Harich v. State, 62366

• Decision Date: 25 August 1983
• Docket Number: No. 62366,62366
• Citation: 437 So.2d 1082
• Parties: Roy Allen HARICH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1082

437 So.2d 1082

Roy Allen HARICH, Appellant, v. STATE of Florida, Appellee.

No. 62366.

Supreme Court of Florida.

Aug. 25, 1983.

Rehearing Denied Oct. 12, 1983.

James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for appellant.

Jim Smith, Atty. Gen. and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

The appellant, Roy Allen Harich, was convicted of first-degree murder, attempted first-degree murder, use of a firearm in the commission of a felony, and two counts of kidnapping. The trial judge imposed the death sentence in accordance with the jury's advisory sentence recommendation for the first-degree murder conviction. The trial judge also sentenced appellant to a term of thirty years for attempted first-degree murder, fifteen years for the use of a firearm in the commission of a felony, and thirty years for each of the two kidnapping charges. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. We affirm the convictions, the imposition of the death sentence, and the sentences for the other offenses.

This cause concerns the brutal murder of one teenage girl, Carlene Kelley, and the attempted murder of a second teenage girl, Deborah Miller. Deborah, the surviving victim, testified at trial and stated that she and Carlene met the 22-year-old appellant at a filling station in Daytona Beach. The girls were in the process of walking to the pier when they stopped at the filling station, and they accepted appellant's offer of a ride to their destination. Rather than going to the beach, however, Deborah stated that the group drove around town in appellant's van and smoked a pipe of marijuana belonging to the girls. They later decided to go to the woods where appellant was growing several marijuana plants to obtain some more marijuana. On the way, they stopped at a convenience store and purchased a six-pack of beer. When they arrived at appellant's marijuana patch, they found that the marijuana leaves were damp so they placed the leaves on the van's engine cover to dry. They waited and talked for about an hour while trying to dry the leaves. Deborah then asked if they could leave, and they got into the van and departed.

Deborah testified that appellant drove only a few yards down the deserted road before he stopped the van, held a gun on the girls, and ordered them to undress. He forced Carlene Kelley to perform fellatio on him. Deborah further testified that, though she did not actually see the act, she heard sounds which indicated that appellant also had sexual intercourse with Carlene. Appellant then told the girls to get dressed, which they did. As they started to walk away, appellant said that it was a long walk through the woods and that he would give them a ride, promising not to do anything more to them. The girls acquiesced and got back into the van.

Appellant drove them about a quarter of a mile before Carlene said she needed to use the bathroom. Appellant stopped the van and told Deborah and Carlene that they could walk the short distance to the road, but they should lie down behind the van while he drove away. They complied with this direction and lay down on their stomachs. Deborah stated that Carlene began to cry and beg appellant not to shoot her. Deborah looked up and saw that appellant had wrapped a towel around the barrel of his gun. Appellant told Carlene he would not shoot her if she was quiet, but immediately shot her in the back of the head. He also shot Deborah in the back of the head. Deborah further testified that Carlene was still alive after the shooting and that both she and Carlene were crying softly when she saw the appellant return carrying a knife. Deborah described how he stood behind her, lifted her head by her chin, and began cutting her neck with the knife; she tried to protect herself with her hands. Appellant left Deborah and cut Carlene's throat, severing her spinal cord and causing instantaneous death.

Deborah did not lose consciousness, and after concluding that Carlene was dead, she crawled and dragged herself out of the woods onto the side of the highway where she was found by a passing motorist. Medical testimony reflected that Deborah had a bullet wound in the back of her head and a severe laceration that extended across her neck, all the way through the neck in the posterior area, almost to the backbone, and all the way through the musculature in the anterior of the neck, down to the midline where the windpipe was severed. The emergency room doctor observed that, when Deborah arrived at the hospital, she was literally holding her head on with her hands. He testified that, in his opinion, it was almost unbelievable that Deborah could sustain this severe an injury and survive. At the hospital, Deborah was able to tell the police that her attacker was named Roy, and she provided a physical description of both the man and his van. She was the primary witness for the state and was able to identify appellant at trial.

Appellant testified in his own behalf, stating that he had consumed a substantial amount of beer and smoked marijuana that evening. He admitted picking up the girls at the filling station and driving them to a deserted area in the woods to pick marijuana. He testified that they waited in the woods for more than an hour while trying to dry the marijuana leaves, and that, when Deborah Miller asked if they could leave, they got into the van and departed. Appellant denied the sexual battery of Carlene Kelley, her murder, and the attempted murder of Deborah Miller. He stated that he drove the girls out of the woods and dropped them off at a nearby convenience store so they could call a friend for a ride home.

The jury found appellant guilty of the first-degree murder of Carlene Kelley; the attempted first-degree murder of Deborah Miller; the use of a firearm in the commission of a felony; and two counts of kidnapping.

In the penalty phase, appellant presented a clinical psychologist who testified that, though appellant was competent at the time of the offense, he was operating at that time under the influence of extreme mental or emotional disturbance because of his consumption of substantial amounts of drugs and alcohol. Appellant called character witnesses who testified that appellant worked very effectively as a volunteer fireman and that he had been a model prisoner while confined in jail before his trial.

The state presented as evidence in the penalty phase the testimony of two law enforcement officers, Sergeants Vail and Burnsed, concerning statements appellant had made during interrogation; these statements had been suppressed during the guilt phase of the trial. The trial judge decided to admit these statements into evidence under the more liberal evidentiary standard of the penalty phase established in section 921.141(1), Florida Statutes (1981). At the conclusion of the penalty phase, the jury voted nine-to-three to recommend imposition of the death penalty.

The trial judge agreed with the jury and imposed the death penalty, finding as aggravating circumstances (1) that appellant murdered Carlene Kelley while he was committing or attempting to commit the crimes of sexual battery and kidnapping; (2) that he killed Carlene Kelley for the purpose of avoiding and preventing his lawful arrest; (3) that the killing of Carlene Kelley was especially heinous, atrocious, and cruel; and (4) that the capital felony was committed in a cold, calculated, and premeditated manner, without any pretense of moral or legal justification. The trial court found one mitigating circumstance,...