On April 11, 2012, neighborhood watch volunteer George Zimmerman was arrested on charges of second degree murder for the shooting death of 17 year old Trayvon Martin. The trial is currently set for June, but there has been much speculation about the law, which has been popularly described as the “Stand Your Ground” law, and the implications it may hold in the trial of George Zimmerman.
I will start by giving a brief background on the law; then I will discuss the proper vehicle to bring a motion for immunity, the timing of filing the motion, the legal standards involved, and possible strategies the defense may attempt.
Background of “Stand Your Ground”
In 2005, the Florida Legislature passed a statute granting immunity under certain conditions of self-defense, expanding the right of self-defense and abolishing the common law duty to retreat before using deadly force. The law was altered to eliminate the duty to retreat under a broad array of circumstances. Smiley v. State, 966 So.2d 330, 335 (Fla. 2007). The law reads, “[a] person who uses force as permitted in [Florida Statute] 776.012, 776.013 or 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force.” 776.032 Fla. Stat. (2006). The statute’s preamble declares, “it is proper for law-abiding people to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action.” Ch. 2005-27, at 200, Laws of Fla., so it is clear the legislation has both criminal and civil implications. Florida’s 1st District found in Peterson, 983 So.2d at 29, that the wording used by the Legislature makes the legislative intent clear, that a defendant who fell within the law would have true immunity and would not have to stand trial at all.
Florida Statute 776.013 (2006), in relevant part, reads:
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcefully entered, a dwelling, a residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
Method and Timing For Claiming Immunity
A Motion to Dismiss in Florida is a pre-trial motion that, if granted, will terminate prosecution and “dismiss” the charging instrument or portions thereof. Usually, Florida attorneys refer to this motion as a C4 motion, which refers to the relevant Florida Rule of Criminal Procedure 3.190(C)(4). The defendant would have to show, during the hearing, that no material disputed facts exist and the undisputed facts to not establish a prima facie case of guilt against the defendant. So essentially the material facts have to be undisputed. The (C)(4) Rule is structured in a way to avoid having a judge resolve factual disputes. It is similar to a summary judgment motion in a civil case which, prior case law has found, should be granted sparingly. State v. Bonebright, 742 So.2d 290, 291 (Fla. 1st DCA 1998); see State v. Kalogeropolous, 758 So.2d 110, 111 (Fla. 2000). This is not exactly conducive to the “true immunity” the legislature intended. So what now?
Well, the Court in Dennis v. State, 51 So.3d 456, (Fla. 2010) found that the proper vehicle to bring an immunity motion is not under the (C)(4) Rule, but rather under 3.190(b) instead. Rule 3.190(b) states that: “all defenses available to a defendant by plea, other than not guilty, shall be made only by motion to dismiss the indictment or information, whether the same shall relate to matters of form, substance, former acquittal, former jeopardy, or any other defense” (emphasis added). The terms “defense” and “defenses” used under this Rule were construed to be much broader and encompass the immunity under Stand Your Ground (776.032). So what’s the major difference between 3.190(c) and 3.190(b)?
Well, under 3.190(c)(1-4), the defendant can file a motion to dismiss for a charge that has been pardoned, for double jeopardy, for immunity being granted previously, or for “undisputed facts” that don’t establish a prima facie case, that was discussed above. Notably, these 4 claims “may at ANY time [be] entertain[ed]” by the court. For a 3.190(b), it must be made either before or at arraignment.
There’s been some claims that an immunity hearing could be conducted at trial, or post-trial, but the case law and Rules of Criminal Procedure seem quite clear, at least to me, that this is impermissible unless Judge Nelson decides to allow the Motion in her discretion.
Stand Your Ground immunity hearings don’t necessarily have a time constraint placed on statutory immunity aside from the at or before arraignment requirement, which gives rise to the potential for a defendant to abuse the process by withholding their claim of immunity until some unfair advantage is gained, as noted in Martinez v. State, 44 So.3d 1219 (Fla. 1st DCA 2010). The defense has presented their intention to forego a Stand Your Ground Hearing and proceed to trial, but this may be all party of their strategy to prevent an orderly pre-trial resolution and disposition of the claim.
What Happens If Your Motion To Dismiss Is Denied?
If the Rule 3.190(b) Motion is filed and denied by Judge Nelson, the defense could appeal by seeking a Writ of Prohibition from the appellate level. The proper vehicle for challenging a trial court’s denial of a motion to dismiss made on grounds of immunity pursuant to Stand Your Ground is through a Writ of Prohibition. Hair v. State, 17 So.3d 804 (Fla. 1st DCA 2009). The standard is the same as if it was an appeal of a motion to suppress evidence. Under the standard of review, the trial court’s findings of fact must be supported by competent substantial evidence, while the court’s findings of law are subject to a de novo review by the appellate court. See Darling, 81 So.3d 574.
So if a motion to dismiss is filed seeking Stand Your Ground immunity and is denied by Judge Nelson after a pre-trial evidentiary hearing, you could expect to see an appeal seeking a Writ of Prohibition.
SELF-DEFENSE AFFIRMATIVE DEFENSE
Even if Zimmerman does not bring a timely Stand Your Ground motion to dismiss before the Court, or if the motion is timely filed and denied by Judge Nelson after a hearing, this does not preclude Zimmerman from submitting the affirmative defense of self-defense to a jury. Peterson v. State, 983 So.2d 27, 29 (Fla. 1st DCA 2008). This will be examined in more detail.
Legal Standards For Stand Your Ground and Self-Defense Immunity Claims
In Peterson, the Court found that “when immunity under [the “Stand Your Ground” law] is properly raised by a defendant, the trial court must decide the matter by confronting and weighing only factual disputes … [and] must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches”. The Court followed guidance from a Colorado case, People v. Guenther, 740 P.2d 971 (Colo. 1987) applying the same standard as a motion for post-conviction relief or motion to suppress evidence. Florida courts have also applied a similar burden for motions challenging the voluntariness of confessions. See, e.g., McDole v. State, 283 So.2d 553, 554 (Fla. 1973).
So to sum it up, if Zimmerman brings a timely Stand Your Ground motion and proves by a 51% to 49% that he is entitled to immunity, it will be granted. So then why would the defense team not want to file a motion for immunity? Interesting.
Another route the defense team may be exploring is a plain self-defense claim, which they have indicated is their intention. The self-defense claim carries with it a different burden.
When a defendant claims self-defense, they have the initial burden of presenting a prima facie case of self-defense. This could be any evidence tending to show actions consistent with self-defense. But once the defendant shows self-defense, the burden then shifts to the State to prove that the defendant did not act in self-defense beyond a reasonable doubt. The State can carry that burden through rebuttal witnesses or even by inference in its case-in-chief. Stieh v. State, 67 So.3d 275, 278 (Fla. 2nd DCA 2011); see also Fowler v. State, 921 So.2d 708, 711 (Fla. 2nd DCA 2006), Jenkins v. State, 942 So.2d 910, 914 (Fla. 2nd DCA 2006).
So the defense could potentially choose to skip the Stand Your Ground hearing, keep their cards (if they have any) close to their chest, and instead go for the self-defense claim at trial to shift the burden on Bernie De La Rionda to prove beyond a reasonable doubt that this was not self-defense. So let’s look at self-defense claims.
Florida Self Defense And The Jury
As the Jenkins Court found, “self-defense case are intensely fact-specific.” One pitfall for the State that they may have to avoid is their evidence and its effect of the defendant’s hypothesis of innocence. 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.
So Zimmerman has two hurdles to jump for self-defense. First, he has to show a prima facie case of self defense. Under section 776.013(3), a person is justified in using deadly force when that person (1) is attacked in a place where she has a right to be, (2) is not engaged in any unlawful activity, and (3) reasonably believes it is necessary to use force to prevent death or great bodily harm. I’ll let you determine whether or not he can clear that first hurdle.
The second hurdle is whether the State can present sufficient evidence to rebut evidence of self-defense, if any is presented that is sufficient to establish a prima facie self-defense claim.
Even more importantly, however, Florida courts have found that even when there are no other witnesses to the events besides the defendant (assuming that is the case here), a jury is not required to accept the defendant’s testimony in support of his self-defense theory as true. See Darty v. State, 161 So.2d 864, 872 (Fla. 2nd DCA 1964); Teague v. State, 390 So.2d 405, 406 (Fla. 5th DCA 1980). Instead, it must consider the probability or improbability of the defendant’s credibility in light of the circumstances established by other evidence. See Darty, 161 So.2d at 872; Teague, 390 So.2d at 406-407.
So IF Zimmerman skips Stand Your Ground, IF he chooses to present self-defense, IF he takes the stand and testifies to support a self-defense theory, and IF it gets submitted to the jury, that still seems like a pretty tall order for the defense team considering the evidence that has been divulged to the public already.
The only other weapons they would really be left with are attempts at a Judgment of Acquittal, and a favorable jury instruction.
Judgment of Acquittal
Under section 782.04(2), Florida Statutes (2008), a second-degree murder charge requires a “depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” “[A] depraved mind” requires evidence of “ill will, hatred, spite or an evil intent.” State v. Montgomery, 39 So.3d 252, 255-256 (Fla. 2010).
In cases involving circumstantial evidence as to the element of intent, such as this one, the evidence must not only be sufficient to support a finding of guilt; it must also be inconsistent with any other reasonable hypothesis of innocence. State v. Law, 559 So.2d 187, 188 (Fla.1989). Judge Nelson would have to review the evidence in the light most favorable to the State to determine whether it allows the jury to infer guilt to the exclusion of any other inferences. This does not mean that the State must “ ‘rebut conclusively every possible variation’ of events which could be inferred from the evidence.” All Bernie De La Rionda has to do is “introduce competent evidence which is inconsistent with the defendant’s theory of events.”
“[T]he circumstantial evidence standard does not require the jury to believe the defendant’s version of the facts if the State produces conflicting testimony.” Aguirre–Jarquin v. State, 9 So.3d 593, 605 (Fla.2009). Even when a defendant’s theory of events is not clearly contradicted by direct evidence, a judgment of acquittal is not required if a common sense view of the circumstantial evidence might lead the jury to disbelieve the defendant’s theory. Hampton v. State, 549 So.2d 1059, 1060–61 (Fla. 4th DCA 1989).
It’s too early to determine what evidence will be presented, but I wouldn’t bet on a JOA to be granted in this case.
As you can see, the defense has many options available right now. Foregoing a Stand Your Ground hearing may be a strategic maneuver by the defense at this point, but it also restricts them at the later stages of this case. Given the multiple attempts at deposing Attorney Ben Crump and trying to obtaining DJJ and FBI information in an open investigation, expect to see a lot more maneuvering.
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