliest instance recorced in a

long series of batterings experienced at tne hancs of nis motner, Mrs .

Elledge herself, an extremely guarded woman, acmittec tat et times sne

wo.

knew she had “gone too far” in her phys

Elledge recalls episodes when his mother pushed nin to the floor, sat or

top of him, and banged his heac on the floor. On on@é occasion, she alsc

threatened him with a rifle anc was restrained by Mr, Elledge's fatner

Given the history of severe battering by nis mother from infancy onward,

it woule be impossible cto determine whetner the or anically influcted

aspects of William's symptoms and Deneviors evident throughout his lifetime

were prinarily the result of inutero central nervous system damage or of

the numerous head injuries inflicted by his motner,

In addition to perinatal complications and batterings, “r. El leds

phic ye?

His mother reports an episode in which he ULasnec Nis heed a ainst a concrete

wall in the cellar” at age 5 years. Mr. Elledge sti

his forehead, attesting to the severity of the blow. In addition to tne

— |

accident at eye 5, he sustained a béow to Ais Neae at eoout age 9 ull

was hit over the head with a croquet mallet by nis brotner. At around this

time, his nose was first broken in an accident, the nature of which is unclear.

His nose was subsequently broken in his early teens wher was hit in tne

face with a 2 x 4 board. The severe injurics to nis nose (attested to by its

present deformity) are important because severe injury to the nose is often

transmitted to the temporal lobes of the brain, which are situatee benine tne

nasal cavity. Oamage to this area of the brain is often associated with episod:

ny, 4 o , vw r ane ~ cr - - > nar cr -

rage. Ouring young acuitnooc, ™r. Ciiceye cise Sustained t& 4 severe eaG

injuries prior to the murder in question, one wher ne wes v the rignt

+ ~ : ~ +) aA nthe ar ntr ror -+

frontal area with a rifle outt, the otner w 5 motorcycic t a car anc

he slammed into the side of the car. in snort, hr. cilecge Sustainec nunerous

+ , _ ! an are a mark ee rennet e e n

traumata to his head, any one of which could have contributed to his cpisocic

rage reections.

¢ 7 nice ernm

2exXuUa) IS LCry

v | = ~ = 4 TilesAc - ‘ or ~_-+ rar 7 +

The sexual nature of Mr. cCilecge S eggressive ect Can Oily ve ulcerative

. acl e. a < " ia ™ ~~. ae a . ie ae eee, a id a

in the context of his having been sexually as weil @s physically atusec. at

7 - f annrayvim | Oo > eam enstenaAcce ~¢ a ot eahksieae ASS P

an early age (approximately 9 yeers), Wo Cpisaes of sexuai aduse occurred

cy ~ m3 - + - r - - no r - 7 - a

Mr. Elledge was accosted by a man in atruck from whom he hitcnes ¢ rice,

Instead of taking him to his destination, tne man Grove him to a woocee area,

then atacked him, choking him, throwing him to the ground, and forcing anal

; il toramding th Si eten he inet Cancetmmenece and late

intercourse. Accorcing to £ ciiécsge, ~ wo’ Consciousness alii idter

awekened in the woocs, injured enc Trignhtenesc GC was atraic to te S

. hor = ho had €r s¢ifar <- 4p Riterrhive o inc

parents cf the event because they hec forviecen Fit to Hite Ke and tney

‘ JA _+ a. i r raroc for trfractionc At trocar lac

WOUIG DEdL nif, wniie ne was nGhON, U ' UV LIVUiio Vi wii i ruies

fp nr na? oo 4 Tlilernct«c anil cict#e Seer ot Fs nm ctam:) +

At adout that time, ia ciiecge _ oicer - ster Torce to ot viGt&

her sexually, threateniay to yet him in trouble with mis mother ii he rciusce,

Tre . s | lation han th Reece ectet*tor cart? ~ +s theranmhneusre eh 1 - a

4 firct? axnerience aft inet rr cn > - ctetc

nis First experience wi intercourse waS Ww - is wi ter.

+ a > an 72 ar 24 Mr Fllerfre anf mic cscs ‘ ¢ raecrr aror r “rr

At about age io OF i, | » BIieese - S sister were ciscoverec oy $

a atu "o — 5 a falas rn a tn tea 2 Thic seta

Sexual reiations oy a rehe ie neéiynoor, @ wole ] er 30's. inis women tnen

. wu ei 7 an - + =, fey Fh x. 7 auon ine tc sc

brought Mr. Elledge to her apartuent anu, wiicer threat of revealing to his

= ‘ os 7 a ii : Sa eciteten . Se A a }

perents nis sexual reiationsnip with his sister, she forced nim to pervorn orei

» | - ~ 5 - Ff —— c - s° re + - ar Faas ’ c - ar ar r

sexual ects on her. ther semancs on ini Continsec over the subsequen™ yeur or

— : . ‘ € ae eae ee ee ae ili ’ Se

two and, with tne prumse 0% teecning ni ow to please any women, sme encouragec

nim to have intercourse with her.

peer ee ne Ee Rl er cE GC AE: CE A ae — eel RN IE AOL LE SR LET ETT CT mm

Of special note, the only violent juvenile act of which Mr. Elledge

was accused, the battery of a 9 year old girl, occurred when he ieft tnis

wouan's house after having been yiven liquor and sexually stimuluted by

her. Thus, tnere would seem to be a fairly clear etiological relationsni;

ct least in this instance, between sexual abuse and aygression.

Ouring childhood Mr. Elledge was also sexually abused ty a 20 year

uid male cousin. He was frequently beaten while naked by his mother

and father and he also witnessed his father beat his sister on her bare

buttocks,

Family mistory

Little is known about Mr. Elledge's fauily because of their reluctance

to become involved in his case. They have never visited him since his

incarceration in 1974, According to records and to Mr. Elliedge's report,

both of his parents were alcoholic_and violent. tie witnessed numerous

physical fights between then and saw his mother smashed to tle floor by

nis father. Although Mr, Elledge idealizes nis father, calling hin a very

yentle, kind nan, he recalls an instance when his father assaulted a

neighbor, many episoces when he ang his sister were beaten by his father

and verbal battles between his parents when his mother accused his father

of “screwing wita your daughter." The likelihood that this act did ind

occur is supported by the fact that Mr. Elledge‘s sister initiated nin into

sexual activity and attempted to have intercourse with him when he was

only 9 or 10 years old.

The exact nature of Mrs. Elledge's psychopathology could not be

cetermined because of her reluctance to meet with me. Her periodic fierce

ee —- — ee —

rages in which on occasion she had to be restrained from killing her son,

coupled with times of great lethargy, withdrawal, alconolisn, and inability

to function as a wother suyyest that she probably suffered from a serious

mood disorder. At times her behaviors were so inapprapriate (as when she

played half-nude on the bed with her children and teased them by placi

a not dog in her panties) cause one to wonder whether she was inceec

psychotic at times ana also whether she was of normal intel]

Another indication of possible maternal psychosis was ner reaction wher

she received letters from Mr. Elledge's attorney's office, requesting 4

meeting with her. When I spoke to her on the phone, sne told me that

she thought she was being tricked by an escaped convict from F

ang she called the F.8.1. to check out the validity of the letters si

had received fiom the Legal Defense Offices. On the phone with me she

was sO Guarded that sne wuld supply little information about the fe

.e did report her bleeding during "the pregnan:y with William and adinitcec

tnat sonetines she “went too.far’ when she beat ner son.

Rac

ie)

jiatric history

Mr, Elledge's severe psychiatric problems cate from early chi ldnoce

As early as age 5 or 6 years, he was unable to function appropriately ir

the classroom, got into frequent fights with scnoolmates, and felt suspicious

of teachers. These kinds of behaviors are often characteristic of children

with brain dysfunction and of prepsychotic children. Because of his extrenic

difficulty functioning in a classroom, Mr. Ellecge was often seated in the

front of the classroom near the teacher. This increased his discoufort

because he was constantly convinced that other children were snickering

at nim behind his back and he would frequently reel around and retaliate

for imagined insults.

As he became older, this paranoid attitude, accompanied by frequer

misperceptions and misinterpretations of the words and actions of others,

caused him to stike out defensively even when not uncer attack.

Mr. Elledge's extraordinarily bizarre work history (he nade ove

45 moves in a period of about 7 years) is a reflection of his paranoic

discomfort at each job he took, from dishwasher to manager of a diner.

At each job he felt persecuted and misunderstood by his bosses and

scmetizes left after a short time without even being paid. (See xerox

of his travels). As early as age 14, Mr. Elledge felt the need al

to be armed to defend nimself.

Some of Mr. Elledge's moves were precipiatec by even more Diz

motives than paranoia. For example, when Mr. Ciledge was in Canaca ie

’

read a newspaper story about a woman who nad been doused wit! asol

and set on fire by a gang in Bostqn. He was enraged because tne stor

said that none of the pecple who heard the wonan’s screans nag heipeu ie

In response to this story, Mr. Elledge conceived of a plan to obtein a

)

gun in New York, go to Coston, and walk around t

ant

)

the murder tcok place. He believed that ne would then be attecked by

the same gang and would shoot them, This idea Lecame so forceful that

Mr. Elledge went as far as to obtain a sawed off shotg

then travel to Boston with the intention of finding the aforementioned

neighborhood. Once he got to Boston, however, Mr, Eiiecge realizec thet

he was possibly psychiatrically il] and, instead of going through with nis

clan, sought psychiatric treatment at a Boston hospital. He said ne felt

he needed hospitalization, but it was refused and he was put on a waitir

list for outpatient treatment,

would be able to iure tne

old hil

—

r. Elledge's wife, Diane,

in his

persisted

wnen

to get he

subsequen

snd

end

der

murs

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periods of extreme depres

fro

a serious suicide

rant

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fron

unconscious for

apparen

ow ee

1tcns.1

& hignway and cid not know how he got sere, ine eariiest episode of

this kind that he recalls happened when, as 2 teenager, he wes told by his

wother that he had siphoned yas irow one Cur wo anotner, an act OF wild

he still has no memory.

The Murcer

—

ei : : - 2 3 - re rree enala An FiUm - -

The question erises if what ways tne psycnopatnoiogy cocumentes cvuve

4 le . ~ mired = , toh Mr Si isosne s¢ econtenced +o deatr

is relevant to the murder for which Mr. cilecge 15 Sentences Le veer

Ty ‘ <= < c rend Ais —_T- - sr arrar

Ine event, as far as it Cén de reconstructed, would seem to De INnTFiveNnces

: ‘ Se a co.) — > a ne ¢s Re namane4 / . —

in great measure by Mir. cCilecge s longstanding paranoia (exacercetec &

aS as 01) ac 77 » bde aa adic arnantraliahia ranec (allen pretinic

alcohol) as well as nis episocic UNCONYsicvic Feyges \eiev prec avec

hae at ttn ta & Clle ha apie hameetit wae. « ] ’ Te

by alconol). According to Mr. cilecge, tne vict nerseit waS Sexuaily viting

In fact, he says thet sne initiated intercouse by coming ovt oF tne vewnroe

with her panties at ner knees and coming over to him, it woulG See, ncwever,

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fae)

“yt

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and

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all clear that she dic more thar gently push nin bace or attempt to slo

down. Clearly she was interested in having sexual relations. owever, her

reluctance to proceed quickiy trigyerec in ‘ir. & ledge a feeling oO beinc

totelly rejected and tricked. His veport of fce y teased and anycred is

: : ‘

very Similar to his report of feelings engencered when his mother, Sister,

and neignbor sexually m<nipulated him, Simila ly, after the sexuai act,

wnen the victim threatened to report him to ‘«.e police, her words were as

threatening and frustrating as when his sister anc nis neighbor threatened

to tell his parents about his behavior if he failed to comply with their

The violence with which Mr. €

seen; to be a consequence of his repeated central nervous system injury

coupled with his peculiar vulnerability to the effects of alcohol. Once

started, Mr. Elledge was in an altered state ir which it is doubtful he

could have stopped choking the victim even were a gun at his head. fiis

subsequent dazed state, lasting several hours, for-which memory was impairec,

suggests the possibility of his having experienced a seizure at sone time

during the choking episode. His impaired memory for the hours roliqwing

the act must be believed because he reports whatever ne recalls of the

murder itself and thus would have no corse or unconscious motive for

concealing its aftermath. This memory lapse is not hystérical since it 15

for e period following the niurder, wherecs ar rysterical amnesia would

almost certainly involve the murder itself and an unconscious »*sh tc

forget it.

Diagnostic Impression

Mr. Elledge's pathology does not fall into a neat cateyorization but

is, rather, the reflection of several serious disorders. First, Mr. Elledge

is periodically psychotical ly paranoid, at which: times he misperccives

his environment and lashes out. Second, the extraordinary intensity of nis

periodic rages and his episodic lapses of iewory for behaviors (not necesscril

violent), couplec with his history of severe central nervous systen trauma,

uggest an organic impairment underlying his b

Furthermore, the fact that many of his violent episodes are triggered

by alcohol suggests a pathological reaction to that substance, in which fr,

ge's paranoia is exacerbated and his rage reactions cannot oe controlled.

This phenomenon, called “episodic dysco ntrol," nas been well docuentce to

exist, and is often associated with abnormal electrical activity in tre

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ELLEDGE :

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.