George Zimmerman’s fate will soon rest in the hands and hearts of his six member jury. The State saw fit to charge Zimmerman with Murder in the Second Degree, which in Florida requires proof that the defendant acted intentionally. On the morning when final arguments were slated to begin the Court wrestled with the request from prosecutors for the addition of several alternative offenses that the jury could consider if they were not convinced the state had sustained its burden of proof on the Murder 2 count. In a Solomonesque decision Judge Nelson has agreed to instruct on the lesser crime of manslaughter but rejected the state’s request to charge on felony murder.
Murder is the intentional killing of another. Felony murder, by contrast, is when a death occurs “in the course of and in furtherance of such crime or flight therefrom” during the commission of certain enumerated felonies. The death can be unintentional. For example, a burglar startles a homeowner at night and the home owner suffers a fatal heart attack. The burglar had no intention of killing the homeowner, so the intent needed for murder is missing. But the burglar did intend to commit the crime of a night-time burglary and the death was as a consequence of that action. The intent to commit the burglary becomes, in essence, the intent to cause the death. Only certain enumerated felonies invoke this doctrine in Connecticut: robbery, burglary, kidnapping, certain classes of serious sexual assaults. In the multiple defendant case both the one who caused the death and the other participant are equally guilty of the felony murder. In this state felony murder is punished the same as non-capital murder, by a sentence of 25 to 60 years.
In Zimmerman’s case the state’s theory was that the underlying felony was the crime of child abuse given Martin’s age, 17. The judge was right to reject the request, as she was not certain that the evidence supported the claim.
The defense resisted the manslaughter charge, opting for an “all or nothing” verdict. Under these circumstances most experienced criminal lawyers would resist the lesser included offense instruction. In a doubtful case jurors may be tempted to compromise when there is the choice between a lesser crime and acquittal. If the only choice is murder and the state has failed to effectively rebut the claim of self-defense, the jury must acquit. In order to consider the lesser crime they must first conclude that the state failed to prove the greater crime beyond a reasonable doubt. If they are offered the alternative of a lesser crime and decide the proof does not reach the level of murder, given a lesser choice, the theory is that the jury would be less inclined to reach an acquittal. The gravamen of the defense objection is that manslaughter requires the lesser mental state, or what the law refers to as mens rea, of recklessness. Zimmerman’s lawyer concedes that his reaching for the gun and firing was not an accident or reckless act; it was intended, but justified under the circumstances defining the doctrine of self-defense.
In this state in order to give an instruction on a lesser charge it must be one that is included in the class of crimes charged. Simply put, if the greater crime cannot be committed with out having first committed the lesser crime then a lesser included instruction is appropriate. On the other hand, if the lesser crime requires proof of an element not envisioned within the greater crime it cannot be considered. Resisting a lesser instruction is often a crap-shoot, but defense lawyers have that gunslinger’s mentality most times.