Murder 2 and Reasonable Doubt - As a Juror Would You Convict?

Imagine an individual who, on a random whim, throws a brick off a building, when that individual knows that there is a sidewalk below that people walk on. The brick hits a young boy down below in the head and he is killed from the injury. Now the individual could not have known if the brick would kill anyone, and did not actually intend to cause anyone’s death. What is he most likely to be charged with?

Under the law, the individual will most likely be charged with Murder 2. Murder 2 simply requires that the defendant deliberately, and with so little justification as to be reckless, engaged in conduct that puts another at obvious risk of death or great bodily harm. This is what the State of Florida has charged GZ with.

Florida's jury instructions, which are based on statute, recite the elements that must be proven to establish the degree of murder "beyond a reasonable doubt." Before discussing the elements necessary to establish murder 2, it is important to understand the definition of "Reasonable Doubt."

Before discussing Florida’s definition of Reasonable Doubt, you should understand the definitions of the words "reasonable" and "doubt" from the American Version of the Oxford Dictionary.

Reasonable: adj.1 having sound judgment. 2 not absurd. 3 a) not excessive; inexpensive. b) tolerable; fair.

Doubt: n.1 uncertainty; undecided state of mind. 2 inclination to disbelieve. 3 uncertain state of things. 4 lack of full proof. v.1 tr. feel uncertain or undecided about. 2tr. hesitate to believe or trust. 3intr. feel uncertain or undecided. 4 tr. call in question.

What is reasonable? Every person on the jury will apply their own background, culture, and perhaps educational background to its meaning as they listen to a case. But, when deliberation begins, individual remembrances of the evidence and testimony becomes like a patchwork that’s collectively sewn together into agreement.

The concept of the reasonable person and what he or she would do in any given situation is the basis for many criminal laws. Standards of conduct are created based on this reasonable person concept and impose civil or criminal liability and consequences on people who intentionally, knowingly, recklessly, or negligently violate those standards.

The word “reasonable” when used in a law means an objective, as opposed to a subjective standard. The reasonableness is not based on the perception of any specific identified person, which is a subjective standard. The objective standard is based on the actual facts and circumstances of a given situation and what a hypothetical person would do in that situation.

Objective is completely unbiased. It is verifiable by looking up facts. Subjective has been colored by the character of the actor, based often on reality, but reflects the perspective of the actor and how he views reality. It cannot be verified using concrete facts and figures.

Read more: Difference Between Objective and Subjective | Difference Between | Objective vs Subjective [You must be registered and logged in to see this link.]

With this in mind, below is the standard jury instruction that defines reasonable doubt and aggravating circumstances, for the jury:

Florida’s Standard Jury Instruction in Criminal Cases defines reasonable doubt as follows:

A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand, if, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable.

It is to the evidence introduced in this trial and to it alone, that you are to look for that proof.

A reasonable doubt as to the guilt of the defendant may arise from the evidence, conflict in the evidence, or the lack of evidence.

The definition of Abiding: Permanent or longlasting; unshakeable, steadfast, enduring, remaining.

Florida's jury instructions recites three elements that must be proven to establish 2nd degree murder "beyond a reasonable doubt":

•The victim is deceased,

•The victim's death was caused by the defendant's criminal act, and

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

The final element - an act that is "imminently dangerous" and shows a "depraved mind" is likewise defined by jury instructions. The three elements that must be present are:

•A "person of ordinary judgment" would know the act, or series of acts, "is reasonably certain to kill or do serious bodily injury to another";

•The act is "done from ill will, hatred, spite, or an evil intent"; and

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

Note that the instructions do not state that the prosecutor must prove that the defendant intended to cause death.

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Florida’s SYG law does not give you a license to kill. The law allows you to stand your ground and places no duty upon you to retreat. You can use force, including deadly force, in self-defense, but only if a reasonable person in the same situation would do so. This is your objective reality as opposed to GZ's perception of it. But you cannot use more force than is reasonably necessary to prevent being assaulted. A person can use deadly force in self-defense only if the objective facts and circumstances of the situation he/she is actually in, as opposed to his/her perception of it, is such that a reasonable person in the same situation would believe it necessary to use deadly force to prevent being killed or suffer serious bodily injury.

The distinction between manslaughter and 2nd degree murder is that the 2nd degree murder charge requires a finding that GZ killed Trayvon while engaging in an act “imminently dangerous to another and evincing a depraved mind regardless of human life.” Take that element away, and you still have the lesser included offense of manslaughter, so both charges are still theoretically on the table. But what constitutes a depraved mind regardless of human life?

The case of State v. Bryan, 287 So.2d 73,76 (Fla. 1973) holds that an accidental shooting when coupled with malice toward the victim constitutes second-degree murder. Thus, the intentional and forceful striking of the deceased in anger with a loaded pistol which accidentally discharged killing him constitutes an act "imminently dangerous to another" and "evincing a depraved mind regardless of human life." 287 So.2d at 76.

Now, let's take the Florida case authority to help you decide whether GZ's conduct warrants a Murder 2 conviction given the facts and evidence.

The use of deadly force only becomes justified when “[h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm.” No matter how subjectively real the belief is, an unreasonable belief does not provide any right of self-defense. The fear of imminent death must be based on objective facts “such as would induce a reasonably prudent or cautious man to believe that the danger was actual and the necessity for taking life real.” Ammons v. State, 88 Fla. 444, 454, 102 So. 642, 645 (1924).

If GZ was not actually being beaten into diaperdom by having his head bashed repeatedly into concrete -- then GZ was not justified in using force against Trayvon, no matter what his actual beliefs were. GZ may have had the adrenaline rushing through his veins, may have perceived his opponent as a murderous thug rather than a skinny teenager because of the presence of a hoody; it’s possible GZ really did think that a wrestling match on the grass with a skinny teenager somehow put his life in mortal danger. But his subjective hyperactive threat perception system does not excuse him.

An individual’s right to life is not contingent upon maintaining a constant impression of harmless frailty, “men do not hold their lives at the mercy of excessive caution or unreasoning fear of others.” Ammons, 88 Fla. 444 (1924).

Even if GZ truly believed he was somehow in danger for his life, he was not thereby granted permission to kill Trayvon if his fears were the product of an unreasonable mind. And there is plenty to suggest GZ was in fact acting out of excessive caution and unreasoning fear that night. His hyperactive vigilance, his willingness to see a boy returning home from a candy run to the store as a grave threat to his neighborhood, his professed fear for his life due to a tussle with an unarmed boy that he outweighed — if the jury finds from GZ’s behavior that his fears were unreasonable, and that his fear for his life due to a couple scratches on the head was not practical, then the killing is not justifiable as self-defense.

The SYG law imposes a duty to retreat in instances where the defendant has caused the fight, even if he later finds himself on the losing end of it:

Fla. Stat. Ann. § 776.041. Use of force by aggressor—

The justification described is not available to a person who… [i]nitially provokes the use of force against himself or herself, unless [s]uch 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[.]

During the course of his video taped statements and the reenactment, GZ states that he managed to pull his gun from its holster, "aimed" and shot Trayvon. He rationalizes in his written statement that he pulled his gun because Trayvon said, "Your [sic] gonna die tonight Mother Fucker." So in actuality, GZ did not shoot Trayvon because his head was being beaten into the concrete, but because of what Trayvon supposedly said to him. GZ also describes how he contemplated the angle that he needed to point the gun in order to avoid shooting his own hand. If GZ had the time to contemplate the angle he would fire his gun, he had the time to forewarn Trayvon that he intended to fire his weapon. Even LE is required to make this announcement before shooting someone, unless they are coming under direct gun fire themselves. By GZ's own statements, he clearly did not exhaust every reasonable means to escape danger other than use deadly force.

If you believe that GZ instigated the encounter, then, even assuming he could somehow prove that Trayvon was in fact trying to wrestle GZ’s gun away from him, this still won’t necessarily provide an absolute defense to the killing. GZ was the one who chose to arm himself while pursuing a teenager who was rightfully in the neighborhood and doing nothing wrong; GZ was the one who chose to exit his vehicle looking for the teen, even when he was told not to do so by police dispatch; GZ was the one who created a situation where, if a shoving match occurred, he could then argue that the fact he was armed, made an unarmed teen a potentially lethal threat that put GZ in fear of his life, because GZ knew he had a gun that the boy could theoretically steal. “A killing is not justifiable or excusable if the defendant brought about the necessity therefor through his own wrongful act or without being reasonably free from fault in provoking the difficulty in which the killing occurred.” Lovett v. State, 30 Fla. 142, 11 So. 550, 17 L. R. A. 705; Ballard v. State, 31 Fla. 266, 12 So. 865; Padgett v. State, 40 Fla. 451, 24 So. 145.

Even if Trayvon threw the first punch, the fact that GZ provoked the confrontation by, while armed with a gun, recklessly hunting down an innocent teen who was a guest in the neighborhood makes him the aggressor. GZ could have easily avoided any confrontation with Trayvon. GZ himself admits that Trayvon ran away from him when he first saw GZ, trying to escape. GZ did not have to shoot Trayvon. Once he pulled his gun, instead of pulling the trigger, he could have announced to Trayvon that he had a gun and planned on using it if he did not stop. He aimed for the kill shot instead. Most importantly, if GZ had not pursued Trayvon, and if GZ had not brought a gun, thereby inserting the possibility of deadly force into the equation where previously there had been none, then Trayvon would be alive today, regardless of who shoved who first:

“A defendant may, as a reasonable man, have believed that he was in danger of losing his life, or of incurring great bodily harm, and yet the killing may not, under some circumstances, be justifiable or excusable.  One instance is where he has brought about the necessity without being reasonably free from fault.  Again, the circumstances of a case may at least make it a question for the jury whether a killing was not in pursuance of a previously formed design to kill, instead of having been the result of a mere purpose of self-defense, although at the time of the altercation the first overt act may have come from the person slain.”  Ballard v. State, 31 Fla. 266, 12 So. 865.

Following are the known facts, the forensic evidence to date. I have not listed the numerous blatant lies and inconsistencies in GZ's statements and the discrepancies between GZ's story and the evidence as a whole. They are too numerous for this article - so far, they consist of 23 pages.

The undisputed objective facts are this:

√ Trayvon was not armed.
√ GZ was armed with a gun
√ GZ admitted to the dispatcher that he was following Trayvon.
√ The two had a physical confrontation.

It is an objective fact that one of the two started the fight. It is a disputed fact of who for sure started it. But we know that GZ followed Trayvon against the police dispatcher's advice. GZ thought Trayvon was a thug casing the neighborhood and he was irritated because he thought Trayvon was going to get away before LE arrived. We know that is what his subjective state of mind was because he said, “These assholes always get away.”

We also know that when he saw Trayvon run, GZ got out of his vehicle and heading in the same direction of where he saw Trayvon disappear to. GZ claims he was looking for a street address and just happened to be going in the same direction as Trayvon, but this is his story after he shot Trayvon and after he admitted to the dispatcher he was following Trayvon. Instead of providing a location where LE could meet him, he told the dispatcher to have the officer call him when he got there instead of meeting at the mailboxes as had been previously suggested. This fact alone lends to the belief that GZ had not given up looking for Trayvon. His conversation with dispatch ended at this point.

GZ is claiming that he only got out of his vehicle to check the address where he his vehicle was at to give to the 911 dispatcher and was returning to his vehicle when Trayvon confronted him. GZ claims that Trayvon sucker punched him at the "T" and he fell or stumbled and fell. The debris field and crime scene where Trayvon's body was located was back between the townhomes on the dog path some 60 feet south of the "T."

1. The autopsy of Trayvon Martin contradicts GZ’s version of events. The autopsy reveals evidence that does not support GZ's story. We know that Trayvon was shot at “intermediate range” and that the bullet passed through Trayvon's left ventricle directly from front to back and enters the pleural cavity with perforations of the left anterior fifth intercostal space, pericardial sac, right ventricle of the heart, and the right lower lobe of the lung" with no mention of angular trajectory.

How can a prone shooter place a shot into the chest of a victim looming over the top of him and simultaneously meet those two qualifying conditions of the Medical Examiner's Report?

If the point of entry for a gunshot is 17.5" down from the top of the head of a 6'0" tall victim, how far is it from the point of entry to the ground? Answer: Almost exactly the same distance as a barrel of a gun in the hand of an outstretched arm of a shooter who is 5'9" tall. How tall is GZ with his shoes on?

If the prosecutor is somehow able to confirm that Trayvon was shot from a distance or angle that is hard to reconcile with GZ's sequence of events this would be very damning to GZ's self-defense claim.

2. According to GZ, Trayvon sucker punched him in the face causing him to fall to the ground and breaking his nose; he hit GZ in the face approximately 10 times; Trayvon was bashing GZ's head into the concrete pathway, approximately 35 times, to the point that he thought his head was going to explode. Also, Trayvon used one hand to cover GZ's mouth and his other hand to cover GZ's nose, in an attempt to smother him. Trayvon was right handed and if he truly sucker punched GZ, he most likely used his right hand to make the blow.

According to the Medical Examiner's Report, aside from the bullet wound in his chest, Trayvon's only other injury was a "1/4 to 1/8 inch small abrasion on the left fourth finger."

DNA Results:

Swab collected from Grip of gun: Major DNA from GZ; No DNA from Trayvon;
Swab collected from trigger of gun: Major DNA from GZ; No DNA from Trayvon;
Swab collected from slide of gun: Results consistent with presence of at least one male; No determination because of limited nature of DNA;
Swab collected from holster: Major DNA from GZ; No determination of possible contributions;
Fingernail Scrapings from Trayvon: Right Hand: No DNA other than Trayvon's; Left Hand: No DNA;
Trayvon's Hoodie: Left Cuff/Lower Sleeve: No DNA foreign to Trayvon; Right Cuff/Lower Sleeve: No DNA foreign to Trayvon;

How could Trayvon possibly hit GZ in the face with his fists at least 10 times, bash his head at least 35 times, use both hands to cover GZ's mouth and nose, and fail to have ANY of GZ's DNA under his finger nails, or on his hands or arms of his jacket?

How could Trayvon possibly hit GZ in the face with his fists at least 10 times, bash his head at least 35 times, cover GZ's mouth and nose, and fail to have any injuries to his hands? Why are there no bruising or other abrasions to Trayvon's hands?

Now, place yourself as a juror on the GZ case and decide whether you would convict GZ of 2nd degree murder. Ask yourself:

The objective reality was that Trayvon was staying in the neighborhood and walking home after purchasing Skittles and Arizona Iced Tea at a nearby 7-11. Thus, GZ's subjective belief that Trayvon was a thug casing the neighborhood was incorrect.

Would a reasonable person have made that mistake?

Would you have made that mistake?

Having made that mistake, what, if anything, would you have done?

And what about that loaded 9 mm KelTek semiautomatic in your holster? What, if anything, would you have done with it?

Was GZ a reasonable person that night?

What would a reasonable person have done?

Would a reasonable person got out of their car that night to follow Trayvon when he ran?

Would a reasonable person have taken the dispatcher's advice and waited for LE or would a reasonable person taken off behind the townhouses into the dark to find a suspicious teen who you did not know whether or not was armed?

What would a reasonable person have done in Trayvon’s situation?

Considering the evidence, and the known inconsistencies of GZ's statements, would a reasonable person believe GZ's story of self-defense?

Considering the evidence, and the known discrepancies between the evidence and GZ's statements, would a reasonable person believe GZ's story of self-defense?

Considering the fact that none of GZ's DNA was on Trayvon's hands or arms, would a reasonable person believe that he was beating GZ in the face repeatedly at least 10 times?

Considering the fact that none of GZ's DNA was on Trayvon's hands or arms, would a reasonable person believe that he was bashing GZ's head into the concrete repeatedly at least 35 times?

Considering the fact that none of GZ's DNA was on Trayvon's hands or arms, would a reasonable person believe that Trayvon was holding one hand over GZ's mouth, and the other over GZ's nose? Remember, GZ's nose was supposedly broken and his head was bleeding, but none of that got on Trayvon's hands or arms.

Even if GZ did not start the physical confrontation, he still could not use deadly force in self-defense unless the objective facts and circumstances were such that a reasonable person in that situation would have used deadly force to prevent being killed or suffering serious bodily injury.

From the photos and description of GZ's injuries, would a reasonable person in that situation have used deadly force?

These are the questions that a jury will have to decide.

Is GZ guilty of Murder 2?
Is GZ guilty of Manslaughter?
Is GZ Not Guilty?

Wow...great write up!! Very clear and concise. Very informative. You brought it all together very nicely. Thank you for that.

Sorry for my above post, I put the wrong links.

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