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.The jury's decision will come down to whether they see Zimmerman as item 1 in the above statute or whether they see him as item 2 (a) or (b). These two scenarios hail back to my “short vs. long” theory. Zimmerman, via his statement has attempted to put himself in category 2. He made statements that Trayvon told him “You're gonna die tonight”. Zimmerman claimed that Trayvon was beating his head into the concrete. Such a claim would put him squarely in 2(a). Zimmerman's final statement was that he was “headed back to his car” or “had turned to go back to his car”. These statements put him squarely in 2(b). It is the wish of the defense that the jury see Zimmerman as the aggressor, in that he was seeking to protect his neighborhood from a robber or worse. The prosecution has to place Zimmerman clearly in category 1. This corresponds to the “long story” theory. Zimmerman would have to be shown to be in the process of committing or attempting to commit a felony. If the prosecution cannot convince the jury that Zimmerman was attempting to commit or was in the process of committing a forcible felony then Zimmerman gets to walk. Since the prosecution cannot use the shooting of Trayvon as the “forcible felony” since that is what he is on trial for, they need to establish that he was in the process of committing a forcible felony before the fight broke out. The three that are available under Florida statutes are: Aggravated Assault, Aggravated Battery, Aggravated Stalking. Lets take these one at a time:
784.021 Aggravated assault.— (1) An “aggravated assault” is an assault: (a) With a deadly weapon without intent to kill; or (b) With an intent to commit a felony. (2) Whoever commits an aggravated assault shall be guilty of a felony of the third degree,Yesterday's post showed that armed Zimmerman had confronted Trayvon and then assaulted him (the “get off me” yells that Ms. Jeanette heard). This could be considered aggravated assault. Aggravated Stalking:
784.048 Stalking; definitions; penalties.— (3) A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. …. (c) “Credible threat” means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm. It is not necessary to prove that the person making the threat had the intent to actually carry out the threat. The present incarceration of the person making the threat is not a bar to prosecution under this section.Trayvon's commentary of the “creepy ass cracker” following him, and Zimmerman's own statements in regards to following Trayvon while in his vehicle and then on foot establishes “ a pattern of conduct”. The question here is whether all portions of the statute (specifically the “and”) must apply. Aggravated Battery:
784.03 Battery; felony battery.— (1)(a) The offense of battery occurs when a person: 1. Actually and intentionally touches or strikes another person against the will of the other; or 2. Intentionally causes bodily harm to another person. (b) Except as provided in subsection (2), a person who commits battery commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. (2) A person who has one prior conviction for battery, aggravated battery, or felony battery and who commits any second or subsequent battery commits a felony of the third degree,Since we cannot establish that Zimmerman has a prior conviction for battery we cannot say that Zimmerman could be charged with felony battery. But Ms. Jeanette's testimony makes Zimmerman guilty of battery the minute he put his hands on Trayvon. With these items in hand it is possible (and probable) that the prosecution can convince the Jury that Zimmerman is squarely in category 1 of the Use of Force by an Aggressor statute. Failure to place Zimmerman in said category will almost definitely result in an acquittal.