State v. George Zimmerman (Pre-Trial) > Other Case-Related Topics


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I asked Jeralyn if we could discuss civil law suits and how they are affected by the Immunity Hearing and the upcoming trial.  She realizes that it is something we would like to discuss.

The one thing she will not tolerate is any attack on the characters or perceived wrong doings of any of the lawyers, particularly Mr. Crump, so it is going by the same rules as the rest of Talk Left.


This question was posed over at Random Topics by BoricudaFudd and I believe it is a pair of great questions.

--- Quote ---Could a person who had been charged with a crime of self-defense and was acquitted using the basic self-defense laws and has now been sued in Civil Court, now invoke the Immunity provisions in Florida's statutes in Civil Court, even if he did rely on them for his Criminal Case?

The Civil Court would at that point hold the Immunity Hearing and grant Immunity or not as it would be done in Criminal Court. So far, from my understanding of the law, it only say the "Court" none specific as if this is something that needs to be only in Criminal Court, just a Court of Law.
--- End 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 the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

I am not sure that a mere acquittal would free Zimmerman from the threat of a civil suit.  I believe that a judge in the criminal case would have to make that determination either at the beginning, middle or end of the criminal trial.  It may make it a harder job to get a judgment against him, however.

I am going to bring over Jeralyn's bog on this from the main page.  I think it would be a great reference for us.

History.—s. 4, ch. 2005-27.

From the Main Talk Left Page:

--- Quote ---The second big issue was the immunity hearing. The Judge asked the defense if it still wanted the court to reserve the April, 2013 date for a pre-trial hearing on the issue of immunity from prosecution or had decided to "roll it into the trial." O'Mara said the hearing dates could be released.

Most of the prosecution argument was done by State's Attorney John Guy and FDLE Attorney David Margolis. Towards the end (7:47 into second part of hearing) State's Attorney De La Rionda referred to O'Mara waiving his right to raise stand your ground. The judge interrupted him and told him O'Mara hadn't waived the issue, he just said a hearing in April would not be necessary. She said we'll know if he intends to raise the issue when he files a motion.

My take: O'Mara can raise the immunity issue at trial. He can file a motion to dismiss based on immunity shortly before trial (or whatever cut-off date the court sets) and waive his right to a pre-trial hearing on the issue.

The matter would proceed to trial. At the end of the prosecution's case, the defense would ask the court for a motion to dismiss the charges based on his motion he is immune from prosecution. He would also ask for a motion for judgment of acquittal, arguing the state had not made a sufficient case to go to the jury.

The judge would rule on both motions. If denied, the defense would present its case to the jury. It would argue self-defense. The burden of disproving self-defense beyond a reasonable doubt is on the prosecution.

After the defense completed its case, it would renew both its motion to dismiss based on immunity from prosecution, and its motion for judgment of acquittal.

If those motions were denied, the jury would deliberate and return a verdict. It could find Zimmerman not guilty, guilty of lesser offenses, or guilty of the charged offenses.

When was the last time a Florida case proceeded this way? Last month, in the trial of Daniel Diodato in Martin County. Diodato and his wife had placed an ad in Craig's List offering his wife's companionship services. Kyle Hicks responded and came to the couple's trailer. After his "session" with Diodato's wife, Diodato said Hicks refused to pay and got aggressive, threatening him and his wife and causing him to fear for his wife's safety. He shot Hicks in the butt.

Daniel Diodato told the jury on Thursday he shot Kyle Hicks after Hicks became aggressive and threatened his life.

Diodato said the night Hicks visited his home, he was responding to an ad his wife, Sarah Diodato, had posted promising companionship. Diodato told the courtroom Hicks did not seem to want to pay his wife for sexual activity and became agitated.

Diodato said when Hicks began "mixed martial arts" wrestling him, he was left with no choice but to shoot Hicks with his shotgun....State prosecutors argued Diodato was not protecting himself and was after collecting money from Hicks. Prosecutors said Hicks was shot as he was trying to leave the scene and that the story told by Sarah and Daniel Diodato does not add up.

The shooting happened in October, 2011. The trial began on January 29, 2013. Diodato did not file a motion to dismiss based on immunity until the week before trial. Here is the docket, which shows:
•1/24/13: Defense files Motion to Dismiss Based on Fl. Statute 776.032 (Stand Your Ground)
•1/25/13: Defense files Amended Motion to Determine Immunity and Dismiss Based on Fl. Statute 776.032
•1/28/13: Jury selection begins. Defense waives right to pre-trial hearing on stand your ground motion.
•1/29/13: Opening Arguments. Defense tells jury Diodato acted in self-defense. Prosecution begins case.
•1/31/13: Defense argues motion for judgment of acquittal and motion to dismiss based on stand your ground immunity. Both are denied. Defense begins its case, Diodato testifies.
•2/1/13: Defense concludes case and renews motion to dismiss based on stand your ground immunity and motion for judgment of acquittal. Both are denied. (Judge denies immunity on ground that Hicks was trying to leave when Diodato shot him from behind.) Jury deliberates, returns verdict of guilty on lesser offenses (misdemeanor assault and battery vs. aggravated felony assault and battery carrying 20 and 25 year mandatory sentences) and guilty of the felony of deriving proceeds from prostitution
•2/18/13: Diodato sentenced to time served on the assault and battery and 30 months on the felony of deriving profits from prostitution.

From the Docket:

1/31/13: Court Minutes[.] Defense Motion for J.O.A Count 1 - 3 - denied[.] Defense Amended Motion to Dismiss Count 1- Denied[.] Defense Renews All Previous Motion and Objections

02/01/2013 Court Minutes[.] Defense Renews All Previous Motion and Objections - Judge[:] All His Previous Rulings Stand and Objection to Motion in Limine Ruling Remains[.] Defense Renews Motion for J.O.A.[.]Denied[.] Defense Renews Motion (Stand Your Ground)to Find Defendant Immune from Prosecution- Denied [.] Jury Finds the Defendant Count 1 Guilty of Battery a Lesser Included Offense[,] Count 2 Guilty of Assault a Lesser included Offense[,] Count 3 Guilty as Charged[.] All Bonds Revoked Pending Sentencing

In other words, all O'Mara has ceded is the right to a pre-trial hearing on whether George Zimmerman is immune from prosecution (and the right to seek a immediate writ of prohibition in the District Court of Appeals, which if successful, would preclude a trial from taking place.) O'Mara can still file a motion to dismiss based on immunity, argue it to the Court at the close of the state's evidence and renew it at the close of his case, before it goes to the jury. The judge would determine the motion based on the evidence presented at trial. If denied, O'Mara can still argue self-defense, including self-defense based on the immunity/stand your ground statute, to the jury. See, for example, McDaniel v. State:

When a defendant's motion to dismiss on the basis of immunity is denied, the defendant may still assert the issue to the jury as an affirmative defense. Peterson, 983 So. 2d at 29.

As Florida Judge Milton Hirsch explained in the Wyche case:

If, at a pretrial hearing, a defendant meets his burden and establishes his claim of immunity by a preponderance of the evidence, any charge as to which the immunity applies would of course be dismissed. If, however, the court finds that the defendant has not met his burden, the court's ruling has no preclusive effect, whether pursuant to the "law of the case" doctrine, the issue preclusion doctrine (i.e., collateral estoppel), or any other doctrine. Such a defendant would still be free at trial to plead his claim of immunity to the jury.

At trial the burden of proof is exclusively on the prosecution to establish the guilt of the defendant beyond and to the exclusion of a reasonable doubt. To earn an acquittal, the defendant need do no more than show reasonable doubt - a quantum of evidence considerably less than a preponderance. And any attempt to bar a defendant from asserting a lawful defense based on the trial court's ruling that the defendant had not sufficientlv established that defense at a pretrial hearing would no doubt run afoul of the defendant's constitutional entitlement to a fair jury trial, see U.S. Const. amend VI; Art. I Sec16, Fla. Const.

The jury, in finding Zimmerman not guilty based on self-defense, whether its decision is rooted in the immunity statute or traditional self-defense, is not making a finding on immunity from a future civil suit. It is merely deciding whether the state has proved the criminal charges it brought, or lesser included criminal charges, beyond a reasonable doubt.

If the jury rejects self-defense, including that based on the immunity statute, Zimmerman can argue on appeal that the court erred in not dismissing the case based on the immunity statute before it went to the jury. He can also argue on appeal the court erred in rejecting his motion for judgment of acquittal, based on the state’s failure to disprove self-defense beyond a reasonable doubt, and any other pre-trial and trial errors (for example, rulings on discovery such as refusal to order disclosure of witness addresses, Brady violations, refusal to grant a trial continuance evidentiary rulings at trial and jury instructions.)
--- End quote ---

Every time I have tried to access that thread today I have been getting script errors.  The rest of the article is in regards to W8 so I didn't include it here.

IANAL, but it seems the 'spirit' of the SYG law is intended to protect someone that acted in self-defense from both criminal prosecution and civil suits. Since by the time a defendant becomes a defendant he's already been prosecuted, the criminal immunity part doesn't make much sense to me.

(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 the person against whom force was used is a law enforcement officer, as defined in s.
--- End quote ---

Why would someone claim immunity from criminal prosecution unless they have already been prosecuted? Should a potential defendant pay the expense of hiring a lawyer, gather evidence and experts, and then prior to any charges being filed against him request a hearing before a judge in order to gain immunity? That doesn't make sense to me. Who would be in opposition to the claim since the state hasn't filed charges?

I know that my post isn't directly on topic, but how immunity does and maybe should work is. IMO. Criminal prosecution has already occurred by the time a judge gets involved to decide to grant it or not. What's left is civil immunity.

I am curious as to how it could apply if the defendant is found guilty.  If there are appealable errors, using Jeralyn's example: "any other pre-trial and trial errors for example, rulings on discovery such as refusal to order disclosure of witness addresses, Brady violations, refusal to grant a trial continuance evidentiary rulings at trial and jury instructions," could immunity be granted by the 5th DCA?


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