Behanna v. State

• Decision Date: 07 December 2007
• Docket Number: No. 2D06-5766.,2D06-5766.
• Parties: James A. BEHANNA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

985 So.2d 550

James A. BEHANNA, Appellant, v. STATE of Florida, Appellee.

No. 2D06-5766.

District Court of Appeal of Florida, Second District.

December 7, 2007.

Rehearing Denied March 28, 2008.

James E. Felman and Katherine Earle Yanes of Kynes, Markman & Felman, P.A., Tampa, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellee.

SILBERMAN, Judge.

James A. Behanna appeals his judgment and sentence for manslaughter with a weapon. Because the trial court erroneously excluded evidence that supported Behanna's defense of self-defense, we reverse and remand for a new trial.

THE TRIAL

Behanna was tried before a jury on the charge of manslaughter with a weapon. Behanna worked as a paralegal at the law office of his wife, Ida Rodriguez. Their home is next door to the law office. The office is across the street from the residence of the alleged victim, twenty-one-year-old Robert Mears. The testimony at trial revealed the following chronology of events.

Teresa Ewing testified that she is the property manager of the building across the street from the law office. On December 7, 2005, she saw Robert Mears come out of his apartment, and he appeared to be very agitated and angry. He had been drinking¹ and had what appeared to be a steak knife in his back pocket and a closed pocketknife or box cutter in his hand. Mears "was waving his arms, talking to himself, yelling, pounding his fist into his hand." Ewing summed up his behavior as very erratic. When Mears started to walk across the street to the law firm, Ewing spoke to him and warned him that the people from the law firm did not want people from Mears' building coming onto the law firm property because they were trying to conduct business there. Ewing told Mears that he needed to cool down and stay away from there, but Mears walked across the street.

Arelis Prita testified that she is a paralegal at the law firm. She was speaking to Behanna's wife, Rodriguez, about work when she saw a man, later identified as Mears, walking across the back. He had "a crazy look" and was disheveled, dirty, "and just had a creepy look to him." Prita could also tell that he had been drinking. Prita yelled to Behanna, who was upstairs, and then she went to the door and told the man that it was private property and that he needed to leave. The man continued coming toward the two women and said that he had a bad day. Prita was scared. Rodriguez also told him to leave, but he continued toward them. She then told Prita to call 911, and Prita did so at 6:16 p.m.

Behanna testified that he saw Mears from the upstairs window. Mears looked "real wild-eyed" and was waving his arms and screaming, "I'm not going to go anywhere." Behanna opened the window and told Mears that he was going to have to leave. Mears responded, "[—] you, I'm not going anywhere." Behanna went downstairs, and on his way out he grabbed a small shovel because he is not "a real big guy" and because of the way Mears was acting. When Behanna went outside, he saw Mears approaching his wife and screaming. Behanna again told Mears to leave the property. Mears came towards Behanna and chest-butted him. Behanna smelled a strong odor of alcohol on Mears. Mears grabbed Behanna, pulled him into the air, and threw him to the ground. Two State witnesses who were on the street at the time saw this encounter. One testified that Mears threw Behanna to the ground "like a rag doll" and the other testified that Mears grabbed Behanna and "slammed [him] on the ground."

Behanna testified that Mears landed on top of him and that Mears had the shovel. Mears had one hand on Behanna's chest as Mears brandished the shovel. Behanna managed to grab the leg of Mears' pants and pull Mears off of him. When Behanna got to his feet, Mears was facing Rodriguez with the shovel in his hand. Behanna ran between them and tried to grab the shovel from Mears. Mears threw the shovel in the direction of Rodriguez. Mears then grabbed Behanna and slammed him against a post. Behanna testified that he blacked out for a second and saw stars. When he came to, he saw Mears run off the property and head west on Stanley Street. Behanna screamed for Prita to call 911, and Prita made the second call to 911 at 6:17 p.m. Behanna testified that during this episode in the backyard of the law office he had his knife with him but that he never tried to use it. Prita testified that Behanna always carried a knife at work. His nickname was "McGuyver" because whenever she needed anything opened, he always had a knife on him.

Behanna chased after Mears because he knew Prita had called the police. Behanna wanted Mears there when the police arrived because Mears had beaten him up and may have hit his wife; he wanted Mears arrested. Behanna had five handguns in his home, but he did not stop at his home next door before chasing Mears.

Behanna caught up with Mears, who was resting with his hands on his knees, about halfway down the block. Behanna said, "You need to come back. You've got to wait for the police[.]" Behanna tried to grab Mears' shirt and keep him there. Mears cursed at Behanna and began to walk down Stanley Street. Behanna followed after him and kept telling Mears that he needed to stay there and wait. Mears continued to scream insults at Behanna. Behanna heard some movement, looked back, and saw three men walking at a fast pace about seven or eight yards behind him. Mears looked at Behanna and said, "Those are my boys." Behanna replied, "You still need to stay."

The material factual dispute at trial concerns what happened in the next few moments. Behanna testified that he continued to follow Mears and that when they reached the corner of Stanley and Highland, Mears spun around toward Behanna. Mears grabbed Behanna by the throat and said, "I'm going to [—]ing kill you." Behanna described how Mears choked him to the point that his vision began to "close in" and that he started to black out. Behanna explained that Mears' hands were crossed as they started to come toward Behanna's throat and that Mears had a hold of his collar and his throat. Behanna felt pressure beside his Adam's apple. Behanna testified that he was unable to push Mears off of him. Behanna feared that he was going to die, so he pulled out his pocketknife and pushed forward with it, but Mears continued. Behanna did not know if he had even hit Mears because Mears was still choking him. Behanna pushed forward with the knife again, and Mears let go of him. Behanna stepped back, feeling a little dizzy, and put his knife away. Although the first thrust with the knife caused only a superficial cut, the second hit Mears' heart, causing his death.

Prita drove to the area when she saw people gathering, and Behanna ran to her car and told her to call EMS. She made the third call to 911 for EMS at 6:20 p.m. Behanna remained at the scene and cooperated with law enforcement. He told an officer that Mears had been choking him and that he had to stab Mears to get him to stop.

The defense presented the testimony of David Bryant, a judo instructor who also teaches police defensive tactics. Bryant testified that the use of a "cross-arm choke" allows great force to be exerted on a person's neck. That choke can be used by exerting pressure on the front of the throat for a "wind choke" that shuts off the air supply. That choke can also be used by exerting pressure on the sides of the neck for a "blood choke" that restricts the flow of blood from the carotid arteries to the brain. However, no evidence was presented that Mears knew how to perform either of these maneuvers.

The defense also presented the testimony of Dr. Libreros as an expert in neurology. Dr. Libreros testified that a photograph taken of Behanna shortly after the incident showed red marks in the area of Behanna's carotid artery. The marks were compatible with choking of the carotid arteries. Dr. Libreros also testified to petechiae, or pinpoint-sized red dots, visible in the photo. He stated that petechiae result from an interruption in the blood supply and are produced by the increase in the pressure of blood flow returning. Dr. Libreros explained that choking of the carotid artery can cause a loss of consciousness in as little as three to five seconds. If the choking is for a prolonged period, a person could die. He further explained that gurgling or gasping as a result of choking is associated with choking of the airway, but that suppressing the blood supply to the brain results in a sensation of passing out.

The State's evidence to disprove Behanna's explanation that he stabbed Mears because Mears was choking him rested on the testimony of two of the three men identified as Mears' "boys"—brothers Lavan and Corell Cunningham. Nineteen-year-old Lavan gave a written statement the night of the incident in which he described Mears as grabbing Behanna by the neck. In an interview with a police officer and in a deposition, Lavan described Mears as choking Behanna. At trial, however, he testified that it did not look like Mears was choking Behanna but that Mears "pushed off towards his neck" as a means of keeping away from Behanna. The defense ultimately impeached Lavan's trial testimony. Lavan admitted that he remembered answering in the deposition "yes, yes" to the question of whether Mears choked Behanna with both hands. Defense counsel later asked, "And you remember making that statement to me?" Lavan answered, "Yes." Defense counsel then said, "And that's the truth." Lavan responded, "Yes." The State did not rehabilitate Lavan's testimony on redirect to clarify or challenge Lavan's statement that his deposition was truthful testimony.

Fifteen-year-old Corell Cunningham testified that he followed Mears and Behanna down the street and that he (Corell) was the closest person to them. Corell followed Mears the entire time. Corell testified that he saw Mears "grab[] [Behanna]...