There is a lot of hand wringing that is going on about this trial on DU, but in considering Zimmerman's self-defense theory, the jury will most likely use the following in coming to their conclusion on whether to convict George Zimmerman for second degree murder:
(1) the injuries he sustained;
(2) how severe those injuries were;
(3) whether or not the injuries he sustained from whatever alleged scuffle that happened are of the type that would place him in reasonable fear for his life;
(4) whether or not he was in imminent fear of death or great bodily injury;
(5) and whether the force that he used was necessary to combat the force used in killing Trayvon Martin (the gun).
(numbering added)
Criteria 1, 2, 3, and 5 are non-existent with regards to the statute and are actually nullified by point 4. No person need be injured or assess their degree of injury in order to be in a reasonable fear of death or serious bodily injury and I defy you to find a FL statute that says as much.
Here's where the defense theory is weak:
George Zimmerman's injuries were not severe (at least not severe enough to where he felt the need to obtain medical attention for them on the night this occurred).
Irrelevant. Nothing in the statute requires a person to suffer near-deadly injuries in order to respond with deadly force.
There was no evidence (blood or DNA evidence) obtained from the sidewalk or from Trayvon Martin's hands/fingers showing that there was any contact made between Trayvon Martin's hands and George Zimmerman's face.
But he did sustain numerous injuries while Martin did not, per your own statement. You have to explain away those injuries as well as explain why Martin was not hurt if the defendant had no right to self-defense.
Notwithstanding any screams (which has already been ruled out as unreliable both from evidence excluded and the voice recognition expert that testified yesterday) heard by witnesses near where the incident occurred, there is nothing to suggest that George Zimmerman was in imminent fear of death or great bodily injury. Remember, it's inconclusive as to who was screaming on the audio (even though the screaming stops after the gunshot).
I presume, being a lawyer, you have a secretary handle your written correspondence because sentence structure is not your strong suit (Get it? "lawyer" "suit" I crack me up!). A rather odd state of affairs for someone whose entire career relies are the parsing of text and testimony.
The statute reads --
776.012?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.
"Fear of imminent death," not "imminent fear of death."
Fear of being on the verge of death is the issue, not being on the verge fear of death. I assume it's simply hurried typing on your part, such is the interwebz.
But to the substance of the law, the only thing that applies is if he had a reasonable belief. As you know, all that requires is for reasonable people to agree they themselves would feel similarly in similar circumstances. For that the defense need only hold up the photos of the bloodied Zimmerman and say, "Would you fear for your life if you were taking this kind of ass-whipping?"
It's very likely that Trayvon Martin (if he, indeed, was on top of George Zimmerman) attempted to hold Zimmerman's arms down because he noticed that Zimmerman had a gun, and that during this scuffle, Zimmerman may have actually banged his head on the concrete (himself, without any force applied from Martin) during the struggle and then momentarily was able to get to his holster and grab his gun and kill Trayvon.
Irrelevant and speculative. A lawyer should know better. I'd be amazed if the prosecution would even come close to asserting such silliness in court.
This is where the "like force with force" self-defense theory comes into play. Zimmerman's defense theory is somewhat shallow. Unless the defense can somehow connect non-existent force (because there is no DNA evidence either from the sidewalk or from Trayvon Martin's fingers showing that he applied any force to George Zimmerman's head to bang it on the concrete) and justify the use of deadly force in combating it, Zimmerman's self-defense theory is weak.
"Like force with force" should not be in quotes because it does not exist in the law. You inserted it without basis.
Here are the instructions to be given to the jury WRT Zimmerman's claim of self-defense --
FLJI 3.6(f) JUSTIFIABLE USE OF DEADLY FORCE
State: Florida
Florida Standard Jury Instructions for Criminal Cases
FLJI 3.6(f) JUSTIFIABLE USE OF DEADLY FORCE
Because there are many defenses applicable to self-defense, give only those parts of the instructions that are required by the evidence.
Read in all cases.
An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of deadly force.
Definition.
“Deadly force” means force likely to cause death or great bodily harm.
Give if applicable. § 782.02, Fla. Stat.
The use of deadly force is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to [himself] [herself] while resisting:
1. another’s attempt to murder [him] [her], or
2. any attempt to commit (applicable felony) upon [him] [her], or
3. any attempt to commit (applicable felony) upon or in any dwelling, residence, or vehicle occupied by [him] [her].
Insert and define applicable felony that defendant alleges victim attempted to commit.
Give if applicable. §§ 776.012, 776.031, Fla. Stat.
A person is justified in using deadly force if [he] [she] reasonably believes that such force is necessary to prevent
1. imminent death or great bodily harm to [himself] [herself] or another, or
2. the imminent commission of (applicable forcible felony) against [himself] [herself] or another.
Insert and define applicable forcible felony that defendant alleges victim was about to commit. Forcible felonies are listed in § 776.08, Fla. Stat.
Aggressor. § 776.041, Fla. Stat.
However, the use of deadly force is not justifiable if you find:
Give only if the defendant is charged with an independent forcible felony. See Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002).
1. (Defendant) was attempting to commit, committing, or escaping after the commission of (applicable forcible felony); or
Define applicable forcible felony. Define after paragraph 2 if both paragraphs 1 and 2 are given. Forcible felonies are listed in § 776.08, Fla. Stat.
2. (Defendant) initially provoked the use of force against [himself] [herself], unless:
a. The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on (assailant).
b. In good faith, the defendant withdrew from physical contact with (assailant) and clearly indicated to (assailant) that [he] [she] wanted to withdraw and stop the use of deadly force, but (assailant) continued or resumed the use of force.
Force in resisting a law enforcement officer § 776.051(1), Fla. Stat.
A person is not justified in using force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer.
Give if applicable.
However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] (or another), but only to the extent [he] [she] reasonably believes such force is necessary. See § 776.012, Fla. Stat.; Ivester v. State, 398 So. 2d 926 (Fla. 1st DCA 1981); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).
In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.041, Fla. Stat., may need to be given in connection with this instruction.
Read in all cases.
In deciding whether defendant was justified in the use of deadly force, you must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.
No duty to retreat. § 776.013(3), Fla. Stat. See Novak v. State 974 So. 2d 520 (Fla. 4th DCA 2008) regarding unlawful activity. There is no duty to retreat where the defendant was not engaged in any unlawful activity other than the crime(s) for which the defendant asserts the justification.
If the defendant [was not engaged in an unlawful activity and] was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony.
Define applicable forcible felony from list in § 776.08, Fla. Stat. that defendant alleges victim was about to commit.
Presumption of Fear (dwelling, residence, or occupied vehicle). Give if applicable. § 776.013(2)(a)-(d), Fla. Stat.
If the defendant was in a(n)[dwelling] [residence] [occupied vehicle] where [he] [she] had a right to be, [he] [she] is presumed to have had a reasonable fear of imminent death or great bodily harm to [himself] [herself] [another] if (victim) had [unlawfully and forcibly entered] [removed or attempted to remove another person against that person’s will from] that [dwelling] [residence] [occupied vehicle] and the defendant had reason to believe that had occurred. The defendant had no duty to retreat under such circumstances.
Exceptions to Presumption of Fear. § 776.013(2)(a)-(d), Fla. Stat. Give as applicable.
The presumption of reasonable fear of imminent death or great bodily harm does not apply if:
a. the person against whom the defensive force is used has the right to be in [or is a lawful resident of the [dwelling] [residence]] [the vehicle], such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
b. the person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
c. the person who uses defensive force is engaged in an unlawful activity or is using the [dwelling] [residence] [occupied vehicle] to further an unlawful activity; or
d. the person against whom the defensive force is used is a law enforcement officer, who enters or attempts to enter a [dwelling] [residence] [vehicle] in the performance of [his] [her] official duties and the officer identified [himself] [herself] in accordance with any applicable law or the person using the force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
If requested, give definition of “law enforcement officer” from § 943.10(14), Fla. Stat.,
§ 776.013(4), Fla. Stat.
A person who unlawfully and by force enters or attempts to enter another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
Definitions. Give if applicable. § 776.013(5), Fla. Stat.
As used with regard to self defense:
“Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent or mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
“Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
“Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
Prior threats. Give if applicable.
If you find that the defendant who because of threats or prior difficulties with (victim) had reasonable grounds to believe that [he] [she] was in danger of death or great bodily harm at the hands of (victim), then the defendant had the right to arm [himself] [herself]. However, the defendant cannot justify the use of deadly force, if after arming [himself] [herself] [he] [she] renewed [his] [her] difficulty with (victim) when [he] [she] could have avoided the difficulty, although as previously explained if the defendant was not engaged in an unlawful activity and was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat.
Reputation of victim. Give if applicable.
If you find that (victim) had a reputation of being a violent and dangerous person and that [his] [her] reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation.
Physical abilities. Read in all cases.
In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and (victim).
Read in all cases.
If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty.
However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved.
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