Zimmerman: Dee Dee’s Testimony Regarding Trayvon Martin’s Fear of Zimmerman is Admissible

September 12, 2012

Dennis recently asked the following question in a comment to my post recommending the appointment of a special master to screen discovery.

You asked:

“I have a question for you if you don’t mind. Is the witness/testimony from DeeDee considered “hearsay” and what are the laws regarding “hearsay” evidence in Florida? The jurors of the Peterson case said that type of evidence was critical to their conviction, and if Drew’s Law didn’t exist he would have walked free.”

My Answer:

“Most of the relevant things Trayvon said to DeeDee should be admissible under the present sense impression and excited utterance exceptions to the hearsay rule because he was describing an emotionally distressing event to her while under the influence of the event. The rest should come in as non-hearsay since it will not be offered to prove the truth of the matter asserted in the statement. Instead, it will be offered to show his state of mind or some other factor. Should not be too difficult for a good trial lawyer to navigate through the hearsay rule in that situation.”

Dee Dee is a potentially devastating witness for the prosecution because she was listening to Trayvon’s narrative description of Zimmerman’s menacing behavior and his own fearful reaction to it. She also puts the lie to Zimmerman’s skipping psycho-gangsta who materializes out of the darkness and attempts to kill Zimmerman with his bare hands while uttering dated B-movie dialog.

I do not believe her testimony is necessary to prove Zimmerman’s guilt because the forensics and his own conflicting and inconsistent stories should be sufficient to accomplish that. Nevertheless, she adds something important. She humanizes him and she serves as his voice from beyond the grave. Because of this, Zimmerman’s mad dog supporters have assassinated her character with extraordinary relish.

I am sure most of you have read some of their accusations, if not all of them, and shaken your heads in disgust at their tactics. I did and ever since they attempted to drown my voice in a tsunami of lies, I have assumed everything they say about everyone who is not a Zimmerman supporter is a lie. I have been ignoring them and will continue to ignore them because they are a cancer on this case. Therefore, as with the Zimmerman principle, I assume everything they said about Dee Dee is or anyone else in this case is a lie, unless it is corroborated by independent credible evidence.

At first glance, the hearsay rule would appear to exclude everything Trayvon said to Dee Dee. However, there are three reasons why it does not.

(1) A statement by Trayvon to Dee Dee is not hearsay unless it is offered to prove the truth of the matter asserted in the statement.

For example, if Trayvon said, I ran away from the creepy man following me. the statement would be hearsay, if offered to prove that he ran away from the creepy man following him, but it would not be hearsay, if it were offered to prove Trayvon was afraid of Zimmerman. See Rule 801(c).

(2) Even if a statement is offered to prove the truth of the matter asserted in the statement, for example that he ran away from the creepy man following him, it’s admissible pursuant to the present-sense-impression exception to the hearsay rule since it’s “a statement describing or explaining an event or condition while the declarant [Trayvon] was perceiving the event or condition, or immediately thereafter.” See Rule 803(1).

(3) That statement and others like it also would be admissible to prove the truth of the matter asserted in the statement pursuant to the excited utterance exception to the hearsay rule since it’s “a statement relating to a startling event or condition made while the declarant [Trayvon] was under the stress of excitement caused by the event or condition.” See Rule Rule 803(2).

FYI: Trayvon’s statements to Dee Dee would not be admissible pursuant to Rule 804(2) as statements made under belief of impending death unless he believed his “death was imminent.” I do not doubt he believed that at some point but probably not until after he dropped the phone.

The usual manner lawyers and trial courts follow in deciding whether reasonably foreseeable and important statements will be admissible at trial, such as Dee Dee’s testimony regarding what Trayvon said to her during their phone conversations, is to bring them up via a defense motion in limine (i.e., at the beginning) before trial to exclude them. Both sides would brief the issue and argue it at a hearing outside the presence of the jury and the judge would decide whether to grant or deny the motion.

For the reasons I have stated, I believe the judge will permit the prosecution to present Trayvon’s statements to Dee Dee describing Zimmerman stalking him. Those statements will be admissible at the immunity hearing and the jury trial in support of the prosecution’s claim that Zimmerman was the aggressor.

In Mixon v. State 59 So.2d 38 (Fla. 1952), for example, as our own Boar_d_Laze mentioned, the Florida Supreme Court affirmed the defendant’s conviction for second degree murder where there was evidence that the defendant armed himself, pursued the victim, and shot him. The court stated:

“The appellant and the man he later admitted killing had an altercation while the appellant was sitting in his jeep, the other man standing at the side of the vehicle. The appellant drove to his home nearby where he procured a revolver, while his adversary continued along the highway, afoot. The appellant, accompanied by his wife and their young daughter, then drove in the same direction until he overtook his former antagonist when both stopped. … Were we convinced that the final encounter was of such nature that the issue of self defense was properly introduced and the appellant’s blame should therefore be judged by the amount of force he used in resisting his victim, we think the testimony would have been admissible. But the facts believed by the jury point too strongly to a deliberate pursuit by appellant, after the original difficulty had ended and the parties had separated. The law is quite clear that one may not provoke a difficulty and having done so act under the necessity produced by the difficulty, then kill his adversary and justify the homicide under the plea of self defense. (emphasis supplied)”

I expect the prosecution will argue that it does not matter who threw the first punch because Zimmerman provoked the confrontation by pursuing Martin in a menacing manner after dark in the rain in a vehicle and then on foot without ever identifying himself. Martin had a right to defend himself against that aggression and, if he ever hit Zimmerman, he did so lawfully. Zimmerman, of course, was not justified in using deadly force.

As I have said many times, I believe George Zimmerman will be found guilty of murder in the second degree.

Zimmerman: Is Intimidation the Defense Strategy?

August 30, 2012

People like Pliaja are not interested in finding out what really happened during the encounter between George Zimmerman and Trayvon Martin on February 26th in Sanford, FL. They are only interested in promoting George Zimmerman’s demonstrably false claim of self-defense to assure that he wins his case. We know that they are marketing and selling his defense because they refuse to engage us in reasoned debate about the significance of the forensic evidence. Instead they repeat what George Zimmerman said as though it were inscribed in stone by some deity and cannot be questioned.

Indeed, as Crane and I have learned recently and y’all have witnessed, Zimmerman’s supporters have no discernible interest in determining the truth. Instead, they will go to extraordinary lengths to intentionally produce, publish and repeat a series of false, misleading and defamatory statements in order to discredit, demonize and destroy the professional reputation and good character of anyone who dares to question George Zimmerman’s story.

As dishonest and morally reprehensible as their campaign of disinformation against me has been, they have significantly lowered the bar reaching a deplorable new low by personally attacking Crane and my daughter.

We are not the only targets of their hatred. Look at what they have done to demonize Trayvon Martin and his family

With that as background, let us consider yesterday’s decision by the Court of Appeals granting the writ of prohibition effectively removing Judge Lester.

The Court concluded by a vote of 2-1:

“Florida Rule of Judicial Administration 2.330 requires arial judge to grant a motion to disqualify without determining the accuracy of the allegations in the motion, so long as the motion is “legally sufficient.” R.M.C., 77 So. 3d at 236. “A motion is legally sufficient if it alleges facts that would create in a reasonably prudent person a wellfounded fear of not receiving a fair and impartial trial.” Id. (citing MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla. 1990)). Although many of the
allegations in Zimmerman’s motion, standing alone, do not meet the legal sufficiency test, and while this is admittedly a close call, upon careful review we find that the allegations, taken together, meet the threshold test of legal sufficiency. Accordingly, we
direct the trial judge to enter an order of disqualification which requests the chief circuit judge to appoint a successor judge.”

Notice that neither the majority opinion nor the dissenting opinion provided an explanation or justification for the conclusion that it reached.

Important Announcement Regarding Character Assassination

August 15, 2012

As a courtesy, I am letting everyone know that I banned Justincaselawgic this morning at 11:14 am following an unpleasant exchange of comments on the thread titled:

13 Questions in Search for an Answer

In an effort to discredit me, he posted and confronted me with an affidavit that I had signed several years ago in support of an argument in a post conviction habeas petition alleging that I had provided ineffective assistance of counsel in a death penalty case that I tried and lost. The client’s name is Darrold Stenson.

After I signed the affidavit, Mr. Stenson’s lawyers discovered important exculpatory evidence that I had requested but not received before trial. The prosecutor denied that the evidence existed when, in fact, he knew that it did.

Had he acknowledged that the evidence existed and turned it over to me, I would have assessed and tried the case differently. Instead, however, Mr. Stenson and I disagreed on how to proceed with the case and our conflict eventually led to a breakdown of the attorney-client relationship.

The discovery of this important exculpatory information led defense counsel to request a new trial on the basis of the newly discovered evidence. After a hearing in which I testified in support of the motion together with expert witnesses who testified regarding the significance of the evidence, the Washington State Supreme Court reversed Mr. Stenson’s conviction and death sentence and remanded the case to the trial court for a new trial.

An important reason why the evidence was so critically important to the outcome of the trial, was that I had successfully persuaded the trial court to exclude all of the DNA evidence in the case, both RFLP and PCR.

I believe this is the only death penalty case in the United States in which defense counsel achieved such a favorable result for a client.

I am delighted with the result for Mr. Stenson, but angry and disappointed that it took 16 years of his life under sentence of death to straighten it out.

I wrote an article about the case and published it here on May 10, 2012. The article has links to the majority and minority opinions.

Someone in the pro Zimmerman camp has obtained a copy of my affidavit, which was on file in the case, and has been spreading it around the internet together with a false statement that I was disbarred from the practice of law for negligent performance in the Stenson case.

I was not disbarred, suspended or otherwise disciplined by the Washington State Bar Association. No complaint was ever filed against me with the bar association or anywhere else alleging that I had done anything wrong in Stenson’s case or any case in which I was involved and no investigation was ever conducted. I have never been sued for malpractice.

Quite the contrary, I am proud of my career as a criminal defense lawyer.

Here are two of my accomplishments:

I was a co-recipient of the National Law Journal’s prestigious Indigent Defense Award in 2000 awarded to me on behalf of Innocence Project Northwest, an organization that I co-founded at the University of Washington School of Law, for my efforts recruiting 40 lawyers to work for free with law students to free 17 innocent men and women who were wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring case.

I also was a co-recipient of the 2004 King County Washington (Seattle) Lawyer of the Year Award together with the other 7 lawyers who represented Gary Ridgway, the notorious Green River Killer who pled guilty to killing 48 women in exchange for a life without parole sentence.

I voluntarily surrendered my license to practice law after I retired from the practice of law and went into teaching.

I do not know how, why, or when justincaselawgic obtained a copy of my affidavit, but he admitted that he knew about the Stenson decision. He said he posted the affidavit to prove his accusation that I am a weak-kneed lawyer who will not fight for his clients and pleads them guilty when they are innocent.

Nothing could be further from the truth and my entire career is a testament to the contrary.

He also acknowledged that he knew I would ban him when he posted it.

I regret and apologize for telling him to take the affidavit and shove it up his ass. I lost my temper and that was not appropriate.

I do not regret or apologize for banning him.

I wrote this article to give y’all a heads-up regarding the lengths to which the pro Zimmerman camp will go to lash out at anyone who dares to challenge Zimmerman’s unsupported claim of innocence.

And it’s not limited to me. My wife, whom y’all know as Crane-Station and my daughter have been attacked by publishing personal information about them on the internet.

This fight is getting ugly which is probably a good measure of how close we are getting to the truth.

If you think we have it bad, think of Trayvon’s family.


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