PRINCETON — As his first-degree murder trial date nears, Harvey Lee Henley Jr.’s defense rests on the idea that he had to either kill Johnny Midkiff II or die himself.

The evidence that could support or refute that theory was still up for a debate in Circuit Judge William Sadler’s courtroom this week, as the state and defense argued for suppression of certain information and the admission of other.

Midkiff, 33, of Lashmeet, died Feb. 9 of a single gunshot wound to the head, sustained as he sat behind the steering wheel of his black Hummer along state Route 10. Monday, Mercer County Sheriff’s Department Maj. D.B. Bailey testified that he talked with Henley the night of Midkiff’s death.

“I received a telephone call from Sheriff Meadows, asking if I could come speak with the defendant,” Bailey said, explaining that Henley had requested to speak with the officer based upon his involvement in a previous dispute between the defendant and the victim.

“Basically, he confessed to the shooting and advised that it was in self-defense,” Bailey said.

The officer testified that Henley said he went to Lashmeet to ask a friend if Midkiff was back in the rural community after bonding out of jail on another charge. When the Jeep in which he was traveling allegedly broke down, Henley set out on foot in search of assistance. He encountered Midkiff and his father in the Hummer along Route 10. Henley reportedly told Bailey the two exchanged words and that Midkiff appeared to be reaching for a firearm.

Henley then said he withdrew his own gun and fired a single shot toward Midkiff, “hitting the subject” in the face.

Assistant Prosecuting Attorney George Sitler asked whether Midkiff was actually armed at the time of the confrontation. Bailey said he couldn’t answer conclusively because he didn’t complete the follow-up investigation.

“I can only tell you what I’ve been told, and that was that no firearm was found,” the officer said.

At some point during the altercation, Midkiff’s vehicle struck or ran over Henley, who still managed to flee the scene on foot. Bailey said injuries from the impact were visible on the defendant once he was taken into custody.

Defense counsel William Flanigan questioned whether cylinder burns were present on Henley’s hands, indicating he had taken time to “cradle” his weapon and aim it properly toward Midkiff. Bailey testified that he did not recall seeing any burns, but that he had not been called in specifically to search for them.

At the conclusion of his testimony, Flanigan advised the court that the defense would not challenge the voluntary nature of the defendant’s statement to Bailey.

The debate became more animated as the state announced its desire to enter evidence of a long-running feud between Henley and Midkiff that was fueled by the romantic relationship between Henley’s wife and Midkiff. Sitler deemed Henley’s feelings toward the victim as a “violent dislike,” which prompted Henley’s tendency to “seek out Mr. Midkiff when he was in the company of his wife.”

Henley’s wife testified previously that he “ran them off of the road” on Dec. 22, 2009.

Flanigan countered, however, that while Henley wasn’t happy with the relationship, Midkiff had proven more violent in their history.

On Dec. 17, 2009, he argued that Henley found Midkiff and his wife engaged in intimate activity in the back of a vehicle. At that time, Flanigan said, Midkiff freely walked away from the vehicle while Henley confronted his wife. Midkiff entered another house, called 911 and sought a firearm, all without Henley’s pursuit, the defense attorney said.

In January, Midkiff advised Bailey that Henley had repeatedly called his cell phone with a request for a fist fight at 6 p.m. outside the Princeton Senior High School football field house. When Bailey called Henley in to talk and checked the phone records, it was actually Midkiff who had repeatedly called Henley, Flanigan said.

In fact, Bailey testified that he believed there to have been seven calls from Midkiff’s phone to Henley’s phone, but two or three of the calls may have been blocked and shown up as a private number.

“I talked to both of them,” Bailey said. “I told Mr. Midkiff they needed to stay away from each other, and I talked to Mr. Henley and told him they needed to stay away from each other.”

They didn’t listen.

On Jan. 6, Princeton Police Department Sgt. B.R. Woodard testified that Henley flagged him down on Stafford Drive and reported that Midkiff had confronted him outside the PSHS field house, brandished a loaded firearm and fired shots at him as he fled. PPD officers talked with witnesses, but no one reported observing or hearing shots fired.

Over the next few weeks, other law enforcement agencies encountered the two men and their ongoing disputes. One involved a trespassing complaint in which Henley alleged Midkiff was at his home, and the defendant reported at another time that Midkiff’s vehicle was spotted in the parking lot where he worked in Blacksburg, Va.

On Feb. 9, under a driving snow and in the dark of winter, the feud ended with one man dead and another facing the possibility of life in prison for committing first-degree murder.

Flanigan argued Monday that there was no way his client committed murder, because he had reason to believe his life was in jeopardy. In addition to the long list of altercations between the two men, Henley also knew that Midkiff had killed his wife, Lori Midkiff — information the defense hopes to admit and the state wants left out of trial.

While Johnny Midkiff was never charged with a crime in the fatal incident that was officially ruled an accident, Flanigan said knowledge of the event gave Henley reason to believe Midkiff could kill again, likely using a firearm.

Sitler countered that because Midkiff was never formally accused of killing Lori Midkiff on purpose and it appeared as though he was unarmed at the time  of his death, Henley could not reasonably fear for his life.

“He wasn’t under attack, and certainly not murderous attack,” Sitler said.

Flanigan disagreed.

“Your honor, that’s for the jury to decide,” he said. “Even at the time of the shooting, the person being hunted was Lee Henley.”

Sadler declined to rule on the evidence Monday, advising attorneys he would notify them of the decision prior to the Aug. 31 trial date currently slated.

As the last remaining item Monday, Flanigan requested that Henley’s sister be allowed to measure him for new clothing. He’s gained some weight over the last six months in custody, and he needed to know what size clothes to purchase for the trial.

— Contact Tammie Toler at ttoler@ptonline.net.