Henderson v. State

507 So. 2d 632, 12 Fla. L. Weekly 990, 1987 Fla. App. LEXIS 7559
District Court of Appeal of Florida·Decided April 9, 1987·No. No. 86-1016·Published·Cited by 2 cases

Opinions

COBB, Judge.

The issue in this case is whether the trial court erred in denying a defense motion for judgment of acquittal at the conclusion of the evidence based upon an assertion of self-defense. See Brown v. State, 454 So.2d 596 (Fla. 5th DCA), review denied, 461 So.2d 116 (Fla.1984).

The defendant, James Henderson, was convicted of second-degree murder, use of a firearm in the commission of a felony, and carrying a concealed firearm. These charges arose from the shooting of the victim, Jimmy Lee Edwards, by Henderson. The issue at trial, as shown by the state’s opening argument, was whether the shooting was done in self-defense. Certain facts are not in dispute: Henderson was in a Ford Bronco vehicle driven by one Johnny Eastham, along with three other white occupants (Chris Eastham, Rhonda Butcher and Dina Henderson) during the evening of April 5, 1985. They drove past two blacks, Edwards and Priscilla Brisbane, an 11-year-old girl, who were on a bicycle. Henderson made a derogatory remark to Edwards, and Edwards responded. Henderson got out of the Bronco, Edwards got off his bicycle, and there was a confrontation in the middle of the street. It is acknowledged by all that at some point in the confrontation Edwards had a butcher knife and Henderson had a handgun. Pri- or to the shooting, Eastham drove his Bronco between Henderson and Edwards, thereby separating them. Brisbane, the sole eyewitness for the state, acknowledged this fact. Eastham testified he did this to protect Henderson from Edwards, who was advancing with the knife. At that point in the fracas, the combatants, Henderson and Edwards, were separated.

The ultimate question, then, was who renewed the confrontation after this separation. The state’s sole witness in this regard was Brisbane. She testified:

Q. (By the prosecutor) Miss Brisbane, when the truck turned around and came back, you said that he almost ran Jimmy Lee down. You said that the white man was on the other side of the street. Did the truck actually pass between Jimmy and the white man?
A. The white man got out of the way and the truck had ran Jimmy Lee over by the mailbox and he went up on the truck and Jimmy Lee went all the way back by the tree.
Q. So was the white man on the other side of the truck?
A. He had got on the other side of the truck.
Q. Miss Brisbane, from what you saw, had the truck come back through and pushed Jimmy Lee Edwards back?
A. He had to get out of the way.
Q. Was there anything preventing the white man from getting back in that truck and leaving?
[634]*634MR. PERRY: Objection, Your Honor. It’s not within the scope of her knowledge.
MS. MARSHALL: I believe she was an eyewitness, Your Honor.
THE COURT: If she can answer that question, I’ll allow it to stand.
Q. (By Ms. Marshall) From what you could see, was there anything preventing or keeping the white man from getting back in that truck and leaving?
A. No. The lady, she told him don’t do it, but he did it anyway.
Q. But there was nothing to keep him from getting back in that truck and leaving?
A. (Shakes head)
Q. No? Tell me.
A. No.
MS. MARSHALL: I have no further questions. (Emphasis added.)

It is apparent from the above testimony that the state failed to explicitly ask its witness whether Edwards came around the truck after Henderson or Henderson came around the truck after Edwards. Earlier in the direct examination of Brisbane, she gave equivocal testimony in regard to this issue:

Q. Miss Brisbane, what happened right after the white man jumped off the back of the truck?
A. He was reaching from the back of his pants.
Q. Okay. What happened then?
A. Then he shot him. Both of them — Jimmy Lee — I believe Jimmy Lee had a knife and he pulled out his gun and shot him and jumped in the back of the truck and left.
Q. Did you ever see Jimmy Lee Edwards pull a knife?
A. I didn’t see him, but he was just reaching back there for something.
Q. Did you ever see Jimmy Lee Edwards try to cut the white man?
A. No.
Q. Did he ever approach the white man?
A. No. I didn’t see.

The prosecutor failed to ascertain, by any further questioning, whether the words, “I didn’t see” referred to the fact that Brisbane’s view was obscured by the Bronco, or that she had already turned away to flee home, or that she was looking at the combatants and positively saw that Edwards made no aggressive move with a knife toward Henderson immediately prior to being shot. Such negative testimony as that given by Brisbane has consistently been held insufficient to create a factual issue in the face of positive testimony. See Welfare v. Seaboard Coast Line R. Co., 373 So.2d 886 (Fla.1979); Tyus v. Apalachicola Northern Railroad Company, 130 So.2d 580 (Fla.1961); Powell v. Gary, 146 Fla. 334, 200 So. 854 (1941); Seaboard Air Line R. Co. v. Myrick, 91 Fla. 918, 109 So. 193 (1926).1

It is clear from Brisbane’s testimony that Edwards was not shot prior to the intervention of the Bronco between the combatants. It is also clear from other state witnesses that the body of Edwards was found accompanied by a butcher knife with an eight-inch blade near the scene of the shooting. The state makes no pretense that Edwards was unarmed. Indeed, had Edwards not produced the knife during the confrontation, there is no way the defense witnesses could have known about it when their statements were taken several days after the incident. The testimony of Brisbane, “No, I didn’t see” in answer to the question as to whether Edwards ever approached Henderson is simply not sufficient, as required by Brown, to negate Henderson’s theory of self-defense.

Consistent with the state’s evidence that Henderson “went up on the truck” after the Bronco separated the combatants (and consistent with the absence of any state testimony that he thereafter approached Edwards), Henderson and three eye[635]*635witnesses in the Bronco2 all testified that Edwards came after Henderson with the knife after Henderson retreated and was attempting to get back into the Bronco, resulting in Henderson shooting Edwards in self-defense.3 Although the credibility of that testimony was a matter for the jury, it nevertheless demonstrates that the issue presented at trial was self-defense. Illustrative of such testimony was that given by Rhonda Butcher:

Q When Jim Henderson stepped out or jumped out of the Bronco, did you see what the black man did?
A He got off the bike and he threw it to the ground and stood at the edge.

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Henderson v. State, 507 So. 2d 632, 12 Fla. L. Weekly 990, 1987 Fla. App. LEXIS 7559 (Fla. Ct. App. 1987).

507 So. 2d 632 (Henderson v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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