Author Topic: Can O'Mara Challenge Probable Cause Affidavit?  (Read 13454 times)

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Offline cboldt

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #30 on: July 10, 2012, 02:49:29 PM »
To disprove that I have understood what has gone on previously, I'm asking if the following is correct.

At a (Florida) trial for second degree murder, the judge can, if a small amount of evidence is presented, instruct the jury that they may acquit on grounds of self defense.  If the trial is for manslaughter, such an instruction is redundant since not being self defense is an element of the definition of manslaughter which must be proven beyond a reasonable doubt.  One might argue that the element of the charge of second degree murder, that the killing was done with a depraved mind, could not have been proven if the jury finds self defense so the self defense instruction is redundant there also.  But I am getting confused.   ::)

You are either confused or jumping ahead.  My discussion below is about charging the defendant, step one of the process.  You are now talking about charging the jury with making a decision, which is a step far removed from charging the defendant with a crime.  I haven't researched Florida jury instructions for manslaughter, to see if the self defense element is automatically included or not.

Generally, self defense has to be raised by defendant at trial, by producing a scintilla (or more) of evidence to that end.  After the defendant has presented his case for self defense, the prosecution has the burden of disproving it, beyond a reasonable doubt.  This is true of the charge is battery, or murder.  I assume it is also true for manslaughter, that "self defense" isn't argued to the jury by the prosecution, and the appearance of a self defense instruction depends on the defendant arguing self defense to the jury.

I emphasize that this procedure is DIFFERENT from raising, and deciding self defense on a pre-trial motion.  That is definitely before jury instructions; and regardless of the charge being murder or manslaughter, defendant either raises the self defense / 776.032 immunity issue before trial, or does not.  The court does not automatically settle the self defense argument, pre-trial, if the underlying charge is manslaughter.

Offline Expy

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #31 on: July 10, 2012, 04:41:21 PM »
Zimmerman, as far as we know, after shooting Martin, made no effort at first aid and did not call for an ambulance.

The guy who took the picture of the back of his head supposedly offered to call 911 and Zimmerman told him not to bother, indicating that he, Zimmerman, had just been on the phone with them when in fact he had been talking to a police dispatcher, not an ambulance dispatcher.

Could the state use that as part of the "depraved mind" arguement?

Yes, I would think that would be part of the totality of the circumstances and part of the prosecution's argument.

I would contrast that with the recent case in Texas, where a father caught a stranger in the physical act of raping his 4-year-old daughter and beat the rapist to death. There is a 911 call that was recorded, an the father (beater) is freaking out when he realizes the rapist is dying, frantically trying to administer first aid.  So it's a very disturbing and poignant recording, showing the man's emotional state shift from what must have been blind rage to concern for the life of the person he had just beaten.  In that case the prosecution submitted the evidence to a grand jury, apparently along with physical evidence as to the raped daughter's injuries, and the grand jury voted no bill.

In the Zimmerman case, all witness accounts seem to paint him as cold & unemotional, perhaps matter-of-fact in his statements post-shooting.   So I would anticipate that the prosecution would argue that the post-shooting behavior confirmed the lack of "regard" for human life ("depraved mind regardless of human life" in the statute).

Offline Expy

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #32 on: July 10, 2012, 04:47:24 PM »
I'd add that it is actually very common for prosecutors to use the defendant's post-event behavior & conduct to show intent.   

You might recall that in the Casey Anthony case the prosecution made a point that she went out partying after her daughter was missing, and did not seem to show grief  later when she learned that her daughter's body had been found.  In that case the prosecution was charging first degree murder, even though they lacked direct evidence as to how the child was killed or who did the killing.  Of course, Anthony was ultimately acquitted, but that didn't stop the prosecution from making the argument that her behavior after the child was missing and presumably dead was evidence both of her role in the killing and her state of mind.

Offline Expy

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #33 on: July 10, 2012, 04:59:03 PM »
The state has DeeDee and Sybrina, and in a pretrial motion to dismiss, all evidentiary disputes are resolved in the state's favor.  So, for a pretrial motion, Martin is the one screaming for 30-40 seconds, and Zimmerman initiated the use of physical contact.

I think you are technically misconstruing Florida procedure for a motion to dismiss, and confusing it with a the process that is commonly referred to as a "demurrer" in many jurisdictions.

In a demurrer  (which can also be called a motion to dismiss based on the pleadings) -- all of the facts asserted in the charging document (complaint, information or indictment) are presumed true, and the motion is brought along the lines: even if all of those facts are true, the defendant cannot be prosecuted.

In criminal matters, I think the most common situations where that would result in dismissal are issues of venue/jurisdiction or statutes of limitations. 

The Florida dismissal procedure is more akin to summary judgment, based on a statement of undisputed facts. I think the defense would bring a motion listing all facts which are not disputed -- this could include additional facts, not listed in the Information  -- but the point is that it has to be something that is not in dispute.  The prosecution would respond by first listing all fact that are in dispute, and then argue from there.  The court could make a determination based only on the undisputed facts.

So hypothetically, the defense could offer as an "undisputed" fact the claim that Zimmerman is the person screaming on the 911 tape.  The prosecution could merely respond by saying "we dispute that fact" -- not necessarily asserting that it was Trayvon's voice, just simply eliminating that item as being something "undisputed".   

As a practical matter, it might not make a difference, but it is different both in terms of the procedure and in terms of the determination to be made on appellate review.

Offline Expy

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #34 on: July 10, 2012, 05:06:33 PM »
Here is a case that finds the opposite ... State of Florida v. Allen Lee Rogers (Fla. 2d DCA 1980).

I think you really need to pay attention to the procedural stance of appellate cases. The Rogers case says exactly the same as the other cases that Jeralyn posted above:  a trial court can NEVER make a determination of "intent" on a motion to dismiss, because the determination of "intent" is ALWAYS something to be decided by the trier of fact based on consideration of all the circumstances.

Again, this is because it is impossible to read minds.  Maybe in some future Minority Report world this will change, but if the prosecution was expected to have direct evidence of intent in cases, they would hardly be able to prosecute anyone. 

So you could never have the intent be an "undisputed fact" - the fact that the prosecutor has charged the crime in itself puts that "fact" in dispute.   

Offline Expy

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #35 on: July 10, 2012, 06:19:26 PM »
As for the contents of the charging instruments, if the charge is manslaughter, the state must negate the Chaper 776 justified use of force in the charging instruments, if the state charges manslaughter.  This is because the manslaughter crime includes, as an element, that defendant did not act in self defense.  But, in contrast, a murder charge need not negate self defense, because the murder crime does not include, as an element, that the defendant did not act in self defense.  That difference makes logical sense, as "depraved mind" and "having sound reasonable basis" are mutually exclusive - at opposite ends of the spectrum of justification, actually..

I think you are misconstruing the law.  In Florida, the elements of 2nd degree murder are:

* that a human being was killed
* that the defendant is the person who killed the victim
* that the killing was unlawful
* the killing was perpetrated by an act imminently dangerous to another
* and evincing a depraved mind regardless of human life


The elements of manslaughter are:
* that a human being was killed
* that the killing was the result of the  act, procurement, or culpable negligence of the defendant
* that the killing was without lawful justification

You are interpreting the phrase "without lawful justification" in the manslaughter statute as requiring some level of affirmative evidentiary showing that does not apply to the phrase "unlawful" in the murder statute.

I am not convinced that would be the case.  I think that an "unlawful" killing is identical to a killing that is "without lawful justification", and that the difference is simply one of semantics, not substance.

To put it another way:

killing + without lawful justification = manslaughter
killing + without lawful justification + act imminently dangerous + depraved mind indifference = murder 2
(if you added premeditation to the above, then you would have murder 1) 

So I don't think that the charging decision somehow makes things easier on the prosecution. 

Manslaughter is a necessarily included lesser offense of 2nd degree murder, so when the case goes to trial the jury will be instructed on manslaughter and have the option to return a manslaughter verdict.  Of course the prosecution knows this.   

Most prosecutors will charge the highest level of offense that they think the evidence can prove, simply because that is logically what puts them in the best position. The prosecutor always has the option to reduce the charge on its own before trial -- and the jury in a 2nd degree murder case always has the option of returning a manslaughter verdict -- but it doesn't work the other way around.



Offline cboldt

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #36 on: July 10, 2012, 07:12:57 PM »
The elements of manslaughter are:
* that a human being was killed
* that the killing was the result of the  act, procurement, or culpable negligence of the defendant
* that the killing was without lawful justification

You are interpreting the phrase "without lawful justification" in the manslaughter statute as requiring some level of affirmative evidentiary showing that does not apply to the phrase "unlawful" in the murder statute.

F.S. 782.07 - Manslaughter ...
... without lawful justification according to the provisions of chapter 776


The phrase above is part of the manslaughter statute.  My point of view derives from the "according to the provisions of chapter 776" part of the criminal offense.  The murder statute doesn't have that sort of language, no "unless" clause.

Offline Expy

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #37 on: July 10, 2012, 10:21:43 PM »
My point is that the phrase "unlawful" killing means the same thing.

It is a broader term which fully encompasses the language in the manslaughter statute.

When do you think a homicide might be "lawful" other than when done in self-defense?

Offline TalkLeft

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #38 on: July 11, 2012, 02:10:38 AM »
My point is that the phrase "unlawful" killing means the same thing.
It is a broader term which fully encompasses the language in the manslaughter statute.
When do you think a homicide might be "lawful" other than when done in self-defense?

When it's an accident. Florida has a law for that too, called Excusable Homicide.

Quote
782.03 Excusable homicide.—Homicide is excusable when committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution, and without any unlawful intent, or by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.

Self-defense is Justifiable Homicide and an accident is Excusable Homicide.

Offline DebFrmHell

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #39 on: July 11, 2012, 11:54:05 AM »
My point is that the phrase "unlawful" killing means the same thing.

It is a broader term which fully encompasses the language in the manslaughter statute.

When do you think a homicide might be "lawful" other than when done in self-defense?
When a prisoner gets executed?  Sorry, O/T but it was the first thing that flew into my head.

Offline Expy

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #40 on: July 11, 2012, 03:33:58 PM »
Well, I was just pointing out that "unlawful killing" was a broader, more inclusive phrase than the more specific reference to "lawful justification" under the provisions of Chapter 776. 

Cboldt seems to be arguing that a manslaughter charge would require some additional assertion in the pleading that is not required for murder 2  -- a specific negation of self defense -- but I don't think that's the case.  For one thing, Chapter 776 is not merely "self defense" -- that chapter covers a variety of scenarios, such as use of force by a correctional officer to prevent a prisoner's escape (776.07).   

Additionally, as I have noted,  manslaughter is a necessarily included lesser offense of 2nd degree "depraved mind" murder, and the prosecution is well aware of this.  This can be seen in the wording of the Information, which contains the assertion that Trayvon Martin was "under the age of 18".  See http://www.scribd.com/doc/88952000/George-Zimmerman-Information-Document

Martin's age is irrelevant to the charge of murder, but it is highly relevant to the crime of manslaughter, as it is an aggravating factor that converts manslaughter from a second degree felony to a first degree felony, with appropriate higher penalties.   

So it is easy to see from the face of the pleadings that the prosecutor is well aware of the elements of manslaughter and included all required language within the Information.

If Zimmerman had been charged with manslaughter instead of murder, then I would expect the Information would have used the phrase "without lawful justification" rather than "did unlawfully" -- but I don't think that any more facts would have been required to be set forth.

That is, the prosecution did not gain some sort of pleading advantage by charging murder 2 rather than manslaughter. Rather, the prosecution is charging both.  The "murder" charge includes manslaughter -- but Zimmerman could not be convicted of both. He only committed one homicide, so there is one count, listing the highest possible charge against him -- but the prosecutor has made certain that the one count includes all applicable elements of both offenses.

Offline RickyJim

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #41 on: July 11, 2012, 05:01:40 PM »
I head is spinning from the legalities.  Is the bottom line still, O'Mara can't ask for dismissal of the charge of second degree murder on the grounds that the charging document did not contain sufficient evidence of probable cause?  And same would be true if the same charging document had been used for manslaughter?  And thus there is no chance for dismissal before a SYG hearing?

Offline Expy

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Re: Can O'Mara Challenge Probable Cause Affidavit?
« Reply #42 on: July 11, 2012, 05:25:23 PM »
I head is spinning from the legalities.  Is the bottom line still, O'Mara can't ask for dismissal of the charge of second degree murder on the grounds that the charging document did not contain sufficient evidence of probable cause?

Yes. That is the answer. The charging document is the Information and that on its face appears to be sufficient.   

The affidavit of probable cause is NOT the charging document.  It is the document that provides the basis for placing someone under arrest, but the result of a successful challenge to that document would merely be that the person is freed from custody, not that charges are dropped.   And as I have noted, Zimmerman's lawyer waived any right to object to that early on.  (I personally think that was the right decision, but that's a matter of legal judgment & strategy)

Quote
  And same would be true if the same charging document had been used for manslaughter?

The wording on the Information would be different if it were used for manslaughter, as it would track the manslaughter statute and wouldn't have the "depraved mind" language, etc.  But as I've note, the 2nd degree murder charge includes manslaughter.  If Zimmerman's case goes to trial and he raises a claim of self defense, then the jury will be  given instructions on both murder and manslaughter.  They will be told that they can only return 1 verdict, but that their options are to either find the defendant guilty of murder 2, or find him guilty of manslaughter, or return a verdict of not guilty.

Quote
  And thus there is no chance for dismissal before a SYG hearing?

Florida also has a procedure that is akin to a civil summary judgment motion.  It allows the defense to request a bill of particulars, and then based on that statement and other discovery, the defense can argue to the court that based on the undisputed facts, no crime has been committed.   That would not be a "reasonable doubt" argument -- that is, the defense would not be arguing that the undisputed facts leave some sort of doubt -- but rather an argument that the undisputed facts establish a defense.   

That procedure would not likely be of value to Zimmerman, since we can anticipate that many facts that are relevant to the decision remain in dispute, and because that procedure can never be used under Florida law to determine whether or not the defendant had the requisite intent.

A "stand your ground" hearing could result in a dismissal, but it is not a challenge to the sufficiency of the pleadings.  It is an evidentiary hearing, before a judge, where the defendant bears the burden of proof, by a preponderance of evidence, that he acted in self defense. Both the prosecution and defense can appeal the trial court's ruling, so it is unlikely that the SYG hearing would resolve the case at the trial level.

 

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