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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.

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{ 9 comments }

larry d. April 15, 2012 at 8:53 am

Unless the prosecution produces some yet-unknown evidence, Zimmerman likely won't have to introduce evidence rebutting the findings because those findings would be baseless, seeing as the narrative you attribute to the prosecution is erroneous according to what little information that has been released. You seem to be relying on erroneous media reports and debunked statements made by the Martin's attorney, but then again so does the prosecutor's affidavit.

Gary o April 15, 2012 at 11:39 am

The United States constitution allows anyone to travel. To travel to follow someone; a freedom and sovereign right. To travel in the foot steps of another, if so to choose. The origin of appearance presented by the member of an association known as a member of the bar, is an opinion based in ones desire for a decided outcome. There is no discussion of neutrality of administrative law, this blog this Mr. Hahn presents.

There is no discussion of consideration of two people changing the path that does not cross another. A player had a chance option of dialogue; chose to tress pass in ones right to life. The outcome need not be, what is at hand. A simple conversation would have not marked the benefit of those who would dialogue in consideration.

There is a result that need not be discussed, had the hands of one, not trespassed upon the contact of another. Words, anger, posturing breaks no bones. Why is this case so easy to be understood to benefit the very association, that relies upon this type of action for its market place. It is clear the members of an association, wishes to make appearance of license, of which it is of colour, but not of the great law upon this land, well traveled.

George April 16, 2012 at 5:27 am

The situation changed when Treyvun confronted George. With George walking away, he was no longer a threat to Treyvun. Treyvun became a threat to George, when Treyvun asked George if he had a problem, and then punched George in the face and knocked him down and sat astride Geoge and banged George's head on the concrete, causing a wound.At that point, in fear of death or bodily injury, George had a right to bust a cap on Treyvon, lacerating Treyvon's liver and lungs and exploding Treyhvonj's heart causing deatgh in five minutes. There is little doubt that Treyvun suffered intensely and for over three minutesbut justifiably so.

Gunsmoke April 18, 2012 at 7:35 pm

George, your conclusion is based on the narrative of the Zimmerman camp. Have you judged that what the 16 y/o girlfriend has stated hearing has no merit? To conclude Zimmerman's version is the sole truth is indicative of one who has an agenda other than seeking truth and justice. Her statement is contradictory of Zimmerman's therefore no conclusion should be made until the veracity of each has been THOROUGHLY scrutinized. Check the timeline of the call Zimmerman made, specifically from when he said Martin was running, until he said "Ok", when 911 said "We don't need you to do that. 20 secs elapsed. He spoke with 911 for more than 1 1/2 minutes after that…how long did it take him to get back to his vehicle? WE DON'T KNOW. No one knows if he actually was returning to his vehicle. HE states that, but is it consistent with his words in the call? His actions reflected in the call? Certainly not. In context with the girlfriend's statement, which seems to have some credibility, because she states Martin believed "he lost him". Zimmerman told 911 he lost him. She then states Martin said, "He's behind me again." She heard Martin ask him why he was following him. A voice, presumably Zimmerman's, replied, "What are you doing around here?". Then what she believed was "someone pushing Trayvon." Of course, she can't know that, but the versions conflict…it should all be heard by a jury and they will determine the veracity of each claim based on whatever is presented. Why have you discounted her statement in favor of only Zimmerman's narrative?

Tameshia Brown April 19, 2012 at 5:11 pm

Wow…George!!!! Strong words there…but you are wrong…Even if that was the case..you mean to tell me Zimmerman was not able to fight back on a 17 yr old unarmed teen??? So his only OPTION was to use his gun? RIGHT? Tell me this was the gun on his persons from the beginning or did he go back to the car to get the gun? Or maybe this..How is it that he was able to shot him if they were struggling? This DOES NOT ADD UP!!!!! Or maybe this…YOU ARE AN IDIOT!!!!!!

Gandydancer April 24, 2012 at 12:34 am

Dunno what this recitation of supposed dicta from obsolete cases is supposed to prove. The -current- law is as follows:

"776.041 Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:

(2) Initially provokes the use of force against himself or herself, unless: …

(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or…"

So even if Z HAD initially provoked TM he was justified in using deadly force in self-defense if he "reasonably believed he was in imminent danger of death or great bodily harm". (Barring a contemporaneous independent forcible felony by GZ – section (1), which I've omitted as it cannot apply in the absence of a charge).

Sick Of Lies June 20, 2012 at 11:17 pm

Gandydancer – You left out a critical part of the 776.041 – An aggressor can only claim self-defense IF THEY'VE MADE EVERY EFFORT TO WITHDRAW FROM THE SITUATION and if they clearly signaled to the person they started the conflict with that they wish to withdraw. If the other person tries to keep the conflict going anyway only then can they use NON-LETHAL defense. They can only use LETHAL force if they're about to be killed.

[b](b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.[/b]

There is absolutely no evidence George Zimmerman ever tried to withdraw from the situation, that he signaled this to Trayvon, that Trayvon hit him unprovoked, or that Zimmerman was about to die. From what we know about his injuries they were fairly mild, no indication deadly force was used against Zimmerman.

FlaEMT May 18, 2012 at 9:35 pm

In Vila v State of Florida, the point you're missing is that the defendant was convicted of burglary, a crime specifically listed by Florida statute FS776.08 as a "forcible felony". Under FS776.041(1), anyone guilty of a forcible felony is precluded from claiming self defense regardless of the exceptions listed in FS776.041(2). Since there have yet to be any charges, let alone a conviction for a forcible felony against Zimmerman, the precedent would not apply here.

In Johnson v. State, The question was to whether FS776.041 should have been included in jury instructions. The instructions as given during the trial included FS776.041(2)(a), the exception you claim can't apply due to Johnson. The appellate court upheld the instructions as given, including the section starting "(unless)Such force is so great. . ." This would affirm, rather that override the exception to "use of Force by Aggressor".

As stated by others here, the older precedents would also not apply, since they were made under different statutes than apply now.

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