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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.


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Comment Preferences

  •  Why mention 776.041? (0+ / 0-)

    Do you seriously think they're going to cite that, when they have a ironclad 776.012 claim?

    “It will take a tremendous amount of judicial courage at this point to throw the case out following an immunity hearing,"
    If you define "Judicial courage" as following the clear letter of the law, I suppose.
    •  Judicial courage (3+ / 0-)
      Recommended by:
      codairem, a2nite, Otteray Scribe

      It was Winter Park criminal-defense attorney David Faulkner who said that, not me.

      As for your statement that the defense has an ironclad 776.012 claim, tell that to any defense team worth their weight in salt. To make such a statement is clearly one made in haste or based on pure bias. Or both. The letter of the law is straightforward, but it proves nothing regarding the way Zimmerman handled himself that night, not to mention his incessant lies to everyone who listens.

      •  If the prosecution has any evidence... (0+ / 0-)

        ...that he wasn't attacked by Martin, they haven't presented it (or leaked it along with everything else to the press.)

        They're facing down a ton of consistent, forensic evidence.

        Even the prosecution affidavit (PDF) doesn't allege Zimmerman was the aggressor in the struggle.

        •  Huh? Doesn't allege what??? (1+ / 0-)
          Recommended by:
          Otteray Scribe

          "During this time, Martin was on the phone with a friend and described to her what was happening. The witness advised that Martin was scared because he was being followed through the complex by an unknown male and didn't know why. Martin attempted to run but was followed by Zimmerman... Zimmerman got out of his vehicle and followed Martin... Zimmerman disregarded the police dispatcher [who instructed him not to follow] and continued to follow Martin who was trying to return to his home... Zimmerman confronted Martin and a struggle ensued."

          This is a portion of what was written in the prosecution affidavit, MGross. What part of that do you not understand, or do you always read things one way - the way YOU see them? According to that document, Zimmerman was clearly viewed as the aggressor. Reverse the roles and tell me what you see? A very rabid, agressive Trayvon, huh? You are definitely biased.

          Open your eyes! Open your mind!

          •  As to the bias charge, ... pot, meet kettle. (0+ / 0-)

            And for the umpteenth time, Zimmerman was NEVER "instructed" by the dispatcher to not follow Martin.  But that's a distinction lost on a person who doesn't even know the difference between a judge's recusal and one being "removed from the bench".

            "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

            by Neuroptimalian on Thu Sep 06, 2012 at 05:55:36 PM PDT

            [ Parent ]

            •  dispatchers are not sworn officers (4+ / 0-)

              I've read:  "told" "directed" "ordered" "instructed" when the fact is: "advised to remain in his car".

              Facts:

              One person was armed.

              One person was stalked by an armed adult.

              One person was shot by that armed adult.

              No other person was armed, nor employed an "object of opportunity" such as a frying pan, hammer, or wrench.

              My read is that a Felony must be taking place, such as Assault with a Deadly Weapon - for SYG to have merit.

              Felony Breaking and Entering.  Felony Rape.  Felony Larceny.  Felony Armed Robbery.

              Florida didn't have Felony Possession of Skittles® on-the-books at the time of young Mister Martin's death.

              •  The verb is irrelevant. (0+ / 0-)

                The fact is that the dispatcher merely said "we don't need you to" follow Martin.  That's about as opposite as one can get from the posturing that Zimmerman was "ordered" to cease and desist and ignored it,  And even had the dispatcher given such an order, Zimmerman had no legal obligation to follow it.

                "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

                by Neuroptimalian on Thu Sep 06, 2012 at 08:11:09 PM PDT

                [ Parent ]

                •  A simple instruction of relevance (2+ / 0-)
                  Recommended by:
                  43north, Otteray Scribe

                  For the life of me, I have no idea why you have put Zimmerman on a pedestal, but that is your business. All I want is the truth. All you want is him.

                  Early in the investigation, I called Seminole County dispatch and spoke to the supervisor. They are citizens like you and me and have no legal authority. All they can do is advise, and I pointed that out on my blog. I am familiar with this aspect of the case. Obviously, Zimmerman was under no obligation to follow the directive, but at the same time, why go against someone who proffers this sort of advice for a living? Common sense should tell a person that ignoring it begs for trouble, and guess what? Had the fool merely heeded the advice, where would he be today? Anywhere he wants.

                  You are missing something else, too. By instructing someone, I am not ordering that person. There is no posturing, as you say, because there is a unique difference. I may offer directions or INSTRUCTIONS on how to get from point A to point B, but you are under no obligation to follow what I have to say. Go your own way, but don't blame anyone other than yourself if you get lost. Model cars come with INSTRUCTIONS, but does every child follow them? No! Should they be placed under arrest by the Revell police? Any fool would tell you if you screw up, YOU DID IT. Do you understand what I mean? Surely, for the umpteenth time, you need no further instructions.

                •  Neuro - my point was "advised" (2+ / 0-)
                  Recommended by:
                  Otteray Scribe, Robobagpiper

                  opposite of the "legally commanded not to do so" that's the popular meme.

                  Regardless - there's two different points I'd like to make:

                  1) this isn't Zimmerman's exclusive property.  We're not talking about Farmer Zimmerman coming out on his porch with a shotgun yelling: 'you kids best get out of my pecan trees'.  An act that's gone blatantly illegal in many States as 'criminal menacing'... and resulted in "Castle Doctrine" not SYG laws.

                  2) Most States will not let you pursue a person - as a civilian - despite some crime committed.  Once that person seeks to disengage from a criminal act, your right to use force, and specifically deadly force ends.  It becomes a police matter.
                  Get a description, a license plate, and hand it to the cops.

                  I live in a "pro-gun" state.  We now have a "castle doctrine" which the local PD hates.  The Prosecutors hate.  The local city politicians hate.  So they're adopting a stricter-than-statue requirement, verbally communicated to various community associations, neighborhood watch, and activist groups by officers assigned to Community Policing:

                  "IN your home."

                  That means using force and/or deadly physical force will get you arrested and vigorously prosecuted (see note) if you use that force:

                  1) on the porch or steps to your home
                  2) in defense of your car or other exterior property
                  3) in your parking lot or driveway
                  4) on your lawn or other 'holdings'

                  All of the above are held as "community property" by the Prosecutors.
                  Be that a private residence, condominium or apartment.
                  Laws to the contrary are insufficient as they're not widely understood by the general populace.

                  "An abundance of caution" is the standard they wish to enforce.  Here's the reasons:
                  A drunk, drugged or otherwise compromised person may be shot by accident - as they had no ill intent.

                  A repo-man may be seizing your property via legal means.

                  A plain-clothes Detective may be investigating an incident.

                  A surveyor, building inspector, or contractor working for a public utility may be using legal means to access your property at any hour of the day.

                  Until someone FORCIBLY enters your domicile - and refuses to leave or evinces some threat of bodily harm - you may not employ the "Castle Doctrine" and avoid a prison term.
                  You WILL BE ARRESTED AND INCARCERATED for any use of a firearm.  We will resist bail requests as your potential for harm to the community has been readily demonstrated.

                  (Note: hoping to eliminate as much of the Castle Doctrine as possible via case law.  If the Prosecution's case is upheld, case law can eliminate phrases like "curtilage".)
            •  Of course I'm biased... (1+ / 0-)
              Recommended by:
              Otteray Scribe

              ... but I'll readily admit it, yet I still want to listen to both sides.

              "Are you following him? OK, you don't need to be doing that." It sure sounds like some sort of directive to me. Instruction. Whatever you don't want to call it.

              Do you disagree with me? OK, I don't need you to be doing that. Yes, that is a direct instruction to you, but you can ignore it, just like Zimmerman.

              By the way, do you know the difference between wit and sarcasm? I didn't think so, but I sure know the distinction between recusal and removal, and you are far removed from understanding me. You're excused.

              “Rudeness is the weak man’s imitation of strength.” ― Edmund Burke

  •  Thanks for the analysis, Dave (2+ / 0-)
    Recommended by:
    Marinade Dave, Otteray Scribe

    ...and thanks for keeping this subject illuminated. Bookmarked, rec'ed and tipped.

    -Jay-
    
  •  The think that jumped out at me (3+ / 0-)
    Recommended by:
    43north, rockhound, Robobagpiper

    when I first saw the various allegations of what happend was this:

    Zimmerman was advised it would be better to stay in his car, that they (the police on their way) did not need that.  In fact, when police get there and there is an armed man present, that is a good way to get shot.

    Second, if Zimmerman was so afraid, he would have stayed in his car.  He had his weapon, and if Martin was going to be aggressive and approach him, he was armed.  

    I have forty years of experience at profiling violent offenders.  Zimmerman comes closer to fitting the profile than Martin.  Zimmerman's claims do not even come close to passing the smell test.

    The general who wins the battle makes many calculations in his temple before the battle is fought. The general who loses makes but few calculations beforehand. - Sun Tzu

    by Otteray Scribe on Fri Sep 07, 2012 at 10:38:07 AM PDT

  •  think = thing (2+ / 0-)
    Recommended by:
    43north, rockhound

    I sure fatfingered that one.  

    The general who wins the battle makes many calculations in his temple before the battle is fought. The general who loses makes but few calculations beforehand. - Sun Tzu

    by Otteray Scribe on Fri Sep 07, 2012 at 10:38:44 AM PDT

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