Harper v. State, 81-570

• Decision Date: 23 February 1982
• Docket Number: No. 81-570,81-570
• Citation: 411 So.2d 235
• Parties: William HARPER, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

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 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 above facts, adding that he did not strike Smith in anger or with any desire or intention to kill him, and had acted solely in self defense out of fear of bodily injury to himself and that his motion in grabbing the stick which Smith held and striking Smith with it was defensive and was not done with sufficient force to cause any bleeding or cut or wound on the victim's head.

Reiterating the pronouncement in the initial paragraph of this opinion, the evidence was legally insufficient to show that Harper acted with a depraved mind regardless of human life, an indispensable element of the crime of second degree murder. See, Pierce v. State, 376 So.2d 417 (Fla. 3d DCA 1979); Martinez v. State, 360 So.2d 108 (Fla. 3d DCA 1978); Raneri v. State, 255 So.2d 291 (Fla. 1st DCA 1971). Although in both the Pierce case, supra, and the Martinez case, supra, the evidence was held sufficient to create a jury issue as to whether the accused had used excessive force (thus warranting a conclusion that the evidence would at least sustain a conviction of manslaughter), we conclude that in the instant case the evidence not only failed to sufficiently rebut Harper's claim of self defense so as to create a jury issue, but in fact essentially corroborated Harper's position. The State having failed in its burden of presenting evidence legally sufficient to contradict Harper's explanation of self defense Harper's version cannot be ignored, and his motion for judgment of acquittal should have been granted. State v. Bobbitt, 389 So.2d 1094 (Fla. 1st DCA 1980); Diaz v. State, 387 So.2d 978 (...