More analysis by a liberal FL criminal defense lawyer:
Zimmerman's Medical Reports Show Broken Nose and Lacerations
By Jeralyn, Section Crime in the News
Posted on Wed May 16, 2012 at 08:29:00 AM EST
Update: I was able to find a copy of the actual 8 page list of discovery items released by state's Attorney Angela Corey. ABC news has obtained the 3 page medical report from the doctor who examined George Zimmerman the day after he shot Trayvon Martin. The report was included in the discovery turned over to the defense Monday.
Zimmerman was diagnosed with a "closed fracture" of his nose, a pair of black eyes, two lacerations to the back of his head and a minor back injury....
The report also shows Zimmerman's upper lip and cheek were bruised and he had lower back pain. The back of his head had two lacerations, one of which was almost an inch in length. [More..]
The report also lists medication he was using. He took a medication that is routinely prescribed for children and young adults with attention-deficit disorder and a sleep medication. (Please do not use the name of the drug without asterisks in your comments because it brings out spammers from other countries who auto-register and post dozens of spam comments at one time. It takes me a long time to delete them.)
WFTV News reports it has confirmed Trayvon's autopsy report shows injuries to his knuckles, and broken skin on the knuckles. After the release of the state's affidavit was released, I began opining that the state would concede it was Trayvon Martin who turned their encounter into a physical one by slugging George Zimmerman. I expounded on this when writing about the requirements for second degree murder, and the support from his neighbors and the bond hearing.
In a nutshell, the state's theory seems to be Zimmerman improperly profiled Trayvon as a criminal, reporting him to police as a suspicious person for no objective reason. Zimmerman referred to criminals who commit home invasions, and to Trayvon (by erroneously assuming Trayvon might be about to commit a home invasion) as "as*holes" and "f*cking punks." Zimmerman's use of those words in reference to criminals and Trayvon is evidence of his ill-will and hatred, and of his depraved mind, in the act of shooting and killing Trayvon during the course of a later struggle.
The state seems poised to claim that Zimmerman's following of Trayvon, and his verbal demand Trayvon explain his presence in the neighborhood, based on his unfounded assumption Martin was a criminal, somehow provoked Martin into hitting Zimmerman and made him the aggressor.
For the reasons I explained in the above posts, the state is unlikely to prevail on such a theory. To be an aggressor, Zimmerman had to provoke the force used by Martin. Provoking a state of fear is not enough. Also, Zimmerman's provocation had to be contemporaneous with Martin's use of force against him. It can't be the result of something that happened earlier.
Profiling, following and pursuing someone is not provocation for a punch in the nose or banging someone's head into concrete.
If Zimmerman is not the aggressor, if he didn't provoke Martin's punch, he had no duty to retreat, and so long as his fear of serious bodily injury or death from Trayvon's punch and/or slamming his head onto cement was reasonable, his use of deadly force in response was justifiable. Zimmerman was not committing a crime by profiling or following Trayvon and Zimmerman had a right to be on the streets of his neighborhood.
Even if Zimmerman somehow was found to be the aggressor, all that does is trigger a duty to retreat, if possible. If retreat isn't possible, and he feared serious bodily injury or death from Trayvon's physical attack on him, he can still use deadly force.
776.041 Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:
(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...
The statute couldn't be clearer that the actions of the aggressor must be one that provoked the use of force. The provocation also has to be contemporaneous to the use of force. See Johnson v. State:
Specifically, section 776.041 "[s]ubsection (2) precludes the initial aggressor from asserting self-defense where he or she is the individual who provoked the use of force contemporaneously to the actions of the victim to which the defendant claims self-defense.
.... we note that the initial provocation would necessarily had to have been contemporaneous to the actions of the victim, as described in subsection 2(a), to which the defendant claims self-defense.
(The other section of the statute regarding forcible felonies only applies when the defendant (not victim) is charged with a contemporaneous independent forcible felony.) Numerous cases and Florida's standard jury instructions make this clear, as does a plain reading of the statute.
But even if Zimmerman's acts of following Trayvon or profiling Trayvon as a criminal were somehow deemed to be provocation, they still had to be contemporaneous with the punch. The only thing that could be considered contemporaneous would be his asking Trayvon to explain his presence. That hardly justifies a violent punch that breaks Zimmerman's nose in response.
If Trayvon struck Zimmerman, the only issue should be whether the attack was severe enough to reasonably cause a person, in this case Zimmerman, to fear serious bodily injury or death. Even in the unlikely event the Court were to agree with the state that Zimmerman was the aggressor merely for following Trayvon for no good reason, he'd still be entitled to claim self-defense after Trayvon attacked him, unless he had the opportunity to get away. How could he retreat, if he was on the ground locked in a struggle that began with him being punched and sustaining a broken nose?
The state waited to charge Zimmerman until its investigation was complete. They had to know (or at least believe) Trayvon was the one who turned the encounter from a verbal one into a physical one. The language of the affidavit and the testimony at the bond hearing strongly suggest it did know this. As I've said before, one of the first rules of trial practice is that a lawyer, in creating a theme and a theory for a case, must accept the "facts beyond change." You build your story from that.
The state may have done its best in coming up with a theory of criminal responsibility that accepts the "facts beyond change," including that Zimmerman had a broken nose and head lacerations, caused by Trayvon punching him and slamming his head against the ground or on concrete. It may sound reasonable to some, but I doubt it is legally supportable.
For the applicable legal citations and principles, see my prior posts:
As to the state's likely theory:
Also see:
talkleft.com
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there's no evidence ( 5.00 / 1) ( #2)
by Jeralyn on Wed May 16, 2012 at 01:31:28 AM EST
he chased him brandishing a gun or showing it. The state hasn't alleged that, it has only said Zimmerman improperly assumed Trayvon was a criminal and followed him. It says a confrontation ensued and does not say Zimmerman initiated it or even that a gun was displayed during it.
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According to this article ( 5.00 / 1) ( #4)
by rjarnold on Wed May 16, 2012 at 01:52:18 AM EST
"Zimmerman wore it on a holster inside his waistband, according to a police report." It was also described as "a gun so small and light you can carry it in your pocket undetected." Also from everything I've read, it was very dark, so taking all this together I think there is a very good chance that Martin did not see the gun. Also, we don't know that Zimmerman confronted Martin, it could easily have been the other way around.
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Thanks for the info re ( 5.00 / 1) ( #5)
by oculus on Wed May 16, 2012 at 01:59:49 AM EST
the holster. I need to stay away from these posts as I can't figure out how the victim. Could have defused the situation and saved his own life. Very sad.
Parent
Six Ways ( 5.00 / 1) ( #7)
by nomatter0nevermind on Wed May 16, 2012 at 02:23:36 AM EST
Speculative response to a speculative question: Going home.
Leaving the area, possibly calling his father to pick him up on the way home from the restaurant.
Calling 911.
Discussing the situation with Zimmerman without punching him.
Walking away after Zimmerman was on the ground.
Beating Zimmerman up with only his fists, without striking his head against concrete or grabbing for his gun.
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Who Was The Victim? ( none / 0) ( #9)
by nomatter0nevermind on Wed May 16, 2012 at 03:07:01 AM EST
We don't know that Martin was a victim. Calling him that presupposes that the shooting was unlawful, which is the main point in contention. Tracy Martin and Brandy Green went out to dinner. Did you see the word 'restaurant'? If Martin had gone home, he would have been there within a minute of Zimmerman losing sight of him, at least a minute before Zimmerman's police call ended, at least three minutes before the fight started.
[ The shooting occurred about 35 yards from Zimmerman's vehicle and 70 yards from Brandi Green's townhouse ... which was in the opposite direction from Zimmerman. If he was just trying to get home, he could certainly have done so without Zimmerman even catching up with him. ]
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