Many have focused on Witness 6 (John) and Witness 13, but I’d encourage everyone to listen to the later interviews of W-11, who was the first to call 911 and lives with Jeremy at 1211 Twin Trees Lane. Her audio interviews are available here.
Everything she heard matches up with Zimmermans account that the initial verbal confrontation began as George said, on the sidewalk west of “T” which runs along the side of their house with low bushes, that it turned the corner onto the shared path, the “helps” began as they were in back of her house, moving down to John’s house. She heard John yell out, as he says. “Hey what’s going on…should I call 911?” as someone kept yelling for help. Jeremy’s interviews (W-20) are similar. You can also find John and Jeremy’s interviews here.
As to the law and burden of proof on self-defense, the aggressor statute, Stand Your Ground and second degree murder, Florida law is very clear.
For the basics, since I don’t want to repeat myslef, see my earlier posts :
- Stand Your Ground and Self Defense
- Can the State Prove Zimmerman’s Ill-Will, Hatred, Spite and Evil Intent:
- Zimmerman: The Discovery and the Witnesses
- George Zimmerman: The Most Likely Scenario
- Zimmerman: Witnesses 2 and 12
- George Zimmerman: State of the Evidence
- George Zimmerman’s Crediblity
- Zimmerman’s Medical Reports Show Broken Nose and Lacerations
- Burden of Proof at George Zimmerman Bail Hearing
To clear up some misconceptions I’ve been reading in comments here and elsewhere, here are some key legal points to keep in mind. These are based on my review of Florida statutes, case law and jury instructions. (Note: To get this posted before noon, I’m going to post it without links and then go back and add the links. Until then, Florida statutes, cases and jury instructions are generally all online if you just google the name of the case and citation, or statute or jury instruction number:)
1. To get a jury instruction on self defense, all Zimmerman must produce is some evidence, no matter how flimsy, even if it’s just his own version of events.
From Vila v. State, 74 So. 3d 1110, 1112 (Fla. Dist. Ct. App. 5th Dist. 2011):
According to Vila’s testimony, the victim attacked him first, and he responded in order to defend himself against that attack. The State contends that Vila was not entitled to the instruction because the evidence that he presented was minimal and self-serving. This argument lacks merit as a defendant is entitled to a self-defense instruction if there is any evidence to support his defense. Wright v. State, 705 So. 2d 102, 104 (Fla. 4th DCA 1998) (holding that defendant is entitled to jury instruction on his theory of case if there is any evidence to support it, no matter how flimsy that evidence might be); Taylor v. State, 410 So. 2d 1358, 1359 (Fla. 1stDCA 1982) (holding defendant entitled to requested self-defense instruction no matter “how weak or improbable his testimony may have been with respect to the circumstances” leading to commission of offense)……If evidence exists that raises self-defense as an issue, the proper approach is to offer the self-defense instruction with the forcible felony or initial provocation exceptions. See generally Cancel, 985 So. 2d at 1127.
Also see See Gregory v. State and the Arthur case.
A criminal defendant is entitled to have the jury instructed on the law applicable to his or her theory of defense where there is any evidence to support it, no matter how weak or flimsy.
2. The Aggressor Statute: Why Zimmerman is not the Aggressor, But If He Was, He Could Still Use Deadly Force
The aggressor statute in Florida, § 776.041, allows the aggressor to respond with deadly force to the victim’s use of force against him, if:
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;
An aggressor is someone who initially provokes the use of physical force. Provoking fear is not the test. And the provocation has to be contemporaneous with the victim’s use of force against him. The statute explicitly refers to an aggressor as someone who “initially provokes the use of force against himself or herself.”
There are two sections of the aggressor statute. The first one, concerning forcible felonies, does not apply to this case because George Zimmerman is not charged with an independent forcible felony. A multiple of Florida cases and the state’s jury instructions state this. See, State v. Dennis, State v. Martinez, State v. Giles and Smith v. State.
The Florida Supreme Court amended and clarified the instruction on the justifiable use of deadly force in March 2008……See In re Standard Jury Instructions in Criminal Cases—Report No. 2007-3, 976 So. 2d 1081, 1087 (Fla. 2008) (expressly stating the “forcible felony” instruction is to be given only if the defendant is charged with an independent forcible felony).
The state may try to show GZ did something that legally justified TM’s punching him in the nose and then smacking him in the head. Even if they were able to show GZ did something that justified TM’s reaction of punching him in the nose and beating his head, GZ should still prevail on self-defense unless he had some other, lesser means to stop Trayvon’s assault or reaching for his gun. See Martinez v. State andJohnson v. State:
Specifically, section 776.041 “[s]ubsection (2) precludes the initial aggressor from asserting self-defense where he or she is the individual who provoked the use of force”contemporaneously to the actions of the victim to which the defendant claims self-defense.
Also, in order for Trayvon to have been justified in his use of non-deadly force against GZ, he had to reasonably fear an imminent attack by Zimmerman. He can’t just have been afraid because he was unsure what Zimmerman up to. Section 776.012
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.
If Zimmerman did not do anything to provoke Martin’s assault, thenstand your ground applies:
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
3. Once George Zimmerman introduces some evidence of self-defense and is entitled to a jury instruction, he has no other burden of proof. The state must disprove self-defense by proof beyond a reasonable doubt.
From Stieh v. State, 67 So. 3d 275, 279 (Fla. Dist. Ct. App. 2d Dist. 2011):
It was the State’s burden to overcome Stieh’s theory of self-defense and prove beyond a reasonable doubt that Stieh was not acting lawfully when he stabbed the victim. See Behanna, 985 So. 2d at 555. As noted by this court in Jenkins, HN7″self-defense cases are intensely fact-specific.” 942 So. 2d at 916. But where the evidence ” ‘leaves room for two or more inferences of fact, at least one of which is consistent with the defendant’s hypothesis of innocence, [it] is not legally sufficient to make a case for the jury.’ ” Fowler, 921 So. 2d at 712 (quoting Fowler v. State, 492 So. 2d 1344, 1348 (Fla. 1st DCA 1986)).
Falwell v. State, 2012 Fla. App. LEXIS 6601 (Fla. Dist. Ct. App. 5th Dist. Apr. 27, 2012)
Defendant [is] not required to prove self-defense claim beyond reasonable doubt or by preponderance of evidence; rather, self-defense evidence needed merely leave jury with reasonable doubt about whether he was justified in using deadly force)… The burden of proving guilt beyond a reasonable doubt, including the burden of proving that the defendant did not act in self-defense, ever shifts from the State to the defendant
Montijo v. State, 61 So. 3d 424, 427 (Fla. Dist. Ct. App. 5th Dist. 2011)
When a defendant claims self-defense, the State maintains the burden of proving the defendant committed the crime and did not act in self-defense. See id.; Mosansky v. State, 33 So. 3d 756, 758 (Fla. 1st DCA 2010). The burden never shifts to the defendant to prove self-defense beyond a reasonable doubt. Rather, he must simply present enough evidence to support giving the instruction.
Thank you for posting this, Curt.