Author Topic: The Prosecution's Burden of Proof  (Read 11847 times)

0 Members and 1 Guest are viewing this topic.

Offline RickyJim

  • Hero Member
  • *****
  • Posts: 1580
  • Rate Post +0/-0
Re: The Prosecution's Burden of Proof
« Reply #45 on: May 31, 2013, 04:01:32 PM »
Quote
776.08 Forcible felony.—“Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.
  Aggravated stalking?  Does the last catchall include "unlawful detention"?  You seem to think that the prosecution can't really attempt to use 1 or 3 in my list.  If you are right, I suppose they can use their voice "experts" to try to prove 2 BRD, as absurd as that seems.

Offline RickyJim

  • Hero Member
  • *****
  • Posts: 1580
  • Rate Post +0/-0
Re: The Prosecution's Burden of Proof
« Reply #46 on: May 31, 2013, 04:15:31 PM »
Isn't that the point of 776.032?  He couldn't retreat because he was on his back?  MOM has said over and over that the 776.032 is his plan for defending Zimmerman.
I am completely thrown by your question Deb.  I don't see how 776.032 relates to my list of the 3 ways the prosecution may try defeat Zimmerman's self defense claim.

Offline nomatter_nevermind

  • Hero Member
  • *****
  • Posts: 5449
  • Rate Post +0/-0
Re: The Prosecution's Burden of Proof
« Reply #47 on: May 31, 2013, 04:32:00 PM »
If the prosecution wanted to charge Zimmerman with another crime, I think they would have done it already. Doing it at the last minute looks desperate. I can't believe appearances aren't important to Corey. I think appearances are what the case was brought for.

Offline MJW

  • Hero Member
  • *****
  • Posts: 1304
  • Rate Post +0/-0
Re: The Prosecution's Burden of Proof
« Reply #48 on: May 31, 2013, 07:16:26 PM »
  Aggravated stalking?  Does the last catchall include "unlawful detention"?  You seem to think that the prosecution can't really attempt to use 1 or 3 in my list.

  Aggravated stalking?  Does the last catchall include "unlawful detention"?  You seem to think that the prosecution can't really attempt to use 1 or 3 in my list.  If you are right, I suppose they can use their voice "experts" to try to prove 2 BRD, as absurd as that seems.

There are several actions that qualify as aggravated stalking. The only one that isn't excluded by the plain language of the law is:

Quote
(3) A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Though the term "repeatedly" is somewhat loose and subject to interpretation, I don't see any credible argument that GZ repeatedly followed TM. There's also no credible argument GZ made a credible threat. While threats can be conveyed through actions as well as words, if following by itself qualified as the credible threat, all stalking would be aggravated stalking; there wouldn't have been two separate crimes.

Is there a Florida crime of "unlawful detention" or is that another term for false imprisonment? In any case, unless it was clear the detention occurred prior to and separately from the shooting, it would probably not be an independent felony. Also, in Kalogeras v. State, 58 So. 3d 889 (Fla. 5th DCA  2011) the 5th DCA held (in a different context) that false imprisonment was not a forcible felony because the elements of the crime do not require the use or threat of violence.




Offline nomatter_nevermind

  • Hero Member
  • *****
  • Posts: 5449
  • Rate Post +0/-0
Re: The Prosecution's Burden of Proof
« Reply #49 on: May 31, 2013, 07:48:51 PM »

Points on which Investigator Dale Gilbreath conceded he had no evidence, at the 4/20/12 bond hearing.

Whether Zimmerman started to return to his car.

Whether Zimmerman confronted Martin.

Who started the fight.


Points for which Gilbreath claimed there is evidence.

Zimmerman continued to follow Martin after the dispatcher said it was unnecessary.

It is not true that Zimmerman was beaten and his head banged repeatedly on concrete.


Beside those specific points, this:

Quote
De la Rionda:  But -- and I'm going to get into every little contradiction but wouldn't you agree that a lot of his statements can be contradicted by the evidence either witnesses or just based on what he says himself?

GILBREATH: Yes.

Audio, complete.

CNN transcript, with omissions at commercial breaks.

Offline nomatter_nevermind

  • Hero Member
  • *****
  • Posts: 5449
  • Rate Post +0/-0
Re: The Prosecution's Burden of Proof
« Reply #50 on: May 31, 2013, 08:06:17 PM »
Though the term "repeatedly" is somewhat loose and subject to interpretation, I don't see any credible argument that GZ repeatedly followed TM. There's also no credible argument GZ made a credible threat. While threats can be conveyed through actions as well as words, if following by itself qualified as the credible threat, all stalking would be aggravated stalking

If W-8 is believed, Zimmerman followed Martin twice.

There's following and there's following. An argument I've seen, is that following a person in certain ways, taken together, can be construed as an unspoken threat.

Following at night. Following for a long distance. Following in a vehicle, then switching to following on foot. Running in pursuit. Following very closely, without self-identifying.

It's like the Virgin Birth. You believe it or you don't.

I would like to know if there is case law, for or against.

Offline MJW

  • Hero Member
  • *****
  • Posts: 1304
  • Rate Post +0/-0
Re: The Prosecution's Burden of Proof
« Reply #51 on: May 31, 2013, 10:07:30 PM »
If W-8 is believed, Zimmerman followed Martin twice.

There's following and there's following. An argument I've seen, is that following a person in certain ways, taken together, can be construed as an unspoken threat.

Following at night. Following for a long distance. Following in a vehicle, then switching to following on foot. Running in pursuit. Following very closely, without self-identifying.

There's a confusing aspect to the aggravated stalking law as potentially (or should I say, "theoretically"?) the law would apply to GZ. Some time in 2012 the definition of "credible threat" was changed from:

Quote
“Credible threat” means a threat made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety. The threat must be against the life of, or a threat to cause bodily injury to, a person.

to,

Quote
(c) “Credible threat” means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm. It is not necessary to prove that the person making the threat had the intent to actually carry out the threat. The present incarceration of the person making the threat is not a bar to prosecution under this section.

I don't see how the first could by any stretch of the imagination apply to GZ following TM, since there's no reason to believe he intended to cause TM fear for his safety. I don't think the second could apply either, but the language is sufficiently nebulous that that argument might be made that it does. I don't know when the change was made, but if the law took effect after Feb. 26, 2012, the prohibition against ex post facto laws would mean the first definition would apply.

If the second applied, what is the specific threat implied by following? How could it be determined that the follower had the "the apparent ability to carry out the threat to cause such harm" when neither the threat nor the harm can be specified?

While the language of the statute has changed, the standard jury instruction apparently has not. It says:

Quote
To prove the crime of Aggravated Stalking, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) willfully, maliciously, and repeatedly [followed] [harassed] [or] [cyberstalked] (victim).

2. (Defendant) made a credible threat with the intent to place (victim) in reasonable fear of death or bodily injury to [himself] [herself] [(name of the subject of threat)].

Give if applicable.
(Name of subject of threat) was (victim)’s [child] [sibling][spouse] [parent] [dependent].

Definitions.
“Harass” means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.

“Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.

“Credible threat” means a threat made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety. The threat must be against the life of, or a threat to cause bodily injury to, a person.

I'm not quite sure why the jury instruction hasn't changed. No cases have mentioned the changes in the statutory language.

Offline Zapper

  • Newbie
  • *
  • Posts: 7
  • Rate Post +0/-0
Re: The Prosecution's Burden of Proof
« Reply #52 on: May 31, 2013, 10:33:46 PM »
Since you brought up the shell casing, I've seen claims that its position refutes Zimmerman's story.  Does anybody understand what they mean?

Apparently those who claim that the position of the shell casing refutes the defendant's story mean that the position of the shell casing in reference to Trayvon's body and other salient measurements simply doesn't support the defendant's story, probably because the defendant first says he fell at the T after being sucker punched, and then later describes stumbling forward from the T and 40 feet forward, but still somewhat short of the spot where the confrontation ended with the fatal shot.

Of course, we can't know yet what the prosecution will do with this info.

Offline nomatter_nevermind

  • Hero Member
  • *****
  • Posts: 5449
  • Rate Post +0/-0
Re: The Prosecution's Burden of Proof
« Reply #53 on: June 01, 2013, 04:37:56 AM »
If the second applied, what is the specific threat implied by following?

Does the threat have to be specific? I don't see that in the statutory language (Fla. Stat. § 784.048).

Quote
How could it be determined that the follower had the "the apparent ability to carry out the threat to cause such harm" when neither the threat nor the harm can be specified?

Zimmerman is physically imposing enough that Martin couldn't be certain of prevailing in a fight. I think that implies 'apparent ability' to do harm to Martin.

That the feared harm isn't specific, means that Zimmerman wouldn't need any specific type of tool or weapon to carry it out.

Offline vegas

  • Hero Member
  • *****
  • Posts: 683
  • Rate Post +0/-0
Re: The Prosecution's Burden of Proof
« Reply #54 on: June 01, 2013, 10:27:27 AM »
I don't think little 5"7", fat, tubby, out of shape George physically imposing at all, let alone to a 5"11" muscular teenage with fist fighting experience. Reviewing the 7/11 video, I think Martin is physically imposing. We are all anxious to hear what the Forensic experts have to say about the physical  evidence.
« Last Edit: June 01, 2013, 10:34:22 AM by vegas »

Offline MJW

  • Hero Member
  • *****
  • Posts: 1304
  • Rate Post +0/-0
Re: The Prosecution's Burden of Proof
« Reply #55 on: June 01, 2013, 11:36:13 AM »
Does the threat have to be specific? I don't see that in the statutory language (Fla. Stat. § 784.048).

It does for the law to be constitutional. A law that outlaws any activity that might make someone feel "threatened" is, in my opinion, unconstitutionally vague. I would not be the least bit surprised if the current version of the statute is found to be unconstitutional.

Offline RickyJim

  • Hero Member
  • *****
  • Posts: 1580
  • Rate Post +0/-0
Re: The Prosecution's Burden of Proof
« Reply #56 on: June 01, 2013, 11:37:34 AM »
I'm not sure, but I don't see how it matters. What independent forcible felony could GZ be charged with? Anything related to an alleged assault on TM isn't an independent felony.
Is there an official Florida definition of "independent"?  Why isn't any charge, different than second degree murder, independent?

Offline MJW

  • Hero Member
  • *****
  • Posts: 1304
  • Rate Post +0/-0
Re: The Prosecution's Burden of Proof
« Reply #57 on: June 01, 2013, 02:02:49 PM »
Is there an official Florida definition of "independent"?  Why isn't any charge, different than second degree murder, independent?

There's no "official" definition in the sense that it's defined in a statute; it's all based on case law. The seminal case is probably Martinez v. State, 981 So. 2d 449 (Fla. 2008) where the Florida supreme court held that an aggravated battery charge against the defendant didn't justify the forcible-felony instruction. In Shepard v. Crosby, 916 So. 2d 861 (Fla. 4th Dist. 2005) the 4th DCA held that giving the forcible-felony instruction was error when the defendant claimed self-defense to every charge. Essentially, a forcible felony isn't independent when it's an act of force or violence closely tied to the act for which self defense is asserted.

Offline RickyJim

  • Hero Member
  • *****
  • Posts: 1580
  • Rate Post +0/-0
Re: The Prosecution's Burden of Proof
« Reply #58 on: June 01, 2013, 02:50:31 PM »
What I get out of Shepard vs. Crosby, besides that even lawyers find 776 confusing, is you can't defeat self defense by filing an additional charge against the defendant if the reply to that charge is the same self defense claim used for the original charge.  However, in the Zimmerman case, if the prosecution files a forcible detention or aggravated stalking charge, Zimmerman couldn't claim self defense to defeat them so maybe they can get away with adding it.  In that case, defeating self defense for the murder/manslaughter charge, under condition 1, means the jury believes the additional charge beyond a reasonable doubt.  I am not saying that getting that additional charge in really enhances the prosecution chances much.

Offline MJW

  • Hero Member
  • *****
  • Posts: 1304
  • Rate Post +0/-0
Re: The Prosecution's Burden of Proof
« Reply #59 on: June 01, 2013, 05:48:29 PM »
What I get out of Shepard vs. Crosby, besides that even lawyers find 776 confusing, is you can't defeat self defense by filing an additional charge against the defendant if the reply to that charge is the same self defense claim used for the original charge.  However, in the Zimmerman case, if the prosecution files a forcible detention or aggravated stalking charge, Zimmerman couldn't claim self defense to defeat them so maybe they can get away with adding it.  In that case, defeating self defense for the murder/manslaughter charge, under condition 1, means the jury believes the additional charge beyond a reasonable doubt.  I am not saying that getting that additional charge in really enhances the prosecution chances much.

I still say aggravated stalking doesn't apply. Even if the new statute was in effect on Feb. 26, 2012 -- and I doubt it was -- the jury instructions still require the defendant make a threat with the intent of putting the victim in fear of bodily injury. What Florida statute is "forcible detention"?
« Last Edit: June 01, 2013, 05:54:36 PM by MJW »

 

Site Meter
click
tracking