Author Topic: Expectations for Week Two  (Read 8954 times)

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Offline nomatter_nevermind

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Re: Expectations for Week Two
« Reply #15 on: June 29, 2013, 06:24:28 PM »
Res gestae is covered by three closely-related hearsay exceptions: spontaneous statement, excited utterance, and then-existing mental, emotional, or physical condition.

Thank you.

Those would be sections (2) and (3) of the statute cited above.

Offline SuzieTampa

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Re: Expectations for Week Two
« Reply #16 on: June 29, 2013, 07:00:14 PM »
Now that the state is discussing GZ's character, does anyone think that the state might call the cousin who accused GZ of molesting her?

Offline MJW

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Re: Expectations for Week Two
« Reply #17 on: June 29, 2013, 07:18:03 PM »
Those would be sections (2) and (3) of the statute cited above.

Yes. In fact, West mentions that in his motion. He says: "As the Court is aware, res gestae type statements made soon after an event are admissible notwithstanding that they are hearsay. Florida Statutes 90.803 (1), (2), and (3)."

Offline jjr495

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Re: Expectations for Week Two
« Reply #18 on: June 29, 2013, 08:04:43 PM »
In the first week, the defense established a spatial-temporal map of events that is devastating to the State's case. Martin ran minutes before the altercation started and could have run laps around the complex before the altercation. Yet, the altercation started at the T and moved south toward Goods residence. Martin was on top pummeling Zimmerman. Zimmerman was yelling for help.

Murder 2 is out the window. The state must try to prove manslaughter. The argument will be that Z could have, and maybe did, escape from TM.

What are you expecting for week two of the trial?

All of the important eye and ear witnesses have been called, but we may see a couple more. I am expecting to see lots of forensics. Medical examiner(s), DNA, fingerprints, etc.  I expect to hear lots of arguments about the lack of GZ blood on TM. We should here a lot about the preservation of forensic evidence in light of the weather and manner of preservation. I expect a debate about whether the jury can hear about THC in TM's blood.
I hope never to hear the term "ground and pound" again in my life, but I am probably out of luck.
Zimmerman's interviews will be introduced and they will spend many hours (probably days) going through the meaning of everything GZ has said. Who will be on the stand to introduce those interviews? Serino? Hannity?

Who else will the state call?
The state will call MEs and other forensic experts. I expect Nelson to rule for the State and we will have the debate about GZ's arrest and restraining order. This will open up the defense to call a lot of pro-Z character witnesses. The State does not want to put up Sybrina and Tracy because of the embarrassing (or worse) circumstances surrounding RJ. They may feel compelled to have Sybrina testify about the screams, even if it is a losing argument.
 
Which witnesses on their list do you think they will avoid calling?
The Kokopelli MMA instructor and GZ's professor. The State knows they must try to prove GZ is an MMA fighting machine, but the instructor will say he's a whimp, and liberal professors are loose canons; who knows what he might say.

Will the state's theory of the case change at all?
The State has to decide between the Murder 2 charge where Martin is screaming for help, and the manslaughter charge where Z was not reasonable in his belief that he would be killed or suffer great bodily injury. I think they will probably choose the latter approach, but they may stick with the "all of the above" approach.

Do you have any suggestions for the defense?
Put up a weak argument about why George's past restraining order and arrest should not be brought up so that they can present a lot of peaceable character witnesses during the last weeks of the trial. I think this jury is sophisticated and worldly wise enough to put these issues in proper perspective.

Offline Jujube

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Re: Expectations for Week Two
« Reply #19 on: June 30, 2013, 03:17:58 PM »
I believe there will be new information released this week that none of us have ever seen before.  All along, I've noticed various bits and pieces missing from discovery so I expect us to see some of that.  Maybe it will be a game-changer for this trial? 

Offline MJW

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Re: Expectations for Week Two
« Reply #20 on: June 30, 2013, 07:49:22 PM »
Among the witnesses not yet called are W3 (woman who called 15 seconds before shot), Austin McLendon, W19 (woman who mentioned "elderly man" who lived next door.), W17 (John Good's wife), and W20 (Lauer's husband). I would think the state would likely at least call W3 and Austin McLendon.

Offline MJW

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Re: Expectations for Week Two
« Reply #21 on: June 30, 2013, 08:48:31 PM »
Now that the state is discussing GZ's character, does anyone think that the state might call the cousin who accused GZ of molesting her?

Very unlikely. At least assuming the state and judge don't want any conviction reversed by the DCA in about ten seconds. At most, GZ's reputation for non-violence was opened for rebuttal.

Offline nomatter_nevermind

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Re: Expectations for Week Two
« Reply #22 on: June 30, 2013, 09:40:06 PM »
I believe there will be new information released this week that none of us have ever seen before. 

Oh, right, that top-secret bombshell the prosecution has been saving. I think they'll keep saving it, until the rebuttal. Maybe longer. Years from now, people may still be wondering what it was, and why it wasn't heard.

Offline MJW

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Re: Expectations for Week Two
« Reply #23 on: June 30, 2013, 10:57:28 PM »
I avoid counting unhatched chickens, so I make no predictions on whether the state will come up with some strong, unanticipated evidence. If there is some, it could involve the phone records that have been kept mostly nonpublic. We don't know what positional information the state may have for TM or GZ. O'Mara said recently that there was no evidence that GZ wasn't returning to his truck when the altercation begun. If that's accurate, it would seem to indicate no positional information placed him elsewhere. I think the state may plan to use the clubhouse video to establish either TM's or GZ's actions. I've seen no report on existence of such an analysis, but the state introduced the recording into evidence, and O'Mara questioned the reliability of the time offset. I think the state may try to make some hay with new forensic evidence. I'm not sure it will go anywhere, though.

Offline Cylinder

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Re: Expectations for Week Two
« Reply #24 on: July 01, 2013, 12:48:00 AM »
I predict that in Week 2 Team Zimmerman will not use the word punched and the state will not use the word Serino.

Offline nomatter_nevermind

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Re: Expectations for Week Two
« Reply #25 on: July 01, 2013, 12:50:21 AM »
I predict that in Week 2 Team Zimmerman will not use the word punched

Why not? If using that word got the defense in trouble last week, I missed it.

Offline nomatter_nevermind

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Re: Expectations for Week Two
« Reply #26 on: July 01, 2013, 02:08:11 AM »
I would hope that state and defense would agree to spare Austin McLendon the ordeal of testifying. Maybe an affidavit could be substituted, or his sister could testify for him, or his testimony could be done without. The joint 911 call will be played in any case.

I looked over the Florida Evidence Code for admission of affidavits in lieu of testimony, and I didn't find any mention of the issue.

Austin's statements to his sister after the shooting would be both spontaneous statements and excited utterances, sections (1) and (2) of Fla. Stat. § 90.803. Hearsay exceptions under 90.803 do not require that the declarant be unavailable. Sierra McLendon is an adult, 18 at the time of the shooting, so 19 or 20 today.

Judge Nelson wouldn't allow Selma Mora to give an opinion on whether the screams were of an adult or child, so presumably Austin can't either.

I don't think we know what Austin would say about the color of the clothing. We've had some discussion related to this, for example starting here, here, and here. He didn't mention clothing color on the 911 call. That being so, I wouldn't expect he would have mentioned it to Sierra either, but I don't know of any information on that subject.

If Austin testifies that the upper garment wasn't red or that he couldn't tell or doesn't remember, he would be asked about his earlier statements. I think that includes statements to reporters and anyone else, not just investigators. Fla. Stat. § 90.608 says 'statements of the witness which are inconsistent with the witness’s present testimony', without qualification.

If Austin denies making any alleged statements, recordings can be played, or persons who heard the statements could be called.

Bottom line, I think Austin's testimony would at best be a wash for the state, and might help the defense to some degree. I don't know why they would want him to testify, if the defense would agree not to hold it against them that they didn't call him.

There may be some reason not obvious to me. I am not a lawyer.

I don't think Austin's testimony would help the defense very much, in a case in which they are way ahead. That he saw only one person, where we know there were two, might confuse the jury. It certainly confuses me.

The child is in a sorry predicament. His own mother has gone on national television to impeach him (Al Sharpton, 3/28/12; Nancy Grace, 3/39/12). I believe he must be under tremendous pressure, from his family and his 'community'. I would hope both sides would have a little compassion.

When I was looking over the earlier discussion to decide where to link, I came across this, a video still and a map based on the still, showing where Austin indicated he was standing before his dog got loose.

Someone else on the thread found the video and linked it. The link still works, but the video has been taken down, license expired. I don't know if or where the video is still available.

All of the above are my completely non-professional opinions.

Offline MJW

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Re: Expectations for Week Two
« Reply #27 on: July 01, 2013, 02:45:19 AM »
I disagree about Austin. There were two witnesses who actually saw the altercation: Good and McLendon. He's probably 15 years old by now. If he tells the truth, I don't know why the testimony should be an ordeal. His original statements supported Zimmerman's version. He saw someone in red on his back, screaming for help. Good mentioned that he didn't see Martin initially, so the fact Austin saw only one person may be somewhat confusing, but it's explainable. The defense included Austin's video deposition in discovery, so I expect he'll be called, and if necessary, impeached with his previous statements. I believe Austin's mother and her lawyer tainted his later comments. I don't see why the defense should be forced to forego a helpful witness because of what I suspect came close to witness tampering.

Offline nomatter_nevermind

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Re: Expectations for Week Two
« Reply #28 on: July 01, 2013, 03:02:12 AM »
If he tells the truth, I don't know why the testimony should be an ordeal.

I thought I explained that. I have no more to say on that than I have already said.

Offline nomatter_nevermind

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Re: Expectations for Week Two
« Reply #29 on: July 01, 2013, 04:04:32 AM »
There were two witnesses who actually saw the altercation: Good and McLendon.

How could McLendon see the altercation if he only saw one person?

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Good mentioned that he didn't see Martin initially

I don't recall that.

I recall Good saying that at first he thought there was only one person, without saying he thought it was one or the other. Is that what you mean? Is 'didn't see Martin' an inference beyond what the witness said?

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the fact Austin saw only one person may be somewhat confusing, but it's explainable.

What's the explanation? If Good did have a similar experience at first, that's two unexplained oddities, not an explanation.

I can see how Austin might have missed Trayvon in his dark clothing if he was straddling Zimmerman and sitting upright with his arms at his sides. But if Trayvon was hitting Zimmerman or holding him down, how does see Austin miss that while looking at Zimmerman's face and upper body? If I'm the defense attorney, I think I might just as soon not have the jury spend any time puzzling over that.

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The defense included Austin's video deposition in discovery, so I expect he'll be called

Non sequitur. Of course the defense wants to be prepared if the prosecution calls him.

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I believe Austin's mother and her lawyer tainted his later comments.

I don't think anyone's comments are tainted by things other people say.

We're revisiting the discussion I linked in the earlier post. You used the word 'tainted' then, and later retracted it. I don't know the exact context. I was just glancing at the posts to see where to link. I didn't review them.

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I don't see why the defense should be forced to forego a helpful witness because of what I suspect came close to witness tampering.

Straw man. I didn't suggest the defense should be forced to do anything, and I argued that McLendon wouldn't be very helpful to them.

 

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