844 F.2d 1464 (11th Cir. 1988), 86-3167, Harich v. Dugger

Docket Nº:86-3167.
Citation:844 F.2d 1464
Party Name:Roy Allen HARICH, Petitioner-Appellant, v. Richard DUGGER, Secretary, Florida Department of Corrections, Respondent- Appellee.
Case Date:April 21, 1988
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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844 F.2d 1464 (11th Cir. 1988)

Roy Allen HARICH, Petitioner-Appellant,


Richard DUGGER, Secretary, Florida Department of

Corrections, Respondent- Appellee.

No. 86-3167.

United States Court of Appeals, Eleventh Circuit

April 21, 1988

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Jonathan F. Horn, CBS, Inc., New York City, Michael A. Mello, Vermont School of Law, South Royalton, Vt., for petitioner-appellant.

Margene A. Roper, Asst. Atty. Gen., Daytona Beach, Fla., for respondent-appellee.

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


FAY, Circuit Judge:

Roy Allen Harich appeals from a final judgment of the district court denying his petition for a writ of habeas corpus. Harich alleges (1) that he is entitled to an evidentiary hearing to show that trial counsel was ineffective because counsel failed to adequately investigate and present a voluntary intoxication defense, and (2) that the prosecutor and the trial court misled the jurors as to their role in the sentencing procedure in violation of Caldwell v. Mississippi,

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72 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). We affirm.


The panel opinion thoroughly explains the facts and procedural background of this case. Harich v. Wainwright, 813 F.2d 1082, 1084-87 (11th Cir.1987). To aid in understanding this case, we briefly recount its background.

Roy Harich testified that on June 26, 1981 between 4:00 p.m. and 9:00 p.m. he consumed about fifteen cans of beer and six marijuana cigarettes and became "mildly drunk." Trial Transcript, Vol. II, at 502-08. On his way home from a friend's house he met Carlene Kelley and Deborah Miller at a gas station in Daytona Beach. The two girls did not know Harich, but after some discussion they accepted a ride with him. While in Harich's van, the three smoked a small amount of marijuana.

They stopped at a convenience store to purchase a six-pack of beer. Harich then drove the girls to the woods where he had a marijuana patch. The marijuana leaves were too damp to smoke, so they placed the leaves under the hood of the van to dry. After waiting for about an hour, petitioner began to discuss the sexual problems he had been having with his wife. At this point, Miller asked if they could leave. They got into the van, but petitioner drove only a few yards before stopping. Using a gun, petitioner forced Carlene Kelley to have sex with him. He then offered to give them a ride back, promising not to hurt them. The girls accepted.

After a short drive, petitioner told the two girls that they would have to get out and walk the rest of the way. He instructed them to lie down behind the van while he drove away. The two then laid down on their stomachs behind the van. Harich wrapped his gun in a towel and shot both Kelley and Miller in the back of the head. Petitioner then used a knife to cut both their throats. Kelley died instantly, but Miller survived. Harich drove away.

Miraculously, Miller remained conscious and made her way to the highway. A passing motorist picked her up and drove her to a hospital. At the hospital, Miller described her assailant and his van. She told the police that her attacker's name was Roy. Trial Transcript, Vol. I, at 228. At trial, she made an in-court identification of the petitioner.

Harich was the only witness for the defense. He claimed that the alcohol and drugs he consumed the night of the murder caused him to forget the events in detail until December, 1981. Harich testified that when his memory became clear he remembered driving Kelley and Miller into the woods to look for marijuana. However, he denied sexually assaulting, attempting to kill, or killing anyone. He claimed that he left the girls, unharmed, at a nearby convenience store at approximately 11:00 p.m., and arrived home at 11:10 p.m. This was about fifty minutes before the police learned of the incident.

The State of Florida charged Harich with first degree murder, use of a firearm in the commission of a felony, and two counts of kidnapping. The jury found defendant guilty of all charges, and then advised the trial court to impose the death penalty. The trial court sentenced Harich to death for the murder.

After exhausting all available remedies in the state courts, 1 Harich filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Florida. The district court dismissed the petition and denied petitioner's request for an evidentiary hearing. The district court also denied petitioner's request for a certificate of probable cause to appeal. Harich immediately appealed. This Court granted his request for a certificate of probable cause and entered an order staying his execution pending this appeal.


Having made a thorough examination of this case, we adopt sections IB,

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II, III, IV, VI, and VII of Judge Clark's panel opinion. See Harich v. Wainwright, 813 F.2d 1082 (11th Cir.1987). 2 This opinion discusses ineffectiveness of counsel and the Caldwell issue.

  1. Ineffectiveness of Counsel

    Petitioner requests an evidentiary hearing to show that trial counsel was ineffective because he was unaware that under Florida law voluntary intoxication is a defense to premeditated murder. Harich claims that as a result of this alleged ignorance, counsel: (1) failed to seek a jury instruction on voluntary intoxication; 3 (2) failed to object when the prosecutor misstated the Florida law regarding intoxication; and (3) failed to seek an expert opinion on the impact of Harich's intoxication on his ability to premeditate. Neither the state courts nor the district court held an evidentiary hearing in this case. Petitioner is entitled to an evidentiary hearing if his allegations, taken as true, might merit relief. Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963); Code v. Montgomery, 725 F.2d 1316, 1321-22 (11th Cir.1984).

    The sixth amendment right to an attorney requires "reasonably effective assistance" of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Strickland v. Washington sets forth the standard for evaluating ineffective assistance of counsel claims. First, the defendant must show that "in light of all the circumstances, the identified acts or omissions were outside the range of professionally competent assistance." 466 U.S. at 690, 104 S.Ct. at 2066. In practice this means that courts will not find that an attorney is incompetent for using a particular approach to a case so long as that approach was reasonable. There is a strong presumption that counsel provided effective assistance. Id. at 689-90, 104 S.Ct. at 2065-66. Second, "[t]he defendant must show that there is a reasonable probability that, but for counsel's

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    unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. "[T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged." Id. at 696, 104 S.Ct. at 2069.

    1. The Range of Professionally Competent Assistance.

      The district court, without holding an evidentiary hearing, found that counsel made a tactical decision not to pursue the intoxication defense. 4 See Record, Tab 12, at 3. According to the record before us, however, no court has heard testimony from trial counsel regarding his decisions in pursuing Harich's defense. Without a hearing, it is impossible to determine whether counsel's failure to argue the intoxication defense was an actual trial tactic. To determine whether counsel was ineffective, we must first consider whether competent counsel could have reasonably decided not to pursue the voluntary intoxication defense.

      Throughout the guilt/innocence phase of the trial, Harich maintained that he was innocent. He testified that due to the quantity of alcohol and drugs he consumed the night of the murder, he was unable to recall the events in detail. After reading the morning newspaper, he feared that he might be a suspect. Harich then contacted a local defense attorney and the two of them agreed that Harich would go to the police to explain his innocent role in the incident. The police, however, arrested Harich before he contacted them. Harich testified that his memory returned five months later. At that point he admitted driving the victims to the woods to look for marijuana and then dropping them off at a convenience store, unharmed.

      Defense counsel faced a difficult dilemma. Harich admitted that he was with the victims that evening, yet insisted that he was innocent of any wrongdoing. He also indicated that he was under the influence of the drugs and alcohol that evening. Armed with these tough facts, defense counsel adopted the primary defensive strategy of asserting factual innocence.

      Petitioner suggests that defense counsel should have employed alternative defenses. We believe that it was reasonable not to pursue alternative defenses beyond the length taken by counsel. 5 Harich testified that he was only "mildly drunk" and did not commit these crimes.

      To suggest to the jury that Harich was so drunk that he could not have "intended" the consequences of these acts proved by strong evidence would have been totally contrary to and undermining of the position being taken by Harich himself. Although inconsistent and alternative defenses may be raised, competent trial counsel know that reasonableness is absolutely mandatory if one hopes to achieve credibility with the jury.

      By handling the...

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