Harich v. Wainwright

• Decision Date: 18 March 1987
• Docket Number: No. 86-3167,86-3167
• Parties: Roy Allen HARICH, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary Florida Department of Corrections, Respondent- Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1082

813 F.2d 1082

Roy Allen HARICH, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary Florida Department of

Corrections, Respondent- Appellee.

No. 86-3167.

United States Court of Appeals, Eleventh Circuit.

March 18, 1987.

Jonathan F. Horn, Kaye, Scholer, Fierman, Hays & Handler, New York City, David A. Reiser, Tallahassee, Fla., 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.

Before FAY, JOHNSON and CLARK, Circuit Judges.

CLARK, Circuit Judge:

Roy Allen Harich appeals from a final judgment of the district court denying his petition for a writ of habeas corpus. We affirm in part, reverse in part, and remand for an evidentiary hearing.

Harich was charged under Florida law with first degree murder, attempted first degree murder, use of a firearm in the commission of a felony, and two counts of kidnapping. In a bifurcated trial, the jury first found defendant guilty of all charges, and then voted nine-three to advise the trial court to impose the death penalty on the murder charge. The trial court imposed the death penalty for the murder, and sentenced Harich to thirty years for attempted murder, fifteen years for using a firearm, and thirty years for each of the two kidnappings.

On direct appeal, Harich alleged, inter alia, that (1) the prosecutor engaged in improper closing arguments during the guilt/innocence and sentencing phases; (2) the trial court improperly allowed previously suppressed evidence to be admitted during the sentencing phase; (3) the trial court erred in its application of the statutory aggravating circumstances; (4) the trial court did not instruct the jury that a tie vote during the sentencing phase would be a recommendation for life imprisonment; and (5) the Florida capital sentencing statute is unconstitutional. The Florida Supreme Court, one judge dissenting, affirmed petitioner's conviction and sentence. 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). After an execution date was set, Harich petitioned the Florida Supreme Court for a writ of habeas corpus. In his petition for habeas corpus, Harich alleged that (1) appellate counsel was ineffective; (2) he was sentenced by a "death qualified" jury; and (3) the prosecutor's closing argument was intended to mislead the jury. His arguments were unanimously rejected without an evidentiary hearing. Harich v. Wainwright, 484 So.2d 1237 (Fla.1986). Next, on March 17, 1986, petitioner filed a motion to vacate judgment and sentence in the Circuit Court for Volusia County, Florida pursuant to Fla.R.Crim.P. 3.850 and sought an evidentiary hearing. Harich's only cognizable claims at this stage were two assertions of ineffective assistance of trial counsel: (1) that trial counsel did not prepare an involuntary intoxication defense; and (2) that trial counsel did not call available witnesses during the sentencing phase. On March 18, 1986, the trial court denied the motion and the request for a hearing, and the Florida Supreme Court, two judges dissenting, affirmed. Harich v. State, 484 So.2d 1239 (Fla.), cert. denied, --- U.S. ----, 106 S.Ct. 2908, 90 L.Ed.2d 993 (1986).

On March 18, 1986, Harich filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Florida. ¹ The district court dismissed the petition that same day, 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 took an immediate appeal and this court granted his request for a certificate of probable cause, and entered an order staying his execution pending this appeal.

FACTS

Roy Harich came home from work at 4:00 p.m. on June 26, 1981. He testified that from that time until 9:00 p.m. that evening he consumed approximately 15 cans of beer and six marijuana cigarettes, and was "mildly drunk." Trial Transcript, Vol. II, at 502-08. He was on his way home from a friend's house when 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 to the pier where they were to meet another friend. While they were in Harich's van, the three smoked a small amount of marijuana.

As they were riding, Harich suggested that they go to the woods where he was growing marijuana plants so that the party could continue. On the way, they stopped at a convenience store where they purchased a six-pack of beer. When they finally arrived at petitioner's marijuana patch, they discovered that the leaves were too damp to be smoked, so they placed the leaves under the hood of the van to dry. After about an hour of waiting, petitioner began to discuss the sexual problems he had been having with his wife. At this point, Deborah asked if they could leave. They got into the van and departed.

Petitioner drove only a few yards before he stopped the van, pointed a gun at the girls, and ordered them to undress. Petitioner forced Carlene to have sex with him, then became disgusted and told the girls to get dressed. He offered to give them a ride back, promising not to hurt them, and the girls accepted.

Petitioner drove them about a quarter of a mile, but stopped when Carlene asked if she could use the bathroom. He told the two girls that they should get out and walk the rest of the way to the highway but that they should lie down behind the van while he drove away. As they were walking toward the back of the van, Deborah told Carlene to try and see the license plate number. The two then laid down on their stomachs behind the van. But as Deborah looked up at the license plate, Harich was upon them. He was holding a gun, which was wrapped in a towel to muffle the sound of a shot. Carlene begged for their lives, but petitioner shot her in the back of the head. He then shot Deborah in the back of the head. The two were still alive, however, and were crying when the petitioner came back out of the van with a knife. He lifted Deborah's head and cut away at her throat. He then cut Carlene's throat, severing her spinal cord, and causing instantaneous death. Harich then drove away.

Miraculously, Deborah did not lose consciousness. After checking Carlene, she walked and crawled toward the main road, stopping periodically to rest at the side of the road. ² Finally, she made it to the highway and flagged down a passing motorist who got her to a hospital. ³ At the hospital, Deborah told the police that her attacker's name was Roy, and she described the man and his van. Trial Transcript, Vol. I, at 228. She was the state's key witness at trial, and was able to make an in-court identification of the petitioner.

Harich was the only witness for the defense. He claimed that, due to the amount of alcohol and drugs he consumed the night of the murder, he was unable to recall the events in detail until December, 1981. Harich testified that he read about the murder in the newspaper and heard that the police were looking for a man with a van which closely resembled Harich's van. Fearing that he might be a suspect, he contacted a local defense lawyer. According to Harich, they agreed he 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 when his memory finally became clear he remembered driving Carlene and Deborah into the woods to look for marijuana. He denied, however, sexually assaulting Carlene and denied killing Carlene and attempting to kill Deborah. Instead, he claimed he drove the girls out of the woods, dropped them off at a nearby convenience store at approximately 11:00 p.m., and got home at 11:10 p.m. The incident was reported to the police at 11:59 p.m.

Harich raises several arguments in support of his petition for a writ of habeas corpus:

(1) That his trial counsel's ineffectiveness and the prosecutor's closing arguments during the guilt/innocence phase combined to deprive him of a voluntary intoxication defense. At the very least, Harich argues, he is entitled to an evidentiary hearing on the issue of ineffectiveness.

(2) That he is entitled to an evidentiary hearing to show that trial counsel was ineffective because counsel failed to adequately investigate and present mitigating evidence during the sentencing phase.

(3) That several of the prosecutor's remarks during his closing argument rendered both phases of the trial fundamentally unfair.

(4) That Harich's statements to police, which were suppressed during the guilt/innocence phase were improperly admitted during the sentencing phase.

(5) That the prosecutor and the trial court misled the jurors as to their role in the sentencing procedure, in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).

(6) That the statutory aggravating circumstances, as applied in this case, are unconstitutional.

(7) That the trial court erroneously instructed the jurors that a majority of them had to agree in order to make a sentencing recommendation.

I. THE INTOXICATION DEFENSE

Harich maintained his innocence throughout the guilt/innocence phase of the trial. He also testified that he drank fifteen cans of beer and smoked seven marijuana cigarettes during the five hours preceding his meeting with Carlene and Deborah. Harich's counsel used this information for several purposes during the guilt/innocence phase. First, he asked Harich whether, given his condition, he was sexually attracted to either Carlene or Deborah. Harich responded that he was not. Trial Transcript, Vol. II, at 508. Second, he asked Harich whether his intoxication caused his initial inability to recall the details of his night with Carlene and Deborah. Harich responded that he told the...