Author Topic: Criteria for Self Defense Decision  (Read 7236 times)

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Offline DebFrmHell

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Re: Criteria for Self Defense Decision
« Reply #15 on: August 01, 2012, 10:54:57 AM »
Thanks Deb for coming to my defense in finding the matter confusing.  Do you think that 013 is the one they will use at the SYG hearing while 012 applies at trial?  Maybe you can explain why Lousy1 thinks 012 would be the one to use if Zimmerman was also charged with battery.

CBold can explain it much better than I can!  LOL!  reading those statutes makes me feel like a world class Igno.

The fact remains that the State cannot charge Zimmerman with battery, IMO.  They cannot even go as far as to say who threw the first punch.  They have only recently admitted that Martin actually hit Zimmerman.  They failed to bring up that they couldn't say the same about him.

So to me that leaves out any felony happening at the time of the shooting.


Offline Lousy1

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Re: Criteria for Self Defense Decision
« Reply #16 on: August 01, 2012, 11:05:26 AM »
CBold can explain it much better than I can!  LOL!  reading those statutes makes me feel like a world class Igno.

The fact remains that the State cannot charge Zimmerman with battery, IMO.  They cannot even go as far as to say who threw the first punch.  They have only recently admitted that Martin actually hit Zimmerman.  They failed to bring up that they couldn't say the same about him.

So to me that leaves out any felony happening at the time of the shooting.

I believe the felony needs to be independent of the act. For instance if George was trying to pry his way into an occupied house when Martin assaulted him that would be an independent felony .

Offline TalkLeft

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Re: Criteria for Self Defense Decision
« Reply #17 on: August 01, 2012, 12:30:52 PM »
Both can apply at trial  and the jury will be instructed on both if the judge thinks enough evidence has been introduced at trial to support them. For self-defense, it only has to be some evidence, no matter how flimsy, even if its just the defendant's testimony.

I've posted this before as my suggestion of what the jury might be instructed, from the 2010 Florida jury instructions:

Quote
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 the victim resulted from the justifiable
use of deadly force.

"Deadly force" means force likely to cause death or great bodily harm.

A person is justified in using deadly force if he reasonably believes that such force is necessary
to prevent:

1. imminent death or great bodily harm to himself or another, or
2. the imminent commission of a forcible felony against himself or another.

[The Court would then insert and define the applicable forcible felony that defendant alleges
victim was about to commit, such as aggravated battery. Forcible felonies are listed in § 776.08,
Fla. Stat.]

A person does not have a duty to retreat if the person is in a place where he has a right to be. If
the defendant was not engaged in an unlawful activity and was attacked in any place where he
had a right to be, he had no duty to retreat and had the right to stand his ground and meet force
with force, including deadly force, if he reasonably believed that it was necessary to do so to
prevent death or great bodily harm to himself or another or to prevent the commission of a
forcible felony.

*************
[If the state claims GZ was the aggressor by provoking TM's violent acts against GZ, and the
judge agrees it has presented sufficient evidence to let a jury consider it, then one or both the
following could be added:]

However, the use of deadly force is not justifiable if you find Defendant initially provoked the
use of force against himself unless:

a. The force asserted toward the defendant was so great that he reasonably believed that
he 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 his assailant, or

b. In good faith, the defendant withdrew from physical contact with his assailant and clearly
indicated to his assailant that he wanted to withdraw and stop the use of deadly force, but the
assailant continued or resumed the use of force.

[The initial provocation had to have been contemporaneous to the actions of the victim, as to
which the defendant claims self-defense. (Not in the jury instruction, but the case law. It should
be added in my view. See, Martinez v. State, 981 So. 2d at 452; Johnson v. State, 65 So. 3d at
1150]

************
In deciding whether defendant was justified in the use of deadly force, you must judge him by the
circumstances by which he 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.

In considering the issue of self-defense, you may take into account the relative physical abilities
and capacities of the defendant and victim.

[The burden of proving guilt beyond a reasonable doubt never shifts from the state and, as a
result, the state has the burden to prove that defendant was not acting in self-defense during the
commission of the criminal act. (This is the law in Florida but the judge doesn’t have to include
this phrase if the burden of proof is clearly stated in other parts of the instructions.)]

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 guilty if all the elements of the charge have been proved.


Again, I wrote this based on the jury instructions -- the parties will both submit proposed jury instructions based on the standard ones and the judge decides which will be given and in what order

Offline TalkLeft

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Re: Criteria for Self Defense Decision
« Reply #18 on: August 01, 2012, 12:34:13 PM »
I believe the felony needs to be independent of the act. For instance if George was trying to pry his way into an occupied house when Martin assaulted him that would be an independent felony .

the forcible felony provision of the aggessor statute does not and cannot apply in this case because he isn't charged with an independent forcible felony, which means a felony besides the shooting.

That's clear as day and has been explained with case law 20 times or more here.

It's subsection (2) of the aggressor statute that could apply.


Offline RickyJim

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Some Questions for Jeralyn
« Reply #19 on: August 01, 2012, 04:29:13 PM »
And anybody else of course.   :)

1. Do you agree with cbolt that if .013 (3) were totally excised from Fl.776, it would have no effect on Martin/Zimmerman or any other case?

2. Why does the judge have to add a choice of "Forcible Felony" to the list of things that the defendant might have feared would happen?  Why not give the jury the whole list?  Why isn't "death or great bodily harm to himself, herself or another" enough?

3. 776.041 is also confusing.  How certain does the jury have to be that the defendant didn't provoke the use of force against himself in order to stop consideration of .041 and switch to .012 or .013?  Does it have to be reasonable, more likely than not, beyond a reasonable doubt?

4. Does the judge at the SYG hearing have to announce his "judge instructions" that will be used in deciding whether or not to grant immunity?  I would assume they would be very similar to jury instructions except for the burden of proof.

 

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