Florida's loud music case

[Simon_Jester]

Simon, Dunn didn't "get off" you blithering twat. It was a hung jury on that single charge meaning that some if not most jurors were perfectly willing to convict him of first degree murder. If you can't be bothered to know the basic facts of the case then sit down and shut the fuck up.

If a jury can't be convinced to support a verdict unanimously, then the jury was not convinced- a hung jury may be a mistrial but it's not a conviction. It's hardly unusual for jurors to disagree about the details of a case, such as whether a self-defense plea is justified. It's happened to me; hasn't it happened to you?

Besides, your objection misses the point.

Dunn was (rightly) convicted of four counts of attempted murder against the people in the car.

In my opinion based on only the evidence available to me, he could have easily been convicted of second-degree murder against Davis, because his self-defense plea does not appear credible. I suppose there might be evidence I do not know, since literally everything I've heard about the case comes from these articles I see before me. But barring such evidence, Davis's self-defense plea is supported only by his testimony that he saw a weapon, which makes it nonsense. Without the self-defense plea, Davis is easily convicted of second degree murder.
_____________________________

So far, so good. Once we've dispensed with the self-defense plea, some murder charge will stand up.

THEN and only then can we ask "Davis is a murderer. Is this murder also qualified to be called first degree murder?" So far you've presented two separate arguments for why it would be. One is that the murder was premeditated because he had to draw a weapon. The other is that the murder is aggravated child abuse because Davis was seventeen.
________________________

Your premeditation argument is just plain silly, because drawing a weapon on one's person is not always a reasoned or considered action. "He drew a weapon" is not evidence that he carefully considered his actions before pulling the trigger. Try to make that stick and you have a problem. Because it's entirely plausible that Dunn drew the weapon with no intent to kill, only intent to commit assault with a deadly weapon (by threatening Davis). Then, in this hypothetical explanation, something else caused Dunn to pull the trigger, the intent to kill formed after he drew the weapon, without premeditation. IF that were true, then drawing the weapon wouldn't part of a plan to kill.

It's not necessarily likely, but we'd have a hard time proving otherwise if Dunn has a competent defense attorney. Reasonable doubt kicks in in our jury's mind, and Dunn doesn't get convicted of first degree murder. Oops.

So we'd need to find something else to make premeditation stick- some action taken by Dunn other than just picking up or pulling out a weapon already on his person, which proves that he was planning to kill Davis significantly before the moment he pulled the trigger, and had taken time to think and plan intelligently before pulling the trigger. I don't know what evidence of that sort is available; do you?

If such evidence was available, the prosecution should definitely have presented it. I hope they did, but I don't know if they did or not. If they did, it makes the jurors who voted against the first degree murder charge even stupider in my eyes.

Either the jury is even more inferior than I believe (though that is difficult to imagine) or the prosecutor screwed up by not adequately presenting the evidence that proves premeditation. In which case a jury that MIGHT have convicted Dunn of second-degree murder would likely wind up hung or acquitting on first-degree murder.
___________________________

Separately from this, you have argued that the murder is first-degree because it was committed against a minor, and is therefore child abuse. There are two separate questions here. One is whether Florida courts interpret it as child abuse when a random stranger kills a seventeen year old. We can argue about that later; I don't know one way or the other.

The second question is how to use the child abuse conviction to support the first degree murder charge. This runs into a problem.

Under Florida law, if I were to kill someone in the course of a robbery, it is first-degree murder even if there was no premeditation or specific intent to kill. The catch is that to convict me of first-degree murder under that law, Florida would first have to convict me of the robbery. If they can't prove I was stealing anything, or can't prove intent to commit robbery, they can't prove that the killing was committed in the course of the other felony. In which case the first-degree murder charge falls apart and leaves behind second-degree murder or manslaughter.

So, the question is: did the prosecutor think to charge Dunn with child abuse? If, according to you, the charge of aggravated child abuse could have been made to stick, then and only then would it be possible to convict Dunn of first-degree murder on account of him having killed a minor in the course of committing aggravated child abuse.

In which case the prosecutor screwed up by not actually bothering to charge Dunn with child abuse, when according to you that charge could have been made to stick, at least assuming the self-defense plea could be overcome.
______________________________

So when it comes to making first degree murder stick to Dunn, we have two possible routes to a conviction: the premeditation route, or the child abuse route.

If the child abuse route is valid, then we can only conclude that the prosecutor was incompetent, because as far as we know Dunn was not charged with child abuse. Whether or not that route actually IS valid is a separate question.

If the premeditation route is valid, it must be due to evidence other than "Dunn pulled out a gun." Either the prosecution failed to present this evidence, in which case the prosecutor was incompetent. Or the jury saw the evidence and (part of the jury) ignored it. In which case the jury is really really incompetent, even more so than I already thought they were on account of some of them accepting that seemingly ridiculous self-defense plea.

So, what do we call it?

[aerius]

Flagg, you've made the following claims with respect to the law in Florida:

1) The only difference between 1st degree murder and 2nd degree murder is "a mitigating factor".
2) Premeditation occurs as soon as you go to draw your gun

I'm going to ask you to prove it since this is so far outside of commonly understood law. And by prove it I mean cite the relevant Florida Statutes or case law. Wikipedia does not count, nor does law for dummies.

If you can prove the above, you then need to show how it applies to the Dunn shooting, and on top of that, how you're going to prove it beyond a reasonable doubt based on the available evidence.

BTW, I remind you that SD.net Debating Rule #5 is now in play. You made the claim, back it it up or retract it.

[Flagg]

Flagg, you've made the following claims with respect to the law in Florida:

1) The only difference between 1st degree murder and 2nd degree murder is "a mitigating factor".
2) Premeditation occurs as soon as you go to draw your gun

I'm going to ask you to prove it since this is so far outside of commonly understood law. And by prove it I mean cite the relevant Florida Statutes or case law. Wikipedia does not count, nor does law for dummies.

If you can prove the above, you then need to show how it applies to the Dunn shooting, and on top of that, how you're going to prove it beyond a reasonable doubt based on the available evidence.

BTW, I remind you that SD.net Debating Rule #5 is now in play. You made the claim, back it it up or retract it.

Let's see what J has to say first.

[Flagg]

Oh and for the record you lying PoS, I never said that in every case drawing a weapon proved premeditation, I said that in this case, Dunn drawing his weapon proved premeditation. And you're right about the mitigating factor, but that was me using poor language skills. What I meant by "mitigating factor" was "lack of premeditation" which I view as a mitigating factor. But under the law you're right, it doesn't fall under that terminology.

[aerius]

Oh and for the record you lying PoS, I never said that in every case drawing a weapon proved premeditation, I said that in this case, Dunn drawing his weapon proved premeditation.

And I'm still asking you to prove it by citing the relevant Florida statutes or case law.
Because in the general case, premeditation means the person had a "cool off" period where he thinks before putting his plan into action. You're claiming otherwise for this case. Prove it or retract.

[Flagg]

Oh and for the record you lying PoS, I never said that in every case drawing a weapon proved premeditation, I said that in this case, Dunn drawing his weapon proved premeditation.

And I'm still asking you to prove it by citing the relevant Florida statutes or case law.
Because in the general case, premeditation means the person had a "cool off" period where he thinks before putting his plan into action. You're claiming otherwise for this case. Prove it or retract.

You just made a claim that you need to prove. Prove that there needs to be a "cool off" period in FL law for it to be murder 1 or retract.

[Simon_Jester]

"No, the burden of proof is on YOU!"

Flagg, for anyone not utterly ignorant of basic legal principles, "premeditation" means "thought about it calmly/rationally." It is proof that you made a conscious decision to commit a crime, before you even began to perform criminal actions.

It isn't "thinking about it beforehand" if all your actions occur in a single blur of physical motion.

[Flagg]

"No, the burden of proof is on YOU!"

Flagg, for anyone not utterly ignorant of basic legal principles, "premeditation" means "thought about it calmly/rationally." It is proof that you made a conscious decision to commit a crime, before you even began to perform criminal actions.

It isn't "thinking about it beforehand" if all your actions occur in a single blur of physical motion.

Bullshit. All it takes is a moment of knowing you intend to kill someone before you do it for it to be premeditation. And I trust the DA, the Grand Jury, and the Judge that allowed the murder 1 case to move forward more than a couple of twits on a message board.

[Borgholio]

I think the problem that you guys are running into is not the idea that premeditation is cause for Murder 1 (which it is), but the length of time it's premeditated. I think it's easier to ask if he intended to kill when he fired on the vehicle, or if he intended to wound / maim / scare / etc...

Most distinctions between Murder 1 and 2 depend on the intent of the suspect. If he shot at the van with the intent to kill, it's Murder 1. If he shot at the van but did not intentionally try to kill anyone (just wanted to shoot out the speakers on the van, scare the shit out of them, had a moment of rage, etc...) then it's Murder 2.

With that said, I can't imagine why anybody in their right mind would shoot at people without intent to kill...so that's probably why they went Murder 1. But as far as asking exactly how long it was actually premeditated...I don't know how anybody could possibly determine that.

Here is a good breakdown of the various degrees of murder / manslaughter. I know that FL may have their own unique laws, but for the majority of the country, this is how it is:

http://en.wikipedia.org/wiki/Murder_%28 ... ted_States

[aerius]

You just made a claim that you need to prove. Prove that there needs to be a "cool off" period in FL law for it to be murder 1 or retract.

Wrong answer. Let me use smaller words this time since you don't seem to understand.

The generally accepted definition of 1st degree murder is that it requires premeditation and intent.
Premeditation in the general case means the person took time to rationally consider and plan the killing.
By the generally accepted definition, the Dunn shooting does not fit the criteria for murder 1.

You claim that the Dunn shooting was murder 1.
You also claim that premeditation, in this specific case, took place in the instant that Dunn went for his gun.

In other words, you claim that things are different in Florida. You made the claim, you prove it.
And since it's a rather extraordinary claim, I want the proof in the form of Florida Statutes and case law.

[Flagg]

You just made a claim that you need to prove. Prove that there needs to be a "cool off" period in FL law for it to be murder 1 or retract.

Wrong answer. Let me use smaller words this time since you don't seem to understand.

The generally accepted definition of 1st degree murder is that it requires premeditation and intent.
Premeditation in the general case means the person took time to rationally consider and plan the killing.
By the generally accepted definition, the Dunn shooting does not fit the criteria for murder 1.

You claim that the Dunn shooting was murder 1.
You also claim that premeditation, in this specific case, took place in the instant that Dunn went for his gun.

In other words, you claim that things are different in Florida. You made the claim, you prove it.
And since it's a rather extraordinary claim, I want the proof in the form of Florida Statutes and case law.

Listen you idiot, you don't know what the fuck you're talking about. Premeditation doesn't require some set amount of time. And I don't need to give you case law because all you have to do is look at the actions of the DA, grand jury, and judge who all had no problem with the murder one charge. The only people to have an issue are troglodytes like you and a few morons on the jury. So go fuck yourself.

[Flagg]

According to Juror 4 the vote was 10-2 to convict. The 2 holdouts? Self defense. Nothing about murder 2 or manslaughter.

[Tribble]

I agree with Flagg that given the overall circumstances, the premeditation was sufficient to trigger the first degree murder charge. The Prima Facie case was clearly met as the defence did not seek a withdrawal of the charge on that basis.

Now that being said, I think that if the DA was being realistic and wanted to ensure a conviction she should have gone for the second degree murder charge. While there was enough evidence to satisfy the Prima Facie case, it wasn't quite enough in the face of the defendant's counter arguments to convince the entire jury.

Remember, there is a big difference between having enough evidence to charge and having enough evidence to convict.

[Simon_Jester]

I suspect a LOT of evidence was presented at the trial that we don't know, so it's no surprise that the charges don't line up with what I'd expect on the evidence I have available.

Maybe, say, Davis had to load his firearm before shooting Dunn- in which case premeditation is more definitely in play. Maybe Davis spoke a number of threats before shooting Dunn- again, evidence that he had murder in mind before firing. Maybe witnesses testified to Davis's demeanor at the time. There could easily be any number of things that explain it.

[SCRawl]

All right, I've had a chance to review the last three pages.

Flagg, you can't infer from the fact of the charge whether or not Murder 1 was a serious consideration. A Prima Facie case -- enough to sustain a dismissal request -- does not make a sufficiently compelling argument. So all that you are left with is the facts of the case as we know them and whether or not they line up with the criminal code and precedent to prove your point. And your point remains unproven.

I'll offer you this chance for a graceful concession. Say that you think it reasonable that the facts of the case as we know them could, perhaps, result in a conviction of the charges as prosecuted, but not that they definitively demand it.

Shall we all walk away with our cups half full?

[Flagg]

I'm in a bad physical and mental condition and am too passionate about this case to continue. I concede on the grounds that I cannot prove my case.


I'd still love to know if J had a point or was just trolling, though.

[SCRawl]

I, too, think it would be nice if J would share her insights.

[J]

Flagg, for the record, you actually had the upper hand should you have chosen to pursue it.

There's nothing in the Florida Statutes which would cover your claims, however, there is precedence in case law.
I point you towards Wilson v. State, 493 and Sireci v. State, 399

Excepts from Sireci:

This is a direct appeal from a judgment adjudging defendant guilty of murder in the first degree and a sentence of death. We have jurisdiction.

The defendant, Sireci, went to a used car lot, entered the office, and discussed buying a car with the victim Poteet, the owner of a car lot. Defendant argues that the purpose of his visit was to take some keys from the *967 rack so that he could come back later and steal an automobile. The state argues that defendant went to the used car lot for the purpose of robbing the owner at that time.

The defendant was armed with a wrench and a knife. A struggle ensued. The victim suffered multiple stab wounds, lacerations, and abrasions. An external examination of the body revealed a total of fifty-five stab and incisive wounds, all located on the chest, back, head, and extremities. The stab wounds evoked massive external and internal hemorrhages which were the cause of death. The neck was slit.

The defendant told his girlfriend, Barbara Perkins, that he was talking to the victim about a car, then he hit the victim in the head with the wrench. When the man turned around, the defendant asked where the money was, but the man wouldn't tell the defendant, so he stabbed the man. The defendant told Perkins that he killed Poteet. He admitted taking the wallet from the victim.

The defendant contends that the killing was a spur-of-the-moment act occurring after a fight had begun and that he entered the used car lot without any intent to rob or harm the victim. His only intent was to take keys from the office in order to return, after the office was closed, for a car. Defendant says this negates the element of premeditation.

Premeditation can be shown by circumstantial evidence. Spinkellink v. State, 313 So.2d 666 (Fla. 1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976). Premeditation is a fully-formed conscious purpose to kill, which exists in the mind of the perpetrator for a sufficient length of time to permit of reflection, and in pursuance of which an act of killing ensues. Weaver v. State, 220 So.2d 53 (Fla. 2d DCA), cert. denied, 225 So.2d 913 (1969). Premeditation does not have to be contemplated for any particular period of time before the act, and may occur a moment before the act. Hernandez v. State, 273 So.2d 130 (Fla. 1st DCA) cert. denied, 277 So.2d 287 (1973). Evidence from which premeditation may be inferred includes such matters as the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed and the nature and manner of the wounds inflicted. It must exist for such time before the homicide as will enable the accused to be conscious of the nature of the deed he is about to commit and the probable result to flow from it insofar as the life of his victim is concerned. Larry v. State, 104 So.2d 352 (Fla. 1958). Weighing the evidence in light of these standards it is clear that the premeditation of the defendant has been proved beyond a reasonable doubt.

The defendant stated to witness Perkins, in recounting the incident, that he hit the victim with the lug wrench, and demanded from the victim the location of the victim's money. The victim would not tell him, so the defendant stabbed him. *968 The defendant told witness Perkins that he had looked all over for the money, but couldn't find any, so he took the man's wallet. The evidence shows that the defendant needed money, since he was not working and was preparing to go on a trip. The evidence was also sufficient to sustain a finding by the jury that defendant was guilty of felony murder. There was clearly sufficient, competent evidence by virtue of the circumstances, the physical evidence, and the defendant's own statements, to support the jury's verdict of guilty of murder in the first degree. Every reasonable hypothesis of innocence was excluded.

Excerpt from Wilson:

While visiting his father, Sam Wilson, Sr., the appellant, Sam Wilson, Jr., became enraged with his stepmother Earline Wilson because she told him to keep out of the refrigerator. Appellant grabbed a hammer and began striking her with it. When Wilson, Sr. came to Earline's aid, he too was beaten with the hammer. During the ensuing struggle between the appellant and his father, the appellant stabbed his five-year-old cousin, Jerome Hueghley in the chest with a pair of scissors. At Wilson, Sr.'s request Earline Wilson got a pistol. The appellant grabbed it and shot his father in the forehead. The appellant then continued his pursuit of Earline Wilson, going outside and crawling in the bedroom window. Once inside he emptied the pistol into the closet where she was hiding, inflicting multiple wounds. Appellant then hastened to a friend's home where he showered and changed clothes. After tossing the pistol into some bushes, he went to his brother's house. The police were then called and the two returned to the father's home. When the police arrived Wilson, Sr. and the child were dead from the wounds. Appellant told the police that an intruder had killed them. However, Earline Wilson came out of hiding and identified Wilson, Jr. as the one who "did it." Appellant was then taken into custody and eventually told the police two other versions of the event, contending in both, that although he committed the homicides, they were the accidental result of a heated family fight.

Appellant was charged with two counts of first-degree murder and one count of attempted first-degree murder.

I won't quote any more from Wilson since it's pretty long, in summary, the charge of 1st degree murder for killing his father was upheld as was the charge of attempted murder.

This proves that under circumstances, premeditation can be shown to have taken place in the moments prior to the commission of a murder. There is indeed no strict time limit or "cooling off" period. So, you score a point for premeditation.

However, you will still need to prove that it applies in the shooting committed by Mr. Dunn, and this is a bit harder. You will note that both Sireci and Wilson both involved brutal and protracted killings, and also note the 1st degree murder charge against Wilson for killing his cousin was overturned and changed to murder in the 2nd degree. Given the evidence we have at hand regarding the Dunn case we could argue it all day until we wear out our keyboards. It seems the jury did exactly that, well, face to face, without keyboards.

So there you go. I can now say my professor was right when he said this might be useful someday.

[Alyrium Denryle]

It has been an issue, so here is the FL murder statute

First Degree Murder

(1)(a) The unlawful killing of a human being:
1. When perpetrated from a premeditated design to effect the death of the person killed or any human being;
2. When committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any:
a. Trafficking offense prohibited by s. 893.135(1),
b. Arson,
c. Sexual battery,
d. Robbery,
e. Burglary,
f. Kidnapping,
g. Escape,
h. Aggravated child abuse,
i. Aggravated abuse of an elderly person or disabled adult,
j. Aircraft piracy,
k. Unlawful throwing, placing, or discharging of a destructive device or bomb,
l. Carjacking,
m. Home-invasion robbery,
n. Aggravated stalking,
o. Murder of another human being,
p. Resisting an officer with violence to his or her person,
q. Aggravated fleeing or eluding with serious bodily injury or death,
r. Felony that is an act of terrorism or is in furtherance of an act of terrorism; or
3. Which resulted from the unlawful distribution of any substance controlled under s. 893.03(1), cocaine as described in s. 893.03(2)(a)4., opium or any synthetic or natural salt, compound, derivative, or preparation of opium, or methadone by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user

Second Degree Murder

(2) The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) When a human being is killed during the perpetration of, or during the attempt to perpetrate, any:
(a) Trafficking offense prohibited by s. 893.135(1),
(b) Arson,
(c) Sexual battery,
(d) Robbery,
(e) Burglary,
(f) Kidnapping,
(g) Escape,
(h) Aggravated child abuse,
(i) Aggravated abuse of an elderly person or disabled adult,
(j) Aircraft piracy,
(k) Unlawful throwing, placing, or discharging of a destructive device or bomb,
(l) Carjacking,
(m) Home-invasion robbery,
(n) Aggravated stalking,
(o) Murder of another human being,
(p) Aggravated fleeing or eluding with serious bodily injury or death,
(q) Resisting an officer with violence to his or her person, or
(r) Felony that is an act of terrorism or is in furtherance of an act of terrorism,
by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony commits murder in the second degree

[Lord Falcon]

I already said what I need to in my failed thread (I apologize for that), so all I will say is I think the next jury is going to let him walk. That's all.

[Wing Commander MAD]

Alyrium, that was given back on the first page.

So as an aside, what is the correct way to go about citing case law when trying to prove a point like this?
Spoiler

Let's use how Florida defines premeditated as an example. When I looked a few days ago for how Florida defines premeditated I came across something from the Casey Anthony case dealing with how premeditation is defined citing Coolen v. State from 1997 which I linked to earlier on page two and gave the definition listed there. Coolen in turn cites the cases J linked. Sireci cites Weaver v. State for the definition of "Premeditation is a fully-formed conscious purpose to kill, which exists in the mind of the perpetrator for a sufficient length of time to permit of reflection, and in pursuance of which an act of killing ensues. " and further expands on it by then clarifying that premeditation doesn't require any length of time as set in Hernandez v. State. I suppose the question in its most succinct form is how far back in the chain of rulings do I go to properly cite how Fl. determines premeditated? Also, I presume you always start at the most recent case that can be found dealing with the specific issue and then work your way back from there.

[Flagg]

Flagg, for the record, you actually had the upper hand should you have chosen to pursue it.

My google-fu is weak when I feel like I've been hit by a truck and am on new psych meds, apparently. But I knew I was right since the guy that taught the class was a retired Detective of 20 years.

Oh well, live and learn. Couldn't prove it so the concession stands.

In any case, I still think, from a legal perspective, the DA could fall back on the aggravated child abuse statute since shooting a 17 year old so that he drowns in his own blood is child abuse to me.

[Flagg]

I already said what I need to in my failed thread (I apologize for that), so all I will say is I think the next jury is going to let him walk. That's all.

This jury was 9-3 to convict on first degree murder. 3 fucking idiots thought it was self defense because black kid sitting in SUV is clear threat. I'd be shocked if this ended in a not guilty verdict. I think it's likely he'll be convicted or there will be a couple more mistrials before the DA drops it down to murder 2 or just gives up since he's gonna be in prison for the rest of his life anyway. But since the 3 complete idiots who voted not guilty did so because they bought self defense it's likely they wouldn't have convicted him on murder 2 either. After all it's northern FL and in Floriduh the farther north you go the farther south you get.

[aerius]

In any case, I still think, from a legal perspective, the DA could fall back on the aggravated child abuse statute since shooting a 17 year old so that he drowns in his own blood is child abuse to me.

By the letter of the law it should be doable. But good luck arguing it to a jury since it's unlikely they'll view a 17 year old driving around in an SUV as a child, even if he legally is one.

Going back to the definition of premeditated, I did look that one up because it was not what I expected, especially from a redneck state like Florida. I did have the cases tracked down but I wanted you to do your work and prove it if you could. If you did get that far, I would've done exactly what my wife implied and tied you up in the application of those precedents to the Dunn case (in both cases, the killer had first beaten the victim with a blunt object, and then switched to the lethal weapon to do the killing. There's obviously a thought process there, I'd argue that the above doesn't apply to Dunn). I believe there's enough grey area there for reasonable doubt, and if there is then you can't get Dunn for murder 1.

Personally I think this case got a wrench thrown in the works because the prosecutors went for a murder 1 charge. You need to prove premeditation & intent, then properly define premeditation & intent based on case law, then properly apply it to the case. All that has to be proven beyond a reasonable doubt which ain't gonna be easy, especially the last part since the killings in the precedents are very different from the Dunn shooting. A good defence lawyer would be able to put reasonable doubt into the jurors.

Murder 2 or manslaughter on the other hand is a slam dunk, even easier than the popcorn shooting. He's in jail for life anyway after they tack on the rest of the weapons offences so there's no effective difference other than the possibility of the death penalty. Fucking baffles me why the prosecutors didn't go for a sure thing.

[mr friendly guy]

Wouldn't Flagg's claim of aggravated child abuse fit the definition as given by AD for murder one? Since the victim is legally a child.