Zimmerman Trial Live Feed - Day Nine

[himher 634]

MSG does that, alas.

Make it a MSG-free week, when studying, please.

Its looking more like an opium habit

[Mr. Big Dog 10,747]

"minor scratches"

That was the testimony of the ME last week. I'm sure you're more of an expert on the issue than a medical examiner.

[one...two...tree 2,762]

That was the testimony of the ME last week. I'm sure you're more of an expert on the issue than a medical examiner.

[himher 634]

That was the testimony of the ME last week. I'm sure you're more of an expert on the issue than a medical examiner.

Completely different testimony from the person who examined him in person. Photographic diagnosis trumps a physical examination every time on planet **!

[Mr. Big Dog 10,747]

It is a big leap to imagine that under ground and pound one could NOT reasonably believe that one might be in danger of bodily injury

A "ground and pound" without the injuries that would have to result. The good ME that took the stand last week to discuss Mr. Zimmermann's insignificant injuries was very clear that the injuries are not consistent with a "ground and pound" or with having one's head slammed into the concrete. So the leap is all yours - that is the leap from minor scratches to a life threatening situation.

Oh, and I won't report you for using the L word if you'd extend me the same courtesy.

Completely different testimony from the person who examined him in person. Photographic diagnosis trumps a physical examination every time on planet **!

The persons that examined him in person arrived at the same conclusion. His injuries were insignificant.

[RGinWA 816]

XLII. REMEDIES FOR A DISCOVERY VIOLATION
Had a judge conducted an adequate inquiry, he could have chosen from a "panoply of remedies...including, if the evidence warrants, finding not prejudice or 'harmless error' and proceeding with the trial." Barrett v. State, 649 So.2d 219, 222 (Fla. 1994), citing, Smith v. State, 500 So.2d 125, 126 (Fla. 1986), overruled by State v. Schopp, 653 So.2d 1016 (Fla. 1995).

These remedies could include:
1. Grant a continuance;
2. Grant a mistrial;
3. Excluding the witness or evidence;
4. Contempt proceedings; and
5. Costs to opposing counsel, among other things.


A. NO DISCOVERY VIOLATION
1. The Court concluded there was not a discovery violation at trial when the state two weeks prior to trial disclosed the names of two minor witnesses to the defense. The defense counsel declared he was satisfied with discovery after deposing them and did not object to them when they testified. Parker v. State, 641 So.2d 369, 374 (Fla. 1994).
2. Where the record shows that the state provided timely discovery to original defense team within the applicable time limits, the Florida Supreme Court did not find a discovery violation. Wuornos v. State, 644 So.2d 1000 (Fla. 1994).
3. There is no discovery violation if the state does not disclose to the defense an oral, unrecorded statement of a state witness made to the prosecuting attorney. The Rules do not provide for such a disclosure. Johnson v. State, 545 So.2d 411, 412 (Fla. 3d DCA 1989).

B. EXCLUDING A WITNESS
1. To impose the severe remedy of excluding a witness due to a discovery violation, the trial judge must determine whether the violation resulted in substantial prejudice to the opposing party. Fedd v. State, 461 So.2d 1384, 1385 (Fla. 1st DCA 1984).
2. The exclusion of a witness is a drastic remedy which should only be used upon the showing of a willful, substantial disregard of discovery rules which results in prejudice. State v. Tascarella, 580 So.2d 154 (Fla. 1991).
3. While a trial judge has the discretion to exclude a witness, exclusion is the most extreme sanction and should only be imposed in the most extreme cases, such as when a violation is purposeful, prejudicial, and with the intent of thwart justice. O'Brian v. State, 454 So.2d 675 So.2d 677 (Fla. 5th DCA 1984). It is generally considered an abuse of discretion for a trial judge to exclude a witness from testifying instead of granting a recess and allowing the aggrieved party to interview the witness to ascertain whether they would be prejudiced by allowing the witness to testify. See, Streeter v. State, 323 So.2d 16, 17 (Fla. 3d DCA 1975).
4. Where the state called two previously undisclosed rebuttal witnesses changing the theory of the state's case after the defendant testified, procedural prejudice was unavoidable unless the rebuttal witnesses were excluded from testifying. The trial judge's failure to exclude the testimony of the rebuttal witnesses under these circumstances resulted in a reversal. Hatcher v. State, 568 So.2d 472, 474-5 (Fla. 1st DCA 1990).
5. After opening statements and direct examination were completed, the defense sought to call two undisclosed witnesses to testify that someone else confessed to the crime. The trial court excluded their testimony, because the evidence was of massive import and that the state would be substantially prejudiced by the introduction of the testimony without prior notice. The Fourth District Court of Appeal concluded that the trial court erred, and reversed and remanded for a new trial. Even though the trial court conducted a Richardson hearing, the appeals court noted that, "Since the testimony sought to be introduced by the witnesses in the instant case was exculpatory in nature, exclusion of the testimony would deny [the defendant] his fundamental right to defend himself in violation of the Sixth Amendment." The appeals court further noted that, "When exculpatory evidence is sought to be introduced in violation of the discovery rules, and remedies which would allow the trial to proceed are insufficient, the proper course of action is to declare a mistrial." By its decision, the appeals court specifically stated that it was not suggesting that under these circumstances the witnesses should have been allowed to testify. Rather, the appropriate remedy under such circumstances is a mistrial. Mattear v. State, 657 So.2d 46 (Fla. 4th DCA 1995). Cf. Hatcher v. State, 568 So.2d 472, 474-5 (Fla. 1st DCA 1990) (The state sought to present the testimony of an undisclosed witness, and exclusion of the testimony was determined by the appeals court to be the appropriate remedy.) - Query: A double standard - one for the state and one for the defense?
6. Where the failure to provide photographs was, at most, negligent, and not a willful or malicious violation, and there was no claim of the defendant's constitutional rights being violated, the sanction of excluding all the testimony relating to the photographs was excessive. State v. Kerr, 562 So.2d 840 (Fla. 4th DCA 1990).

C. MISTRIAL
After conducting a Richardson hearing, the trial court incorrectly found that the defendant violated the discovery rules by failing to provide the state with handwritten notes of its defense-witness psychologist (such notes are exempt from discovery, as they are merely working materials from which a report or statement may be made). The trial court, sua sponte, declared a mistrial because the state was deprived of an opportunity of obtaining and calling a rebuttal psychologist witness to refute the defense expert. Since the trial court's underlying decision finding a discovery violation was in error, there was no manifest necessity for the declaration of a mistrial, and the defendant did not consent to the mistrial, double jeopardy bars the defendant's retrial. Snow v. Fowler, 662 So.2d 1295 (Fla. 3d DCA 1995).

D. DISMISSAL
A dismissal of charges was an excessive sanction for the state's failure to comply with the defendant's discovery request. The defendant was not significantly prejudiced and the speedy trial period had not yet run. State v. Powell, 566 So.2d 588 (Fla. 3d DCA 1990).

[RGinWA 816]

Completely different testimony from the person who examined him in person. Photographic diagnosis trumps a physical examination every time on planet **!

He was not examined by a doctor or pathologist. His doctor was a Nurse Practitioner at a clinic. Probably because his employer wanted a note and that was cheapest, not for medical treatment.

Even if he's convicted he'll appeal on the grounds of the Richardson hearing did not go his way.

[I AM NOT THAT GUY 5,715]

The ME is a dimwit based on you seeing him take the stand? I'm not sure why that would be?

He hates foreigners taking American jobs.

[I AM NOT THAT GUY 5,715]

I posted a response to your response, but didn't correct anything. The human has been murdered correct? That's not been a secret and we know who committed the homicide.

Murder is the intentional and unlawful killing of another human being.

[RGinWA 816]

He hates foreigners taking American jobs.

Wait, did he marry a foreigner? I'm asking because this is a site for getting a foreign visa correct? Kind of implies a non-resident will enter society and possibly take someones job.

What about all those Norwegians taking all the brain surgeon jobs.

Reminds me of Doug Stanhope's act.

Profanity...

[The Nature Boy 4,224]

in case anyone wants to discuss what is happening today.

The ME said in court that he believed that TM actions could have been influenced by the Marijuana in his system and that he could have been under the influence.

The judge said that even though he had said earlier he did not think he was, and that after discussing with experts he changed his opinion, the defense can not ask him about this or discuss it in front of the jury.

Legal analyst just said this is a major point to have the decision over turned and the judge just made an huge error.

ME is a disaster.

Just testified he used on stick to scrape all finger nails and has no idea why.

This is another Dee Dee

The idiot just testified that he had no idea if the techs assisting him followed procedure or not and that's not his job.

Edited July 5, 2013 by The Nature Boy

[RGinWA 816]

in case anyone wants to discuss what is happening today.

The ME said in court that he believed that TM actions could have been influenced by the Marijuana in his system and that he could have been under the influence.

The judge said that even though he had said earlier he did not think he was, and that after discussing with experts he changed his opinion, the defense can not ask him about this or discuss it in front of the jury.

Legal analyst just said this is a major point to have the decision over turned and the judge just made an huge error.

ME is a disaster.

Just testified he used on stick to scrape all finger nails and has no idea why.

This is another Dee Dee

He's just stating the obvious, but he's too literal I'll give you that. I'd blame Stanford for getting a ME who doesn't do well in court.

The Richardson hearing is good for an appeal, but while he's incarcerated if found guilty.

But Boa didn't give one attorney one piece of evidence and withhold it from the other side, yet violating the discovery process.

I think he could get a retrial possibly, but again while behind bars if convicted.

[Mr. Big Dog 10,747]

Defense Attorney: You noted Trayvon Martin's height as 71 inches - 5'11"

Medical Examiner: I did not note the height because a dead man can't stand. I noted his length to be 71 inches.

Sorry, but that is almost comical...

[The Nature Boy 4,224]

Sorry, but that is almost comical...

well at least Dee Dee will not have to bear the burden as the worst prosecution witness that blew the case now.

I would not be shocked if the judge is appointed to a federal judgeship soon. She is awful

[RGinWA 816]

I don't think his opinions being changed have any baring on the jury believing TM's dead.

The defense is wasting it's time and irritating everyone.