Author Topic: Immunity Hearing: Stand Your Ground and/or Self-Defense  (Read 25195 times)

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Offline cboldt

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Re: Serino's Opinion
« Reply #15 on: August 15, 2012, 12:46:43 PM »
Are you mixing opinion with interrogation tactic?

I think Serino was honestly seeking some basis for Martin to act - even if it was an unreasonable one (unreasonable under the law, as in a reasonable person would not start blows in that spot) - because he doesn't want to be forced to adopt a conclusion that Martin was acting like a thug.

Offline RickyJim

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #16 on: August 15, 2012, 01:03:08 PM »
I think I understand the usual model of a jury going through the elements of a charge and voting whether they believe each of them beyond a reasonable doubt in order to return a verdict of guilty.  The various relevant statutes of Florida 776 seem instead to require a traversal of a flowchart where it is unclear what the degree of certainty of the various decisions should be.  I will try to imagine what might happen during the forthcoming immunity hearing as the judge tries to get through the flowchart.  The starting point seems to be at .041.

Quote
776.041 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.
By mutual agreement, (1) is first dispensed with as irrelevant and the parties start discussing (2).  The prosecution claims that it is more likely than not that Zimmerman's admitted reaching for something when Martin approached him at the T constituted a provocation to Martin as covered by .012 so (2) is relevant.
Quote
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.
Despite protestations from the defense, the judge decides that Martin felt he had to stop Zimmerman by using a non lethal punch to the snoot and the court starts considering (2) of .041.  The defense claims that both (a) and (b) of (2) more likely than not happened and the judge agrees.  This ruling means that the proceedings can get off .041 and move onto "the preceding sections of this chapter" which I guess are .012, .013, and .032.

The defense then points out that in finding .041(2)(a) was satisfied the judge already found it more likely than not that the relevant section of .012
Quote
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;
holds and the procedings can ignore .013 and goto ::) .032 since either triggers that statute.
Quote
776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—
(1) 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 irrelevant rest omitted

Judge says humpf! I don't have to make any decision now.  I am forced to grant Zimmerman immunity by this statute and now this hearing is over.

I haven't the foggiest idea if Florida will allow the judge to conduct the hearing like this.  However, if it ends up that Zimmerman is not granted immunity, I seriously doubt that a jury will be asked to decide at each decision point what the next step is to be before going to the next box on the chart.
« Last Edit: August 15, 2012, 01:11:23 PM by RickyJim »

Offline JW

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #17 on: August 15, 2012, 11:38:53 PM »


I really don't see how the prosecution can say George provoked Trayvon's punch by reaching for his phone. There is nothing to support it. It is more of a "what if" scenario at best. Trayvon's perception of George reaching for his phone can only be proven by Trayvon testifying which can't happen. It would be quite a stretch on the part of the prosecution even with DeeDee's testimony.

Offline MJW

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #18 on: August 16, 2012, 01:45:47 AM »
By mutual agreement, (1) is first dispensed with as irrelevant and the parties start discussing (2).  The prosecution claims that it is more likely than not that Zimmerman's admitted reaching for something when Martin approached him at the T constituted a provocation to Martin as covered by .012 so (2) is relevant. Despite protestations from the defense, the judge decides that Martin felt he had to stop Zimmerman by using a non lethal punch to the snoot and the court starts considering (2) of .041.  The defense claims that both (a) and (b) of (2) more likely than not happened and the judge agrees.  This ruling means that the proceedings can get off .041 and move onto "the preceding sections of this chapter" which I guess are .012, .013, and .032.

"Provocation" requires the use of force or the threat of force.

Gibbs v. State, 789 So. 2d 443 (Fla. 4th DCA 2001):
Quote
We agree with appellant that the jury instruction given by the trial court was inadequate to properly charge the jury in this case. The instruction stated that appellant could not defend herself with non-deadly force if she "initially provoked" the victim. By not limiting provocation to the use or threat of force, the court failed to make the jury aware that the word "provoked," as used in the instruction, did not refer to mere words or conduct without force. Stated another way, the instruction given by the court eliminated the use of non-deadly force in self-defense if there was any provocation by the defendant—no matter how slight or subjective the provocation. By that standard, a mere insult could be deemed sufficient to prohibit defending oneself from an attacker.

Offline unitron

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #19 on: August 16, 2012, 03:26:22 AM »

I really don't see how the prosecution can say George provoked Trayvon's punch by reaching for his phone. There is nothing to support it. It is more of a "what if" scenario at best. Trayvon's perception of George reaching for his phone can only be proven by Trayvon testifying which can't happen. It would be quite a stretch on the part of the prosecution even with DeeDee's testimony.

The state doesn't have, as far as any of us know, any kind of evidence that Martin struck first in response to some sort of provocation, and as far as I know has only so far conceeded that he struck at all "at some point", i.e., it could have been later after things started.  The young lady's account contains what is supposedly the very beginning of the encounter, but an earwitness account of those few seconds is subject to a much wider range of interpretation than an eyewitness account would be.

I'd think the state might prefer to go the route of "We don't know who first laid hands on whom because the only witness left is the defendant, but if it was the deceased, then he probably acted because of blah blah blah"  instead of insisting that Martin started it.

If they conceed that Zimmerman is correct about who started it, they're halfway to "and he did so for no good reason".

Offline JW

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #20 on: August 16, 2012, 03:48:15 AM »
The state doesn't have, as far as any of us know, any kind of evidence that Martin struck first in response to some sort of provocation, and as far as I know has only so far conceeded that he struck at all "at some point", i.e., it could have been later after things started.  The young lady's account contains what is supposedly the very beginning of the encounter, but an earwitness account of those few seconds is subject to a much wider range of interpretation than an eyewitness account would be.

I'd think the state might prefer to go the route of "We don't know who first laid hands on whom because the only witness left is the defendant, but if it was the deceased, then he probably acted because of blah blah blah"  instead of insisting that Martin started it.

If they conceed that Zimmerman is correct about who started it, they're halfway to "and he did so for no good reason".

That makes sense but it just seems that saying "he probably acted because of" is incredibly weak. It leaves room for so much reasonable doubt it wouldn't be worth saying. But I don't know how much of a burden the prosecution has in a case like this.

Offline annoyedbeyond

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #21 on: August 16, 2012, 06:47:10 AM »
The state doesn't have, as far as any of us know, any kind of evidence that Martin struck first in response to some sort of provocation, and as far as I know has only so far conceeded that he struck at all "at some point", i.e., it could have been later after things started.  The young lady's account contains what is supposedly the very beginning of the encounter, but an earwitness account of those few seconds is subject to a much wider range of interpretation than an eyewitness account would be.

I'd think the state might prefer to go the route of "We don't know who first laid hands on whom because the only witness left is the defendant, but if it was the deceased, then he probably acted because of blah blah blah"  instead of insisting that Martin started it.

If they conceed that Zimmerman is correct about who started it, they're halfway to "and he did so for no good reason".

Except that almost all of the evidence demonstrates TM was the one acting as the aggressor.


edited for Deb
« Last Edit: August 16, 2012, 06:57:11 AM by annoyedbeyond »

Offline DebFrmHell

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #22 on: August 16, 2012, 06:51:57 AM »
Except that almost all of the evidence demonstrates TM was the one acting as a thug.

I wish you would find a better descriptor than "thug."  I don't care what you use but please, drop that from your vocabulary.

Offline RickyJim

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #23 on: August 16, 2012, 07:36:52 AM »
"Provocation" requires the use of force or the threat of force.

Gibbs v. State, 789 So. 2d 443 (Fla. 4th DCA 2001):
That was concerning an instruction to a jury where the beyond a reasonable doubt standard govern.  I was considering whether the judge at the immunity hearing might use a different standard to say that that the first part of the condition following (2) in 776.041 is satisfied.
Quote
The justification described in the preceding sections of this chapter is not available to a person who:(2) Initially provokes the use of force against himself or herself, unless:


In my hypothetical scenario of the SYG hearing, I let the judge worry about that.  He could have said instead, "Let's look at the part after "unless" and see if one or both of (a) and (b) are satisfied. 
Quote
(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.
If either is, the question of whether or not Martin was provoked by Zimmerman becomes moot."   Since, in the scenario, he found both were, more likely than not, satisfied he never had to make a decision on the provokes part.  Perhaps this explains O'Mara final comment at his recent news conference which indicates to me that he thinks 776.041(2)(a) is all important.  Actually I think he has a good shot at also establishing (b)
Quote
"We need to focus on what really happened.  And it seems to be drilled down to, Did George act reasonably to protect himself from great bodily injury?  That seems to be the issue.  Let's get down to it".

Offline cboldt

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #24 on: August 16, 2012, 08:05:10 AM »
In my hypothetical scenario of the SYG hearing, I let the judge worry about that.  He could have said instead, "Let's look at the part after "unless" and see if one or both of (a) and (b) are satisfied.  If either is, the question of whether or not Martin was provoked by Zimmerman becomes moot.

An act of provocation can be moot (I think a better word than "moot" is "overcome") for finding justified use of force, but it is not moot for finding immunity.  It is an essential point to be negatived.  Immunity does not attach to a person whose use of force was justified under 776.041, although the use of force in self defense can be justified under 776.041.  Or, more simply, 776.032 immunity is not available to a person who provokes the use of force.

776.032 immunity is only available to a person whose use of force is covered by 776.012, 776.013, 0r 776.031 (not applicable here, this is use of force to defend somebody else).

Offline RickyJim

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #25 on: August 16, 2012, 08:18:06 AM »
An act of provocation can be moot (I think a better word than "moot" is "overcome") for finding justified use of force, but it is not moot for finding immunity.  It is an essential point to be negatived.  Immunity does not attach to a person whose use of force was justified under 776.041, although the use of force in self defense can be justified under 776.041.  Or, more simply, 776.032 immunity is not available to a person who provokes the use of force.

776.032 immunity is only available to a person whose use of force is covered by 776.012, 776.013, 0r 776.031 (not applicable here, this is use of force to defend somebody else).

 ??? Counselor, in my Reply #16 of this thread.  I went through, in detail, how a judge starting from 776.041 could get to 776.012 and then to 776.032 and grant immunity.  Please explain where I messed up.  Thanks.

Offline leftwig

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #26 on: August 16, 2012, 09:09:51 AM »
I think your differences lie in the defining an "act of provocation".  IF the act of provocation is an illegal act then that person is deemed the aggressor.  Being the aggressor can still be overcome for self defense, but not immunity.  If the act of provocation is simply a misinterpreted act (reaching for a cell phone), then its not an illegal act nor an act of provocation and you are not deemed the aggressor.  It could be that it was an act that provoked a response, but if its not an illegal act, you can maintain a claim of immunity.

I do think there are circumstances where reaching into your pocket could be part of a set of actions that could legally make one the aggressor, but without other aggressive actions or language, I can't see any court finding that reaching for a cell phone is an act of provocation.  I imagine the prosecution will try to argue that GZ was following TM and approaching him aggressively and that reaching for his cell phone in conjunction with his other aggressive acts made it an act of provocation.

Offline cboldt

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #27 on: August 16, 2012, 10:49:36 AM »
??? Counselor, in my Reply #16 of this thread.  I went through, in detail, how a judge starting from 776.041 could get to 776.012 and then to 776.032 and grant immunity.  Please explain where I messed up.  Thanks.

Your reply #17.

You messed up by first finding Zimmerman to have provoked the use of force, then finding his use of force justified under .041 (at which point you should be done), then jumping to .012 or .013 to find the same thing you already found, that the use of force (by Zimmerman) was justified.

Under .041, if a person claiming justified use of force provoked the use of force, you are stuck in .041.  That section still allows the person to be justified in defending himself, but one who provokes the use of force in the first place doesn't get to jump out of .041.

Under .041, if a person claiming justified use of force did NOT provoke the use of force, then .041 doesn't apply to that person - go to .012, .013, or .031.

Offline MJW

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #28 on: August 16, 2012, 12:22:05 PM »
That was concerning an instruction to a jury where the beyond a reasonable doubt standard govern.  I was considering whether the judge at the immunity hearing might use a different standard to say that that the first part of the condition following (2) in 776.041 is satisfied.

That defined what the word "provoke" means in regard to self defense.

Offline JW

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Re: Immunity Hearing: Stand Your Ground and/or Self-Defense
« Reply #29 on: August 16, 2012, 03:02:02 PM »


I still don't see how George reaching for his phone can be considered as something that shows George "provoked" Trayvon's attack. It seems to be cherry picking and not looking at the entire circumstances. George reaching for his phone was in response to Trayvon "coming out of the dark and asking him if he had a problem/why he was following him. Trayvon's actions seem far more likely to "provoke" a response and reaching for a phone is a very reasonable one. In my opinion, Trayvon's actions of returning from where he ran and confronting George make Trayvon the aggressor. When you consider Trayvon punched George, pinned him to the ground and hit his head on concrete it is clear Trayvon meant to do George serious harm. There is no doubt. Even if you isolate the incident of Trayvon seeing George reaching in his pocket there is no way of knowing what went thru Trayvon's mind beyond a reasonable doubt.

 

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