Cross posted from Frederick Leatherman Law Blog

George Zimmerman with an American Flag superimposed over his face.

George Zimmerman (Image: Donkey Hotey / Flickr)


Dennis recently asked the following question in a comment to my post recommending the appointment of a special master to screen discovery.

You asked:

“I have a question for you if you don’t mind. Is the witness/testimony from DeeDee considered “hearsay” and what are the laws regarding “hearsay” evidence in Florida? The jurors of the Peterson case said that type of evidence was critical to their conviction, and if Drew’s Law didn’t exist he would have walked free.”

My Answer:

“Most of the relevant things Trayvon said to DeeDee should be admissible under the present sense impression and excited utterance exceptions to the hearsay rule because he was describing an emotionally distressing event to her while under the influence of the event. The rest should come in as non-hearsay since it will not be offered to prove the truth of the matter asserted in the statement. Instead, it will be offered to show his state of mind or some other factor. Should not be too difficult for a good trial lawyer to navigate through the hearsay rule in that situation.”

Dee Dee is a potentially devastating witness for the prosecution because she was listening to Trayvon’s narrative description of Zimmerman’s menacing behavior and his own fearful reaction to it. She also puts the lie to Zimmerman’s skipping psycho-gangsta who materializes out of the darkness and attempts to kill Zimmerman with his bare hands while uttering dated B-movie dialog.

I do not believe her testimony is necessary to prove Zimmerman’s guilt because the forensics and his own conflicting and inconsistent stories should be sufficient to accomplish that. Nevertheless, she adds something important. She humanizes him and she serves as his voice from beyond the grave. Because of this, Zimmerman’s mad dog supporters have assassinated her character with extraordinary relish.

I am sure most of you have read some of their accusations, if not all of them, and shaken your heads in disgust at their tactics. I did and ever since they attempted to drown my voice in a tsunami of lies, I have assumed everything they say about everyone who is not a Zimmerman supporter is a lie. I have been ignoring them and will continue to ignore them because they are a cancer on this case. Therefore, as with the Zimmerman principle, I assume everything they said about Dee Dee is or anyone else in this case is a lie, unless it is corroborated by independent credible evidence.

At first glance, the hearsay rule would appear to exclude everything Trayvon said to Dee Dee. However, there are three reasons why it does not.

(1) A statement by Trayvon to Dee Dee is not hearsay unless it is offered to prove the truth of the matter asserted in the statement.

For example, if Trayvon said, I ran away from the creepy man following me. the statement would be hearsay, if offered to prove that he ran away from the creepy man following him, but it would not be hearsay, if it were offered to prove Trayvon was afraid of Zimmerman. See Rule 801(c).

(2) Even if a statement is offered to prove the truth of the matter asserted in the statement, for example that he ran away from the creepy man following him, it’s admissible pursuant to the present-sense-impression exception to the hearsay rule since it’s “a statement describing or explaining an event or condition while the declarant [Trayvon] was perceiving the event or condition, or immediately thereafter.” See Rule 803(1).

(3) That statement and others like it also would be admissible to prove the truth of the matter asserted in the statement pursuant to the excited utterance exception to the hearsay rule since it’s “a statement relating to a startling event or condition made while the declarant [Trayvon] was under the stress of excitement caused by the event or condition.” See Rule Rule 803(2).

FYI: Trayvon’s statements to Dee Dee would not be admissible pursuant to Rule 804(2) as statements made under belief of impending death unless he believed his “death was imminent.” I do not doubt he believed that at some point but probably not until after he dropped the phone.

The usual manner lawyers and trial courts follow in deciding whether reasonably foreseeable and important statements will be admissible at trial, such as Dee Dee’s testimony regarding what Trayvon said to her during their phone conversations, is to bring them up via a defense motion in limine (i.e., at the beginning) before trial to exclude them. Both sides would brief the issue and argue it at a hearing outside the presence of the jury and the judge would decide whether to grant or deny the motion.

For the reasons I have stated, I believe the judge will permit the prosecution to present Trayvon’s statements to Dee Dee describing Zimmerman stalking him. Those statements will be admissible at the immunity hearing and the jury trial in support of the prosecution’s claim that Zimmerman was the aggressor.

In Mixon v. State 59 So.2d 38 (Fla. 1952), for example, as our own Boar_d_Laze mentioned, the Florida Supreme Court affirmed the defendant’s conviction for second degree murder where there was evidence that the defendant armed himself, pursued the victim, and shot him. The court stated:

“The appellant and the man he later admitted killing had an altercation while the appellant was sitting in his jeep, the other man standing at the side of the vehicle. The appellant drove to his home nearby where he procured a revolver, while his adversary continued along the highway, afoot. The appellant, accompanied by his wife and their young daughter, then drove in the same direction until he overtook his former antagonist when both stopped. … Were we convinced that the final encounter was of such nature that the issue of self defense was properly introduced and the appellant’s blame should therefore be judged by the amount of force he used in resisting his victim, we think the testimony would have been admissible. But the facts believed by the jury point too strongly to a deliberate pursuit by appellant, after the original difficulty had ended and the parties had separated. The law is quite clear that one may not provoke a difficulty and having done so act under the necessity produced by the difficulty, then kill his adversary and justify the homicide under the plea of self defense. (emphasis supplied)”

I expect the prosecution will argue that it does not matter who threw the first punch because Zimmerman provoked the confrontation by pursuing Martin in a menacing manner after dark in the rain in a vehicle and then on foot without ever identifying himself. Martin had a right to defend himself against that aggression and, if he ever hit Zimmerman, he did so lawfully. Zimmerman, of course, was not justified in using deadly force.

As I have said many times, I believe George Zimmerman will be found guilty of murder in the second degree.