Don’t Believe Every Tweet You Read

Because of some erroneous Tweeting going on in the Twitterverse, I keep receiving the following two recurring questions regarding George Zimmerman’s case:

  1. Is Aggravated Manslaughter of a Child an available lesser offense; and
  2. Does the 10-20-Life firearms enhancement still apply to a Manslaughter charge.

The answer to both of these questions is nope.

Aggravated Manslaughter of a Child

The standard jury instruction for Manslaughter can be found on the Florida Supreme Court’s website under Jury Instruction 7.7.

The instruction contains a number of instructions that are applicable, depending on what is alleged in the formal charging document (called an Information).

As you will see, to prove the crime of Aggravated Manslaughter of a Child, the State must prove the following elements beyond a reasonable doubt:

  1. The victim is dead.
  2. The death of the victim was caused by the culpable negligence of the defendant.
  3. The victim was was a child whose death was caused by the neglect of the defendant, a caregiver.

A “Caregiver” means a parent, adult household member, or other person responsible for a child’s welfare.

A review of the Information in George Zimmerman’s case shows he is charged with a single count of Second Degree Murder. The Information alleges he committed this act as follows:

By an act imminently dangerous to another, and evincing a depraved mind regardless of human life, although without any premeditated design …. kill Trayvon Martin by shooting [him].

The information does not allege that he committed the offense of Second Degree Murder in a culpably negligent way, that he was a caregiver of Trayvon Martin, or that he neglected Trayvon Martin as his caregiver.

Because neither of these elements were alleged, Aggravated Manslaughter of a Child (and its enhanced penalties) is not available as a lesser offense in George Zimmerman’s case. See Griffis v. State, 848 So. 2d 422, 427 (Fla. 1st DCA 2003) (“The information [charging second degree murder] did not allege either neglect or culpable negligence, and section 827.03(3) [Aggravated Manslaughter of a Child] is not a proper lesser offense.”)

Full Disclosure: The reason I’m even aware of this issue, and why I am so sure of it, is because I had it come up in a First Degree Murder trial before Judge Nelson. She upheld my objection and would not allow Aggravated Manslaughter of a Child to be considered as a lesser offense.

Unfortunately though, I got a hung jury and the State filed an Amended Information before the second trial that cured the charging deficiency. (Orlando Sentinel: Prosecutors file new charge against suspected killer Jason Lenz.)

Manslaughter by Culpable Negligence

As a side note, traditional manslaughter can be alleged in one of three different ways:

  1. Manslaughter by Intentional Act (Voluntary Manslaughter);
  2. Manslaughter by Procurement (Voluntary Manslaughter); and
  3. Manslaughter by Culpable Negligence (Involuntary Manslaughter).

And while traditional Manslaughter is a Category One lesser included offense for Second Degree Murder (meaning it must be given as a lesser offense if requested), there is case law that suggests only Manslaughter by Act (Voluntary Manslaughter) can be given to the jury to consider as a lesser offense.

Specifically, because the State did not allege (in the alternative) that the death was by culpable negligence, the State should be unable to have Manslaughter by Culpable Negligence (Involuntary Manslaughter) given as a lesser included offense. See Ayala v. State, 879 So. 2d 1, 2 (Fla. 2d DCA 2004) (“It is fundamental error to instruct the jury on a variety of manslaughter that had not been included within the information.”)

What this means is that, should the defense object, they might be able to convince the judge only to have the jury instructed on Manslaughter by Act. If the judge overruled this request and also instructed on Manslaughter by Culpable Negligence, it would set up another excellent appellate issue.

Why would the Defense object to Manslaughter by Culpable Negligence, possibly because they know that if the jury is likely to convict George Zimmerman on any theory, it would be on a theory of culpable negligence.

If they don’t have the option to reach a “compromise verdict,” they would be left with no choice but to return a Not Guilty verdict.

Florida’s 10-20-Life Law

Florida’s 10-20-Life is codified in Florida Statute 775.087. The statute enumerates all of the offenses that 10-20-Life applies to.

Under Florida’s 10-20-Life law, a person who uses a Firearm to commit Second Degree Murder must be sentenced to a minimum-mandatory prison sentence of 25 years.

However, Manslaughter is not an enumerated offense under Florida Statute 775.087. As a result, there is no minimum-mandatory firearm enhancement that would apply to George Zimmerman if he were convicted of Manslaughter. See Murray v. State, 491 So. 2d 1120, 1123 (Fla. 1986) (“We find no authority allowing application of a mandatory minimum sentence to the conviction for manslaughter.”)

So there you have it, contrary to what Attorney Natalie Jackson and others may have tweeted, Aggravated Manslaughter of a Child is unavailable as a lesser included offense and 10-20-Life does not apply to a traditional Manslaughter charge.

Comments

19 thoughts on “Don’t Believe Every Tweet You Read

  1. You write: “And while traditional Manslaughter is a Category One lesser included offense for Second Degree Murder (meaning it must be given as a lesser if requested), there is case law that suggests otherwise.”

    When, and by whom is the ‘request’ made?

  2. Like everything else in this trial, this issue is bassakwards. Wouldn’t you normally expect the defense to request the manslaughter instruction? I feel bad for Sanford PD…they didn’t want GZ charged for good reason and now every time a Seminole County public servant takes the stand they seem to be in support of the defense. Any chance Judge Nelson takes the heat off the jury and the city of Sanford by JOAing this?

    • If I were the defense, I would only agree to Manslaughter by Act and object to Manslaughter by Culpable Negligence. Anyone who has listened to the evidence can see that the State is hanging their hat on George being negligent for not following the Non Emergency Number Operator’s statements.

  3. A substantial number of acquittals (and directed verdicts, and post-verdict judgments notwithstanding the verdict) result from the prosecution overcharging the biggest, nastiest conceivable offense and lesser related — but not included — offenses being omitted.

  4. O’Mara taking interesting grammatical license in positing that Zimmerman’s use of terms “a-holes” +”f’ing punks” was used in context entirely non-pejorative. Witness baffled. Has Baez signed on as consultant?

  5. Lots of misinformation in the Twittershere to be sure. I appreciate the time you take to respond on your blawg. I’ll see if I can stump you…if a jury acquits GZ finding he lawfully killed TM in self defense, then would that not make him immune from a wrongful death claim? In a SYG hearing, the judge is the finder of fact in deciding immunity. In this trial the finder of fact is the jury and the law seems to immunize those who have lawfully killed another in self-defense. What legal argument could overcome the legislature’s intention to protect citizens from such litigation in the “stand you ground” statute?

  6. Good question. When would the ‘immune from wrongful death’ suit not apply?

    • It is my opinion that he would not be immune if he is found Not Guilty. The reasons are:

      1. Jury can simply find State did not prove a crime occurred and never reach threshold issue of whether Self Defense applies;
      2. In immunity hearing, burden is on defense, in criminal trial, burden is on State; and
      3. To find self defense in criminal trial, a mere reasonable doubt as to whether self defense applies requires a jury to vote not guilty, this is much lower standard than preponderance of evidence required for immunity.

      I’ve discussed some of these issues previously: Did George Zimmerman Waive Stand Your Ground Defense? With that said, since he has not had an immunity hearing yet, assuming he is found not guilty, I believe he could still request immunity in any civil trial.

      • Great commentary from you today on the NBC affiliate. Did you find Mantai’s argument specious that the act of firing a gun at TM’s heart is prima facie evidence of “a depraved mind…ill will, hatred, spite or an evil intent”? Lots of case law supports a contention otherwise (Poole v State; Williams v State; Bellamy v State). I’m disappointed that sound legal argument is so cavalierly rejected by a judge in this circuit. To a neutral, but informed, observer this is a terrible and embarrassing case for the State of FL.

      • I also wonder if the State’s argument today is a preview of their closing. If so, O’Mara and West should look up Miller v State: “A defendant has a fundamental right to present a defense and to have the jury properly instructed on any legal defense supported by the evidence. These rights stand for naught if the prosecutor can ridicule a defense so presented, denigrate the accused for his temerity in raising the issue, and misstate the law….”

  7. How could the state have charged 2nd degree knowing they could never prove beyond a reasonable doubt that Zimmerman started the altercation?

  8. Mr. Hornsby,

    I have a question about the whole “college records of Zimmerman” hoopla. As far as I know, Zimmerman had a legal conceal carry permit. If I remember correctly, there is a mandatory course required that teaches, among other things, justifiable use of deadly force. Would not Zimmerman know about self-defense(maybe even stand your ground) without ever attending SCC? I have not seen a single analyst or O’Mara/West mention it.

  9. Everything that rises above the dead mediocrity of this world
    into greatness and being fully alive emerged from a “seething bad act.”
    Zimmerman is a loser only because he didn’t pick his battles.

  10. Thank you for the thoughtful research and blog postings to help us better understand the law in these cases. Since I’m done with BBQ and other celebrations, I’m plugging your hard work on the O.S. tonite LoL. Enjoy the rest of your holiday and thanks again for your voluntary work you do for us in these posts.

  11. Mr. Hornsby, what do you think of this analogy:
    A neighborhood playground has been the site of a number of attempted child abductions and L and L arrests. Women in the neighborhood decide to reclaim the place where their children play. One day, a particularly zealous mom sees a middle-aged paunchy man who she doesn’t recognize and doesn’t seem to be with any of the children playing. She calls the non-emergency police line and makes it clear to the stranger that she is watching his every move. She even approaches him to better see what it is he is doing with that video camera. Now aware and offended that he is being “profiled” as a pervert, the man says to the woman, “You gotta problem?” She reaches for her phone; he punches her and mounts her to punch her some more. While on the bottom, she manages to take out her concealed handgun and fires it into his chest, killing the man. After the fact, it turns out the man was waiting for his grandson. By only changing a few inconsequential circumstances, it seems to me that a woman’s right to use deadly force in that scenario is the same in principal to GZ’s use of deadly force. The reaction to the “insult” of being “profiled” results in a justified self-defense claim. Am I way off?

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