Because of some erroneous Tweeting going on in the Twitterverse, I keep receiving the following two recurring questions regarding George Zimmerman’s case:
- Is Aggravated Manslaughter of a Child an available lesser offense; and
- 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:
- The victim is dead.
- The death of the victim was caused by the culpable negligence of the defendant.
- 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:
- Manslaughter by Intentional Act (Voluntary Manslaughter);
- Manslaughter by Procurement (Voluntary Manslaughter); and
- 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.