Too angry to commit murder?
Psychologist says man was ‘basically not in control of himself’ when he killed DJ
Was Rico Harvey too angry to form the criminal intent to murder Peter Elie when he beat him to death in the laundry room of a Midtown Toronto apartment building early on May 14, 2020?
That will be the question for a Toronto jury to decide at the end of a first-degree murder trial currently underway at the downtown courthouse.
There’s no dispute that Harvey was responsible for Elie’s death. But to convict him of first-degree murder, a jury must find that he intended to kill Elie or cause grievous bodily harm that would likely cause death, and understood the consequences of his actions.
This past week, defence lawyer Tyler MacDonald called forensic psychologist Milan Pomichalek to the stand.
He testified that Harvey, 31, suffers from borderline personality disorder and that he was “basically not in control of himself” that evening when he attacked Elie, a 52year-old who lived on the building’s eighth floor and was well-known as a DJ at clubs in Toronto’s Gay Village. Harvey was a stranger to the building Elie lived in, but in an interview with the psychologist, Harvey stated he was looking for a place to sleep.
Harvey was in a “quasi-automatic state” that evening, which indicates an “absence of thought process” and inability to form intention or appreciate the consequences of his actions, testified Pomichalek, who works at the North Bay Regional Health Centre.
The jury has watched graphic video surveillance of the physical altercation between the two men after Elie discovered some of his clothes had been removed from the washing machine and strewn on the floor. After 10 minutes, Elie ended up on the laundry room floor covered in blood.
Harvey then went wandering around the Balliol Street building before returning to the laundry room. Two more assaults occurred and, before leaving the laundry room, Harvey dumped the contents of a garbage bin over Elie and started a fire close to where the dying man was wedged behind a washing machine. Harvey left the building and tossed his bloodstained sweatshirt in a nearby garbage dumpster.
Pomichalek testified that during his psychological assessment, Harvey told him he became enraged after Elie challenged him about not living in the building, accused him of taking his laundry, threatened to kill him twice, called him the Nword and tried to hit him with a fire extinguisher.
(The video shown in court did not have audio.)
Harvey’s anger turned him into a “helpless spectator” and made it “very, very unlikely” that Harvey intended to kill Elie or foresee the consequences of his actions, the psychologist said. Harvey has not taken the stand nor been cross-examined.
For two days this week, veteran prosecutor Bev Richards grilled the psychologist. She suggested his diagnosis was based on incomplete and unreliable information, such as interviews with Harvey’s family members including a sister who was 10 when she said her brother started suffering psychosis.
“You just accepted that?” Richards asked.
“She was not the only person I talked to, I spoke to two sisters who were older,” replied Pomichalek, adding he interviewed other family members who provided similar feedback about his fragile mental health.
What about Harvey’s doctor or other medical professionals?
No, Pomichalek replied, “I can only speak to people Harvey consented to.”
Richards also asked if it wouldn’t surprise him that borderline personality disorder was “very prevalent” among people found guilty of criminal offences.
Pomichalek agreed it isn’t an uncommon diagnosis.
And she noted his report prepared for court does not say that Harvey was unable to appreciate the nature of the beating or its consequences. “No it doesn’t,” he agreed.
Elie died of multiple blunt force trauma to his head and chest. He had fractures to his face and the base of his skull, along with fractured ribs, some of which were broken twice. He also had burns on his leg.
The jury has heard of numerous incidents of Harvey acting out in anger, ranging from punching holes in walls to breaking his stepfather’s jaw.
The trial in front of Superior Court Justice Rob Goldstein continues Monday.