Harich v. Wainwright, 68455
Decision Date | 17 March 1986 |
Docket Number | No. 68455,68455 |
Citation | 484 So.2d 1237,11 Fla. L. Weekly 111 |
Parties | 11 Fla. L. Weekly 111 Roy A. HARICH, Petitioner, v. Louie L. WAINWRIGHT, et al., Respondents. |
Court | Florida Supreme Court |
Larry Helm Spalding, Capital Collateral Representative, Tallahassee and Jonathan F. Horn of Kaye, Scholer, Fierman, Hays and Handler, New York City, for petitioner.
Jim Smith, Atty. Gen. and Sean Daly, Asst. Atty. Gen., Daytona Beach, for respondents.
Roy A. Harich, who is presently under sentence of death, petitions this Court for writ of habeas corpus and seeks a stay of execution. We have jurisdiction. Art. V, § 3(b)(1) and (9), Fla. Const. For the reasons expressed, we deny both the petition and the application for a stay.
In 1982, Harich was convicted of and sentenced to death for the first-degree murder of a teen-age girl. In addition, he was convicted of the attempted murder of another teen-age girl, the use of a firearm in the commission of a felony, and two counts of kidnapping. The surviving victim, who was the state's primary witness at the trial, testified that, after Harich sexually assaulted the murder victim, he forced both girls to lie down behind his van, shot each girl in the back of the head, walked to his van, returned to where the girls were lying, and cut their throats. The facts are contained in greater detail in Harich v. State, 437 So.2d 1082 (Fla.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1329, 79 L.Ed.2d 724 (1984), in which we affirmed Harich's convictions and sentences.
Harich raises three points in this habeas corpus petition. First, he contends that relief should be granted because the constitutionality of "death-qualified" juries is presently being considered by the United States Supreme Court in Lockhart v. McCree, No. 84-1865 (U.S. argued Jan. 13, 1985). The narrow issue presented in that case is whether the state may constitutionally exclude for cause from the guilt phase of the trial jurors who can fairly determine guilt or innocence in a capital case, but who cannot impose a sentence of death in a subsequent penalty proceeding. We previously addressed and rejected Harich's argument in James v. Wainwright, 484 So.2d 1235 (Fla.1986); Adams v. Wainwright, 484 So.2d 1211 (Fla.1986); and Kennedy v. Wainwright, 483 So.2d 424 (Fla.1986). Moreover, Harich concedes in this petition that at his trial "no veniremen were excluded" during voir dire, either for cause or through peremptory challenge. Harich presents nothing new in this petition, and we decline to revisit this issue.
In his second point, Harich asserts that his appellate counsel was ineffective for failing to raise the following three matters concerning an intoxication defense: (a) that the trial court erred in not instructing the jury on the affirmative defense of voluntary intoxication; (b) that trial counsel failed to request a jury instruction on voluntary intoxication; and (c) that the state attorney incorrectly advised the jury in final argument that voluntary intoxication could never be a defense to premeditated murder. In summary, petitioner asserts that fundamental error occurred because the jury was not instructed on the affirmative defense of voluntary intoxication and appellate counsel did not raise it on appeal.
The facts relevant to this issue reflect that Harich testified that he had been drinking beer and smoking marijuana all evening. He remembered picking up the girls, taking them into the woods to find more marijuana, and then bringing them back to the convenience store, where he left them. He denied committing the sexual assault on the murder victim, the murder, or the attempted murder. Two detectives testified that Harich had told them that he had been smoking marijuana and drinking beer all evening; however, the surviving victim testified that Harich did not appear to be intoxicated. Defense counsel argued in closing that, if the jury believed Harich committed the charged offenses, the jurors should contemplate whether an intoxicated person is capable of premeditation, but counsel did not request the trial judge to instruct the jury on the affirmative defense of intoxication.
We recently addressed the issue of voluntary intoxication in Linehan v. State, 476 So.2d 1262 (Fla.1985), in which we held that
voluntary intoxication is an affirmative defense and that the defendant must come forward with evidence of intoxication at the time of the offense sufficient to establish that he was unable to form the intent necessary to commit the...
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Harich v. Wainwright
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Harich v. State
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