Good question.
He’s not charged with attempted murder.
To get the §§776.041(2) instruction (the aggressor instruction), the state would need to charge a separate felony, one other than the felony for which the accused is claiming self-defense.
I do.
Under your interpretation of that passage, provocation of force is the same thing as commiting a forcible felony, since the jury is only supposed to receive these instructions if the defendant has been charged with such.
But if this were true, it would be redundant to have instruction about forcible felony and then have a separate paragraph addressing provocation of force. Do you not agree with this? The “or” language also makes your interpretation illogical, as it suggests you can commit a forcible felony without provoking force and vice versa.
If Zimmerman takes the stand at trial and admits to brandishing his weapon so M couldn’t get away, then this would be evidence he was the aggressor. The State would not have to charge him with assault just to prove that he assaulted him in the commission of murdering him. That supposes they’d know in advance he’d admit to an unlawful act that would negate his claim of self-defense. What do you think would happen in such a case, if your interpretation of this passage is true?
That the prosecution would have to stop the murder trial, charge Z with aggravated assault, and then start the murder trial all over again so the jury receives the proper instructions? This what this looks like taken to its logical conclusion.
BottledBlondJeanie, just because I’m a vet doesn’t mean I’m a stranger to interpreting laws and statutes. I work for a regulatory agency so it comes with my job. Lawyers are often wrong about stuff, so pardon me for not just blindly accepting what y’all say.
I seem to recall you acting like i was talking crazy for saying the Sanford PD should have documented their offer for hospital care in their report, saying that the EMT has to do that instead. And lo and behold, the cops actually did do what I say they should have, while the EMT was lacking that regard. So yeah, pardon me for not being all that meek and mild in the face of all this lawyerly wisdom.
And if me being a vet and not a lawyer is not enough to convince yall that Bricker is wrong, just consult the most current jury instructions here.
In short, the language has been amended so all the State needs to do is show evidence that the accused committed a forcible felony. The instructions can be given to the jury without the defendant being charged for a separate crime.
What evidence would that be, again? Assuming that, unlikely as it is, you are actually right about this and Bricker is wrong, despite him having been a lawyer for many years and you having repeatedly misinterpreted laws in this thread.
One, my comments as to your vet status were to show you have knowledge in your own personal field and there ate wiseacres like me who read a bunch of stuff don’t really know how to connect it and make your job explaining a pain in the ass because I’m smart enough to not dumbly nod my head, but think I know something because I researched it on the net or have periphery knowledge. It’s like going to your doctor with some WebMD pages an abstract or 2 and maybe an off-topic JAMA article and declaring your doctor wrong.
Two, before slogging through those proposed changes that are submitted for comment and not new instructions yet (gee, look at the timing of the proposed amendments) please show me these have been adopted. My ass is not signing on to WestLaw tonight because you can’t read your proof. And this is not yet even a comment as to whether you’re correct even under the proposed amendments.
Please excuse typos/spelling.
You’re wrong. In the suggested amendments (note: suggested only, not adopted) the language that is relevant to the point being discussed remains as Bricker said. Look for yourself: "Give only if there is evidence that the defendant was committing an independent forcible felony. See Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002)." What does “independent forcible felony” mean, do you think?
Just because “is charged with” is proposed to be amended with “was committing” does not change the meaning of “independent forcible felony”.
Point taken about the amendments only being proposed. Mae culpa on that.
But Bricker is still wrong about aggressor instructions requiring a separate charge for forcible felony.
From here:
So what, now? Bricker has been wrong on multiple accounts regarding the State’s burden on disproving self-defense. The prosecution doesn’t have to prove anything about Zimmerman’s beliefs wrt fear towards Martin and the jury can be instructed to reject self-defense if they believe he provoked the attack and didn’t respond appropriately. It doesn’t take a law degree to see that he’s wrong.
http://www.miamiherald.com/2012/07/12/2892510/more-evidence-released-in-zimmerman.html
Apparently Serino didn’t actually think there was enough evidence against Zimmerman to file charges, but was feeling internal pressure to charge Zimmerman.
It sounds like the people putting pressure on Serino were concerned about rioting.
Define “respond appropriately”. Especially with respect to the “unless” portion of the law:
776.041 Use of force by aggressor.—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.
**
I’ll say this and then off to bed. Once upon a time I slogged through every reported Florida case about the initial aggressor and forcible felony doctrine (procrastination sucks) and as discussed, there has to be an independent forcible felony, and this was duly and hotly contested in the early 2000s (could be a decade off) in a string of cases culminating in the case law and jury instructions cited.
If you don’t like it fine, doesn’t change the actual law. I really wish Westlaw and/or Lexis were available to proven scholarly types for no charge as it does seem unfair we get these easily searchable databases, but my partners and I pay a bunch for that privilege. I think the Cornell Law website has a ton of statutes and even cases for free.
Connecticut?
Oh good grief. Substitute “respond appropriately” for the exact language in the law, if it pleases you. It alters my point not one whit.
BBJ, I have no idea what your point is. You don’t have to use Lexis to find laws and read them and show they don’t mean what people say they mean. After all, the same court case Bricker linked to supposedly to support his erroneous claim about the aggressor instructions is the same case I used to show he’s wrong.
This has nothing to do with me having a problem with the law. Sorry if you’re mad at my refusal to blindly believe the bullshit Bricker keeps peddling, but when people spread misinformation on this board, it needs to be challenged. Even if it’s a lawyer spreading misinformation about the law.
Body of law is a concept with which you’re unfamiliar? I sincerely doubt you can easily find every case construing that statue online without killing yourself. I could not find a public link to one of the cases I cited and felt it was unfair, but somsomeone cited the case presumably removing headnotes and the like. As to the instigation issue I suggest you dig up one of the old BBQ pit threads where there were cases cited in response to a Stoid argument. I don’t think you understand about shifting burdens of proof or the whole slightly wacky SYG law. No insult intended.
Was this not an issue as to whether the prosecution has the burden of disproving self defense beyond a reasonable doubt? Because that is true assuming it’s appropriately substantiated.
According to the exact language of the law, the appropriate response for Zimmerman, if he was reasonably afraid for his life, was to shoot Martin. Glad you agree.
Why have you butted your nose into a discussion that you still haven’t demonstrated you understand? The prosecution’s burden of disproving self defense was never in dispute. The question being debated is what they have to do to do that.
In order to disprove self defense, according to clear language of the law, even if the prosecution proves, beyond reasonable doubt (good luck with that) that Zimmerman was the aggressor in the fight, they have to do at least one of the two things:
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Prove, beyond reasonable doubt, that Zimmerman could not have felt reasonable fear for his life or great bodily injury at the time he shot Martin.
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Failing this, they have to prove, beyond reasonable doubt, that Zimmerman had reasonable means of escape at the point that he shot him.
I swear you just said you understood the prosecution had to prove its case beyond a reasonable doubt, right? Read what you wrote and follow along as you’re confused.
The crime charged is 2nd degree murder, right? To prove the crime of 2nd degree murder, the State must prove the following three elements beyond a reasonable doubt:
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(Victim) is dead.
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The death was caused by the criminal act of (defendant).
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There was an **unlawful **killing of (victim) by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life. Instruction 7.4; § 782.04(2), Fla.Stat. (emphasis added).
So, you see that term “unlawful” up there? Lawful killing is defined and includes self-defense:
“The killing of a human being is justifiable homicide and **lawful **if necessarily done while resisting an attempt to murder or commit a felony upon the defendant, or to commit a felony in any dwelling house in which the defendant was at the time of the killing.” Instruction 7.1; § 782.02, Fla.Stat. (emphasis added).
A defendant offering even weak evidence to support a theory of self defense, is allowed an instruction on same. 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. 1st DCA 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).
These instructions are often tailored well beyond the standard language. See generally Gibbs v. State,789 So.2d 443, 444–45 (Fla.Dist.Ct.App. 2001) (holding clarification on the provocation instruction should be allowed so as not to confuse the jury). Whether you believe it or not, Zimmerman has enough even “flimsy” evidence that he was defending himself and not the initial aggressor to bring up a self-defense claim that this statute doesn’t apply. We don’t even have the issue of another forcible felony here.
Then, once self defense is raised, the proper approach is to offer the self-defense instruction with the forcible felony or initial provocation exceptions. See generally, Cancel v. State, 985 So. 2d 1127, 1129-30 (Fla. 5th DCA 2008) So, a self defense instruction (modified/tailored/vanilla) will be submitted to the jury. See generally Redding v. State, 41 So. 3d 353, 354 (Fla. 2d DCA 2010).
Now, Instruction 7.1 (the justifiable homicide statute addressed supra) does not set forth all issues regarding a self-defense claim and states “[f]or complete instructions on self-defense, if in issue, see 3.6(f), (g).”
Instruction 3.6(f) deals more specifically with justifiable use of deadly force. And whether under § 782.02 or § 776.012, the defendant must reasonably believe that the force used is necessary to prevent imminent death or great bodily harm to the defendant. So, either way, the prosecutor must prove beyond a reasonable doubt that defendant did not have a reasonable belief of death or great bodily harm. Therefore, the"fear" you refer to must be proven.
In self-defense instances like the instant case, the prosecutor must show beyond a reasonable doubt that the killing is unlawful. See Instruction 7.4; § 782.04(2), Fla.Stat. Now, since there is going to be an assertion Zimmerman was the initial aggressor, § 776.041 (2) Fla. Stat will be used. *See generally, Cancel *, 985 So. 2d 1129-30. But there are exceptions to the rule that an aggressor cannot claim self-defense including if the aggressor was in reasonable fear of death or great bodily harm and couldn’t retreat or is the aggressor backed of allowing the initial aggression to cool down.
And the instructions stress the prosecutor’s burden of proof regarding the affirmative defense in Instruction 3.6(g) again stating: “if in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty.”
Finally, as discussed in the Florida Standard Jury Instructions in Criminal Cases “The Florida Supreme Court has often decided, however, that once a defendant meets the burden of production on an affirmative defense, the burden of persuasion is on the State to disprove the affirmative defense beyond a reasonable doubt (e.g., self-defense and consent to enter in a burglary prosecution).” (emphasis added).
Ergo, your statement “the prosecution doesn’t have to prove anything about Zimmerman’s beliefs wrt fear towards Martin” is wrong as the prosecution must prove the “unlawfulness” of the action, and also then prove Zimmerman was not in reasonable fear if he was the initial aggressor and could not retreat.
You keep changing your arguments, and as far as “butt[ing] my nose in” I wish I wouldn’t have. But, unless you have staked a flag somewhere in here (I mean it is true most of the comments here are yours), I can waste my time trying to explain something to you if I like. Again, not that this ridiculous effort on my part will enlighten you.
Much of that diatribe is an amalgamation of what Bricker has cited to throughout.
But, between *Johnson *and *Giles *it does seem like there is a split between the 3rd and 4th districts in Florida as to whether the provocation instruction can be given alone. There is no great Florida Supreme Court explanation other than the mention of Giles and suggesting the instruction not be given unless there is an independent felony, but Johnson thumbs its nose at that and holds quite the opposite.
ETA: At least I think, I could be wrong.
In Russia, har brings YOU!