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More Testimony at the George Zimmerman Murder Trial

Aired July 5, 2013 - 15:30   ET


MARK O'MARA, ZIMMERMAN'S DEFENSE ATTORNEY: Walker also cites Woods, and it is the Woods case which also cites another Supreme Court case which is Barwick, B-A-R-W-I-C-K.

The Barwick case is 660 Southern Second 685, a 1995 Florida supreme court case that also sort of began the premise in Florida law that the judgment of acquittal is appropriate if, in fact, the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.

You, as Barwick says -- Barwick, again, is 660 Southern Second 694 -- Barwick tells us that you at the outset have to determine if there's competent evidence from which the jury can infer guilt to the exclusion of all other inferences.

I would suggest to you that this would be the textbook case. It wouldn't make it to a textbook because the -- it is so apparent from the evidence presented at this stage of the proceedings, judgment of acquittal after the closing of the state's evidence, that the inference of non-guilt is much stronger than any suggested inference of guilt.

Barwick, Woods, and Walker stand without question and unassailed for this proposition and should be considered by the court as to the circumstantial evidence issue.

There are other cases that I would cite for you, and you have them in front of you. Sims is a 2013 case, 110 Southern Third 113, talking about the state's obligation to eliminate any reasonable hypothesis of innocence and upheld by the judgment of acquittal in Sims should have been granted. And, in fact, again, was upheld.

And that case, it also cited through Law, State versus Law, L-A-W, 559 Southern Second 187, and again all of the cases that I'm citing to you, your honor, you have before you, although there are some of the cases, and I believe Law is one of them, since it was cited in Sims fairly well. You don't have that actual case in front of you, but the cite is quite specific.

The Stieh -- S-T-I-E-H -- versus State, 67 Southern Third 275, was an interesting case for the court to consider. That's the second DCA case. It's been out for a couple of years, where there was a stabbing and the defendant argued self-defense and then agg battery. And the second DCA advised the trial court that it should have granted the motion for judgment of acquittal once the defense had presented a prima facie case of self-defense. Now I don't know if you believe that he has or not, so I have to argue both sides of it. I believe that the court should consider and, in fact, should decide that my client through his statements over the last week and a half as they were presented, not only his statements but all the supportive or corroborative evidence, and those are all of the witnesses that my client, has, in fact, presented a prima facie case of self-defense.

And I mentioned it a moment ago, but just to make sure that the foundation is properly laid, we have my client's -- if we set aside for a moment -- I'm going to ask you for a moment to set aside the fact that my client is just the most amazingly competent protector of his own murder. Set that aside for a minute.

He didn't just decide at some snap decision to become a murder and then was perfect in covering up everything because I would suggest to you that that is a fallacy of absurd proportions, that such could even be suggested by the state certainly considered or actually endorsed by you.

But if we set that aside for a moment, then what we have to look at is, my ...

BROOKE BALDWIN, ANCHOR, "CNN NEWSROOM": OK, I know you're thinking, what's going on? You see the words on the screen, acquittal, and you're thinking, what?

Let me explain. This is typical, Tonya Miller, criminal defense attorney. This is how they roll in any case like this. Why?

TANYA MILLER, DEFENSE ATTORNEY AND FORMER PROSECUTOR: This is the defense's chance to attack the state's case before it gets to the jury if you can get a judge to throw the case out without even letting the jury decide.

This is a very common motion. It happens at the close of almost every criminal case.

BALDWIN: Then the judge comes back and says, no. We're continuing.

MILLER: Right. A jury is going to decide it.

BALDWIN: Quick break. Back in a moment.


BALDWIN: And defense attorney Mark O'Mara, still talking, still giving this JOA, this judgment of acquittal.

Again, a formality, requesting the judge to toss this case out based upon lack of evidence.

Let's listen back in.

O'MARA: ... testimony would certainly support the idea even having moved the hands out as Ms. Moore has said, the feet still move. Dr. Bao seemed to say at some point maybe the body can move, maybe it can't. Nonetheless, this is the foundational evidence for which you have to make a determination did my client present to date a prima facie case of self-defense.

Two is that defense and its reasonable hypothesis of innocence which is, of course, what it is, specifically contradicted by the state's case?

Under Walker, Woods, Barwick, now as I've mentioned to you Stieh, S-T- I-E-H, they have failed to do that. So if we look at Stieh which interesting out of the second DCA. I don't know that I quoted it, 67 73rd 275, stating that the JOA should have been granted once the defendant presented a prima facia case of self-defense, a pretty good analysis of 776.

In that case they were talking about defense of others. Of course, the same standard applies as we have here today.

Jenkins, I think, is one of the most instructive cases, 942 Southern Second 910. The reason why is because Jenkins, a 2006 case -- remember as an aside that there are not a lot of cases about judgments of acquittal and self-defense cases after 2006.

The reason why is, of course, we now have self-defense immunity hearings as an alternative to judgment of acquittal arguments in a trial. We did not avail ourselves of that pre-trial determination of immunity. So many other people in most of the other caseload, case law, have.

So you'll see a significant drop-off in the number of JOA arguments or JOA call it case law after 2006 on a self-defense issue because, as you would imagine, most of them exist pretrial, they're addressed pretrial.

We have made the voluntary decision not to do that, but Jenkins -- what Jenkins is good for, your honor, is that first of all the facts are close. Jenkins was in his house. A guy was outside making a lot of noise. He went outside.

Jenkins tried to minimize the altercation. Cesaro, who was the eventual victim in the case, made a maneuver towards him, punched him in the face, wobbled back, goes Jenkins.

Then the assailant comes again. Jenkins takes out a knife, catches him in the heart. He passes away. Jenkins, the case, as opposed to just the facts, is very significant because Jenkins goes through and cites about seven cases, which is the recent history of judgment of acquittal cases in self-defense cases -- judgment of acquittal issues in self-defense cases, and is a pretty good rendition of it.

It references, for example, Thompson, which is State versus Thompson, 552 Southern Second 24. That's an aggravated battery case where he tried to stop a fight, was attacked. Defendant backed up, brandished a gun. Aggressor continued to approach. Defendant shot him.

And that was where the court reversed the conviction on that, suggesting that the judgment of acquittal should have been granted.

The Hernandez/Ramos case of 496 Southern Second 837, again cited in Jenkins gives some good insight into a somewhat similar fact scenario. In that case, evidence was there that the defendant took some effort to ward off the attack or end it without violence. The state's witnesses in that case uniformly identified the victim as the aggressor.

We don't have -- we have one eyewitness in this case, John Good, I think, would present a scenario very similar to that presented by the state witnesses in Hernandez/Ramos.

That is that we know and it is completely uncontroverted that Mr. Martin was the aggressor in that he had mounted Mr. Zimmerman, refused the suggestion by Mr. Good to stop what he was doing and continued the attack.

Similar to Hernandez/Ramos, the state's witnesses in that case suggested that the victim in the case was the aggressor. And, again, that case similarly was suggested that judgment acquittal should have been granted.

Now, that is looking at the issue of the circumstantial evidence and the direct evidence would exist and whether or not my client has presented a prima facia case of self-defense.

I think if you reach that alone, the case would simply be dismissed presently at judgment of acquittal. As I said a moment ago, I -- we don't -- I can't say, judge, can I stop and let you rule and I'll start over if you don't? So I have to continue as though you're not following my first track and I go to my second track.

The second track is whether or not should the court not agree that a prima facia case of self-defense has been proven and to the extent that circumstantial evidence is being considered by this court as presented by the state, if you decide that that does, in fact, exclude any possibility of my client -- any hypothesis of my client's innocence, if for some reason I lost those two arguments, which I think the evidence supports that we should win.

If we don't, then you have to look at whether or not this case should still move forward on a second degree murder charge as to the issue of ill will and hatred.

So let's talk for a moment about what ill will and hatred is and what it's not. In Light versus State, 841 Southern Second 623, second DCA case, that was a mosh pit case.

Mr. Light didn't like the fact that the eventual victim fell back into and may have hit him in a sensitive area of his body, so Mr. Light decided to pick him up in a wrestler move, hang him over his head and smash him to the ground, crushing the left side of his head, I think it was, on the cement, sort of got up, made it outside and died.

And the court ruled that that behavior, though extremely reckless behavior to simply get upset at somebody, pick him up over your head and smash him on to cement, is not ill will or hatred, ad would not sustain a second-degree murder conviction because you can't infer any malice.

I don't exactly know how you can't infer malice from picking somebody up over their head and smashing them on to cement, but if we are to compare that law, which is now the law in Florida, to this case, I would suggest that there is absolutely no evidence to support the contention that Mr. Zimmerman acted in ill will, spite or hatred.

If you can get past the expletives and you get past the fact that he seemed to be particularly interested in his community and that may have been why he focused on Mr. Martin as a suspicious person, looking unfortunately similar to what we now know we have in evidence of Emmanuel Burgess who was on this one person crime spree through this circle who got prison time for his bevy of crime sprees in the area.

The court may recall you were the sentencing judge in that case when we came before you a year and a half ago. Yes, an unfortunate circumstance. That doesn't allow the outrageously over-response by Mr. Martin.

Sticking to the ill will and hatred argument, basically in the light case, it was just not ill will because the courts looked to two other cases for the instruction on ill will, spite and hatred. That being Williams versus State at 764 Southern Second 177, another second DCA case, and McDaniel versus State, 620 Southern Second 1308, fourth DCA case.

To begin the analysis that even extremely reckless behavior itself would be insufficient for you to infer any malice that would suggest second degree. I guess in this case, had Trayvon Martin pushed my client, as happened in the Light case when he actually hit him in the genitals -- had Trayvon Martin pushed my client and my client just reeled back, took out his gun and shot him, under Light, I'm not certain that would have been ill will, malice and hatred because the other overriding necessity in an ill will and spite and hatred case, I know the court is aware, is second-degree murder for ill will, spite and hatred not exclusively, because they'll never say never, but almost always, the people have to know each other because the ill will, the spite, the hatred cannot be momentary. It cannot be instantaneous.

All of the cases that talk about ill will, spite and hatred talk about in 99 percent of the cases, and that's my percentage, not the case law's, but in the overwhelming majority, it only occurs where that ill will, spite and hatred has been something that has grown over time, the husband and the wife with the affair, the neighbors fighting over the fence, things like that, so that we can presume that there's ill will, spite and hatred by previous acts against the two.

And it cannot be presumed. It has to be by direct evidence that there was this previous animosity that would suggest the growth or, therefore, existence of ill will, spite and hatred.

Similarly, there are two other cases. At first, I didn't think that they were worth mentioning, except as I thought more about them, they were as to the issue of ill will, spite and hatred, and that's State versus Ellison, 561 Southern Second 576.

The Florida supreme court in 1991 and -- I'm sorry, your honor. And that's Sigler, S-I-G-L-E-R, 805 Southern Second 32. I mentioned those two cases for this reason. Those were the high-speed chase cases, factually significantly different from this case, but interesting because in both of those cases, the defendant, one, had just escaped from prison. Another one had stolen a car, I believe, were high-speed chases, 80-, 90-miles-an-hour, running through intersections, running over curbs, running through toll booths and just acting about as outrageously as you could act while in a vehicle.

And in both of those cases, the courts said that, even when you run into somebody and kill them, that's not ill will, spite and hatred. There's no, in effect, transferred intent from when you act as outrageously negligent as you might act to steal a car and do 80- or 90-miles-an-hour through a rounded area, running people out of the way and finally killing somebody, that's not ill will, spite or hatred.

So I mention those for that purpose.

Another case, State versus Ellison, E-L-L-I-S-O-N, 561 Southern Second 576 -- I'm sorry, that's one of the two I just mentioned to you, your honor. I apologize for that. But that was one of the two cases where , again, in that case, the high-speed case was not suggested to be ill will, spite or hatred.

Dorsey versus State, 74 Southern Third 521, 4th DCA case, a couple of years ago, 2011, in that case, the defendant had a gun and the facts support that he actually went and got the gun to arm himself after having an argument with two victims.

Then they came to the car, further attacked him, one guy punched him in the face and after having armed himself voluntarily in anticipation of continued altercation with these guys, which is the facts of the case, he got hit in the face, took out the gun, shot him, killed both of them.

And the 4th DCA said in that circumstance where he went and got a gun and came back, no ill will, no hatred, no second degree. An impulsive overreaction to an event is insufficient in itself to prove ill will, spite, hate, or evil intent.

They were at a keg party and people were getting drunk and they were hassling him.

OK, Bellamy is another case, 977 Southern Second 682, Second DCA case out of 2008. This was a fight that lasted a couple of minutes, basically a bar fight where they went back and forth and, to the extent of the client, in that case Bellamy's responsibility in that regard, even though there is no evidence that the victim of the final stabbing by Mr. Bellamy wasn't even known to have caused his own death, so he was, in effect -- was thought by the court to be an innocent bystander and that Bellamy may have just reached out and decided to start stabbing people, including this guy, there was no ill will or hatred found in that case either. And, again, they mentioned in that case, particularly, and also cite a number of cases standing for the proposition that you really -- ill will and hatred almost always, it only comes from people who know each other before the event begins because it is almost impossible for that ill will and hatred to grow so quickly in the middle of an affray or a fight or an altercation such as we have here.

Wylie versus State, 60 Southern Third 588, interesting case because in that case there was a fight and Wylie decided to take out his gun and smack it against the eventual victim. So it was a deadly weapon, but he didn't use it as a gun, but he used it as a hammer.

As it hit him, it went off and killed him, and again in that case, even though he decided to arm himself with a deadly weapon, decided to do it the way he did, since the intent was not there and there is no ill will and hatred, presumably it would have been found if he stood five feet away and shot him, they said that the action and the way it occurred suggests a lack of ill will, hatred sufficient for second- degree murder.

So it's a complicated case on a judgment of acquittal, I think, in a number of ways, and that is that in the self-defense case, the case law, Walker and others, Woods and others, are quite clear that, even at judgment of acquittal stage, the state has to be able to, in effect, disprove a reasonable hypothesis of self-defense.

Even in the light most favorable to the state, all of those standards that the state has to present, all the factual scenarios have to convince this court that a judgment of acquittal should not be granted because they have presented evidence which negates every hypothesis of self-defense or hypothesis of innocence, which they're synonymous for these purposes that my client acted in self-defense.

Failing to do that, Walker is the law of this land and suggests that a judgment of acquittal should be granted.

If it is not granted outright because they have simply failed to disprove self-defense, of course, you know that to be the standard for the jury to consider anyway, then we shouldn't even need to present a defense.

And if for some reason, as I mentioned a moment ago, you think that all of that is just -- has to be ruled in favor of the state, not giving my interpretation to Walker and its progeny any consideration whatsoever, then certainly the state has failed in convincing that second-degree murder charge, evidencing a depraved mind, has any basis moving forward to this jury because they simply have not presented any evidence to suggest that there is not a reasonable hypothesis that my client did not act with ill will or hatred and that they need to present, though they get the benefit of all the evidence being presented in their favor, what they don't get is the benefit of you ignoring evidence that can't be interpreted any other way.

You cannot look at that picture of my client's nose and say that he wasn't beat in the face. You can't look at the back of his head and say he wasn't beat in the back of the head. You cannot look at the autopsy of Mr. Martin and realize my client never attempted to nor landed one blow upon Mr. Martin.

All my client did was scream out for help. Mr. Good, though he was questioned a lot about this area, did finally, I think, opine, though he didn't see gas escaping from my client's mouth as he was the one screaming towards him, that he said it was his thought, his common sense that it was in fact my client screaming out for help.

And the reality is had it been Mr. Martin, who we now know and it's undisputed was on top, screaming for help, well, he had his chance. He had Mr. Good 17 feet away, asking him to stop, telling Mr. Martin he was going to call 911 and Mr. Martin continued to ignore him and continued to batter my client in whatever form or fashion or of the number of times he did that ended up with the injuries that my client had.

They can't ignore that evidence to a jury, and they really should not be able to ignore it to you on a judgment of acquittal argument.


RICHARD MANTEI, PROSECUTOR: Respectfully Mr. O'Mara gets the arguments backwards for starters.

Because justifiable use of deadly force is a defense for which the defendant actually bears the initial burden, and I'm not arguing necessarily that he didn't meet it, but because it is a defense, the first inquiry that has to be undertaken is the elements of the crime itself of second-degree murder.

Only then do we move to the issue of whether or not there is sufficient evidence to dispute the defense of justifiable use of deadly force.

So the first thing that should be addressed is the elements of the actual crime that the state bears the burden of proving, the intent and state of mind included in the court's material and I think it's --