George Zimmerman : Witness Support and Legal Recap
I've made a new category called "Reference Docs" for the George Zimmerman case. It is for handy access to things like the witness interviews and case photos and maybe some legal documents. I'll be adding to it over the next few days.
I also made a special set of commenting rules for the George Zimmerman case. Please read them.
On to witnesses: Many have focused on Witness 6 (John) and Witness 13, but I'd encourage everyone to listen to the later interviews of W-11, who was the first to call 911 and lives with Jeremy at 1211 Twin Trees Lane. Her audio interviews are available here. [More....]
As to the law and burden of proof on self-defense, the aggressor statute, Stand Your Ground and second degree murder, Florida law is very clear.
For the basics, since I don't want to repeat myself, see my earlier posts :
- Stand Your Ground and Self Defense
- Can the State Prove Zimmerman's Ill-Will, Hatred, Spite and Evil Intent:
- Zimmerman: The Discovery and the Witnesses
- George Zimmerman: The Most Likely Scenario
- Zimmerman: Witnesses 2 and 12
- George Zimmerman: State of the Evidence
- George Zimmerman's Crediblity
- Zimmerman's Medical Reports Show Broken Nose and Lacerations
- Burden of Proof at George Zimmerman Bail Hearing
To clear up some misconceptions I've been reading in comments here and elsewhere, here are some key legal points to keep in mind. These are based on my review of Florida statutes, case law and jury instructions.
1. To get a jury instruction on self defense, all Zimmerman must produce is some evidence, no matter how flimsy, even if it's just his own version of events.
From Vila v. State (2011):
According to Vila's testimony, the victim attacked him first, and he responded in order to defend himself against that attack. The State contends that Vila was not entitled to the instruction because the evidence that he presented was minimal and self-serving. This argument lacks merit as a defendant is entitled to a self-defense instruction if there is any evidence to support his defense. Wright v. State, 705 So. 2d 102, 104 (Fla. 4th DCA 1998) (holding that defendant is entitled to jury instruction on his theory of case if there is any evidence to support it, no matter how flimsy that evidence might be); Taylor v. State, 410 So. 2d 1358, 1359 (Fla. 1st DCA 1982) (holding defendant entitled to requested self-defense instruction no matter "how weak or improbable his testimony may have been with respect to the circumstances" leading to commission of offense).
.....If evidence exists that raises self-defense as an issue, the proper approach is to offer the self-defense instruction with the forcible felony or initial provocation exceptions. See generally Cancel, 985 So. 2d at 1127.
Also see Gregory v. State and the Arthur case.
A criminal defendant is entitled to have the jury instructed on the law applicable to his or her theory of defense where there is any evidence to support it, no matter how weak or flimsy.
2. The Aggressor Statute: Why Zimmerman is not the Aggressor, But If He Was, He Could Still Use Deadly Force
The aggressor statute in Florida, § 776.041, allows the aggressor to respond with deadly force to the victim's use of force against him, if:
Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant;
An aggressor is someone who initially provokes the use of physical force. Provoking fear is not the test. And the provocation has to be contemporaneous with the victim's use of force against him. The statute explicitly refers to an aggressor as someone who “initially provokes the use of force against himself or herself.”
There are two sections of the aggressor statute. The first one, concerning forcible felonies, does not apply to this case because George Zimmerman is not charged with an independent forcible felony. A multiple of Florida cases and the state’s jury instructions state this. See, Dennis v. State, Martinez v. State, Giles v. State, and Smith v. State.
The Florida Supreme Court amended and clarified the instruction on the justifiable use of deadly force in March 2008......See In re Standard Jury Instructions in Criminal Cases—Report No. 2007-3, 976 So. 2d 1081, 1087 (Fla. 2008) (expressly stating the "forcible felony" instruction is to be given only if the defendant is charged with an independent forcible felony). The 2010 version is here.
The state may try to show GZ did something that legally justified TM's punching him in the nose and then smacking him in the head. Even if they were able to show GZ did something that justified TM's reaction of punching him in the nose and beating his head, GZ should still prevail on self-defense unless he had some other, lesser means to stop Trayvon's assault or reaching for his gun. See Martinez v. State and Johnson v. State:
Specifically, section 776.041 "[s]ubsection (2) precludes the initial aggressor from asserting self-defense where he or she is the individual who provoked the use of force" contemporaneously to the actions of the victim to which the defendant claims self-defense.
Also, in order for Trayvon to have been justified in his use of non-deadly force against GZ, he had to reasonably fear an imminent attack by Zimmerman. He can't just have been afraid because he was unsure what Zimmerman up to. Section 776.012
A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force.
If Zimmerman did not do anything to provoke Martin's assault, then stand your ground applies:
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
3. Once George Zimmerman introduces some evidence of self-defense and is entitled to a jury instruction, he has no other burden of proof. The state must disprove self-defense by proof beyond a reasonable doubt.
From Stieh v. State(2011):
It was the State's burden to overcome Stieh's theory of self-defense and prove beyond a reasonable doubt that Stieh was not acting lawfully when he stabbed the victim. See Behanna, 985 So. 2d at 555. As noted by this court in Jenkins, HN7"self-defense cases are intensely fact-specific." 942 So. 2d at 916. But where the evidence " 'leaves room for two or more inferences of fact, at least one of which is consistent with the defendant's hypothesis of innocence, [it] is not legally sufficient to make a case for the jury.' " Fowler, 921 So. 2d at 712 (quoting Fowler v. State, 492 So. 2d 1344, 1348 (Fla. 1st DCA 1986)).
From Falwell v. State(2012)
Defendant [is] not required to prove self-defense claim beyond reasonable doubt or by preponderance of evidence; rather, self-defense evidence needed merely leave jury with reasonable doubt about whether he was justified in using deadly force)... The burden of proving guilt beyond a reasonable doubt, including the burden of proving that the defendant did not act in self-defense, ever shifts from the State to the defendant
Montijo v. State(2011)
When a defendant claims self-defense, the State maintains the burden of proving the defendant committed the crime and did not act in self-defense. See id.; Mosansky v. State, 33 So. 3d 756, 758 (Fla. 1st DCA 2010). The burden never shifts to the defendant to prove self-defense beyond a reasonable doubt. Rather, he must simply present enough evidence to support giving the instruction.
4. Zimmerman does not have to testify to get a jury instruction on self-defense
Wright v. State(1998):
A self-defense instruction for the charge of battery on a police officer can be supported by circumstantial evidence from which a jury could infer that the defendant believed that his conduct was necessary to defend himself from an officer's use of excessive force in making an arrest. See Johnson v. State, 634 So. 2d 1144, 1145 (Fla. 4th DCA 1994). To raise self-defense, a defendant [**5] does not have to testify directly about his intent behind an act occurring in the past, or that he made a conscious decision to defend himself in a certain way. Not remembering an event does not preclude the possibility of either an intentional act or an accident. From the circumstances surrounding an arrest made with excessive force, a jury might infer that a defendant reasonably believed that responsive force was reasonable and necessary and, therefore, proper. As the second district stated in Kilgore v. State, 271 So. 2d 148, 152 (Fla. 2d DCA 1972)
....it is not the quantum or the quality of the proof as to self-defense that determines the requirement for giving the charge. If any evidence of a substantial character is adduced, either upon cross-examination of State witnesses or upon direct examination of the defendant and/or his witnesses, the element of self-defense becomes an issue, and the jury, as the trier of the facts, should be duly charged as to the law thereon, because it is the jury's function to determine that issue.
Goode v. State(2003):
The evidence supporting appellant's theory may be adduced from cross-examination of State witnesses or direct examination of the defense witnesses. See Wright, 705 So. 2d at 104 (citing Kilgore v. State, 271 So. 2d 148, 152 (Fla. 2d DCA 1972)).
5. The Rules of Evidence are not relaxed and Hearsay is not allowed at a Stand Your Ground Hearing:
McDaniel v. State(2009):
While the rules of evidence are inapplicable or relaxed in certain proceedings, we have been unable to find--and the parties have not cited--any authority holding that hearsay evidence is admissible at a pretrial evidentiary hearing on a motion to dismiss based on immunity. Cf. Charles W. Ehrhardt, Ehrhardt's Florida Evidence § 103.1, at 5-7 (2009)
6. The Danger George Zimmerman Feared Need not be Real or Actual.
Raneri v. State(1971)
While the danger need not be real or actual, the appearance of danger must be both real and imminent and the slayer must actually and reasonably believe that it is necessary to act in order to save his own life or that of a member of his family from death or great bodily harm in order to constitute justification.
Stinson v. State(1971)
A person may act upon appearances as they appear to him at the time, even to the extent of taking human life if he honestly and actually believes - and the attending circumstances and conditions are such that a reasonably cautious and prudent person would believe - that he or some member of his family is in imminent danger of death or great bodily harm at the hands of the deceased. The danger need not be real or actual, but the appearance of danger must be both real and imminent and the slayer must honestly believe it is necessary to act in order to save his own life or that of a member of his family from death or great personal injury in order to constitute justification. He must actually and reasonably believe the danger to be actual and the necessity real.
7. Depraved Mind Requires Showing of Ill-Will, Hatred, Malice:
Stinson v. State( 1971):
When the deceased swung at him, appellant was under no compulsion to wait around and see whether the second blow might find its mark as promised by the aggressor.Dorsey v. State(2011)
...In the circumstances reflected in this record, there was no evidence from which the jury could infer that the appellant acted in a manner evincing a depraved mind as defined by our Supreme Court in Ramsey v. State, 114 Fla. 766, 154 So. 855, when he instinctively neutralized his attacker with the only appropriate means at hand. That the attacker sustained a mortal wound is a matter that should have been considered by the deceased before he committed himself to the task he undertook.
The crime of second degree murder is defined as the "unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual." § 782.04, Fla. Stat. (2006).
An act is imminently dangerous to another and evinces a "depraved mind" if it is an act or series of acts that: (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another; (2) is done from ill will, hatred, spite or an evil intent; and (3) is of such a nature that the act itself indicates an indifference to human life. Wiley v. State, 60 So. 3d 588, 591 (Fla. 4th DCA 2011); Fla. Std. Jury Instr. (Crim.) 7.4.
Florida courts have held that an impulsive overreaction to an attack or injury is itself insufficient to prove ill will, hatred, spite, or evil intent. See, e.g., Light v. State, 841 So. 2d 623, 626 (Fla. 2d DCA 2003); McDaniel v. State, 620 So. 2d 1308 (Fla. 4th DCA 1993).
"Although exceptions exist, the crime of second-degree murder is normally committed by a person who knows the victim and has had time to develop a level of enmity toward the victim." Light, 841 So. 2d at 626. Moreover, "[h]atred, spite, evil intent, or ill will usually require more than an instant to develop." Id.
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