Brown v. State

• Decision Date: 28 June 1984
• Docket Number: No. 82-1607,82-1607
• Citation: 454 So.2d 596
• Parties: Emory Jack BROWN, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 596

454 So.2d 596

Emory Jack BROWN, Jr., Appellant, v. STATE of Florida, Appellee.

No. 82-1607.

District Court of Appeal of Florida Fifth District.

June 28, 1984.

Rehearing Denied Aug. 22, 1984.

James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.

ORFINGER, Chief Judge.

The defendant appeals from a judgment of conviction for second degree murder, contending that the trial court erred in failing to grant defendant's motion for judgment of acquittal at the close of the State's case. We agree and reverse the judgment, and direct that defendant be discharged.

Defendant was charged with the second degree murder of Charles Williams who was killed during a fracas involving Williams and the defendant. There were numerous eyewitnesses to the fight, and the State called several of them to testify. There was no material dispute in the testimony of the State's witnesses to the incident.

The State's evidence indicated that on the night of the incident David Brown, appellant's brother, became involved in a fight with Williams (the victim) outside the Palms Bar, in which Williams was the aggressor. Williams was drunk and very violent. ¹ David Eady, a bystander, tried to break up the fight but when he was unable to do so, he ran into the bar where defendant Emory Brown was shooting pool, to get his help in breaking up the fight. Eady told defendant that Williams was beating the defendant's brother to death.

Emory Brown and Eady rushed outside where they found Williams mauling and choking David. With difficulty, Emory managed to break Williams away from David, and when he did so, Williams immediately attacked Emory, knocked him down, jumped on top of him and bit him severely. Emory was trying to break off, but Williams would not do so, and he was trying to inflict damage to defendant's body, while telling defendant that he (Williams) was going to kill the defendant. Williams lifted weights and was very strong. David thought his brother's life was in danger so he ran to a friend's car, retrieved a gun he knew was there and returned to the scene of the fight.

By this time defendant had managed to get away from Williams and started backing up to where his brother David and others were standing, with Williams coming at him all the time, repeating his threat to kill defendant. David put the gun in defendant's hand and defendant continued to back up, admonishing Williams to stop, but Williams continued to come at defendant. Defendant fired a shot into the ground, telling Williams to stay back and to leave him alone, but Williams kept coming, hands balled up in fists, clearly angry. They were very close together when the second (and fatal) shot was fired. All the witnesses agreed that defendant was backing up during all this time, pleading with Williams to stay away, and that there was no room for defendant to turn and run because Williams was very quick and very strong and was virtually on top of defendant when the last shot was fired. The witnesses further all testified that Williams would have jumped defendant had defendant turned to run. ²

Florida Statute § 782.02 (1981) provides:

Justifiable use of deadly force. -- The use of deadly force is justifiable when a person is resisting any attempt to murder such person or to commit any felony upon him or upon or in any dwelling house in which such person shall be.

Second degree murder is defined in Florida Statute § 782.04(2) thusly:

The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, shall be murder in the second degree and shall constitute a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in section 775.082 The State's evidence clearly does not support the charge of second degree murder, because there is no showing that defendant acted with a depraved mind regardless of human life, an indispensable element of the crime of second degree murder. See e.g., Pierce v. State, 376 So.2d 417 (Fla.3d DCA 1979). The more difficult question is whether there is a reasonable basis in the evidence to support a reduced charge of manslaughter, or whether the evidence clearly reflects the homicide to be justifiable.

Appellant contends that he acted in self-defense and that even if his belief in danger to his person was not "well grounded," but simply reasonable in light of the surrounding circumstances, the State's evidence clearly demonstrates self-defense. See Pinder v. State, 27 Fla. 370, 8 So. 837 (1891). Appellant recognizes that ordinarily the question of self-defense is one of fact to be determined by the jury, but argues that if the evidence is legally insufficient to support a conviction because the defendant's theory of self-defense has been established as a matter of law, the trial judge should grant a motion for directed verdict.

This court, as with other courts, has recognized the principle that ordinarily the question of whether a homicide was committed in justifiable self-defense is a question for the jury. McCauley v. State, 405 So.2d 1350 (Fla.5th DCA 1981). On the other hand, when the State fails to carry its burden of proof, or where the State's evidence clearly shows that a homicide was committed in self-defense, courts of this State have not hesitated to reverse jury convictions and to discharge the wrongfully convicted defendant. While the defendant may have the burden of going forward with evidence of self-defense, the burden of proving guilt beyond a reasonable doubt never shifts from the State, and this standard broadly includes the requirement that the State prove that the defendant did not act in self-defense beyond a reasonable doubt. Bolin v. State, 297 So.2d 317 (Fla.3d DCA), cert. denied, 304 So.2d 452 (Fla.1974). See also State v. Bobbitt, 389 So.2d 1094, 1098 (Fla.1st DCA 1980), rev'd on other grounds, 415 So.2d 724 (Fla.1982).

In Bozeman v. State, 106 Fla. 270, 143 So. 236 (1932), the court reviewed the evidence which resulted in the manslaughter conviction of the appellant and found the evidence wanting. In reversing the conviction the court said:

On writ of error the transcript of the evidence in the bill of exceptions contained in the record does not support either of the charges made in the information.

But the evidence does show a fatal cutting of the deceased by the defendant with a small pocketknife in self-defense while the defendant was being held on the ground by the deceased in a threatening and violent manner after the deceased apparently without provocation had approached and cursed the defendant and pulled him from an automobile, getting him on the ground after a combat; both parties having theretofore, during a night's outing, been drinking and talking roughly to each other in a seemingly friendly way. (Emphasis supplied).

Id. at 237.

In Snipes v. State, 154 Fla. 262, 17 So.2d 93 (1944) (en banc), a majority of the court agreed that the evidence failed to sustain the verdict of first degree murder (or of second degree murder). However, the majority could not agree whether or not there...