Harvey v. State, 69101

• Decision Date: 16 June 1988
• Docket Number: No. 69101,69101
• Citation: 13 Fla. L. Weekly 398,529 So.2d 1083
• Parties: 13 Fla. L. Weekly 398 Harold Lee HARVEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1083

529 So.2d 1083

13 Fla. L. Weekly 398

Harold Lee HARVEY, Appellant, v. STATE of Florida, Appellee.

No. 69101.

Supreme Court of Florida.

June 16, 1988.

Rehearing Denied Sept. 16, 1988.

Robert G. Udell of Robert G. Udell, P.A., Stuart, for appellant.

Robert A. Butterworth, Atty. Gen. and Lee Rosenthal, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Harold Lee Harvey appeals his two convictions for first-degree murder and sentences of death. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution, and affirm both the convictions and sentences.

On February 23, 1985, Harold Lee Harvey met with Scott Stiteler, his codefendant at trial, and drove to the home of William and Ruby Boyd, intending to rob them. Upon their arrival, Stiteler knocked on the front door. In the meantime, Harvey grabbed Mrs. Boyd as she was walking around from the side of the house and took her into the house where Mr. Boyd was located. Harvey had a pistol and Stiteler was holding Harvey's AR-15 rifle which had recently been converted into an automatic weapon. Harvey and Stiteler told the Boyds they needed money. Mr. Boyd then went into the bedroom and got his wallet. Sometime during the course of the robbery, Harvey and Stiteler exchanged guns so that Harvey now had possession of the automatic weapon. After getting the money from the Boyds, Harvey and Stiteler discussed what they were going to do with the victims and decided they would have to kill them. Sensing their impending danger, the Boyds tried to run, but Harvey fired his gun, striking them both. Mr. Boyd apparently died instantly. Harvey left the Boyds' home but reentered to retrieve the gun shells. Upon hearing Mrs. Boyd moaning in pain, he shot her in the head at point blank range. Harvey and Stiteler then left and threw their weapons away along the roadway.

On February 27, 1985, Harvey was stopped for a driving infraction in Okeechobee County and subsequently placed under arrest for the Boyds' murders. ¹ He was read his Miranda rights at that time. He was then transported to the Okeechobee County Sheriff's Department and again read the Miranda warning. Harvey was questioned and interrogated, and after speaking with his wife, gave a statement in which he admitted his involvement in the Boyds' murders.

On May 11, 1986, Harvey escaped from the Okeechobee County Jail. He was located sleeping in a truck the following day by a North Miami Beach police officer. When the officer woke him up, Harvey pointed a gun in the officer's face. After the officer fired his gun, Harvey jumped in the police car and fled the scene. After a car chase through the city, Harvey was finally subdued.

Harvey raises eleven issues on this appeal, five of which merit discussion. ² The first issue concerns whether Harvey's incriminating statements to the police should have been suppressed because he was not told that a public defender, who had heard that Harvey had been arrested for the Boyds' murders, was at the jail to talk with him. ³ Before giving his statement to law enforcement officials, Harvey had signed five forms waiving his right to counsel under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The public defender arrived at the jail between approximately 2:00 and 2:25 P.M. and requested to speak with Harvey but was not allowed to do so. While at the jail, the public defender spoke with other clients, including Harvey's codefendant, Scott Stiteler. The tape of Harvey's confession began at 2:22 P.M. and the public defender was first allowed to speak with Harvey at 6:00 P.M., after Harvey had given his statement but prior to his first appearance before the local judge.

Harvey argues that this Court's recent opinion in Haliburton v. State, 514 So.2d 1088 (Fla.1987), requires that his statements be suppressed. In that case, an attorney, contacted by Haliburton's sister on his behalf but without his knowledge, called the police near the end of Haliburton's polygraphic examination and requested that the questioning stop. The attorney subsequently arrived at the police station and asked to speak with Haliburton but was not allowed to do so. The attorney later obtained a telephone court order requiring the police to give him access to Haliburton, but they still refused. After the judge's second phone call, the police chief ordered that the interrogation cease, and the attorney was then able to see Haliburton. Haliburton successfully argued to this Court that the police conduct in his case was sufficiently egregious so as to violate his right to due process under article I, section 9 of the Florida Constitution. While we held that Haliburton's statement should have been suppressed, the facts of the instant case are much different and do not require suppression of Harvey's statement.

In Haliburton, the defendant's sister had called a specific attorney and asked him to represent her brother. The police refused to permit the attorney to see Haliburton even after a judge had ordered them to do so. Here, neither Harvey nor anyone from his family requested that an attorney come to the police station to talk with him. Rather, the public defender took it upon himself, after hearing of Harvey's arrest, to go to the station to see if Harvey needed a lawyer. Since the public defender was not Harvey's lawyer, the police had no duty to let the public defender talk to Harvey while he was making his statement to the police. Additionally, Harvey acknowledged his right to counsel prior to making his statement, and after being advised of these rights, he indicated that he would continue making his statement in the absence of counsel.

Harvey next argues that a potential juror was excused for cause from the panel while Harvey was not present and that he did not waive his right to be present at this crucial stage of his trial. During voir dire, it became apparent to the judge that one of the jurors was giving nonresponsive answers to the questions of counsel. The judge asked for the juror's father and both counsel to go into chambers to discuss the matter. After swearing in the father and questioning him, it was determined that the juror was unable to serve due to a mental infirmity. The state then moved to have the juror excused for cause, and Harvey's counsel stated that he did not oppose the motion. After excusing the juror for cause, the judge acknowledged that Harvey was not present but made the observation that he would have excused the prospective juror on his own motion had neither party made a motion.

Harvey relies on Francis v. State, 413 So.2d 1175 (Fla.1982), in which a conviction was reversed because of the defendant's absence during jury selection. However, in Francis the emphasis was on the prejudice suffered by a defendant when he is deprived of his right to consult with counsel during the exercise of peremptory challenges. The court remarked:

The exercise of peremptory challenges has been held to be essential to the fairness of a trial by jury and has been described as one of the most important rights secured to a defendant. It is an arbitrary and capricious right which must be exercised freely to accomplish its purpose. It permits rejection for real or imagined partiality and is often exercised on the basis of sudden impressions and unaccountable prejudices based only on the bare looks and gestures of another or upon a juror's habits and associations.

Francis v. State, 413 So.2d at 1178-79 (citations omitted).

Here the challenge was for cause which involved a legal issue toward which Harvey would have had no basis for input. While the dictates of Florida Rule of Criminal Procedure 3.180(a)(4) were violated, Harvey's absence during this period of time amounted to no more than harmless error because Harvey obviously suffered no prejudice as a result. See Garcia v. State, 492 So.2d 360 (Fla.), cert. denied, 479 U.S. 1022, 107 S.Ct. 680, 93 L.Ed.2d 730 (1986).

Harvey's next point concerns the admission of evidence of his escape from jail a month before trial and the giving of a jury instruction on flight. The general rule on the admissibility of evidence of an escape as it relates to guilt is set forth in 2 S. Gard, Jones on Evidence § 13:47 (6th ed. 1987):

Whether escape by an accused in the face of accusation of crime is considered as an admission of guilt from conduct or merely as a circumstance from which a presumption or inference of guilt may be drawn, evidence of that fact is quite uniformly held to be admissible as relevant evidence of guilt of the crime charged.

This Court recognized the principle in Mackiewicz v. State, 114 So.2d 684 (Fla.1959), cert. denied, 362 U.S. 965, 80 S.Ct. 883, 4 L.Ed.2d 879 (1960), when it said:

It is conceded by counsel for the appellant that the State was entitled to show that the appellant escaped from the Dade County jail, and rightly so, since it is well settled that evidence that a suspected person in any manner endeavors to escape or evade a threatened prosecution, by flight, concealment, resistance to lawful arrest, or other ex post facto indications of a desire to evade prosecution, is admissible against the accused, the relevance of such evidence being based on the consciousness of guilt inferred from such actions.

Id. at 689. Accord Washington v. State, 432 So.2d 44 (Fla.1983). The state was therefore entitled to show that Harvey escaped from the Okeechobee County jail shortly before the commencement of his trial for first-degree murder. Since the evidence was properly admitted, the court did not abuse its discretion in giving a jury instruction on the subject.

Harvey also asserts that the court erred in refusing to grant his motion in limine to prohibit the state from suggesting to the jury that he would become eligible...