Author Topic: Can O'Mara Challenge Probable Cause Affidavit?  (Read 12366 times)

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Offline RickyJim

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Can O'Mara Challenge Probable Cause Affidavit?
« on: July 08, 2012, 03:43:35 PM »
Can O'Mara now challenge the Affidavit as lacking sufficient probable cause for a charge of second degree murder and ask that the charge be dismissed?  Is a document like that sufficient to indict somebody for a serious crime in other states besides Florida?  I admit I never heard of this kind of indictment before and thought a preliminary evidence hearing or grand jury was needed to indict.

Offline cboldt

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #1 on: July 08, 2012, 04:01:34 PM »
O'Mara has requested a statement of Particulars, which is supposed to me a more specific statement of the evidence in support of the charge.  He needs to have something that represents "finality" or all of the evidence that the state has, before he can say that the state's evidence doesn't support the charge.

Technically, he's not attacking just the affidavit, but instead, he is attacking the evidence.  The nature of the motion to dismiss for failure to state the charge is "Even if the state proves A, B, and C, those findings don't make the charge."  He'd likely assert that there is no evidence that establishes depraved mind.  The statement of particulars would facilitate this, as the state would be on the record as saying what pieces of evidence, if proven, -do- establish depraved mind.

If the state changes the charge to manslaughter, then the state is obliged to also assert that Zimmerman's actions were not in self defense.  IOW, the state would have to recognize the self defense elements in its charging document, and explain the countervailing evidence that it will prove so that self defense will fall.  The reason the state has to put that i for manslaughter, and not for murder, is that the manslaughter criminal statute recites, "[killing] without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder ..."  The murder criminal statute does not point back to Chapter 776, and this is why a charge of murder does not have to negate the justified use of force provisions of Chapter 776.

Offline Lousy1

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #2 on: July 08, 2012, 04:07:00 PM »
Good question RJ.
O'Mara has requested a statement of Particulars, which is supposed to me a more specific statement of the evidence in support of the charge.  He needs to have something that represents "finality" or all of the evidence that the state has, before he can say that the state's evidence doesn't support the charge.
.


Thank you both !

Offline Expy

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #3 on: July 08, 2012, 09:45:20 PM »
As best as I can figure, under Florida procedure, a "probable cause affidavit" only is require to establish probable cause to support the arrest. Any challenge would typically be made at the first court hearing.  As O'Mara did not raise a challenge, that is waived.

In any case, a successful challenge to a probable cause affidavit would not result in dismissal of the charges -- it would only result in release of a defendant from custody, with the prosecution still free to pursue its case.  I would also assume that a Florida prosecutor could simply amend an affidavit to add extra details & rearrest  the defendant.

Probable cause equates to "reasonable suspicion" -- it does not require negating possible defenses. 

A Statement of Particulars requires the prosecution to specify "as definitely as possible the place, date, and all other material facts of the crime charged that are specifically requested and are known to the prosecuting attorney."  See http://www.joffelaw.com/state-rules/3-140.html 

However, it does not appear that Florida law would require that to be much more specific than the charging document itself.   I would actually expect that the "Statement" would be less detailed than the probable cause affidavit.   

The Statement of Particulars procedure is found under rule section governing indictments & informations, so it seems to be a form of pleading rather than discovery.  The same rule also specifies:

Quote
No indictment or information, or any count thereof,
shall be dismissed or judgment arrested, or new trial granted on account of any defect in the
form of the indictment or information or of misjoinder of offenses or for any cause
whatsoever, unless the court shall be of the opinion that the indictment or information is so
vague, indistinct, and indefinite as to mislead the accused
and embarrass him or her in the
preparation of a defense or expose the accused after conviction or acquittal to substantial
danger of a new prosecution for the same offense.

I think the provision is really more appropriate to charges that require very specific allegations or where there is difficulty nailing down dates and times. One example would be Shellie Zimmerman's perjury charge -- she is charged with lying but the pleading didn't set forth the exact statements asserted to be lies -- a Statement of Particulars could be used to force the prosecution to be more specific there.  (General rules of pleadings in perjury cases in most jurisdictions do require more specificity, though perhaps in Florida the availability of the Statement of Particulars is seen to fill that gap).

Another place where you might see this used effectively would be a situation where the defendant is charged with having committed crimes at some unspecified time in the past. This type of thing comes up sometimes in sex abuse or molestation cases -- the adult is alleged to have molested a child on multiple occasions, but the pleading is vague as to date. A Statement of Particulars could be used to narrow the time frame and may also reveal a defense based on statute of limitations.

Given that the date & time is well known in this case I am  not sure what benefit the defense will get from the statement.

Offline Lousy1

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #4 on: July 08, 2012, 09:57:56 PM »
Thanks also.
 Does all  this mean that anyone charged with a BS set of facts\inferences has no other option than trial?

Offline Expy

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #5 on: July 08, 2012, 11:25:50 PM »
As far as I can tell, in Florida there is no real way to challenge sufficiency of evidence pre-trial where an Information is filed.

Most other states & federal jurisdiction would require a preliminary hearing after an Information, or a Grand Jury Indictment.  Whether or not a Grand Jury Indictment can be challenged varies as well.  Also the quality of evidence required at preliminary hearings varies as well -- in some states hearsay is allowed and the preliminary hearing could simply be the police officer showing up and reciting his conclusions. 

Florida also seems to be unique in the availability of the pre-trial stand your ground hearing, especially as the defendant is allowed to appeal any adverse ruling.  The procedure essentially allows the defense two bites of the apple -- they can present their case before a judge, get an appellate court ruling on it, and if they don't win via that route they will be able to present the same issues to a jury, with a significantly lessened standard of proof the 2nd time around.

Offline cboldt

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #6 on: July 09, 2012, 05:32:27 AM »
As far as I can tell, in Florida there is no real way to challenge sufficiency of evidence pre-trial where an Information is filed.

Defendant can file a pre-trial Motion to Dismiss under Rule 3.190(c)(4).  Rule 3.190 provides for Motion to Dismiss whether the charge is presented via indictment (a charge from a grand jury) or information (a charge from the state attorney).  I was easily able to find examples of Motions to Dismiss an information, filed in Florida criminal courts.

Offline RickyJim

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #7 on: July 09, 2012, 07:27:57 AM »
Defendant can file a pre-trial Motion to Dismiss under Rule 3.190(c)(4).  Rule 3.190 provides for Motion to Dismiss whether the charge is presented via indictment (a charge from a grand jury) or information (a charge from the state attorney).  I was easily able to find examples of Motions to Dismiss an information, filed in Florida criminal courts.

I guess the relevant portion is :
However, the court may at any time entertain a motion to dismiss on any of the following grounds:

(4) There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.
The facts on which the motion is based should be alleged specifically and the motion sworn to.

Offline Lousy1

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #8 on: July 09, 2012, 09:23:28 AM »
I guess the relevant portion is :
However, the court may at any time entertain a motion to dismiss on any of the following grounds:

(4) There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.
The facts on which the motion is based should be alleged specifically and the motion sworn to.

If the defense chooses to neither 'admit or deny' certain material facts in dispute can they still move for dismissal. Or do they need to agree to all points of the charging document and therefore concede debatable issues if the charges are not dismissed?



Offline cboldt

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #9 on: July 09, 2012, 09:43:55 AM »
If the defense chooses to neither 'admit or deny' certain material facts in dispute can they still move for dismissal. Or do they need to agree to all points of the charging document and therefore concede debatable issues if the charges are not dismissed?

The defense can focus on what it finds to be the missing element (depraved mind) and for purposed of the motion, admit things like Zimmerman got out of his truck, etc. (and all other facts/evidence the state says proves depraved mind), and argue that those stipulated facts do not produce a finding of depraved mind.  All fact disputes are resolved in favor of the state, so the defense can leave all sorts of fact disputes.  The mental exercise is something in the nature of "even if everything the state says is true, it doesn't make the offense," and/or "the state has inadequate evidence of XYZ element."

Offline Expy

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #10 on: July 09, 2012, 08:29:23 PM »
3.190 (c) is the equivalent of a summary judgement motion -- the critical language is:

Quote
There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.

(Obviously the other sections, dealing with double jeopardy, immunity, or pardon do not apply)

In this case, there clearly are material disputed facts, so I cannot see any possibility of such a motion being granted.   

The strength of the evidence would not come into play on such a motion -- only the issue of whether or not the facts are in dispute. 

Whenever intent is an element of a criminal offense, that is almost always proven via an inference to be drawn from the evidence  (that is, by circumstantial evidence) as there can never be direct evidence as to what a person is thinking.  No one can read minds.  In some cases there might be evidence in the form of a statement or admission -- but most of the time it is a matter of an inference drawn from the overall circumstances. The prosecution makes an argument based on surrounding circumstances.

For example, you might have a case where person A shoots their spouse B. A says it was an accident; the gun went off while being cleaned. But the prosecution has evidence that A was having an affair and bought a large life insurance policy on B a month before the shooting. So the prosecutor uses that evidence (affair, life insurance policy) to establish that A had a pre-existing motive to kill B, and uses that motive to argue that the killing was murder.

In this case, the undisputed facts  include:  While observing Martin, GZ stated "those a$$holes always get away".    When seeing Martin run, GZ uttered the words: "f***ing punk".  GZ got out of his truck and walked or ran after Martin. (heard and admitted on tape).  GZ was carrying a loaded gun when he got out of his truck. 

The other matters are facts that are in dispute.  Witnesses can establish that there was a physical struggle and some shouting or screaming, but the issue of who started the fight, how it ended, and who was doing the screaming remains in dispute.   GZ has physical injuries that can be documented, but the cause and extent of those injuries remains in dispute.  GZ has made statements, but the veracity of those statement remain in dispute.
 
In a civil summary judgment motion, the procedure is to list out all the undisputed facts -- and then submit the motion to the judge.   I don't see how the undisputed facts in this case would lead to a dismissal -- you are still left with a homicide and no *undisputed* facts establishing that the homicide was justifiable.

Of course, the fact that the facts are disputed also means that GZ may very well win at trial -- but a motion under 3.190 does not go to weight of evidence.

I'd be very interested in seeing any case law in Florida showing a 3.190 motion being granted in a homicide case where the issue was the intent of the perpetrator.

Offline TalkLeft

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #11 on: July 09, 2012, 08:55:37 PM »
I'd be very interested in seeing any case law in Florida showing a 3.190 motion being granted in a homicide case where the issue was the intent of the perpetrator.

Expy, I don't think you'd find it. There is case law that says the Judge cannot reduce a second degree murder charge to manslaughter before trial when intent is an issue, because only the jury can decide intent.
See the 2010 Yaquibie case:

Quote
We also reverse  the order granting Yaqubie's Rule 3.190(c)(4) motion to dismiss which reduced the
original second degree murder charge filed against him to a charge of manslaughter.

...he claimed below that because he was acting in self-defense, ill will, hatred, spite, or evil intent could not be demonstrated requiring either dismissal of the second degree murder charge against him or reduction of that charge to manslaughter. The court below agreed with Yaqubie, concluding that the facts leading up to Camacho's death were "insufficient as a matter of law to prove the evil intent or ill will necessary to rebut the defendant's claim of self-defense to the charge of second-degree murder."
We cannot agree with this determination.

ntent or state of mind is not an issue to be decided on a motion to dismiss under Rule 3.190(c)(4). Instead, it is usually inferred from the circumstances surrounding the defendant's actions. Since
the trier of fact has the opportunity to weigh the evidence and judge the credibility of the witnesses, it should determine intent or state of mind.

He had better luck on his Stand Your Ground Motion -- although all he got was an evidentiary hearing:

Quote
The court below, applying the standard enunciated in Velasquez v. State, 9 So. 3d 22 (Fla. 4th DCA 2009), essentially treated Yaqubie's immunity claim as an affirmative defense and denied the motion to dismiss because "material facts [were] at issue in the case." Yaqubie claims that the court below applied the incorrect standard and should have applied the standard enunciated in Peterson v. State, 983 So. 2d 27 (Fla. 1st DCA 2008), to determine whether a preponderance of the evidence shows that he is immune from prosecution under section 776.032. We agree with Yaqubie and therefore grant the instant writ.

and

Quote
In Peterson, the First District Court of Appeal decided that section 776.032 is a true immunity provision, not merely an affirmative defense, which requires a trial court to adjudicate disputed fact issues rather than passing them on to a jury as it would an affirmative defense:

We now hold that when immunity under this law is properly raised by a defendant, the trial court must decide the matter by confronting and weighing only factual disputes. The court may not deny a motion
simply because factual disputes exist....The petition for writ of prohibition is, therefore, granted with this matter remanded to the court below for an evidentiary hearing applying the standard enunciated in
Peterson.

Offline Lousy1

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #12 on: July 09, 2012, 08:56:24 PM »
Why is the intent of GZ relevant. Lets, for argument sake, concede that his intention was to kill TM after enjoying a vigorous walk.

That still does not release the state of its requirement to prove ( BRD) that Zimmerman was not covered by SYG.  Unless the state can prove any of the elements that guarantee a SYG acquittal Zimmerman walks.

IMO to this point the state has not presented any evidence - undisputed or not - that would negate SYG immunity.

Is the mere fact that issues are in dispute decisive?

Conversly is the salient question 'has the state produced sufficient evidence (undisputed or not ) to:

a. Establish the requirements of the charging document?
b. Disqualify a SYG defense.

As I understand your explanation I could be charged murdering someone who was 2500 miles away from me at the time of his death based only on the fact I didn't like them ;airplanes exist and some passengers  when presented with my voice samples, have differing opinions about my possible presence on various flights.

I would have no recourse except trial?
« Last Edit: July 09, 2012, 09:00:58 PM by Lousy1 »

Offline 11Rand

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #13 on: July 09, 2012, 09:30:33 PM »
While observing Martin, GZ stated "those a$$holes always get away".    When seeing Martin run, GZ uttered the words: "f***ing punk".

I have a question about this. Without GZ's above statements from the NEN call, would the state have even tried to charge him with 2nd degree murder? Yes, the state could still argue GZ “profiled” TM as a criminal and he “followed” and “confronted” TM, and a “struggle ensued.” But would those elements be enough with regard to “depraved mind”?

Offline Expy

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #14 on: July 09, 2012, 11:24:05 PM »
Expy, I don't think you'd find it. There is case law that says the Judge cannot reduce a second degree murder charge to manslaughter before trial when intent is an issue, because only the jury can decide intent.
See the 2010 Yaquibie case:

Thanks. That's very much in line with what I thought. 


 

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