Petition for Writ of Certiorari — Daniel G. Durain, Petitioner v. Florida

Supreme Court briefJun 6, 2019

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

DANIEL G. DURAIN,

)

Appellant

STATE OF FLORIDA,

Appellee.

)

Case No. 2D18-1654

Opinion filed March 6, 2019.

Appeal pursuant to Fla. R. App. P.

9.141(b)(2) from the Circuit Court for Lee

County; John E. Duryea, Jr., Judge.

Daniel G. Durain, pro se.

PER CURIAM.

Affirmed.

LaROSE, C.J., and SILBERMAN and ATKINSON, JJ., Concur.

A^e-rwc\\ x

IN THE CIRCUIT COURT

OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR

CIVIL DIVISION

LEE COUNTY, FLORIDA

DANIEL DURIAN,

Petitioner,

Case No. 18-CA-1104

vs.

STATE OF FLORIDA,

Respondent.

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

THIS CAUSE comes before the Court on Petitioner’s “Petition for Writ of Habeas

Corpus,” filed March 19, 2018. Petitioner is an inmate with the Florida Department of Corrections

who was convicted of first degree murder in 1997. The conviction was affirmed by the Second

District Court of Appeal in 1999.

In his petition, Petitioner argues that he is being detained illegally due to alleged trial court

error. Specifically, he argues that because the trial judge found that he did not commit murder for

- /

pecuniary gain during his sentencing hearing, then the charge of first-degree murder had not been

proven beyond a reasonable doubt at trial.

■

;

First, an alleged error of this type is an issue for direct appeal. It is well-settled that a

petition for writ of habeas corpus cannot be used to obtain relief which has, or which should have

been, sought on direct appeal of the judgment and sentence. See Grim v. State, 971 So.2d 85, 103

(Fla. 2007) (habeas claim regarding constitutionality of standard jury instructions was procedurally

^^^ysJsarred because it was an issue for direct appeal); Teffe'teller v. Dugger, 734 So.2d 1009 (Fla. 1999);

'chandler v. Dugger, 634 So.2d 1066 (Fla. 1994); Hargrave v. Wainwright, 388 So. 2d 1021 (Fla.

1980) (it is well settled that habeas corpus may not be used as a vehicle to raise for the first time

issues that the petitioner could have raised during the formal trial and on appeal); Heilmann v.

State, 832 So. 2d 834 (Fla. 5th DCA 2002) (petitioner raised issues which were or could have been

raised in the direct appeal of his conviction, and therefore they could not be raised in a habeas

corpus petition); Scott v. State, 820 So. 2d 321 (Fla. 5th DCA 2001) (habeas corpus is not a vehicle

met'

for additional appeals of issues that were raised or should have been raised on direct appeal);

Gaiter v. State, 737 So.2d 565 (Fla. 3rd DCA 1999). Complaints seeking habeas corpus relief

raising appellate issues should be dismissed, even in cases where no appeal was actually filed.

Powell v. Fla. Dept, of Corrections, 741 So.2d 1201 (Fla. 1st DCA 1999).

Second, while the Court appreciates Petitioner’s frank acknowledgement that his claim is

not reviewable in a petition for habeas corpus except on the basis of fundamental error, it is clear

that no error was committed on the premise he sets forth in this petition. Motive is not an element

of first-degree murder and does not have to be proven at trial. Moreover, motive is not the

equivalent of premeditation. The sentencing judge’s decision to override the jury’s

recommendation of death does not negate the jury’s factual findings at trial regarding Petitioner’s

guilt. The argument set forth in the petition is simply meritless and'does not constitute fundamental

error, or any error at all.

Finally, the Court takes judicial notice of the record in Lee County criminal case number

96-CF-2222 and notes that Petitioner has filed five unsuccessful postconviction motions under Fla.

R. Crim. P. 3.850 since his case became final. He raised the same claim as this petition in at least

two of those postconviction motions. The claim was denied by the postconviction court and the

Second District Court of Appeal has affirmed the postconviction court’s denials.

The Court further observes that Petitioner has been warned of the imminency of sanctions

by the pdstconviction court due to his successive meritless filings. The Court shall dismiss his

petition for writ of habeas instead of transferring it to the criminal case, which would likely result

1 .

. t

in the imposition of sanctions against Petitioner. Instead, Petitioner is advised that this is hi's final

warning not to file successive claims and that the next successive filing will result in sanctions.

It is, therefore

ORDERED AND ADJUDGED that the petition for writ of habeas corpus is

DISMISSED.

ST\

DONE AND ORDERED in Chambers at Fort Myers, Lee County, Florida, this

,2018.

day of

-----

^Nlqhn E^Duryea, Jr.

Circhkjuqge

Certificate of Service

I HEREBY CERTIFY that a true and correct copy of the foregoing order has been

furnished to Daniel Durian, DC#Y02358, Liberty Correctional Institution, 11064 NW Dempsey

Barron Rd., Bristol, FL 32321; Office of the State Attorney, P.O. Box 399, Ft. Myers, Florida

33902-0399; and Court Administration (XXIV), 1700 Monroe Street, Fort Myers, Florida

33901, this

, 2018.

lay of

’

By:

Judicial Assistant

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

SECOND DISTRICT, POST OFFICE BOX 327, LAKELAND, FL 33802-0327

April 01,2019

CASE NO.: 2D18-1654

L.T. No.: 18-CA-001104

*•

DANIEL G. DURAIN

Appellant / Petitioner(s),

STATE OF FLORIDA

Appellee / Respondent(s).

BY ORDER OF THE COURT:

Appellant's motion for rehearing is denied.

I HEREBY CERTIFY that the foregoing is a true copy of the original court order.

•;.

Served:

Linsey Sims - Bohnenstiehl, A.A.G.

Daniel G. Durain

Linda Doggett, Clerk

mep

Mary Elizabeth Kuenzel

Clerk

•

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•■vf.

>•

•:

In the Circuit Court, 20TH Judicial Circuit

in and for LEE County, Florida

C ] Probation Violator

[ ] Community Control Violator

C 3 Retrial

t 1 Resentence

( 1 Amended

Division FELONY

Case Number 96002222CF

State of Florida

4360191

DURAIN, DANIEL G

JUDGMENT

being personally before this court represented by

The defendant, DURAIN, DANIEL G

, the attorney of record, and the state represented by CHAPPELL, SHERI JEAN POLSTER , and having

PUBLIC DEFENDER,

CXI been tried and found guilty by jury/by luui l of the following crime(s)

t 3 entered a plea of guilty to the fallowing crime(s)

1 3 entered a plea of nolo contendere to the following crimels)

Offense Statute Degree Case Number

Count Crime

001

FIRST DEGREE -MURDER- Premeditated Murder

78204

96002222CF

OBTS Number

9127583

rv>

r'°

CX3 and no cause being shown why the defendant should not be adjudicated guilty, IT IS ORDERED THAT the defendant is hereby

ADJUDICATED GUILTY of the above crime(s).

[ 3 and pursuant to section 943.325, Florida Statutes, having been convicted of attempts or offenses relating to sexual battery

(ch 7941 or lewd and lascivious conduct (ch BOO) the defendant shall be required to submit blood specimens.

[ 3 and good cause being shown; IT IS ORDERED THAT ADJUDICATION OF GUILT BE WimELD.

■a

oSs

Append*

518

Page

-L«JL

iefendant DURAIN, DANIEL G

Case Number 96002222CF

SENTENCE

OBTS Number 9127583

(As to Count 001)

The defendant, being personally before this court, accompanied by the defendant's attorney of record, PUBLIC DEFENDER,

nd having been adjudicated guilty herein, and the court having given the defendant an opportunity to be heard and to offer matters

n mitigation of sentence, and to show cause why the defendant should not be sentenced as provided by law, and no cause being

■hown (Check one if applicable)

CXI and the Court having on 09/05/1997 deferred imposition of sentence until this date.

C 1 and the Court having previously entered a judgment in this case on

now resentences the defendant.

VjO

C 1 and the Court having placed the defendant on probation/community control and having subsequently revoked the defendant's

probation/community control.

'rp

t Is The Sentence Of The Court that:

[ 1 The defendant pay a fine of $

0.00, pursuant to section 775.083, Florida Statutes, plus I

surcharge required by section 960.25, Florida Statutes.

•'4TL.

0.00 as the 57.

IXl The defendant is hereby committed to the custody of the Department of Corrections.

■ O. -

t 1 The defendant is hereby committed to the custody of the Sheriff of LEE County, Florida.

-J

I 1 The defendant is sentenced as a youthful offender in accordance with section 9S3.04, Florida Statutes.

o Be Imprisoned (Check one; unmarked sections are inapplicable):

[XI For a term of natural life.

[ 1 For a term of

[ 1 Said SENTENCE SUSPENDED for a period of

subject to conditions set forth in this order.

[ 1 To await imposition of the death penalty.

■rf 'split' sentence, complete the appropriate paragraph.

[ 1 Followed by a period of

__________________________ on probation/community control under the supervision of the

according to the terms and conditions of supervision set forth in a separate order entered herein.

I 3 However, after serving a period of

imprisonment in the

.i the

balance of the sentence shall be suspended and the defendant shall be placed on probation/community control for a period of

______________________ _ under supervision of the Department of Corrections according to the terms and

conditions of probation/community control set forth in a'separate order entered herein.

In the event the defendant is ordered to serve additional split sentences, all incarceration portions shall be satisfied before

:he defendant begins service of the supervision terms.

lonsecutive/Concurrent As,To Other Counts

)

t 3 It is further ordered that the sentence imposed for this count shall run

(check one) [ 3 Consecutive to

[ 3 Concurrent with the sentence set forth in count

Page

519

of this case.

Defendant DURAIN, DANIEL G

Case Number 96002222CF

SPECIAL PROVISIONS

OBTS timber 9127583

(As to Count 001)

Ey appropriate notation, the following provisions apply to the sentence imposed:

flondator y/Ki ni muni Provi si onss

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30.

fir earn

I 1 It is further ordered that the 3-year minimum imprisonment provision of section 775.087(2)

Florida Statute, is hereby imposed for the sentence specified in this count.

Drug Trafficking

[ 1 It is further ordered that the

mandatory minimum imprisonment

provision of section 893.135(1), Florida Statute, is hereby imposed for the sentence specified

in this count.

Controlled Substance

Within 1,000 Feet of

School

I 1 It is further ordered that the 3-year minimum imprisonment provisions of section 893.13(1) (c)l,

Florida Statute, is hereby imposed for the sentence specified in this count.

Habitual Felony

Offender

I 1 The defendant is adjudicated a habitual felony offender and has been sentenced to an extended term in

accordance with the provisions of section 775.084(4)(a), Florida Statute. The requisite findings by

the court are set forth in a separate order or stated on the record in open court.

Habitual Violent

Felony Offender

1 ] The defendant is adjudicated a habitual violent felony offender and has been sentenced to an extended

term in accordance with the provisions of section 775.084(4)(b), Florida Statute. A minimum term of

____________________________ must be served prior to release. The requisite findings of the

court are set forth in a separate order or stated on the record in open court.

Law Enforcement

Protection Act

1 ] It is further ordered that the defendant shall serve a minimum of 0 years before release in accordance

with section 775.0823, Florida Statute.

Capital Offense

1X1 It is further ordered that the defendant shall serve no -less-than 25 years in accordance with the

provisions of section 775.082(1), Florida Statute. (WITHOUT THE POSSIBILITY OF PAROLE)

Short-Barreled Rifle, t 1 It is further ordered that the 5-year minimum provisions of section 790.221(2), Florida Statute, are

Shotgun, Machine Gun

hereby imposed for the sentence specified in this count.

Continuing Criminal

C T It is further ordered that the 25-year minimum sentence provisions of section 893.20, Florida Statute*^

Enterprise

are hereby imposed for the sentence specified in this count.

Taking a Law

[ 1 It is further ordered that the 3-year mandatory minimum imprisonment provision of section 775.0875(1),

Enforcement Officer’s

Florida Statute, is hereby imposed for the sentence specified in this count.

Firearm

•Other Provisions:

Retention of

Jurisdiction

t ] The Court retains jurisdiction over the defendant pursuant to section 947.16(3), Florida Statute (1983).

Jail Credit

[ 1 It is further ordered that the defendant shall be allowed a total of

as credit for time incarcerated before imposition of this sentence.

Prison Credit

l 1 It is further ordered that the defendant be allowed credit for all time previously served on this count

in the Department of Corrections prior to resentencing.

Resentencing Upon

Revocation of

Supervision

county jail credit served between

[ 1 Defendant is allowed credit for

date of arrest as a violator and date of resentencing. The Department of Corrections shall apply

original jail credit awarded and shall compute and apply credit for time served and unforfeited

gain-time awarded during prior service of case number/count number_______________________ .

Page 3 of CjC

520

efendant DURAIN, DANIEL 6.

Case Number 96002222CF

ther Provisions, continued;

Consecutive/Concurrent as to Other Convictions

[ ] It is -further ordered that the composite term of all sentences imposed for the counts specified in this order shall run

(check one) 1 1 Consecutive to

C ] Concurrent with the following:

C=»:

30.

(check one)

1 3 any active sentence being served.

vjD

t 3 specific sentences:

(TO

iS2

cel

In the event the above sentence is to the Department of Corrections, the Sheriff of LEE County, Florida, is hereby

ordered and directed to deliver the defendant to the Department of Corrections at the facility designated by the department

together with a copy of this judgment and sentence and any other documents specified by Florida Statute.

The defendant in open court was advised of the right to appeal from this sentence by filing notice of appeal within

30 days from this date with the clerk of this court and the defendant's right to the assistance of counsel in taking the

appeal at the expense of the State on showing of indigency.

'SO

lX? f

In imposing the above sentence, the court further recommends/orders/states:

DONE AND ORDERED in open court at LEE County, Florida, this 25th day of MARCH

, 19%.

ix>

.a:

30 ■

i •

co <2E2

[ ] Nunc Pro Tunc

rO '• ??

G3'"-

JUD6K E DIV:

ISAAC ANDERSON

521

Page

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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR

LEE COUNTY. Fir>RTnA

---------------------- CRIMINAL ACTTOM

)

STATE OF FLORIDA,

Plaintiff,

vs.

DANIEL G. DURAIN,

Defendant.

CASE NO.

96-2222 CF IA

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SENTENCING ORDER

V-

5r?99^f°TrLli?yC?rd£S £&£^ '

1997

a®Jhar^ed in the Indictment of First Degree PremeditaBd

Murder.

The same }ury reconvened on November 3, 1997 and

evident in support: of aggravating factors and mitigating factors

•

T^e lurY returned a 7-5 recommendation that the

Defendant be sentenced to death.

On December 4, 1997, the Court requested sentencing

memoranda from counsel for the State and the Defendant. The

received and a Spencer hearing was held on January

1^98*^A Presentence investigation report was also received by

the Court on February 19, 1998. The Court set final sentencing

for today, March 25, 1998.

Having heard the evidence presented in both the guilt phase

and penalty phase and having had the benefit of the legal

memoranda and argument of counsel in support of their respective

positions, the Court finds as follows:

(A)

AGGRAVATING FACTORS:

—Cflpitsl—felony was especially heinous. atrocious.

or cruel.

rsi

On July 24, 1996 the body of Glenn Harkins was found by

the Lee County Sheriff's ;Department under the

Defendant's

bed. Mr- Harkins had been brutally beaten

about the head with a baseiraii bat#«^He had been beaten

with such force that his skull had been fractured, his

teeth had been knocked out, his nose, lips and brain

were crushed.

A^e.’O cX\k

508

Direct evidence of how the crime occurred was furnished

by the Defendant himself in the form of a taped

confession. The Defendant gave several conflicting

confessions. Originally, the Defendant told detectives

that he didn't know what happened to the victim, Glenn

Harkins. However, the Defendant later admitted to

killing him.

The facts are as fol 1 nwc•

At the time of the crime the Defendant was unemployed

and penniless. He lived in a home owned by Robert

Tracy and occupied by Tracy and Harkins.

According to the Defendant, on July 23, 1996, he and

Harkins went fishing from approximately 7:00 p.m.

to 11:30 p.m.. While fishing, the two men drank some

beer.

After the two men arrived home from fishing, a fight

erupted between Harkins and the Defendant because the

Defendant wanted to continue drinking and Harkins had

determined that the Defendant had drank enough for the

night.

At approximately 2:30 a.m. Tracy suggested that the

Defendant "go to bed" in order to prevent any further

disorder between the two men. The Defendant then went

into his bedroom.

In his confession, the Defendant stated that at

approximately 4:00 a.m ♦ r he left his bedroom and

retrieved a baseball bat from the laundry room and

entered Glen Harkins' bedroom where he repeatedly hit

him in the head with the bat. After the beating, the

Defendant tied a plastic bag over Hankins' head. He

then moved Harkins' body into his bedroom and pushed

him under his bed. In his taped confession, the

Defendant states:

That's when I take him into the room and

put him under the bed. Of course, there

was bags over his head, because I didn't

want blood goihg all over the floor.

Sometime during the day of July 24, 1996, Robert Tracy

went into the victim's bedroom and discovered that the

509

bed sheets had been changed. On the floor of the

victim's bedroom he discovered a tooth and bone

fragments. These findings startled Tracy and he asked

the Defendant to help him search the victim' s room

to see if the victim could be located, The Defendant's

search for the victim yielded no results and,

afterwards, the Defendant returned to a chair in front

of the television.

The Defendant stated in his confession that he was

watching television and waiting for Tracy to leave for

work so he could dispose of Harkins' body. Eventually,

Tracy left the home to request the assistance of the

Lee County Sheriff's Department.

The Sheriff's Department arrived at the Tracy home and

found Harkins' body under the Defendant's bed. The body

was removed from the home and taken to the medical

examiner's office.

At trial, Sam Johnson, an investigator with the medical

examiner s office and an expert in blood stain analysis,

testified that blood spatter was found on the ceiling,

walls and carpet in the victim's bedroom. Based on the

blood spatter evidence, the investigator concluded that

the bloodshed occurred on the bed and the blood spatter

was consistent with blunt force injury caused by a

baseball bat. The expert testified that it took a

considerable amount of force to make the kinds of

castoff stains that he observed in the victim' s room.

An autopsy was performed by the medical examiner, Dr.

Manfred Borges. He testified that Harkins sustained

between 6 to 12 blunt force injuries during

the attack. Harkins' skull was fractured, his nose was

crushed and his lips and brain were "pulpified." The

medical examiner testified that Harkins died as a result

of massive blunt trauma and possible asphyxia.

The medical examiner also testified that Harkins had

wounds to his arms and hands consistent with his

attempting to defend himself. Accordingly, the medical

examiner concluded that Harkins was conscious during

part of the attack.

•Zf-

............................................................................................................■

In determining whether the State proved this aggravating

factor of heinousness beyond a reasonable doubt, the

Court notes that this was not an instantaneous or

painless killing. This was a brutal crime whereby the

510

«C*

victim sustained a massive beating to his head which'

pulverized his brain. This method of killing, a beating

death, is one to which the factor of heinousness is

1997^Ca^le* 'S££/

v’ 5tfit.fi/ 695 So.2d 1229 {Fla.

There was evidence presented at trial that the victim

was alive for a period of time during the infliction of

the injuries and that he attempted to defend himself.

as such, "the circumstances of this killing indicate a

conscienceless and pitiless regard for his life and it

was unnecessarily torturous to him." Geralds v. Stat-p.

674 So.2d 96, 102 (Fla. 1996).

Based on the medical evidence and testimony presented in

this case, the Court finds that this aggravating factor

was proven beyond a reasonable doubt and affords this

factor great weight.

In addition to the foregoing, several cases are

tactually analogous and support the Court's finding of

tne heinous, atrpcious or cruel, aggravating

circumstance.

e.q. Whitrtnn v. st-ai-p. 649 So.2d 861

(Fla. 1994); Chandler v. state. 534 So.2d 701 (Fla.

1988); Lamb v.

532 So.2d 1051 (Fla. 1988); Bruno

gf- State/ 574 So.2d 76 (Fla. 1991) and Colin* v State.

634 So.2d 1077 (Fla. 1994).

T-he capital felony was committed for necuniary rra i n

^ trial the State presented evidence that on the day of

the killing the Defendant had no money. However,

Harkins had received a paycheck, cashed it and used some

of the money to buy beer for himself and the Defendant.

There is evidence in the record that the Defendant was

unemployed and that it was common for Tracy or Harkins

to buy him cigarettes, food and beer. Additionally,

there was evidence presented at trial that prior to the

murder, the Defendant called his mother asking for

money. His mother refused to send him any money. After

tne murder, $187 was found in the Defendant's wallet.

Although a jury might conclude that^fchis evidence

Remonstrates the Defendant took the victim's money, it

does.R°t show tnat the primary motivating factor for

committing the murder was the money. The money could

have been taken as an afterthought. Hill v.

549

f°*2d

1989)' fluornos v. state. 644 So. 2d 1012

(*ia. 1994) and Bruno v. fit**-*, 574 So. 2d 76 (Fla. 1991).

511

As such, the evidence is insufficient to prove beyond a

reasonable doubt that pecuniary gain was the primary

motivation for the murder and the Court so finds.

None of the other aggravating factors enumerated under

Florida Statute § 921.141(5) are applicable to this case

and no others were considered by this Court.

(B)

MITIGATING FACTORS:

Statutory Mitigating Factors:

Hhg—Capital felony was committed while the Defendant- was

linder the influence of extreme mental or pmnt-innai

siisturbance- Florida Statute § 921.141 (6) (b) .

In order to prove this mitigating circumstance, the

Defendant sought and obtained the assistance of Dr.

Bruce Crowell, who testified that the Defendant told him

that he was intoxicated on the night of the offense.

This is hearsay evidence.

Dr. Crowell testified that it was his opinion, based on

interviews with the Defendant, that the Defendant

suffers from alcohol dependence, dysthymia, a mild form

of depression, and general depression. He also testified

that the Defendant has an average IQ.

The evidence presented as to the Defendant's mental

state at the time of the offense is primarily hearsay

evidence that does not rise to the level sufficient to

establish it as a statutory mitigator. See. .Tampa v

S-tfltg/ 695 So.2d 1229 (Fla. 1997) . Additionally, when

the Defendant was asked in his confession if he had a

mental problem he responded, "No."

The Court has considered this evidence and rejects the

Defendant's mental or emotional disturbance as a

statutory mental mitigator. As such, the Court gives

this mitigator no weight.1

1 rn

vf St3te, 695 So. 1229 (Fla. 1997)the Defendant suffered from

alcohol dependence, severe dysthymia, chronic depressive disorder and had

consumed ten "hits" of acid (LSD) and more than 24 cans of beer prior to

committing mu®der.' The tj&ali couctEgheld that this did not rise to the level of

an extreme mental or emotional disturbance. The Supreme Court affirmed and

held " so long as the trial count considers all the evidence, the trial court's

subsequent determination of a lack of mitigation will stand absent a palpable

abuse of discretion."

512

CO;

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4T*

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■;

capacity of the Defendant to apDrpr-i ats j-ho

gr.im3.naJ.XtY Of his or her conrinr.t or to conform hie

gr her conduct to tho requirements of law was

SPbst&hti&lly impeitfifi. Florida Statute § 921.141(6) (f)

During the guilt phase defense counsel alleged that

Harkins asked the Defendant, just prior to the killing,

to perform fellatio on him. In his confession, the

Defendant alleged that because he had been drinking on

the night of the crime he was unable to act rationally

when Harkins made that request.

At trial there was no evidence presented that Harkins

had made that request to the Defendant other than the

Defendant's own statement to this effect as contained in

his confession.

Furthermore, there was no evidence presented that the

Defendant was substantially impaired at the time of the

killing. In fact, the Defendant had stopped drinking

five hours before the killing.

Additionally, in the Defendant's confession to the

police he described his meticulous clean up efforts

after the murder which consisted of washing off the bat,

washing down the walls, taking a shower to remove the

blood which had gotten on him, wiping down the shower,

removing the sheets from Harkins bed and replacing them

with clean sheets, and concealing Harkins' body under his

bed and the bloodstained towels and sheets in his closet.

THE DEFENDANT: Put the bat up. Then I see blood on

the walls. I'm trying to think. I got to get this

cleaned so Bob doesn't see it...got some towel,

tried to wipe him up...thinking, what am I gonna do

with Clenn. I draaged him into my room.

DETECTIVE JONES: You dragged him or you carried?

THE DEFENDANT: No. I couldn't carry him. He's

dead weight.

After the Defendant had cleaned up Harkins room, he went

to sleep.

DETECTIVE JONES: Did you go to sleep in the same

bed—

THE DEFENDANT: On top of him, right.

DETECTIVE JONES:—He was under?

THE DEFENDANT: Right, you know.

513

CO ;

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These actions during the course of the crime show

planning and premeditation which are inconsistent with

the Defendant's claim that his capacity to conform his

conduct to the requirements of law was substantially

impaired. Accordingly, there is no satisfactory evidence

from which the Court can find the existence of this

fact. This mitigating factor does not exist.

Non-Statutory Mitigating Fant-ors:

The Defendant's remorse. At the Spencer hearing

defense counsel presented a letter to the Court which

indicated that the Defendant was sorry for killing

Harkins. The Court gives this non-statutory

circumstance very little weight.

Ihe Defendant's oast employment. At the Penalty Phase

two former supervisors of the Defendant testified that

he was a hard worker during the time that they

supervised him. The Court gives this factor little

weight.

The Defendant's support for his children During the

Penalty Phase the deposition of Diane Durain, the

Defendant's ex-wife, was read into the record, In

short, her testimony consisted of the fact that the

Defendant drank too much, that when he wasn't drinking

he worked hard and provided for her and their children.

The Defendant asks the Court to give this non—statutory

mitigator moderate weight. In essence, he seeks

"credit" for doing that which responsible people do

without question. The Court notes that, at the time the

Defendant killed Glenn Harkins, he was unemployed and

living in Florida. He was not in Ohio (the State in

which his children reside), he was not employed and

was not paying child support, He was also not receiving

any help for his drinking problem, As such, the Court

gives this factor no weight.

45GO

514

The

Defendant' £_.familv backarnnnri. At the Penalty Phase

the Defendant's mother, Shirley Durain and the

Defendant's brother, Robert Durain, testified that the

Defendant had a drinking problem since his teenage

years, that he had once attempted suicide, and that he

had difficulty holding down a job due to his drinking.

The Defendant's brother testified that when the

Defendant was young he would get high by putting Pam

cooking spray into a plastic bag and breathing it into

his lungs. He further testified that the Defendant guit

school.

The Defendant contends that this is evidence that he had

a troubled childhood." There was no evidence presented

that the Defendant was abandoned by either parent,

neglected by either parent or that he was molested or

abused by a family member. There was no evidence

presented that the Defendant came from an impoverished

background and that he was deprived of the basic

necessities as a child. As a result, the Court gives

this factor little weight.

—R^fshdflht' S—drinking problem. There was evidence

presented at the Penalty Phase that the Defendant has a

drinking problem. The Defendant's former employers and

supervisors testified that the Defendant drank too much.

The Defendant's mother and ex—wife both testified that

the Defendant drank too much. Dr. Crowell testified

that the Defendant suffered from general depression and

alcohol dependency. He further testified that the

Defendant drank in an attempt to relieve his depressed

feelings. Based on this evidence, the Court believes

that the Defendant is alcohol dependent and therefore

gives this factor moderate weight.

llie PefeDd&nt es .a good prisoner. At the Spencer hearing

evidence was presented that the Defendant has not been a

problem" while he has been in custody and that he has

attended church on occasion while in custody, The

defense contends that this is evidence that the

Defendant has been "a good prisoner" and can be

rehabilitated*. wmm

The Court notes however that this merely shows that the

Defendant can conform his conduct to the norm applicable

to inmates who are subject to close confinement.

Accordingly, the Court gives this factor only slight

weight.

515

CO !

-cCO

The Court has very carefully considered and weighed the

aggravating and mitigating circumstances found to exist in this

case, being ever mindful that a human life is at stake and in the

balance. This Court has also carefully weighed and examined the

jury recommendation by a vote of 7 to 5 of death for the

Defendant. The Court recognizes and appreciates that the jury

serves as the conscience of the community and it is loathe to

disturb any such recommendation. However, the Court is also bound

by the decisions of the United States Supreme Court and the

Florida Supreme Court. After careful review of the recent

decisions from those Courts, this Court cannot in good conscience

that the sole statutory aggravating circumstance proven by

the State in this case outweighs the non-statutory mitigating

circumstances demonstrated by the Defendant.

The Court recognizes that this is an especially cruel

This fact notwithstanding, the Supreme Court has

repeatedly held that the death penalty is reserved for only "the

most aggravated and unmitigated of most serious crimes." ____

Deancrelo

v. State. 616 So.2d 440, 443{Fla. 1993), citing State v. Dixon.

283 So. 2d 1, 7 (Fla. 1973). As with Deanaelo and Dixon. the

Court finds that this is not such a case.

The Court finally recognizes that its sentence will not and

indeed cannot even begin to assuage the deep sense of loss

experienced by victim's father, Glenn Harkins, Sr., whose son was

brutally murdered at the hands of Defendant. Let it not go unsaid,

however, that the Defendant, once committed to the Department of

Corrections, will spend the rest of his natural life in prison.

Accordingly, it is

ORDERED AND ADJUDGED for the murder of Glenn Harkins, Daniel

Durain is hereby sentenced to life imprisonment without the

possibility of parole.

The Defendant is hereby committed to the Department of Corrections

of the State of Florida for execution of this sentence as provided

by law.

The Defendant has 30 days to appeal. An appeal must be taken by

filing a Notice of Appeal with the Clerk of Court for Lee County

within the time frame prescribed above.

...

SsDElfME AND ORDERED in Ch

Florida, this

c County ,-

516

-Certificate of Service

K 1 HELREBY. <'ERjTIFY that a true and correct copy of the above order

K^ni^h^d a° Ken Garber' Esq., Assistant Public Defender, Office

Public Defender, Lee County Justice Center, 1700 Monroe Street,

6th Floor, Fort Myers, Florida 33901; Sheri Polster Chappell, Esq.

Assistant State Attorney, Office of the State Attorney, P.O. Box 399

Fort Myers, Florida ^3902; Court Administration, Ft. Myers, FL; this"

’ day of

_________ , 1998.

♦

CHARLIE GREEN ■

Clerk of Court

By:

Deputy Clerk

GO;

*•

517

IN THE CIRCUIT COURT FOR THE TWENTIETH JUDICIAL CIRCUIT OF THE

STATE OF FLORIDA, LEE COUNTY, FALL TERM, IN THE YEAR OF OUR LORD

ONE THOUSAND NINE HUNDRED NINETY-SIX

CASE NO

INDICTMENT FOR

STATE OF FLORIDA

FIRST DEGREE PREMEDITATED

MURDER F.S. 782.04

vs.

Daniel G. Durain

(White Male, D.O.B. 8/23/63)

In the name of and by the Authority of the State of Florida:

The Grand Jurors of the State of Florida, impaneled and

sworn to inquire and true presentment make in and for the County

of Lee upon their oath do present that Daniel G. Durain, of the

County of Lee and State of Florida, on or about the twenty-fourth

day of July in the year of our Lord one thousand nine hundred and

cr*

ninety-six, in the County and State aforesaid:

COUNT I:

<JD

did unlawfully from a premeditated design to effect

the death of a human being, kill and murder Glenn J.

Harkins, a human being, by beating him to death with a

deadly weapon, to wit: a baseball bat or similar

object or by suffocating him to death.

Page 1 of 2

cr>

I, Assistant State Attorney Sheri Polster Chappell,

as authorized and required by law, have advised the

Grand Jury returning the indictment.

Sheri Polster Cti

Assistant State Attorney

.TRUE BILL

Mike Bemfett,

Foreman of the Grand Jury

Presented in open Court by

the Grand Jury and filed

, 1996

LIE GREEN

k of the Circuit Court

SPC/jes

-n

rr-.o

-no

o°

O'l

TOO

—<70

°° O

Page 2 of 2

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.