Zimmerman Trial: Defense Evidence Issues
Posted on Mon Jul 08, 2013 at 08:31:00 AM EST
Tags: George Zimmerman, Trayvon Martin (all tags)
During the pre-trial proceedings in the George Zimmerman case, both sides filed motions in limine to exclude evidence at trial. Some are still pending, some were granted, and some were granted or denied provisionally, meaning the court would make a final ruling during trial.
Here is the court's ruling on June 5 on the bulk of the state's motions to exclude evidence about Trayvon Martin, which had been argued on May 28. As to what the judge ruled before trial cannot come into evidence: [More...]
Evidence that Martin:
a. Had ever been suspended from school;
b. Communicated about, or previously used, marijuana ;
e. Had ever possessed or worn a set of (false) gold teeth;
f. Any aspect of Trayvon Martin's school records and or performance in school;
g. The contents of any text message received or sent by Trayvon Martin prior to February 26, 2012;
h. The contents of any text message received or sent by Trayvon Martin on February 26, 2012.
The Court provisionally denied the state's motion to exclude the following:
Evidence that Martin:
c. Had ever allegedly been in a fight;
d. Communicated (or that has been attributed to Trayvon Martin) and had "screen names" via social media, regardless of format and the contents of any such communications.
However, the court said that its denial of the state’s motion on these matters did not mean evidence about fighting and social media would be admissible at trial.
...[this] is intended as a pretrial ruling and does not implicitly find that such matters will be admissible at trial. If a contemporaneous objection is made, the offering party may be required to establish the relevance, authenticity, and admissibility of such evidence before it may be presented to the jury.
The defense motion arguing against the exclusion of these items is here.
The state also filed a motion for protective order on the toxicology findings contained in the autopsy report, available here . The defense response arguing for admission of Martin's marijuana use based on expert opinions and research studies is here.
The judge granted the state's motion as to allegations Trayvon Martin used marijuana prior to February 26, 2012, and reserved ruling as to allegations that he used marijuana on February 26. The order is available here)
I think it is highly unlikely the defense will be able to show the results in the autopsy indicate impairment to a degree that might explain Martin’s physical attack on Zimmerman.
First, some background on how the toxicology issue has emerged at trial. During the testimony of Associate Medical Examiner Shiping Bao, the court sent the jury out of the room while it held what it called a "Richardson hearing" to determine whether Bao had advised the state he had changed his opinion in the last 60 days on whether the levels of marijuana in Martin's system indicated impairment. In his deposition in November, he testified he did not think the results indicated impairment. During his trial testimony, it became evident he was reading from notes. The court ordered him to turn the notes over to counsel for both sides. The notes showed that he changed his mind and now thought the marijuana levels in Martin’s blood could be indicative of impairment. During the “Richardson hearing’ Bao said he did not tell the prosecutor of his change in opinion because the prosecutor told him when they met to prepare for his trial testimony that marijuana use would not be an issue. He said his change in opinion was due to his review of scientific literature and speaking with experts.
The judge refused to allow the defense to question Bao on why he changed his mind since that wasn't relevant to the issue of whether Bao had told the state about his new opinion. But while they were still outside the presence of the jury, she allowed Don West to question him a bit more and make a record. During this round of questioning, Bao said he couldn't give an opinion as to whether the level of marijuana in Martin's blood was indicative of impairment because it might be and then again it might not be. Based on that answer, the judge said she was upholding her prior ruling granting the state's motion in limine on the marijuana issue. (Since her written ruling on the state's motion only excluded evidence of prior marijuana use, not use on Feb. 26, I assume but don't know, that she issued an oral ruling during trial extending her ruling to cover use of marijuana at any time, including on the 26th.)
No one has seen the actual toxicology report, as opposed to a reference to its conclusions which are contained in the autopsy report and a FDLE investigative report. The toxicology report was done by NMS Labs. NMS Labs has a Tox Wiki. Here is the page for cannabis/marijuana. From the information provided:
It is difficult to establish a relationship between a person's THC blood or plasma concentration and performance impairing effects. Concentrations of parent drug and metabolite are very dependent on pattern of use as well as dose.
The higher number in Martin's autopsy report refers to Delta-9 Carboxy THC or THC-COOH (Carboxy), which is an inactive metabolite and non-psychoactive. The lower number, 1.5 ng/ml is the Delta-9 or psychoactive compound. According to the wiki page, which is from NHTSA, urine tests only indicate prior marijuana use:
Detection of total THC metabolites in urine, primarily THC-COOH-glucuronide, only indicates prior THC exposure. Detection time is well past the window of intoxication and impairment.
I don't think the level is indicative of impairment or that it was a contributory factor in Martin's decision to attack Zimmerman. (Then again, I don't believe that five nanograms is sufficient for a presumption of drugged driving. Marijuana affects people differently, and an amount that would impair an infrequent user might not impair a frequent user. The frequency of use can also affect estimates of when the person last used marijuana.) Nonetheless, the defense has indicated it is still hopeful it can get the evidence of alleged Martin's marijuana use into evidence through its own experts.
While I don't think the levels in Martin's blood as indicated by a sample taken hours after his death, can explain why Martin attacked Zimmerman, the results may be admissible for another reason. The state introduced Zimmerman's non-emergency call to police into evidence. Zimmerman tells the dispatcher on the call that that Martin seemed like he was on drugs or something. The state has made Zimmerman’s intent the central point of its case on second degree murder. It claims Zimmerman reported Martin as suspicious because he was profiling him as a criminal based on his looks, not his actions, and that this is evidence of his ill-will, hatred and spite.
Zimmerman's call to non-emergency begins with:
Hey we've had some break-ins in my neighborhood, and there's a real suspicious guy, uh, [near] Retreat View Circle, um, the best address I can give you is 111 Retreat View Circle. This guy looks like he's up to no good, or he's on drugs or something. It's raining and he's just walking around, looking about.
During its opening statement, the state claimed Zimmerman was a wannabe cop who profiled Martin as a criminal. It said he had no objective reason to report him as suspicious.
[W]hen he saw TM he didn’t see a young man walking home. He saw someone who was real suspicious who looked like he was no good.
See the 2009 Florida case of State v. Arias. The defendant was charged with Murder 1 and asserting self-defense. At issue was his intent. The toxicology findings included in the autopsy report showed alcohol and traces of cocaine and cocaine metabolites in his blood. The state moved to keep it out of evidence, arguing that since the defendant and the decedent didn't know each other prior to that night, and the defendant had no knowledge that the decedent had used alcohol or drugs that night, the toxicology findings were irrelevant to defendant's intent. The trial court granted the motion.
But the state couldn't resist a cheap shot.. The defendant testified at trial and during cross-examination, the state questioned his ability to discern if someone was on drugs:
Q. When you testified to the ladies and gentlemen of the jury that he was acting crazy like on cocaine, that's just your assumption; is that correct, Mr.Arias? A. It's correct.
The defense argued the state had opened the door to allow the toxicology report. The appeals court agreed.
[T]he State's parting shot was to make it appear that the defendant's testimony that the victim "was acting crazy like on cocaine" was just an assumption. Of course, the State knew that the toxicology results (excluded on the State's motion) confirmed the defendant's observations. This cross-examination was totally improper. Because this cross-examination deprived the defendant of a fair trial, we must reverse for a new trial.
The court cited precedent for the proposition that:
The prosecutor's use of the privilege of nondisclosure, first as a shield, then as a sword, unfairly prejudiced the defendant. While the State is free to argue to the jury any theory of a crime that is reasonably supported by evidence, it may not subvert the truth-seeking function of a trial by obtaining a conviction or sentence based on the obfuscation of relevant facts.
Here, the state has introduced defendant's statements containing his version of why he reported Martin as suspicious. Zimmerman says it was Martin's actions, not his appearance . The state claims he is lying, that he profiled him because of his appearance, and that he was a wannabe cop who killed Martin not because he had to, but because he wanted to (video of state's opening here.)
The state can't have it both ways. Since it introduced Zimmerman's statements to the dispatcher and Detectives Serino and Singleton into evidence in which he says he was suspicious of Martin was because of his actions, including that he seemed to be on drugs, it can't both assert he is lying and keep evidence from the jury that supports his contentions.
The Court in Arias also cited the case of State v Dias, a self-defense case in which the defendant sought to introduce the toxicology report as evidence of his state of mind. The court ruled he could not cross-examine the medical examiner on the toxicology report because it was outside the scope of what the prosecutor had asked on direct, but he could introduce the report during the presentation of his defense case.
This court said that it was permissible for the defense to offer the toxicology evidence in the defendant's case in chief. That was so because "[t]he medical examiner's toxicological findings served .. . to confirm the defendant's perception that the victim was, in fact, intoxicated."
More from the Arias court, citing an earlier case:
A homicide defendant is afforded wide latitude in the introduction of evidence supporting his self-defense theory. Where there is even the slightest evidence of an overt act by the victim which may be reasonably regarded as placing the accused apparently in imminent danger of losing his life or sustaining great bodily harm, all doubts as to the admissibility of evidence bearing on his theory of self-defense must be resolved in favor of the accused. The toxicology evidence comes in because it is relevant evidence, and not under any theory of admissibility of character evidence under subparagraph 90.404(1)(b)(2), Florida Statutes (2007).
Many other Florida cases reach the same conclusion. See State v. Warren, 577 So. 2d 682, and the numerous cases it cites for the same proposition. In the Warren case, the toxicology report was ruled admissible even though the medical examiner put the decedent's cocaine use at somewhere between the last 4 hours and 10 days , and there was no cocaine in the decedent’s blood showing he was under the influence at the time of his death -- only cocaine metabolites showing recent use. There was also a pipe found the decedent's body. The court stated:
Once the theory of self-defense was properly raised, defendant should have been permitted to present evidence which was relevant to the reasonableness of his belief that Taylor posed a threat of imminent danger to him.
...the pertinent inquiry was as to Warren's state of mind at the time of the killing. Whether reasonable grounds for killing exist is a jury question, as is the question of the defendant's apprehension of danger from the victim's attack. The evidence as to the Taylor's use of cocaine was relevant to this inquiry, and its exclusion compromised Warren's ability to present his self-defense theory, particularly with regard to the issue of whether this use of deadly force was justifiable. Accordingly, we reverse and remand for a new trial
The state's introduction of Zimmerman’s statements in their entirely into evidence is equivalent to Zimmerman testifying. The state has cherry-picked a few statements Zimmerman made and claims they are proof he profiled Martin as a criminal because of his appearance. The toxicology report, by confirming there were drugs in Martin’s system, supports Zimmerman’s assertion that he reported Martin because of his actions, not his appearance. The defense has a plausible argument it is admissible not as character evidence but to refute the state’s theory of intent.
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