Here is a guidepost on one critical jury instruction

7.4 MURDER—SECOND DEGREE
§ 782.04(2), Fla.Stat.

To prove the crime of Second Degree Murder, the State must prove the following three elements beyond a reasonable doubt:

1. (Victim) is dead.

2. The death was caused by the criminal act of (defendant).

3. There was an unlawful killing of (victim) by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.

Definitions.
An “act” includes a series of related actions arising from and performed pursuant to a single design or purpose.

An act is “imminently dangerous to another and demonstrating a depraved mind” if it is an act or series of acts that:

1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and

2. is done from ill will, hatred, spite, or an evil intent, and

3. is of such a nature that the act itself indicates an indifference to human life.

In order to convict of Second Degree Murder, it is not necessary for the State to prove the defendant had an intent to cause death.


There will be a great many jury instructions discussed, and submitted, and the court will make the final decision on those instructions, but this is the Florida pattern instructions, and might give some framework for folk's perception of the evidence being put in proving the state's burden. I think the state has been very tight and professional building their case and doubt that the court will give the defendant a directed verdict if they continue with the evidence as they have. If it goes to the jury.....the NG is still very possible....but this case will get really interesting when the state closes.

Defense had no control of that phone witness today.

Now here is an equally important instruction which will be submitted by each side and the judge will make a final ruling on how this instruction will be given to the jury.......this is not taking into account a stand your ground affirmative defense......just traditional self defense instruction under Florida pattern instructions.

3.6(f) JUSTIFIABLE USE OF DEADLY FORCE

Because there are many defenses applicable to self-defense, give only those parts of the instructions that are required by the evidence.

Read in all cases.
An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of deadly force.

Definition.
“Deadly force” means force likely to cause death or great bodily harm.

Give if applicable. § 782.02, Fla. Stat.
The use of deadly force is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to [himself] [herself] while resisting:

1. another’s attempt to murder [him] [her], or

2. any attempt to commit (applicable felony) upon [him] [her], or

3. any attempt to commit (applicable felony) upon or in any dwelling, residence, or vehicle occupied by [him] [her].

Insert and define applicable felony that defendant alleges victim attempted to commit.

Give if applicable. §§ 776.012, 776.031, Fla. Stat.
A person is justified in using deadly force if [he] [she] reasonably believes that such force is necessary to prevent

1. imminent death or great bodily harm to [himself] [herself] or another, or

2. the imminent commission of (applicable forcible felony) against [himself] [herself] or another.
Insert and define applicable forcible felony that defendant alleges victim was about to commit. Forcible felonies are listed in § 776.08, Fla. Stat.

Aggressor. § 776.041, Fla. Stat.
However, the use of deadly force is not justifiable if you find:

Give only if the defendant is charged with an independent forcible felony. See Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002).
1. (Defendant) was attempting to commit, committing, or escaping after the commission of (applicable forcible felony); or

Define applicable forcible felony. Define after paragraph 2 if both paragraphs 1 and 2 are given. Forcible felonies are listed in § 776.08, Fla. Stat.
2. (Defendant) initially provoked the use of force against [himself] [herself], unless:

a. The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on (assailant).

b. In good faith, the defendant withdrew from physical contact with (assailant) and clearly indicated to (assailant) that [he] [she] wanted to withdraw and stop the use of deadly force, but (assailant) continued or resumed the use of force.

Force in resisting a law enforcement officer § 776.051(1), Fla. Stat.
A person is not justified in using force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer.

Give if applicable.
However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] (or another), but only to the extent [he] [she] reasonably believes such force is necessary. See § 776.012, Fla. Stat.; Ivester v. State, 398 So. 2d 926 (Fla. 1st DCA 1981); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985).

In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.041, Fla. Stat., may need to be given in connection with this instruction.

Read in all cases.
In deciding whether defendant was justified in the use of deadly force, you must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.

No duty to retreat. § 776.013(3), Fla. Stat. See Novak v. State 974 So. 2d 520 (Fla. 4th DCA 2008) regarding unlawful activity. There is no duty to retreat where the defendant was not engaged in any unlawful activity other than the crime(s) for which the defendant asserts the justification.
If the defendant [was not engaged in an unlawful activity and] was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony.

Define applicable forcible felony from list in § 776.08, Fla. Stat. that defendant alleges victim was about to commit.

Presumption of Fear (dwelling, residence, or occupied vehicle). Give if applicable. § 776.013(2)(a)-(d), Fla. Stat.
If the defendant was in a(n)[dwelling] [residence] [occupied vehicle] where [he] [she] had a right to be, [he] [she] is presumed to have had a reasonable fear of imminent death or great bodily harm to [himself] [herself] [another] if (victim) had [unlawfully and forcibly entered] [removed or attempted to remove another person against that person’s will from] that [dwelling] [residence] [occupied vehicle] and the defendant had reason to believe that had occurred. The defendant had no duty to retreat under such circumstances.

Exceptions to Presumption of Fear. § 776.013(2)(a)-(d), Fla. Stat. Give as applicable.
The presumption of reasonable fear of imminent death or great bodily harm does not apply if:

a. the person against whom the defensive force is used has the right to be in [or is a lawful resident of the [dwelling] [residence]] [the vehicle], such as an owner,
lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

b. the person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

c. the person who uses defensive force is engaged in an unlawful activity or is using the [dwelling] [residence] [occupied vehicle] to further an unlawful activity; or

d. the person against whom the defensive force is used is a law enforcement officer, who enters or attempts to enter a [dwelling] [residence] [vehicle] in the performance of [his] [her] official duties and the officer identified [himself] [herself] in accordance with any applicable law or the person using the force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
If requested, give definition of “law enforcement officer” from § 943.10(14), Fla. Stat.,

§ 776.013(4), Fla. Stat.
A person who unlawfully and by force enters or attempts to enter another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
Definitions. Give if applicable. § 776.013(5), Fla. Stat.
As used with regard to self defense:

“Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent or mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

“Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

“Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

Prior threats. Give if applicable.
If you find that the defendant who because of threats or prior difficulties with (victim) had reasonable grounds to believe that [he] [she] was in danger of death or great bodily harm at the hands of (victim), then the defendant had the right to arm [himself] [herself]. However, the defendant cannot justify the use of deadly force, if after arming [himself] [herself] [he] [she] renewed [his] [her] difficulty with (victim) when [he] [she] could have avoided the difficulty, although as previously explained if the defendant was not engaged in an unlawful activity and was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat.

Reputation of victim. Give if applicable.
If you find that (victim) had a reputation of being a violent and dangerous person and that [his] [her] reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation.

Physical abilities. Read in all cases.
In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and (victim).
Read in all cases.
If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty.

However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proven


This is going to be a nail bitter right down to the end......it is not an open and shut case for either team......good stuff....we have an amazing system, and these pros are showing us how this should be done.

This is for Mr. Markle to read the second degree murder jury instructions and understand how powerful Omara three part argument to the court was to have his motion for acquittal granted.

An act is “imminently dangerous to another and demonstrating a depraved mind” if it is an act or series of acts that:

1. a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and

2. is done from ill will, hatred, spite, or an evil intent, and

3. is of such a nature that the act itself indicates an indifference to human life.


Do you understand that the only way the motion could be granted was the court as a matter of law determining the state had met each of the elements including the depraved mind standard which Omara did a brilliant job of outlining how difficult this is to prove under florida law and how the 5 cases he gave supported that and that the only decision as a matter of law is acquittal........unless Zimmerman is thought to not be credible and he has in fact hunted this kid down and his self defense is a convenient excuse.......the judge knows the law....Omara was brilliant.....but in the end Zimmerman is simply a liar and anybody looking at the evidence with an open mind will have already seen why he is a liar..........but if I had a badge in my back pocket which said......talking head expert.....it would not make one word I have said or Omara has said different......the judge followed the law.......the state proved a Prima facia case, and there is no self defense argument at this time as a matter of law........now I have also posted the self defense instruction, and as a matter of law the State may ask to strike the same in light of the lies and the law......but the court is going to give that instruction to the jury...........unless the defense utterly fails in their case.

He does not meet all the elements. There was no ill will, spite or hatred. Simply not there.

Good legal analysis on why he won't be convicted.

http://abcnews.go.com/US/george-zimmerman-convicted-murder-manslaughter/story?id=19598422

Dreamsglore wrote:He does not meet all the elements. There was no ill will, spite or hatred. Simply not there.

http://www.miamiherald.com/2012/03/16/2697604/trayvon-martins-parents-criss.html

Ill will right here..

http://www.miamiherald.com/2012/03/16/2697604/trayvon-martins-parents-criss.html

Ill will right here..


You understand how the judge ruled as a matter of law that the state met the prima facia case. Dreams is talking about the role of the finder of fact when this was a legal determination, but clearly if a person listened to Omara, they would realize that Lurch has nailed it and understands the difference of a determination of the law, and the finders of fact. This case never should have had second degree murder instructions as a matter of law if Omara was correct in his cases.....the state never even argued the cases.......the people paying attention go right to the evidence which allowed the judge to make this ruling.....Zimmerman is not credible....If somebody did not listen to Omara's arguments, it is really silly having a discussion about the same because clearly some people get it.....and some people are hopelessly unable to understand simple concepts.

He does not meet all the elements. There was no ill will, spite or hatred. Simply not there.


Do you understand that the jury is going to get second degree instructions, and if you were correct as a matter of law they would not?

"...In deciding whether defendant was justified in the use of deadly force, you must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real..."

That particular paragraph could have applied equally to Martin, had he survived.

That particular paragraph could have applied equally to Martin, had he survived.


perhaps, in the end.......only one juror has to believe that there is a reasonable doubt, but again this entire case hinges on Zimmerman's credibility or lack of the same. As a matter of law, the court has ruled that he has no credibility. I think the court was correct, but some spectacular scientific evidence may soon be proffered, and they have been arguing Frye motions, so who knows.......but for all those people who continue to make this about black people getting a show trial.......sorry, as a matter of law the state has a case, and charges should have been brought sooner than they were.

The court never ruled he had no credibility. That is simple a false statement.

The court never ruled he had no credibility. That is simple a false statement.


I will type this very slowly. Did you listen to Omara's motion for acquittal. Did you listen to the black letter law on second degree murder and self defense as given by Omara over the last five years, and never was challenged by the state......why.......because the defense was dead cinch correct that the second degree murder charges with what Zimmerman has testified to in the tapes presented in evidence raise a plausible issue of self defense which the cases say as a matter of law will not allow the jury to get second degree murder instructions...........the judge as a matter of law ruled that Zimmerman and his self defense testimony is not credible, because the state in their case in chief and with Omara's brilliant arguments said that ZIMMMERMAN TOLD THE COURT THAT HE WAS DEFENDING HIMSELF......which in ruling as a matter of law that the second degree murder charge stands.......means that those words were not credible. Now for the third time......did you listen to Omara's motion..........or are you simply wasting time here.....Please have the courtesy to answer a reasonable question which will either indicate that you cannot understand his arguments, or you are ignorantly trying to bluff your knowledge of those arguments before the court. Which is it?

Please show me where the court said Zimmerman was not credible? I want to see it. For the third time the court said there was enough evidence to go to the jury.Period!

"The court finds that the state has provided sufficient evidence, both direct and circumstantial, to allow the charge to go to the jury," Nelson said.

Read more: http://www.chicagotribune.com/news/sns-rt-us-usa-florida-shooting-motion-20130705,0,5589101.story#ixzz2YPa0MFCy
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A hell of a lot different than ruling Zimmerman has no credibility. You are an absolute Dilbert.

http://legalinsurrection.com/2013/07/why-zimmermans-motion-for-acquittal-should-have-been-granted/

But there was no way the judge was going to grant that motion.

Please show me where the court said Zimmerman was not credible? I want to see it. For the third time the court said there was enough evidence to go to the jury.Period!

I have referenced the legal arguments of Omara which you obviously do not understand because if you do you would understand the standard by which the judge must rule on a motion for an acquittal on 2nd degree. You obviously do not understand his argument. If Zimmerman said he was defending himself......there could not be a second degree murder charge.....the case law if you listened or understood is black letter law, therefore the only way that the judge can allow this matter to go to the jury is to have given none.....zero......nada.....credence to the words of Zimmerman, and Omara said this.....not the judge.....not seaoat.....not the state.....because it is the law in Florida, so in your limited abilities which now I have surprisingly learned today include college and graduate instruction you still fail to understand what the court's ruling means.

Let me try to give you a math equivalent. 1 + 1 = 2 If I said that the judge was given 1 ball and the judge ruled that there were 2 balls.......would the judge have to describe that other ball, or would the fact that the judge ruled that there were 2 balls allow an intelligent person using deductive reasoning to understand that there is a second ball. You simply did not see Omara's motion, and you simply do not understand the same.....so when I am trying to discuss these relatively easy concepts requiring deductive reasoning......you keep asking me where did the judge say that there was another ball.........sorry...simply admit you did not see the motions and quit wasting my time with the usual tail chasing when discussing concepts with you which not only you did not listen to.....but there is a high probability you do not even understand what he was saying.

But there was no way the judge was going to grant that motion.


That is exactly what I thought before I had the privilege to listen to Omara's recital of Florida law as it relates to second degree murder where there is ANY plausible self defense argument.......the key in my mind is the state never argued the case law.....why.....because Omara was dead cinch correct on this.....where it becomes particularly difficult is even getting close to the depraved mind......if there is even a 1% chance that a defendant feared for their life.....how could they gather the requisite intent of depraved mind to meet the elements of second degree murder.....impossible.........unless there was zero percent chance that the defendant could argue self defense........which goes to the credibility of Zimmerman.......and if anybody has wanted to pay attention....they would see that the credibility is probably zero in the state's case.....this may change, but as a matter of law the judge ruled on the same, and if she followed the law this probably should have been granted and the state would be only giving manslaughter instructions.......I know I piss people off, but if people will not admit they even listened to the brilliance of Omara.......then I am alone on this path...........and certainly will not try to convince people who have not even heard the arguments.

Seaoat, I think it's a common motion that is almost never granted by any judge in any trial.

2seaoat wrote:Please show me where the court said Zimmerman was not credible? I want to see it. For the third time the court said there was enough evidence to go to the jury.Period!

I have referenced the legal arguments of Omara which you obviously do not understand because if you do you would understand the standard by which the judge must rule on a motion for an acquittal on 2nd degree.   You obviously do not understand his argument.  If Zimmerman said he was defending himself......there could not be a second degree murder charge.....the case law if you listened or understood is black letter law, therefore the only way that the judge can allow this matter to go to the jury is to have given none.....zero......nada.....credence to the words of Zimmerman, and Omara said this.....not the judge.....not seaoat.....not the state.....because it is the law in Florida, so in your limited abilities which now I have surprisingly learned today include college and graduate instruction you still fail to understand what the court's ruling means.

Let me try to give you a math equivalent.   1 + 1 = 2    If I said that the judge was given 1 ball and the judge ruled that there were 2 balls.......would the judge have to describe that other ball, or would the fact that the judge ruled that there were 2 balls allow an intelligent person using deductive reasoning to understand that there is a second ball.   You simply did not see Omara's motion, and you simply do not understand the same.....so when I am trying to discuss these relatively easy concepts requiring deductive reasoning......you keep asking me where did the judge say that there was another ball.........sorry...simply admit you did not see the motions and quit wasting my time with the usual tail chasing when discussing concepts with you which not only you did not listen to.....but there is a high probability you do not even understand what he was saying.

What a dunce head you are! O'Mara's interpretation of the law is not necessarily the judges interpretation. She simply said there was enough evidence for the jury to weigh the decision. She may very well feel Zimmerman is a liar but that is not what she said or ruled. That does not mean she feels Zimmerman is a liar. Your reasoning just astounds me?

Nekochan wrote:Seaoat, I think it's a common motion that is almost never granted by any judge in any trial.  

Correct and he's on here interpreting what the judge meant. LOL!

I actually did not listen to Omara's reasoning for his motion.  I think we all knew before the trial even started that the defense would make the motion and that it would most likely not be granted and that this is not really news. And it doesn't mean a whole lot.

Seaoat, I think it's a common motion that is almost never granted by any judge in any trial.


It is a common motion. It is an automatic motion which if defense counsel does not make the same, they may have committed negligence, but the commonality of the motion which is about 99.9% does not negate the rule of law which the court must follow........the court cannot give second degree murder instructions if Omara was correct and Zimmerman was credible. After listening to the argument, I was shocked the jury got to consider second degree murder charges. I disagree that it is almost never granted. It is a protection from overcharging and prosecutorial abuse......the state must prove a prima facia case, and granted juries usually have lesser included to go to verdict, but it is common to have overcharged defendant's motions granted. It happens all the time.