Zimmerman’s statements after the shooting are not admissible

June 21, 2013

Friday, June 21, 2013

Good evening:

Don West filed a written motion this afternoon identifying the defendant’s statements that he claims are admissible pursuant to the res gestae exception to the hearsay rule.

The statements are hearsay and not admissible pursuant to the res gestae or any other exception to the hearsay rule.

Mr. West describes the statements as follows:

Witness 13 and his wife heard a commotion in the back of their townhome. They heard yelling and then heard a shot. Witness 13 grabbed a flashlight and went outside to see what had happened. Within seconds of the shooting, W13 approached Mr. Zimmerman who was staggering, bleeding and breathing hard. The witness observed blood on Mr. Zimmerman’s face and the back of his head consistent with someone having been injured in a fight. Mr. Zimmerman asked W13 if he was bleeding? Witness 13 said “Yes” and W13 asked Mr. Zimmerman what had happened? Mr. Zimmerman told W13 that the other person was “beating me up” and he shot him.

Within a minute or so, Sanford Police Officer Tim Smith arrived on foot at the location where Mr. Zimmerman and W13 were standing. Officer Smith spoke with Mr. Zimmerman at the scene upo his arrival. Mr. Zimmerman acknowledged being the person who fired the shot and that he had a firearm on him. Mr. Zimmerman spontaneously stated that he had yelled for help and that no one helped him.

The defense bases its argument on Alexander v. State, 627 So.2d 35, 43-44 (1st DCA 1993), where the Court stated,

We conclude that the trial court erred in excluding the testimony of witnesses to the shooting that described appellant Alexander’s exclamations and actions immediately after firing the shot that killed the victim. This testimony was admissible under the res gestae rule now codified in sections 90.803(1), (2), and (3), Florida Statutes (1991), which define the conditions for admissibility of (1) spontaneous statements, (2) excited utterances, and (3) then existing mental and emotional conditions of the declarant. The statements about which these witnesses could testify were made almost simultaneously with the act of shooting, a period of time too short to support a finding of fabrication that would destroy the apparent trustworthiness of this evidence. The mere fact that statements are self-serving is not, in and of itself, a sufficient evidentiary basis for their exclusion from evidence. No legal principle excludes statements or conduct of a party solely on the ground that such statements or conduct is self-serving. State v. Johnson, 671 P.2d 215 (Utah 1983); State v. Wallace, 97 Ariz. 296, 399 P.2d 909 (1965); Commonwealth v. Fatalo, 345 Mass. 85, 185 N.E.2d 754 (1962). See also United States v. Dellinger, 472 F.2d 340, 381 (7th Cir.1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973). While exculpatory statements of the accused generally are excluded from criminal cases because of their hearsay character, 29 Am.Jur.2d Evidence § 621 (1967), the courts of this state have long recognized an exception to this general rule where the statements form a part of the res gestae of the alleged offense. Jenkins v. State, 58 Fla. 62, 50 So. 582 (1909); Lowery v. State, 402 So.2d 1287 (Fla. 5th DCA 1981); Watkins v. State, 342 So.2d 1057 (Fla. 1st DCA), cert. denied, 353 So.2d 680 (Fla. 1977).[2] Furthermore, Florida has followed a liberal rule concerning the admittance of res gestae statements. See Appell v. State, 250 So.2d 318 (Fla. 4th DCA), cert. denied, 257 So.2d 257 (Fla. 1971). Accordingly, we do not see any basis on this record for concluding that this testimony was lacking in apparent trustworthiness and probative value. Thus, we are impelled to conclude that the exclusion of the proffered testimony of res gestae statements in this case was an abuse of discretion and, under the circumstances of this case, cannot be treated as harmless error.

(Emphasis supplied)

Accord: Stiles v. State, 672 So.2d 850 (4th DCA 1996).

Therefore, the critical question for Judge Nelson to decide is whether the statements “form a part of the res gestae of the alleged offense” such that the Court can find that there is no basis to conclude that “the testimony [is] lacking in apparent trustworthiness and probative value.”

Contrary to the defense assertion that “within seconds of the shooting,” the witness saw the defendant “staggering, bleeding and breathing hard,” the evidence will show that the witness described the defendant as “calm and collected” and within a few minutes all of his vital signs were normal when an EMT checked him. Indeed, he was cool, calm and collected.

With the exception of a few minor injuries that did not require stitches, a trip to the ER or even a bandaid, the defendant did not even appear to have been in a fight. Moreover, the only witness who described seeing a fight subsequently retracted that statement.

The evidence also will establish that the terrified death shriek ended when the defendant fired the fatal shot and both of the state’s expert witnesses have excluded the defendant as the person who uttered that haunting scream.

The evidence will show that, at the time he uttered the statements, he knew that the police were on their way and due to arrive any second.

Finally, the evidence will show that, instead of using his cell phone to call 911 for an emergency vehicle and attempting CPR until medical assistance arrived, he mounted Trayvon, placed his hands around his throat and subsequently stood up and had a casual conversation with a neighbor about the type of gun and ammunition he used to shoot Trayvon.

Under these circumstances, unlike the two cases cited by Mr. West, there is no basis for Judge Nelson to conclude that the statements “form a part of the res gestae of the alleged offense” such that the Court can find that there is no basis to conclude that “the testimony [is] lacking in apparent trustworthiness and probative value.” In fact, quite the opposite is true.

Here is Wiki with a little more information on the res gestae exception, in case it remains unclear:

Under the Federal Rules of Evidence, res gestae is an exception to the rule against hearsay evidence based on the belief that, because certain statements are made naturally, spontaneously, and without deliberation during the course of an event, they leave little room for misunderstanding/misinterpretation upon hearing by someone else (i.e., by the witness, who will later repeat the statement to the court) and thus the courts believe that such statements carry a high degree of credibility. Statements that can be admitted into evidence as res gestae fall into three headings:

Words or phrases that either form part of, or explain, a physical act,

Exclamations that are so spontaneous as to belie concoction, and

Statements that are evidence of someone’s state of mind.

The defendant’s statements establish that he was in a full cover-up mode knowing that the police were en route and due to arrive any second.

Therefore, the cases cited by Mr. West do not apply and the defendant’s statements are inadmissible hearsay.

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Who Says? Hear Says! Exceptions, That Is

October 23, 2011

Philosophical thought for the day: A rule is not a rule without exceptions, and there are no exceptions, damnit!

Good afternoon class.

Welcome to Hearsay 103.

There are so many exceptions to the hearsay rule that one might almost say the exceptions have swallowed the rule. I will discuss several of them in some detail and merely list the others because they do not come up all that often and they are not difficult to understand. For future reference, you can find them listed in rules 803 and 804 of the Federal Rules of Evidence, which are cited as FRE 803 and FRE 804. By the way, most of the states have adopted the Federal Rules of Evidence with minor changes and they use the same numbering system. Most of the minor changes are due to a state modifying the federal rule in order to retain the rule or a favored part of the rule that the state used to follow. For your information, the rules of evidence were promulgated by the various supreme courts pursuant to their rule making authority under the state constitutions. For the most part, judges and lawyers in all state and federal courts play with the same set of evidentiary rules and that is a good thing.

As I pointed out in our first class regarding the hearsay rule, the rule is designed to exclude unreliable evidence. Why bother? you might ask. The answer is that all of the rules are designed to filter the evidence that jurors get to hear so that they will not place undue emphasis or reliance on evidence that has little weight or importance. Put another way, judges and lawyers do not trust jurors, so they want to censor what they get to consider. The hearsay rule is a good example.

Recall our example in the first class involving the hapless Peter Piper who will never get to pick his fabled peck of pickled peppers due to Igor Ivarson’s storming rampage through the red light slamming Mr. Piper’s immortal soul through the uprights of heaven leaving his fractured mortal coil bereft and alone in a puddle of blood in the crosswalk of life. Ah, yes. T’was a pity, indeed.

So, we had B, let’s give him a name and call him Beauregard, shall we? Okay, and let’s also give A a name and call her Amanda. So, Beauregard is on the witness stand and the prosecutor asks him,

“What if anything did Amanda say to you at dinner about something that happened at the intersection?”

But for the hearsay objection by defense counsel that any reasonably conscious and sentient judge would have sustained because the answer is offered to prove the truth of the matter asserted in the statement, Amanda would have answered,

“Igor Ivarson ran right through the red light and hit Peter Piper in the crosswalk.”

You see, judges and lawyers fear that, if jurors heard the answer, they might place undue emphasis on the un-cross-examined statement of a witness who never actually testified. How can they reasonably and reliably assess Amanda’s credibility by listening to Beauregard drone on about dinner with Amanda?

Enough said.

Now, let’s tweak our fact pattern so that we remove Amanda and Beauregard from their cozy repast at their intimate restaurant and place them together at the intersection with Beauregard talking to his wife on his cell phone while staring at the sky when Igor Ivarson hits the unfortunate Peter Piper. He does not see the accident, but Amanda does. She utters a scream and says, “Oh my God. Igor Ivarson ran the red light and hit Peter Piper in the crosswalk.”

Flash forward to trial again with Beauregard on the stand and the prosecutor now asks,

“When you were standing on the corner of the intersection talking on your cell phone, what, if anything, did you hear Amanda say?”

Assume you are defense counsel and you stand up and say, “Objection, your Honor. The question calls for hearsay.”

What happens?

Well, I’ll tell you what happens.

The judge says: “Objection overruled. You may close your mouth and sit down, counsel.”

Saying, “But Judge. Professor Masoninblue says that’s hearsay because its offered to prove the truth of the matter and besides, we all know that we don’t trust juries, right Judge?” will not help you.

Welcome to the first two and likely most often used exceptions to the hearsay rule: Present Sense Impression and Excited Utterance.

FRE 803(1) defines a Present Sense Impression as follows:

A statement describing or explaining an event or condition made while the declarant was perceiving the event, or condition, or immediately thereafter.

FRE 803(2) defines an Excited Utterance as follows:

A statement relating to a startling event or condition while the declarant was under the stress of excitement caused by the event or condition.

Amanda’s statement is admissible hearsay under both the present sense impression and excited utterance exceptions to the hearsay rule.

Why make an exception for these two types of statements and not the statement during the conversation at dinner?

Because the declarant, Amanda, was “describing or explaining an event or condition while [she] was perceiving the event”, and she was “under the stress of excitement caused by the event.” Her statement was an immediate reaction to the accident. She did not have an opportunity to reflect, reconsider, and possibly change or even forget her statement. For that reason, her statement is regarded as sufficiently accurate and reliable to be admitted into evidence, even if she does not testify and is not subject to cross examination.

In fact the availability of the declarant to testify at a hearing or trial is immaterial to all of the 23 exceptions to the hearsay rule that are listed in FRE 803.

I see that we are at 1000 words, so we have reached the end of today’s class and we’ll have to continue our study of the exceptions to the hearsay rule tomorrow.

Time flies when you’re having fun.

Cross posted at my website and the Smirking Chimp.


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