What really happened moments after the gunshot in the Zimmerman case

June 22, 2013

Saturday, June 22, 2013

Good morning:

Don West impeached his client with the legal document he filed yesterday titled, Defendant’s Specific Response to State’s Motion in Limine Regarding Self-Serving Hearsay Statements of Defendant.

He said at pages 2-3.

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.

With that fresh in your mind, please watch what the defendant told the police about those moments during his walk-through for the Sanford Police Department a little less than 24 hours after he killed Trayvon Martin.

Thank you to LLMPapa for preparing these two clips from the walk-through.

Clip 1

Clip 2

Congratulations, Mr. West.

You have succeeded in proving that your client lied.

Can you pass the straight-face test when you argue to Judge Nelson that the defendant’s “spontaneous” statements to W13 are reliable and accurate?

What is she going to think about your credibility and professionalism when the State shows her the walk-through video?

By the way, was his statement to the person he called on his cell phone another “spontaneous” utterance?

As long as you are spillin’ the beans, why don’t you tell us who he called and what he said.

FYI: A few minutes after I posted this article, I reversed the order of the two clips because #2, which is now #1, is more directly relevant given the focus of the article. I apologize for any confusion that may have caused.


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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Zimmerman: O’Mara admits he cannot prove defendant utters terrified shriek

May 5, 2013

Sunday, May 5, 2013

Good Evening:

Amanda Sloane of HLN TV reported last Tueday after the hearing before Judge Nelson:

Cries for help: Is it Zimmerman or Trayvon?

Defense attorney Mark O’Mara said Tuesday that a 911 call could be the key piece of evidence in the case against George Zimmerman. In the background of the audio recording, you can hear someone screaming for help.

If it’s Zimmerman, O’Mara said it shows that the night watchman was the one under attack “and documents his story completely — it also documents his injuries.” If, however, it’s 17-year-old Trayvon Martin’s voice on the recording, then it could show Zimmerman was “acting in a very aggressive way toward him,” O’Mara said.

So which one is it?

O’Mara told In Session correspondent Jean Casarez that witnesses for the prosecution and the defense can’t seem to agree. So, he wants to have a hearing to decide if anyone should be able to testify about the voice at all.

Should jurors be able to decide for themselves whom they hear on the call?

Translation of O’Mara-speak into ordinary English: O’Mara knows that Trayvon uttered the 40-second terrified shriek.

Quite an admission by the man who has been so certain in the past that his client uttered the shriek.

Most of us are not surprised because we figured it out last summer.

We have been wondering when everybody else would finally figure it out.

So, what does O’Mara want to do?

He wants to exclude the tape, so the jury will not even hear it.

There is absolutely no chance Judge Nelson will grant that motion.

The legal rule is that arguments regarding the identity of the person who uttered the terrified shriek go to the weight that the jury should assign to the opinion of each witness and not to the admissibility of the testimony itself.

Notice the disappearing defense.

No immunity hearing and now this damning admission.

Say good-bye, George.

Justice for Trayvon

(H/T to Elcymoo for providing the link to the HLN article)

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Combining the immunity hearing with the trial in the Zimmerman case is a terrible idea (Part II)

March 8, 2013

Friday, March 8, 2013

Good Afternoon:

I have done more research on the Florida SYG immunity hearing and concluded that the legislature intended that the hearing occur prior to trial. The Florida Supreme Court agrees.

The Florida legislature created confusion when it did not provide a procedure for asserting, litigating and deciding a defendant’s claim of immunity from criminal prosecution and civil liability under the SYG law.

In Dennis v. State, 51 So.3d 456, 462 (2010), the Florida Supreme Court stated,

While Florida law has long recognized that a defendant may argue as an affirmative defense at trial that his or her use of force was legally justified, section 776.032 contemplates that a defendant who establishes entitlement to the statutory immunity will not be subjected to trial. Section 776.032(1) expressly grants defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the use of legally justified force. The statute does not merely provide that a defendant cannot be convicted as a result of legally justified force.

(Emphasis supplied)

In Dennis, the Court approved a procedure to conduct SYG immunity hearings developed by the trial court in Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008). That procedure requires the defendant to file a motion before trial requesting immunity pursuant to Rule 3.190(b).

In Peterson, the First District Court of Appeals set forth the procedure to be followed after the defendant files the motion to initiate the process. The Court said at pages 29-30:

In the absence of a procedure for handling these matters, we find guidance from the Colorado Supreme Court’s decision in People v. Guenther, 740 P.2d 971 (Colo. 1987). In that case, the court decided that Colorado’s similar immunity statute authorized a trial court to dismiss a criminal prosecution at the pretrial stage and did not merely create an affirmative defense for adjudication at trial. Id. at 976. The court further determined that a defendant raising the immunity would have the burden of establishing the factual prerequisites to the immunity claim by a preponderance of the evidence. Id. at 980. The court imposed the same burden of proof as it would in motions for postconviction relief or motions to suppress. Id.

(Emphasis supplied)

The immunity hearing would resemble a trial with four important exceptions:

(1) The order in which the parties present their respective cases would be reversed with the defendant going first,

(2) Rather than being presumed innocent with the right to remain silent and no obligation to testify, the defendant would have the burden of proof,

(3) The burden of proof would be by a preponderance of the evidence (i.e., more probable than not), and

(4) The judge would be the fact-finder and decide the outcome, instead of a jury.

Judge Nelson told Mark O’Mara that, if the defense wanted an immunity hearing, she wanted to hold it prior to trial sometime during the last two weeks of April. She reserved those two weeks for the hearing and told O’Mara to file an appropriate motion prior to that time, if the defendant decided to ask for one.

At the hearing on Tuesday, she asked him if he still wanted her to reserve those two weeks because she wanted to use that time to schedule other matters, if he did not intend to ask for a hearing, . He responded that he would not be asking for a hearing during those two weeks.

He added that he was not waiving the hearing; rather, he was considering “combining it with the trial.” She acknowledged that she understood he was not waiving the hearing. However, he did not request and she did not agree to combine it with the trial. Whether she will agree to do so has yet to be decided.

O’Mara would have to file a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(b) asking her to combine the immunity hearing with the trial and she would have to grant his motion for that to occur.

I published a post here two days ago in which I explained why combining the two matters could create constitutional error resulting in a reversal and remand for a new trial, if Judge Nelson denies the motion for immunity and the jury convicts the defendant.

There is little point to having an immunity hearing, if it is going to be combined with a trial at the risk of injecting constitutional error into the trial that requires convictions to be reversed and remanded for a new trial.

Finally, please know that I made a mistake in some comments earlier this week when I said Florida has a rule that requires immunity hearings to be held no later than 45 days before trial. Florida does not have such a rule. I recalled Judge Nelson’s statement that she wanted to schedule an immunity hearing not less than 45 days before the June 10 trial date, if the defense decided to request one, and mistakenly assumed there was a 45-day rule. I realized my mistake while researching to write this article. I apologize for any confusion that might have caused.

I note parenthetically that Florida could use such a rule, but it’s up to the Florida Supreme Court to decide whether to promulgate one.

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Featuring: Part III of LLMPapa’s Cardboard and Bullshit

March 3, 2013

LLMPapa follows his gripping Part II yesterday with Part III of Cardboard and Bullshit regarding the kill shot.

Cain’t hardly wait for Part IV.


CNN puff piece regarding letters to Zimmerman is bullshit

March 1, 2013

Friday, March 1, 2013

Vivian Kuo of CNN reports today:

“Please shoot yourself, you racist piece of sh-t,” read the body of another e-mail. “You killed an unarmed teen that you stalked.”

And several dictated the same, succinct line: “Hope you die in prison.”

These venom-drenched words are just a smattering of at least 400 e-mails and letters, all sent to George Zimmerman over the past 10 months.

Zimmerman, 29, has yet to read the vast majority of these letters; they are retained by his legal counsel in Orlando. His attorneys provided them exclusively to CNN, omitting the senders’ names to protect their identities.

The majority are either neutral or compassionate, offering moral support and financial contributions to help with Zimmerman’s mounting bills. The supportive letters often blame the media for his woes and offer encouragement for the road ahead.

This worthless piece of crap that supposedly passes for balanced journalism is just a summary of letters and emails sent to the defendant. They contain nothing new or relevant to the case. Yet they are reported as news.

In fact they serve as nothing more than an excuse for CNN to repeat the false narrative that the truth of what happened remains unknown.

At first, it seemed fairly black and white: Trayvon, an unarmed 17-year-old, was walking to the home of his father’s fiancee after a trip to the store for candy and tea when Zimmerman, the neighborhood watchman, saw him and called Sanford police’s nonemergency line.

Zimmerman described Martin as a “suspicious guy.” The dispatcher told Zimmerman not to follow the teen — whether he did is still in dispute — but the two later encountered each other. Zimmerman fired his weapon, and a bullet to Martin’s chest ended the youngster’s life.

Police would later explain that the dispatcher’s imperative was “not a lawful order that Mr. Zimmerman would be required to follow.”

It would turn out to be a more complicated incident altogether, one whose details have yet to emerge completely.

I have news for Kuo and CNN.

There is no mystery. The defendant followed, lost, hunted, located, confronted, and detained a 17-year-old Black kid armed with Skittles and tea while walking home and talking to his girlfriend on his cell phone.

Whether the dispatcher had any authority to order the defendant not to follow Trayvon is irrelevant. The defendant’s intent is relevant, however, and his conduct ignoring the dispatcher’s warning considered together with his lamentation that “these assholes, they always get away,” tells us what he intended to do and what he proceeded to do.

There is no evidence that Trayvon struck the defendant in the nose or that he slammed the defendant’s head repeatedly into a concrete sidewalk. Trayvon had no bruises to his hands or skinned knuckles and not a trace of Zimmerman’s blood or DNA on his fingernail cuttings or on the lower sleeves of the two sweatshirts he was wearing.

The defendant can be heard cursing Trayvon in the background of a 911 call as Trayvon shouts “No.” That is followed by the death shriek that ends with the gunshot, precisely.

Zimmerman’s vital signs were all normal 15 minutes after the shooting and he declined transport to a hospital. His minor injuries were mere scrapes that required no stitches or bandages and most likely were sustained from running face-first in the dark into the branches of a tree and falling down.

The defendant told Hannity that the only thing he feared was having a police officer shoot him if he saw him with his gun in his hand.

The defendant is entitled to the presumption of innocence at trial and the jury will be so instructed, but there is no mystery about the evidence and what it will prove beyond a reasonable doubt.

Articles like this one, which ignore the overwhelming evidence of guilt, presumably because there is no balanced way to report the truth, are at best misleading and at worst deceitful.

This is not journalism.

This is bullshit.

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FOX News pimps for defendant in Trayvon Martin murder case

February 28, 2013

Thursday, February 28, 2013

The beat goes on as Mark O’Mara continues to shamelessly pimp for his client.

Edmund DeMarche of Fox News writes:

George Zimmerman, the Florida man who fatally shot an unarmed Florida teenager last year, wears a disguise and a bulletproof vest whenever he is in public, his attorney said.

“He never feels safe,” Mark O’Mara, his lawyer, told FoxNews.com. “His security has been cut and he stays inside his secure location all day long due to threats.”

As a result of the confinement, Zimmerman’s health has taken a turn for the worse, O’Mara said. He gained about 100 pounds in six months and is stressed about the threats and his upcoming murder trial, which is set to begin on June 10.

“If I was confined to four rooms all day I bet I’d gain a lot of weight, too,” O’Mara said.

Next time you see the Michelin Man wearing sunglasses while standing in line at the Donut Shop, be sure to tap him on the shoulder and ask him for his autograph. Maybe he will give it to you for free, although I would not bet the ranch.

On second thought, we don’t need you to do that because this Afro Peruvian descendant of African kings might pull out a gun and blow away your heart.

Now prepare yourself for this fine example of journalism at its finest:

Last year, Zimmerman spotted Trayvon Martin walking through his neighborhood, a gated community, in Sanford, Fla. Martin was walking back to a house he was staying at in the community after a trip to a convenience store.

Zimmerman started to follow him because he thought he looked suspicious. Despite a police dispatcher telling him “you don’t have to do that,” Zimmerman got out of his truck to pursue Martin.

They got into a fight and Martin was shot.

You gotta love that integrity.

But wait, there’s more:

O’Mara said he talks with Zimmerman every day. He said the couple relies on donations to survive since neither one can hold down a job.

He said Zimmerman, who previously aspired to be a judge, looks forward to the trial to begin, but has been disenfranchised about the legal proceedings thus far.

To be sure, even if his client is acquitted, O’Mara said he will likely never feel safe in his hometown or Florida.

“He’d have to go somewhere where nobody knows him,” O’Mara said.

So, O’Mara and his client are a “couple” and poor George is wearing bulletproof vests and disguises while he steadily eats himself to death because he doesn’t get to vote on the outcome of his trial.

Excuse me, while I cry me a river of tears.

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