Right after Judge Lester was removed from the bench, Mark O’Mara said he would likely schedule a “stand your ground” hearing sometime next year. On August 31, Rene Stutzman of the Orlando Sentinel wrote:
Nelson will now be the judge who must decide whether Zimmerman, who is charged with second-degree murder, is entitled to immunity under Florida’s much-debated “stand your ground” law, which allows anyone with a reasonable fear of imminent death or great bodily injury to use deadly force against an attacker.
Defense attorney Mark O’Mara has said he would likely schedule that hearing next year.
“It will take a tremendous amount of judicial courage at this point to throw the case out following an immunity hearing,” said Winter Park criminal-defense attorney David Faulkner. “My guess is that any judge, Judge Nelson or otherwise, is going to let a jury decide this issue for the benefit of the public.”
Of late, there’s been a lot of discussion and, perhaps, some arguments, over the difference between filing a stand your ground motion and a Motion for Declaration of Immunity and Dismissal. In essence, they are nearly interchangeable, sort of like buying a GM or Chevy vehicle. You can’t have a Chevy without GM, but it doesn’t work the other way around. Without the stand your ground law, there would be no immunity and dismissal motion applicable in this case. In other words, the important thing to remember is that the immunity and dismissal motion is based on Florida’s stand your ground law, F.S. Statute776.032: Immunity from criminal prosecution and civil action for justifiable use of force, which states:
A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer… As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
Initially, the Sanford Police Department followed the tenets of the stand your ground statute by not placing George Zimmerman under arrest, but that act did not mean he was free from future prosecution. Now arrested and charged, Zimmerman has a right to file the immunity and dismissal motion based on the statute. F.S. 776.012 states:
Use of force in defense of person.—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. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s. 776.013
Right now, we will pay particular attention to 776.012(1) and whether or not Zimmerman was right to believe that firing his gun into Trayvon Martin’s chest was necessary to prevent imminent death. After all, he said he was being pummeled to death by the teen. We will ignore 776.013 because it addresses the unlawful and forceful entering of “a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle…” 776.031 doesn’t apply, either, because it covers the use of force in defense of others.
Before going into F.S. 776.012, it’s important to first mention F.S. 776.041 and the “Use of force by aggressor.”
Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2) Initially provokes the use of force against himself or herself, unless:
(a) 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; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
Here is where some of the confusion may originate over stand your ground and immunity. By most witness accounts, and certainly something the State can clearly establish, the fight did not end where Zimmerman described. Trayvon’s body was found 30-40 feet south of the “T” joining the east/west sidewalk with the north/south one. Witnesses will testify that there was a scuffle with people running and yelling. Who was chasing whom is not relevant at this point because, once able to escape, Zimmerman chose not to. After all, he was the man with the gun. The bottom line is, he cannot prove that Trayvon cold-cocked him there at the “T” intersection. Furthermore, he cannot prove that’s where the fight ended with a bang, as he showed in his reenactment the next day. His best bet is to not bring it up at a dismissal hearing and that means the State will not be able to address it. That’s why, in my opinion, the Defense made an “adjustment” in its strategy, and it’s what led to the confusion over stand your ground and the impending dismissal motion.
At some point, the Defense realized it stood a better chance if it heeded F.S. 776.041. Where the Defense would most likely falter during a Motion for Declaration of Immunity and Dismissal hearing lays in (1) and the first part of (2) in 776.041. Why? In (1), will the Defense be able to factually establish that their client was not the aggressor, who forced himself upon the victim, therefore committing a felony? The shooting at the “T” has been debunked by evidence. The gunshot took place far enough away to establish that Zimmerman’s story is false. If the Defense goes in that direction, so will the State, and Bernie de la Rionda will have every right to do so. And, boy, will he ever!
There’s a big word in (2)… unless, and here’s where it will come into play. Let’s move south. For sure, there was a fight, and since no one can really prove who was on top and who was on the bottom, it’s important for the Defense to lay claim that Zimmerman was on the bottom, being beaten to death. I don’t believe (2)(b) will apply because there’s no testimony by the defendant that he attempted to withdraw. He will most likely assert that his mouth was covered and couldn’t speak, but if he does, the State will counter with the lack of evidence; there was no blood, saliva, or any of Zimmerman’s DNA on the victim’s hands. The Defense will not be able to prove it, any more than it will be able to prove that their client was the one yelling for help. If they try, the State will mention that the screaming stopped immediately after the gunshot while Zimmerman stated that he continued yelling for help as he spread the victim’s lifeless hands away from his torso.
Let’s try (2)(a) instead. Bingo! Here’s Zimmerman’s greatest hope. By claiming, which he has all along, that his life was in danger and that he had exhausted all means to escape, he had no choice but to shoot. OK, fine, but how did he gain access to his gun? The only way to explain it is to show the judge exactly how he did it, and the only person who could do that is George. Without taking the stand, he can’t do that because the video reenactment is too sketchy. If not that, then what’s left?
The medical records.
Yes, let’s just say that Zimmerman did have a fractured nose, meaning broken to some extent. The ARNP who diagnosed him was qualified to do so, and that’s what she wrote in her report:
1. Scalp Lacerations: No sutures needed given well-approximated skin margins. Continue to clean with soap and water dally. We discussed the red flag symptoms that would warrant Imaging given the type of assault he sustained. Given the type of trauma, we discussed that it Is imperative he be seen with his Psychologist for evaluation.
2. Broken Nose~ We discussed that it is likely broken, but does not appear to have septal deviation. The swelling and black eyes are typical of this injury. I recommended that he be evaluated by ENT but he refused.
Review of Systems:
Constitutional Symptoms: Denies fevers and/or chills.
Eyes: Denies loss and blurring of vision, diplopia.
Ear, Nose, Mouth, Throat: Admits nose pain. Denies hearing loss, tinnitus.
Cardiovascular: Denies palpitations, chest pain/pressure.
Respiratory: Denies shortness of breath.
Gastrointestinal: Denies abdominal pain, nausea and/or vomiting.
Integumentary: Admits- (Scalp lacerations).
Neurological: Admits head trauma. Denies tingling, numbness, weakness, headache, dizziness, speech difficulty, gait disturbance, loss of consciousness.
Psychiatric: Admits stress. Denies suicidal thoughts or attempts.
Nothing in that document paints a portrait of a person remotely close to death the day before. Even the Sanford Fire Department EMT report from the night of the incident showed nothing life threatening. Patient Conscious. Breathing normal. No external hemorrhaging. Mucous membrane normal. Extremities normal. Abrasions to his forehead and bleeding/tenderness to his nose. Small laceration to the back of his head. All injuries have minor bleeding. If you combine both reports, it doesn’t help the defense because Zimmerman cannot, in any way, shape or form, establish that he was remotely close to death, and if he tries, he opens a can of worms the State is going to take full advantage of.
Back to the matter at hand — the legalities. Enough of the medical. If Zimmerman can factually establish that his use of deadly force occurred under the circumstances outlined in the above statutes, he could walk. Peterson v. State, 983 So. 2d 27, 29 (Fla. 1st DCA 2008) showed that F.S. 776.032 established a true immunity and not just a justification for what he did. According to the Jacksonville law firm, Hussein & Webber’s website:
The Court stated that, when immunity under the law is properly raised by a defendant, the trial court (at a hearing) must decide the matter by confronting and weighing only factual disputes. Petersen held that a defendant may raise the question of statutory immunity pre-trial and, when such claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that immunity attaches. Unlike a motion to dismiss, the trial court may not deny a motion for immunity simply because factual disputes exist.
The main issue in this case will be whether or not Zimmerman will be able to show enough evidence to establish immunity. Once again, I must reiterate what I touched on in The Prince and the Pea: Subjective or Objective Fear in the Petitioner? Was Zimmerman’s fear subjective or objective? Was he correct in fearing for his life or did he just panic? That’s the difference, and there’s a huge distinction between the two and whether or not immunity applies. Of course, there’s one more thing that could only be brought up at trial; did George Zimmerman shoot Trayvon Martin in cold blood? For that reason alone, and for the lack of evidence showing “by a preponderance of the evidence,” Mr. O’Mara had better be preparing his client for trial. I see it no other way.