There has been some dispute as to whether Aggravated Manslaughter is in play in the murder trial of George Zimmerman. Many Florida attorneys have weighed in, and I agree with some to a certain extent, but I will attempt to try to explain why I believe Aggravated Manslaughter of a Child IS IN PLAY in this case.

Manslaughter in Florida

First, Manslaughter in Florida can generally be by act or manslaughter by culpable negligence. As the terms imply, “by act” is voluntary manslaughter and “by culpable negligence” is involuntary manslaughter. Now with that in mind, let’s look at the Manslaughter Florida Statute:

782.07— Manslaughter; aggravated manslaughter of an elderly person or disabled adult; aggravated manslaughter of a child; aggravated manslaughter of an officer, a firefighter, an emergency medical technician, or a paramedic.

(3) A person who causes the death of any person under the age of 18 by culpable negligence under s. 827.03(2)(b) commits aggravated manslaughter of a child, a felony of the first degree

So basically, under 782.07, if someone causes the death of a child under 18 by culpable negligence under 827.03 they may be found guilty of Agg. Manslaughter of a child. So now lets look at what constitutes culpable negligence under 827.03

Culpable Negligence/Involuntary Manslaughter

827.03— Abuse, aggravated abuse, and neglect of a child; penalties.

(1)DEFINITIONS.— As used in this section, the term:

(a)“Aggravated child abuse” occurs when a person:

1.Commits aggravated battery on a child

Under 827.03(1)(a)(1) someone who commits aggravated battery on a child may be found guilty of aggravated child abuse. One does not need to be a caregiver, or even an adult for that matter. In theory, a child could be charged under 827.03 for aggravated child abuse against another child. So even though 827.03 is not a lesser included offense of Second Degree Murder (See Griffis v. State, 848 So.2d 422, 427 (Fla. 1st DCA 2003)), Manslaughter under 782.07 IS a lesser included offense, and Aggravated Manslaughter likewise IS a lesser included offense. 827.03 only comes in to play to provide a definition as to what constitutes culpable negligence for involuntary manslaughter.

The Jury Instruction

Jury Instruction 7.7 for Manslaughter says that:

To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:
1. (Victim) is dead.

2. The death of (victim) was caused by the culpable negligence of (defendant).

For Enhanced Penalty (Aggrivation): If you find the defendant guilty of manslaughter, you must then determine whether the State has further proved beyond a reasonable doubt that:

(Victim) was a child whose death was caused by the neglect of (defendant), a caregiver.

Although standard jury instructions can be used in criminal trials (obviously), it doesn’t mean that these instructions are automatically correct in every case. See, e.g., Chicone v. State, 684 So.2d 736 (Fla. 1996);Yohn v. State, 476 So.2d 123, 127 (Fla.1985). So, even though jury instruction 7.7 for Agg. Manslaughter mentions “caregiver,” and because Zimmerman was obviously not in charge of providing care to Trayvon, it doesn’t mean the instruction can’t be modified and given as a “special instruction” provided to the Court to read to the jury.

Should An Instruction For Aggravated Manslaughter Of A Child Be Given To Jury Here?

In, Hankerson v. State, 831 So.2d 235 (Fla. 1st DCA 2002) the Defendant being charged with second degree murder, found that Agg. Manslaughter instruction should not have been given to the jury because the information in the case did not specify the victim’s age. The court found:

“Aggravated manslaughter of a child, proscribed by section 782.07(3), Florida Statutes, is not a necessarily lesser included offense of second-degree murder. For this subsection to apply, the victim must be under the age of 18 years. Here, the charging instrument (the Information filed by the State) alleges: “on February 26, 2012, George Zimmerman did unlawfully and by an act imminently dangerous to another, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, kill Trayvon Martin, a human being under the age of eighteen…”

So because the victim’s age was included in the charging instrument, the aggravated manslaughter of a child instruction could be given. See Ray v. State, 403 So.2d 956, 961 (Fla. 1981).

Second, in Sanders v. State, 944 So.2d 203 (Fla.2006), the court explained the difference between necessarily and permissive lesser-included offenses:

“Lesser included offenses fall into two categories: necessary and permissive. Necessarily lesser included offenses are those offenses in which the statutory elements of the lesser included offense are always subsumed within those of the charged offense. State v. Paul, 934 So.2d 1167, 1176 (Fla.2006). A permissive lesser included offense exists when “the two offenses appear to be separate [on the face of the statutes], but the facts alleged in the accusatory pleadings are such that the lesser [included] offense cannot help but be perpetrated once the greater offense has been.” State v. Weller, 590 So.2d 923, 925 n. 2 (Fla.1991).”

These are the lesser included offenses for Second Degree Murder:

As you can see, Manslaughter (782.07) is clearly is listed as a necessary lesser included offense, meaning if requested, the jury instruction must usually be given. There is no differentiation between either the Voluntary (Manslaughter by Act) or Involuntary Manslaughter (Manslaughter by Culpable Negligence) instruction being read as a lesser included offense of Second Degree Murder in the above or case law.

Conclusion-Zimmeman CAN Be Found Guilty Of Aggravated Manslaughter Of A Child

The State did not need to allege that Zimmerman was a caregiver or that he alternatively killed Trayvon Martin by culpable negligence to get an instruction on Aggravated Manslaughter of a Child. The facts and evidence presented thus far set up a scenario with an Aggravated Manslaughter of a Child as the floor and Second Degree Murder as the ceiling, with a complete acquittal being a very very remote possibility. The case law cited by some analysts and attorneys do not suggest that since the State did not allege culpable negligence or that Zimmerman was a caregiver, that is precludes a finding of Aggravated Manslaughter of a Child as a lesser included offense of Second Degree Murder. This is, of course, my opinion and it may play out differently in trial. But my review of the case law, statutes and jury instructions seems to suggest that Aggravated Manslaughter of a Child is definitely in play in this case should the jury struggle with a conviction on Second Degree Murder as charged.

 

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