A Cup of Joe | The Death of Cabbagestalk: A Time to (NOT) Kill?

In the novel, A Time to Kill, (1989) and movie (1996) with the same name we were given an example of when it was, well, a time TO kill. The father of a young girl shoots the men who brutally assaulted his daughter and left her for dead. This week’s case brings us to the Bronx. That’s where Vonde Cabbagestalk used to live. He died at age 21. He was shot by his girlfriend’s father.

Enter: 21-year-old Vonde Cabbagestalk; his girlfriend, Myesha Brown; Darryl Brown, Myesha’s father; Raymond Wolf, a postal worker; Sheila Thomas, a 5th floor neighbor; and, Yvette Flores, who also lived in the same building across the hallway from Darryl and Myesha.

Darryl shot and killed the unarmed Cabbagestalk in the lobby of Darryl’s apartment building after an argument. Darryl was arrested and charged with murder. It was March.

The Trial:

The jury heard testimony that Cabbagestalk was known to frequently stalk Myeshsa, despite an order of protection against him. He was also noted to be a trespasser and fare beater. Darryl was a 58-year old off-duty corrections officer, the owner of a licensed firearm. Myesha had a little baby. She was in love with Cabbagestalk.

Yvette Flores — the Peephole Neighbor:

Yvette Flores, who lived across the hallway, testified that at 12:30 p.m., she was at home when she heard a loud voice in the hallway, looked through the peephole in her door, and saw Darryl and Myesha, who was holding a baby, standing in the open doorway of their apartment. Darryl was speaking with Cabbagestalk.

Q: Did you hear what they were saying?

A: They were arguing back and forth in loud voices but I don’t know what they were saying.

Q: Was there any contact between them when they were arguing?

A: No, not at Darryl’s doorway. But then they walked out of my line of sight toward the lobby, arguing and cursing.

Q: What was Myesha doing?

A: Myesha just stayed at the apartment door with the baby, looking upset.

Sheila Thomas — neighbor:

(Sheila Thomas, was just returning to the building after having gone food shopping. She was standing just outside the vestibule door, facing into the lobby, holding groceries and searching for her keys.)

Q: What did you hear as you were looking for your keys?

A: I heard voices arguing inside the building.

Q: What did you see?

A: Through the vestibule door windows, I saw Darryl walk across the lobby. He was being followed about six to seven feet behind by Cabbagestalk.

Q: What happened?

A: Darryl appeared to be very upset, angrier and more aggressive than Cabbagestalk, who wasn’t too upset. I saw Cabbagestalk holding out both of his hands toward Darryl with his palms facing outward, trying to reason with Darryl. Darryl wasn’t having it, though.

Raymond Wolf — a postal worker:

(Wolf was delivering mail at the building when he noticed Darryl in the lobby.)

Q: What did you see?

A: I saw Darryl approach Cabbagestalk.

Q: What did you hear?

A: I heard Darryl yell, “stay away from my daughter, don’t come around here.” Then Darryl yelled, “why you here, here?”

Q: Did Cabbagestalk respond?

A: He said, “you can’t tell me where to be.”  Then they were like getting in each other’s faces, and Cabbagestalk started trying to back Darryl down.

Q: And then what happened?

A: Then some guy tried to separate them, telling Cabbagestalk to “break it up” and “chill out, relax.” Cabbagestalk took three swings of his fist toward Darryl but didn’t hit him.

Q: What happened next?

A: I noticed that Darryl was holding a gun

Q: What was Cabbagestalk doing at that point?

A: Cabbagestalk was standing about two feet from Darryl and he took a swipe at the gun with his hand, saying, “you going to pull a gun out, you better use it.”

Q: Did he hit Darryl?

A: No, sir.

Q: What did you do then?

A: Ran.

Q: Where did you run?

A: Up the stairs. That’s when I heard a gunshot. I then called my supervisor.

Back to Yvette’s Peephole – “No, Daddy, No!”

Meanwhile, Yvette Flores had returned to her vantage point at the peephole of her apartment door and observed that defendant’s daughter, Myesha, was still standing at the doorway of apartment 1B. She heard Myesha yell, “No, daddy, no!” And then she heard “a loud boom” and moved away from the door. Then Yvette looked through the peephole again and saw Darryl, along with Myesha and the baby, enter his apartment. Yvette called 911.

Yvette then opened her door and saw Cabbagestalk lying motionless in front of the lobby door. Cabbagestalk was dead.

Darryl:

Darryl claimed that Cabbagestalk had been beating his daughter, which had upset him. Darryl’s lawyers asked the judge to give the jury what is called a JUSTIFICATION CHARGE.  Simply put, the justification charge is having an excuse to kill someone. Darryl’s lawyers argued that they should be able to argue that the killing was justified. The trial judge refused stating that Darryl was not entitled to a justification charge because HE was the initial aggressor.

Closing Argument:

Darryl’s Lawyer: “It was self-defense!”

Assistant District Attorney: “He pulled that trigger on an unarmed man; a man who merely threw punches at him.”

The Verdict:

The jury found Darryl guilty of Manslaughter in the first Degree.

The Appeal:

Darryl’s lawyers appealed arguing that he should the jury have been given the justification charge. New York’s highest court, the Court of Appeals, disagreed with that argument. The Court wrote that “calling a person names or the like unaccompanied by physical threats or acts does not make a person an initial aggressor and does not justify physical force, let alone deadly physical force.” The Court continued, “when defendant became the first and only participant in the altercation to threaten the use of deadly physical force . . . he did so without any basis for fearing that Cabbagestalk was about to use such force on him.”

The jury in A Time to Kill, believed that Carl Lee Hailey (played by Samuel L. Jackson) was justified in his actions against the men who cruelly attacked his little girl. They let him go.

In this week’s case, the judge determined that it was not a time to kill. Our Court of Appeals agreed.

The Sentence:

Darryl was sentenced to 18 years in prison. He could have received 25.


Here is the case:

http://www.courts.state.ny.us/reporter/3dseries/2019/2019_03529.htm

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