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Florida Cases Interpreting Section 776.041: Person Who "Initially Provoked" Incident May Not Claim Self Defense

by Professor Will Huhn on April 15, 2012

in Criminal Law,Wilson Huhn

In yesterday's post I discussed the effect of Section 776.041 of Florida law which codifies the common law rule that to claim self-defense a criminal defendant must not have been the aggressor. Under this statute George Zimmerman's guilt or innocence is likely to turn on whether the jury finds that he "initially provoked" the incident in which he shot Trayvon Martin to death. If he did provoke the attack and did not subsequently try to escape or withdraw from the confrontation, the "Stand Your Ground" law does not apply and Zimmerman will not be permitted to claim that he acted in self-defense. In this post I examine two recent Florida cases interpreting 776.041 and I cite some older Florida cases applying the common law rule that a wrongdoer may not claim that he acted in self-defense.

In Vila v. State 74 So.3d 1110 (5th Dist. 2011), the District Court of Appeal affirmed the defendant's conviction for battery. The Court stated that "The victim testified that Vila opened the door to his truck, reached inside, pulled him out, threw him to the ground, and began hitting him with a bicycle tire." The jury convicted the defendant of "burglary of a conveyance," and so the Court of Appeal concluded that the jury believed the victim's testimony on this point. The Court of Appeal found that the defendant's conduct of pulling the victim out of the car "initially provoked" the incident, and that this meant that the defendant was not entitled to claim "self-defense" to the charge of battery. The court concluded:

The jury's unchallenged verdict on the burglary charge causes us to conclude that Vila was the initial aggressor and surrendered his right to self-defense.

In Johnson v. State, 65 So.3d 1147 (3rd Dist. 2011) the District Court of Appeal affirmed the defendant's conviction for attempted second degree murder. There was evidence that there had been an earlier altercation that day between the two men and that the defendant had attempted to run over the victim with his motorcycle. When the victim went to the store two or three hours later, the defendant was there. The defendant testified that the victim got out of his car and rushed towards him attacking him. The defendant said that he shot the victim because he was losing consciousness and was afraid the victim would kill him. The victim testified that when they arrived at the store the defendant banged on the back window of the victim's car, that he (the victim) got out of the car, the defendant approached the victim, and the two "got locked up" and "tussled a bit" when the defendant shot the victim.

The Court of Appeal found that victim's testimony was sufficient to invoke Section 776.041 and instruct the jury that the defendant may not claim self-defense if he "initially provoked" the attack. The court was careful to state that the acts constituting "initial provocation" must be "contemporaneous" with the actions of the victim.

An older Florida case which was decided before 776.041 was enacted involved a "pursuit" which is perhaps analogous to Zimmerman's actions against Martin. In Mixon v. State 59 So.2d 38 (Fla. 1952), 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)

The West Key Digest system brings up a number of older Florida cases involving the rule that a "wrongdoer" may not claim self-defense. In several of these cases the courts stated that the defendant must be "free from fault" in order to claim self-defense. The quoted language in each case is from the key digest headnote, not the case itself:

Matthews v. State (1937) ("In murder prosecution, defendant could not invoke defense that deceased was  armed with a pistol and that defendant shot him in self-defense, where evidence showed that defendant was aggressor in bringing on difficulty and was not free from fault.")

Bowman v. State (1934) ("Killing is not justifiable or excusable if necessitated by accused's acting wrongfully or without being reasonably free from fault in provoking difficulty.")

Gaff v. State (1931) ("Accused, to successfully excuse homicide on ground of self-defense, must have been free from fault, or receded after having been aggressor.")

Scholl v. State (1927) ("One interposing self-defense in prosecution for homicide must not have wrongfully occasioned necessity of killing.")

Landrum v. State (Fla. 1920) ("On a trial for murder, it is proper to charge that one cannot acquit himself of liability for the consequences of a personal difficulty on the ground of self-defense, unless he is reasonably free from fault in entering thereupon.")

Stinson v. State (1918) ("Defendant cannot avail himself of defense of self-defense when he himself brought on the situation under the compulsion of which he strikes the blow or fires the shot which he claims was justified.")

Barton v. State (1916) ("If one wrongfully occasions necessity for self-defense, though he may have reasonable ground to apprehend a felony, or serious personal injury, and there is imminent danger thereof, he cannot justify a killing on the ground of self-defense.")

Barnhill v. State (1908) ("One who seeks and brings on an affray cannot plead self-defense.")

Kennard v. State (1900) ("The aggressor in a difficulty, one not reasonably free from fault, cannot justify homicide committed in such difficulty on the ground of self-defense.")

Lovett v. State (1892) ("On a trial for murder, it is proper to charge that one cannot acquit himself of liability for the consequences of a personal difficulty on the ground of self-defense, unless he is reasonably free from fault in entering thereupon.")

In the Zimmerman case the prosecution will make the following argument. Based upon his own statements to the police dispatcher Zimmerman profiled Martin and followed him in his car, and then exited his car and followed him armed with a gun. Zimmerman suspected Martin of committing a crime and was intent that Martin should not get away. Martin was completely innocent of any crime; he was simply walking home from a trip  to the store. Zimmerman was unjustified in pursuing Martin and under the circumstances his conduct was threatening. This, the prosecution will argue, was sufficient to "initially provoke" the ensuing struggle, no matter who struck the first blow. There is no credible evidence that Zimmerman either tried to escape from Martin or that he withdrew and clearly indicated his intent to withdraw from the altercation. Accordingly, under 776.014, Zimmerman may not claim that he acted in self-defense.

Zimmerman, of course, will seek to introduce evidence rebutting these findings.