Harper v. State, No. 81-570

CourtFlorida District Court of Appeals
Citation411 So.2d 235
Decision Date23 February 1982
PartiesWilliam HARPER, Appellant, v. The STATE of Florida, Appellee.
Docket NumberNo. 81-570

Page 235

411 So.2d 235
William HARPER, Appellant,
v.
The STATE of Florida, Appellee.
No. 81-570.
District Court of Appeal of Florida, Third District.
Feb. 23, 1982.
Rehearing Denied April 5, 1982.

Pilafian & Schaffer and Melvin Schaffer, Miami, for appellant.

Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.

Before SCHWARTZ and DANIEL S. PEARSON, JJ., and OWEN, WILLIAM C., Jr., (Ret.), Associate Judge.

OWEN, WILLIAM C., Jr., (Retired), Associate Judge.

William Harper, described as a nonviolent person by his friends and his employer who testified at his trial, was convicted of second degree murder. He should not have been, because the State's evidence (1) was legally insufficient to show that the act allegedly causing the victim's death was one which "evinced a depraved mind regardless of human life," and (2) essentially established rather than rebutted Harper's assertion that his act was a justifiable use of force, i.e., self defense. We agree that his motion for judgment of acquittal, made at

Page 236

the close of the State's case, and renewed at the close of all of the evidence, should have been granted.

On Friday evening Harper was at Sutton's grocery store where he purchased a beer. One Courtney (apparently drunk at the time) asked Harper to buy him a beer. When Harper refused, Courtney shoved him and left stating, "I'm going to blow you up." A few minutes later Courtney returned with Smith (the victim) the latter carrying a stick the size of a chair or table leg. As the two men approached Harper, Smith raised the stick to shoulder height and stated to Harper, "You want this? Here it is." Harper, in fear that the two men intended to do him bodily harm in furtherance of the threat by Courtney, reached out, grabbed the up-raised stick, and brought it down on Smith's head. Smith was knocked down but stood up immediately, with no apparent wound or bleeding, and the incident was apparently over. The next day, a Saturday, Smith (who was known to be a very heavy drinker) was observed at various times throughout the day drinking alcoholic beverages. The following day Smith died. Whether his death was due to the blow from the stick was somewhat inconclusive. The coroner testified that there was evidence of only one blow to the victim's head, there were no open wounds or cuts and no evidence of external bleeding, and that Smith was an alcoholic with a diseased liver condition who could have died without being struck on the head, either as a result of hypertension, or high blood pressure or subdural hematoma. The most damaging evidence against Harper was the statement he gave the police in which, while stating that he was in fear that Smith and Courtney intended him bodily harm, he admitted that other than Smith stating, "You want this? Here it is," Smith uttered no other threats nor did he swing the stick nor make any violent motions. Harper testified to essentially the...

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15 practice notes
  • Farina v. State, No. SC04-1610.
    • United States
    • United States State Supreme Court of Florida
    • 6 Julio 2006
    ...did not evaluate the prosecutor's conduct under this standard, the case does not apply here. The dissent's reliance on Harper v. State, 411 So.2d 235 (Fla. 3d DCA 1982), is incorrect for the same reason. See dissenting op. at 639. As in Meade, defense counsel in Harper objected to the prose......
  • Tacoronte v. State, No. 81-867
    • United States
    • Court of Appeal of Florida (US)
    • 28 Septiembre 1982
    ...1982), and "all [the defendant] did was kill a wino and he is sorry and so is [the victim's] wife and three children," Harper v. State, 411 So.2d 235 (Fla. 3d DCA 1982). We held, consistent with long-standing law on the subject, that such arguments are calculated to make the jury decide the......
  • Muehleman v. State, No. 65546
    • United States
    • Florida Supreme Court
    • 8 Enero 1987
    ...that we agree with the state that precedent cited such as Goddard v. State, 143 Fla. 28, 196 So. 596 (Fla.1940), and Harper v. State, 411 So.2d 235 (Fla. 3d DCA 1982), sheds little light on the instant issue. None of those cases involved the penalty phase of a capital trial. As we noted in ......
  • Jackson v. State, No. 81-1729
    • United States
    • Court of Appeal of Florida (US)
    • 5 Octubre 1982
    ...119 Fla. 839, 161 So. 729, 731 (1935), in fact, he either merely told counsel to "comment on the evidence," but see Harper v. State, 411 So.2d 235, 236-37 (Fla. 3d DCA 1982); Peterson v. State, supra, 376 So.2d at 1233 n. 2; Price v. State, 267 So.2d 39, 40 n. 1 (Fla. 4th DCA 1972), or, in ......
  • Request a trial to view additional results
15 cases
  • Farina v. State, No. SC04-1610.
    • United States
    • United States State Supreme Court of Florida
    • 6 Julio 2006
    ...did not evaluate the prosecutor's conduct under this standard, the case does not apply here. The dissent's reliance on Harper v. State, 411 So.2d 235 (Fla. 3d DCA 1982), is incorrect for the same reason. See dissenting op. at 639. As in Meade, defense counsel in Harper objected to the prose......
  • Tacoronte v. State, No. 81-867
    • United States
    • Court of Appeal of Florida (US)
    • 28 Septiembre 1982
    ..."all [the defendant] did was kill a wino and he is sorry and so is [the victim's] wife and three children," Harper v. State, 411 So.2d 235 (Fla. 3d DCA 1982). We held, consistent with long-standing law on the subject, that such arguments are calculated to make the jury decide the ......
  • Muehleman v. State, No. 65546
    • United States
    • Florida Supreme Court
    • 8 Enero 1987
    ...that we agree with the state that precedent cited such as Goddard v. State, 143 Fla. 28, 196 So. 596 (Fla.1940), and Harper v. State, 411 So.2d 235 (Fla. 3d DCA 1982), sheds little light on the instant issue. None of those cases involved the penalty phase of a capital trial. As we noted in ......
  • Jackson v. State, No. 81-1729
    • United States
    • Court of Appeal of Florida (US)
    • 5 Octubre 1982
    ...839, 161 So. 729, 731 (1935), in fact, he either merely told counsel to "comment on the evidence," but see Harper v. State, 411 So.2d 235, 236-37 (Fla. 3d DCA 1982); Peterson v. State, supra, 376 So.2d at 1233 n. 2; Price v. State, 267 So.2d 39, 40 n. 1 (Fla. 4th DCA 1972), or, in......
  • Request a trial to view additional results

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