Poole v. State
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JAMES EDWARD POOLE,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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Case No. 2D08-3211
Opinion filed December 23, 2009.
Appeal from the Circuit Court for
Hillsborough County; William Fuente,
Judge.
James Marion Moorman, Public Defender,
and Kevin Briggs, Assistant Public
Defender, Bartow, for Appellant.
Bill McCollum, Attorney General,
Tallahassee, and Timothy A. Freeland,
Assistant Attorney General, Tampa, for
Appellee.
WALLACE, Judge.
James Edward Poole appeals his judgment and sentence for murder in
the second degree. After a thorough review of the record, we conclude that the State
failed to establish a prima facie case of second-degree murder. For this reason, we
reverse Poole's judgment and sentence and remand for the trial court to adjudge Poole
guilty of the lesser offense of manslaughter1 and to resentence him accordingly.
I. THE FACTS
The State obtained an indictment against Poole for the murder in the first
degree of Darryl Newsome, one of Poole's drinking companions. Newsome had no
fixed address, and his acquaintances referred to him as a "floater." Newsome was a
large man; he was six feet tall, weighed 273 pounds, and was very strong. Newsome
also had a reputation for violence, especially after he had consumed alcohol or drugs.
Newsome, Poole, and several other men were regular visitors at the
recreational vehicle where Jerry Headley lived in Tampa. Newsome frequently bullied
Headley. Headley had cancer, and he was debilitated as a result of his illness.
On the afternoon of October 17, 2007, Newsome, G.M., and one or two
other men had gathered at Headley's recreational vehicle. The recreational vehicle was
quite small, and the men congregated outside drinking beer and whiskey. Before the
incident that led to his death, Newsome had also been smoking crack cocaine.
Poole arrived at Headley's recreational vehicle when it was beginning to
get dark. The drinking continued. G.M. complained to Poole that Newsome had taken
Headley's electric fan. G.M. was lying on the ground because of the effects of his
intoxication. Newsome began to kick G.M. in the back and told him that he was going to
beat him. Poole cautioned Newsome to leave G.M. alone because G.M. "was too drunk
1
§ 924.34, Fla. Stat. (2007).
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to even mess with." Next, Newsome went inside Headley's recreational vehicle. Taking
advantage of Newsome's retreat, G.M. wisely followed Poole's advice to leave.
Later in the evening, all of the men had left the area except Headley and
Poole. The two men were inside Headley's recreational vehicle watching a football
game on television. Newsome suddenly returned a few minutes after he had departed
and sat down inside the recreational vehicle. The incident that led to Newsome's death
quickly followed. Thus the only witnesses to the killing of Newsome were Headley and
Poole. For reasons unexplained in our record, Headley did not testify at trial. For this
reason, Poole provided the only evidence concerning what led to Newsome's death.
According to Poole, when Newsome returned to the recreational vehicle,
he was visibly angry. Newsome sat in a chair with his fists balled up, his eyes as "big
as half dollars," and moving his lips but not saying anything. Poole had armed himself
with a steak knife from Headley's kitchen because he was afraid Newsome was going to
hurt either him or Headley. Newsome was a larger man than Poole. Poole was afraid
of Newsome; he believed that he would not be able to defeat Newsome in a fight.
Suddenly, Newsome got up and lunged at Poole in the cramped confines
of the recreational vehicle.2 Poole removed the steak knife from his pocket and stabbed
Newsome once. Poole testified that when Newsome got up and lunged at him he was
in fear that Newsome was going to harm him because Newsome was still angry about
the earlier incident when Poole had told Newsome to break off his attack on the
obviously intoxicated G.M. Poole said that he was motivated by fear for his own safety,
2
In a taped interview made after he was arrested, Poole told detectives
that he believed Newsome was preparing to attack either him or Headley.
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not hatred of Newsome or a wish to kill him. However, there was no evidence that
Newsome was armed.
Poole's single strike with the knife punctured Newsome's heart and the left
side of his diaphragm. Newsome survived long enough to stagger out of the recreational vehicle to a pay phone at a nearby convenience store. Newsome used the phone
and apparently called 911. After he had used the pay phone, Newsome collapsed in
the convenience store parking lot. Two Hillsborough County Sheriff's deputies who
were conducting an unrelated surveillance operation saw Newsome and came to his
aid. Newsome soon died as a result of internal hemorrhaging resulting from the stab
wound.
Meanwhile, Poole and Headley remained in the recreational vehicle and
awaited the arrival of law enforcement officers. The sheriff's deputies who responded to
the scene described both men as having the odor of alcoholic beverages about their
persons. Later, a toxicology screen performed on Newsome by the medical examiner
showed an alcohol level of .06 percent in his blood and was also positive for the
presence of cocaine.
The trial court denied the defense motion for judgment of acquittal and
submitted the case to the jury on the charge of murder in the first degree. The jury
returned a verdict finding Poole guilty of the lesser-included offense of second-degree
murder. The trial court adjudged Poole to be guilty and sentenced him to serve a term
of twenty years in prison followed by five years of drug offender probation. This appeal
followed.
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II. DISCUSSION
In his first point, Poole argues that the evidence was insufficient to support
his conviction for second-degree murder. We agree. The evidence showed that
Newsome and Poole had socialized and drunk together for several years. On the day
Newsome was killed, both men had been drinking with Headley and other men at
Headley's recreational vehicle. Later in the evening, Headley and Poole were alone
with Newsome inside the small recreational vehicle. Newsome, who had also been
smoking crack cocaine, was apparently still angry about Poole's earlier intervention on
behalf of G.M. Without warning, Newsome lunged at Poole in an apparent attack.
Poole, who had nowhere to retreat, lashed out once at Newsome with the knife.
Unfortunately, Poole's single blow mortally wounded Newsome.
Newsome was unarmed, and it did not appear that he was aware that
Poole had previously armed himself with a knife. Thus Poole's act of stabbing
Newsome through the heart appears excessive, and the jury could reasonably reject his
theory of self-defense. However, the State failed to prove that Poole acted out of ill will,
hatred, spite, or an evil intent showing the depraved mind essential to establish seconddegree murder. Instead, Poole stabbed Newsome because he "knew [Newsome] was
fixing to get me." Thus the evidence showed an impulsive overreaction by Poole to
Newsome's attack that warrants a conviction for manslaughter but not second-degree
murder. See Bellamy v. State, 977 So. 2d 682, 684 (Fla. 2d DCA 2008); Light v. State,
841 So. 2d 623, 626 (Fla. 2d DCA 2003); Rayl v. State, 765 So. 2d 917, 919-20 (Fla. 2d
DCA 2000); Williams v. State, 674 So. 2d 177, 178 (Fla. 2d DCA 1996); McDaniel v.
State, 620 So. 2d 1308, 1308 (Fla. 4th DCA 1993); Borders v. State, 433 So. 2d 1325,
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1326 (Fla. 3d DCA 1983); Pierce v. State, 376 So. 2d 417, 418 (Fla. 3d DCA 1979);
Martinez v. State, 360 So. 2d 108, 109 (Fla. 3d DCA 1978).
Accordingly, we reverse Poole's judgment and sentence for seconddegree murder. On remand, the trial court shall adjudge Poole to be guilty of
manslaughter and resentence him on the lesser charge.
Poole raises two additional points in his appeal. At trial, both the defense
and the State requested a jury instruction on the lesser offense of third-degree murder.
The trial court declined to give the requested instruction. In his second point, Poole
argues that the trial court's denial of the requested instruction was error. Once again,
we agree with Poole. See Sheridan v. State, 799 So. 2d 223, 225 (Fla. 2d DCA 2001);
Peterson v. State, 643 So. 2d 9, 10 (Fla. 2d DCA 1994). However, our decision to
reverse Poole's second-degree murder conviction and to remand for him to be
adjudicated guilty of manslaughter renders Poole's argument about the jury instruction a
moot point. Manslaughter and third-degree murder are both second-degree felonies.3
Poole's third point is without merit and does not warrant discussion.
Reversed and remanded with instructions for the entry of a judgment for
manslaughter and for resentencing.
CASANUEVA, C.J., and NORTHCUTT, J., Concur.
3
We also note that manslaughter is a level 7 offense under the Criminal
Punishment Code. § 921.002(g), Fla. Stat. (2007). Third-degree murder is a level 8
offense. § 921.0022(h).
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