QBF wrote:mopper8 wrote:Some more Florida case law for ya (again, taken from the provocation annotations accompanying the statute cited above) (some citations omitted):
On the other hand, “[e]vidence of the dangerous character of the victim is admissible to show, or as tending to show, that the defendant acted in self defense.” Berrios, 781 So.2d at 457-58 (citing Smith v. State, 606 So.2d 641, 642 (Fla. 1st DCA 1992). “The victim's character becomes relevant to resolve an issue as to the reasonableness of the defendant's fear at the time of the incident.” Before defendant may offer such character evidence, however, he “must lay a proper predicate demonstrating some overt act by the victim at or about the time of the incident which reasonably indicated to the defendant a need for action in self defense.” As we made clear in Berrios:
“If there is the slightest evidence of an overt act by the victim which may reasonably be regarded as placing the defendant in imminent danger, all doubts as to the admission of self-defense evidence must be resolved in favor of the accused.”
781 So.2d at 457; see also Nelson v. State, 739 So.2d 1177, 1178 (Fla. 4th DCA 1999).
It's who provokes the confrontation who loses the right to self-defense,
not who throws the first punch
Go back and read
DML more closely, and you'll see what the 3rd DCA meant by "provoking": "
She further testified that Ruff had jumped her from behind, and that when the officer broke up the fight, respondent was acting in self defense. . . . Where, as here, the uncontroverted evidence is that respondent did not initiate the fight, and was acting to protect herself from her attacker, the defense of self defense applies."
Or the
Nelson case from the 4th DCA that you cited: "
Several weeks before the shooting, Canion called the woman's house and appellant answered the phone. Canion identified himself as the woman's boyfriend, threatening to kill the appellant unless he stopped seeing the woman."
Or the
Smith case from 1st DCA that you cited: "
. . . among other things that Newton attacked him with a butcher knife in July 1988, threatened his son with a knife, stabbed his daughter in the neck with a knife, threatened Doug Katt with a shotgun, told Joey Porter that if appellant did not "butt out" of his relationship with appellant's daughter, he would do something to appellant, and pulled a knife on Bobby Claghorn in May 1989, at the same bar where the fight between appellant and Newton occurred in October 1990. . . . evidence of the victim's reputation is admissible to disclose his or her propensity for violence and the likelihood that the victim was the aggressor, while evidence of prior specific acts of violence by the victim is admissible to reveal the reasonableness of the defendant's apprehension at the time of the incident. . . . In the instant case, appellant, as stated, claimed self-defense and laid a proper predicate for the admission of character evidence in that his evidence disclosed that Newton approached him in a threatening manner, that Newton pushed against him, and that Newton held a knife."
I could do this with all the cases those cases cite as well.
"Provocation" in the sense it is being used in this discussion (action or speech that makes someone angry or annoyed) is irrelevant. You have to look beyond that word to see what it means under the law of self-defense, and all of the relevant case law involves some sort of escalation into violence or threat of escalation into violence. This is what the case law describes. This is what matters to this case.
As I accurately stated in an earlier post, "The entire point of the American jurisprudence of self-defense is that you're allowed to use deadly force to defend yourself if you
reasonably believe the other person is going to cause you great bodily harm." The back of Zimmerman's head and the corresponding eyewitness testimony clearly indicate that not just force, but
deadly force, was being used against him. Asking "What are you doing here?" may have "provoked" Martin in the dictionary sense, but it is irrelevant in a legal sense because it contained none of the the life-threatening violence or
reasonable perception of life-threatening violence that would justify Martin's actions.
The original Sheriff and prosecutor got this right, and the new prosecutor, for obvious political reasons, has gotten it wrong. Hopefully the judge and jury aren't so intimidated.
And I give you Wilson v State:
The charges against Wilson stemmed from an altercation between him and two other youths named Nicholas and Christopher. Wilson was standing outside of his house with his brother when the other youths drove by. From the passing car, Christopher yelled the word “****” at Wilson.
[snip]
Before trial the State sought to exclude any reference at trial about prior confrontations between Wilson and the other youths. Wilson argued that his attempted justification of self-defense stemmed precisely from earlier conflicts between Wilson *965 and the youths. More specifically, he proffered testimony regarding three prior incidents: (1) six months earlier, there was a verbal altercation between Wilson and the youths; (2) three months after that, they tried to entice Wilson into a fight, using a highly provocative racial epithet; and (3) they had driven past Wilson's house every day for the entire six months leading up to the incident in question. Nevertheless the trial court granted the State's request and excluded Wilson's proposed evidence, allowing him to renew the issue at trial. Wilson was convicted by the jury, who did not hear his evidence of the history between him and the youths. We reverse for a new trial.
[snip]
We think Wilson's testimony, recounting the event from his perspective, was a sufficient predicate to allow his proposed evidence. The other youths nearly ran him over as they drove by him. They drove to a stop sign a few doors from Wilson's and stopped their car. They emerged from their car, one of them obtaining a table leg from the trunk. Only then did he seek out the boat gaff. As the youths approached him, he began walking towards them. He did not think it reasonably possible to retreat to his house before they would be on him with the table leg. We conclude that his proffer constituted at least some evidence “which may reasonably be regarded as placing the defendant in imminent danger.”
Wilson v. State, 971 So. 2d 963, 964-65 (Fla. Dist. Ct. App. 2008)
All the behavior cited is merely menacing behavior not very different what ZImmerman engaged in from Trayvon's perspective (per the testimony of his girlfriend), save the underlined. Is it overall stronger case than Martin's would be? Of course, but the fact that they're willing to allow evidence of prior
verbal altercations speaks directly to the contrary of your point. Reading
Wilson gives plenty of reason to think that under Florida law, following someone in your car, getting out, chasing them down, and confronting them is enough to give rise to a reasonable belief in imminent danger, justifying Martin in exercising force.
As to the part about the cuts on the back of Zimmerman's head, in Florida, the question of self-defense and the question of deadly force are both
jury questions save in the very obvious instances (e.g. discharging a gun). There's case law (too lazy to look it up right now) where wielding a knife and cutting someone's hand doesn't rise to the level of deadly force.
Florida law also allows for withdrawal:
The justification described in the preceding sections of this chapter is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2) Initially provokes the use of force against himself or herself, unless:
(a) 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; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
Fla. Stat. Ann. § 776.041 (West)
The individual yelling for help would certainly have a claim to (2)(b) regardless of who we decide is an aggressor. Who that voice belongs to is a fact determination, which again should go to the jury.
Note in (2)(a) that when the aggressor reclaims the right to self-defense because the other party is using unjustified deadly force, the Stand Your Ground law actually does not apply, and Florida reinstates the duty to retreat. Zimmerman might argue that he couldn't retreat, but again, whether or not he was pinned on the ground or not is a fact determination properly submitted to a jury.
he original Sheriff and prosecutor got this right, and the new prosecutor, for obvious political reasons, has gotten it wrong. Hopefully the judge and jury aren't so intimidated.
There are real disputes to material fact here that you're either missing or deciding for yourself on. But this always should've gone to a jury, as a number of the elements of the defense are fact-sensitive and properly submitted to the jury in Fla law.
