"Direct evidence is that to which the witness testifies of his own knowledge as to the facts at issue. Circumstantial evidence is proof of certain facts and circumstances from which the trier of fact may infer that the ultimate facts in dispute existed or did not exist."
O'Mara argues if the court rejects this argument, it should grant the motion for judgment of acquittal simply because there is no evidence to support that Zimmerman acted out of ill-will, hatred or spite.
O'Mara cites Emmanuel Burgess, the serial burglar at RATL, and mentions that Judge Nelson is familiar with him because she sentenced him to 5 years.
O'Mara correctly argues that in the overwhelming number of cases, the parties knew each other for a period of time and the enmity had time to build up.
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. McDaniel v. State, 620 So. 2d 1308 (Fla. 4th DCA 1993); Williams v. State, 674 So. 2d 177, 178 (Fla. 2d DCA 1996).
From one of my earlier posts on the legal issues in this case:
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.
...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.
Dorsey v. State(2011)
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.
The state begins its argument and immediately twists the facts and law. As but one example, the state cites the Leasure case, which I referred to the other day. The state cites the inconsistencies in the defendant's statements, as comparable to this case. Really?
Leasure told the 9-1-1 operator three different stories, including that she shot Tilley to protect herself, that she shot him accidentally, and that he shot himself.
The state is also incorrect in stating Zimmerman's statement to Hannity about his lack of knowledge of stand your ground is direct, rather than circumstantial evidence of ill-will, hatred, or spite. That's an inference the state wants the jury to make. It's the state's theory, not direct evidence.
The state also erroneously claims the issue is which of the two individuals were acting in self-defense. In order for Martin to have been justified in attacking Zimmerman, he had to have reasonably believed he was in imminent danger of the use of physical force by Zimmerman. The state presented zero evidence that Zimmerman was about to use force on Martin.
Other sleights of hand: The state's attorney refers to Zimmerman's going to Target and adds "If he was really going to Target." I don't recall a single piece of evidence or testimony the state produced to question that Zimmerman was going to Target.
O'Mara argues again, pointing out how different the facts are in the Leasure case. The Leasure case, by the way, also states:
In cases involving circumstantial evidence as to the element of intent, such as this one, the evidence must not only be sufficient to support a finding of guilt; it must also be inconsistent with any other reasonable hypothesis of innocence.
I believe the motion should be granted, but I think the court will say there is conflicting testimony and conflicts in the evidence must be decided by the jury.
Additional earlier posts on the legal issues:
