One common mistake that is made
in the Zimmerman case is that people assume that Zimmerman was only allowed to
fire on Trayvon Martin if he believed his life was in danger. An ordinary reading of the law tells us that
that this is not the case. The is what
Fl. Stat. § 776.012 tells us about the use of force generally:
776.012 Use of force
in defense of person.—A person is justified in using force, except deadly
force, against another when and to the extent that the person reasonably
believes that such conduct is necessary to defend himself or herself or another
against the other’s imminent use of unlawful force. However, a person is
justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she
reasonably believes that such force is necessary to prevent imminent death or
great bodily harm to himself or herself or another or to prevent the imminent
commission of a forcible felony; or
(2) Under those
circumstances permitted pursuant to s. 776.013. [Walker: this deals with people
breaking into your home and thus is not relevant.]
Now, if you are an advocate of
the prosecution, you might say, “aha! Clearly no one would call Trayvon
Martin’s punches to be deadly force.”
Well, this is where it helps to
look at the case law. So I searched the
legal databases for the phrase “broken nose” and “great bodily harm” to see
what they said in the case law.
Of course, you generally start in
the state in question: Florida. And it
turns out that in Florida law there is another statute that uses the same
phrase, there: their aggravated battery statute. Fl. Stat. §784.045 states in relevant part
that:
784.045 Aggravated
battery.—
(1) (a) A
person commits aggravated battery who, in committing battery:
1. Intentionally or knowingly causes great
bodily harm, permanent disability, or permanent disfigurement; or
2. Uses a deadly weapon.
(b) A person commits aggravated battery if
the person who was the victim of the battery was pregnant at the time of the
offense and the offender knew or should have known that the victim was
pregnant.
So this means that now and then
in Florida people have to be convicted of having actually inflicted great
bodily harm on another. And bear in
mind, one principle in statutory interpretation is that like terms are read
alike from one statute to another. In
other words, the courts almost always will define “great bodily harm” for
purposes of defining aggravated battery as they would for determining when
deadly force is justified.
So there are four cases that are arguably
relevant, here. Let’s look at them one
at a time:
First you have Owens
v. State, a 1974 case. This
involved aggravated battery and this is how the victim’s injuries were
described:
[John] Dick's
injuries were described as "a broken nose, one eye completely shut and the
other one I could barely see out of. My lip was busted and I had blood on
me." He was taken by ambulance to the hospital and released following
emergency room treatment. The jury had the opportunity to examine five
evidentiary photos taken of Dicks the following day. Betty Ellis, barmaid, of
the Oyster Bar described Dicks' injuries: "He was beaten up all in the
face. You couldn't even tell what he looked like."
The jury found that aggravated
assault had occurred and the District Court of Appeal of Florida, Second
District stated that the jury was entitled to make that decision. And if you read the case, you will see the
discussion focused entirely on whether such injuries might constitute “great
bodily harm.”
Next up we have Dixon
v. State, a 1992 case. Now in this
case the issue was whether bare hands could ever be considered a “deadly
weapon.” The court quite reasonably said
it couldn’t, because the statute implies a weapon has to be something more than
just your hands. That seems reasonable
enough even if it means a wife beating bastard got to go free. But here is what is interesting. In that case, the state conceded that no
“great bodily harm” had been inflicted following the Defense argument that:
There was no proof
of repeated blows, if there had been, there would have been a lot more damage.
We would have seen photographs of a swollen, bloody face, of a bloody nose, of a broken nose, of a broken jaw. We
didn't have that.
(emphasis added.) It is not as probative as the Owens case, but
it is interesting.
In 1981 they dealt with a prison
assault in Guthrie
v. State. This is how the court
described the victim’s injuries:
The appellant's
blows gained added force by a flashlight battery held in his fist. As the
result of this attack, the victim suffered substantial bruises on his back and
shoulders, a cut on his shoulder, a cut on his ear, a cut open lip, and a cut
just above his right eye. Although the victim testified that his sight had not
been permanently affected, the cut over his eye required twelve stitches and
left a permanent scar.
There is also K.L.T.
v. State, but the fact pattern isn’t very helpful one way or the other,
although it is a self-defense case and discusses some of the law of
self-defense. While K.L.T. had had
his/her nose broken by the decedent (dead person), that was on a different
occasion. Further the court felt that
while little injury had been inflicted yet, that K.L.T. (a minor child) had
every reason to believe that the decedent was about to actually kill him/her or
others.
Meanwhile, what is less
persuasive is cases from outside of Florida.
These are cases that a Florida court would take into serious
consideration but they would feel no compunction about ignoring. But the strongest precedents are those which
are actually cited in Florida courts. In
particular, in Owens v. State above
they cite People
v. Smith, a 1972 case from Illinois.
Under Illinois law (at the time at least), great bodily harm was a
necessary element for aggravated battery.
These are the injuries that the Defendant inflicted on his victim:
With commendable
candor, defendant argues that he struck the complainant twice in the face with
his fist, gave her a lump in her mouth, put a scar on her face, and left
bruises under her chin. None of these injuries were permanent. Therefore,
defendant argues that his conviction for aggravated battery must be reversed
because the injuries were not "great bodily harm," a necessary
element in the offense of aggravated battery.
However, in that case the
Illinois Appellate Court for the first district found that such injuries could
be found by a jury to be “great bodily harm” by a jury, writing in a passage
later quoted in the Owens case:
A person who, in
committing a battery, intentionally or knowingly causes great bodily harm to
another, commits aggravated battery.... Whether aggravated battery is committed
when the injury inflicted does not break the skin, does not injure the bones
and does not leave disfigurement or permanent injury of any kind, is a question
of fact to be determined by the judge or jury....
"The statutory
term `great bodily harm' is not susceptible to precise legal definition....
Defendant asserts that great bodily harm is synonymous with permanent injury.
True, it can be argued that all permanent injury constitutes great bodily harm.
It does not follow, however, that all great bodily harm consists of permanent
injury. Indeed, many serious bodily injuries leave no lasting effect on the
health, strength, and comfort of the injured person.
Another case cited in Owens was Anderson
v. State, an Indiana case from 1973, but that case is less
helpful. The injuries seem to have been
more severe. Here’s the description from
victim’s doctor:
Q. Would you
describe what you had to do to repair this injury to Mr. Cundiff?
A. Well, this injury
was extensive and Mr. Cunidff has to be put to sleep, to repair this injury. I
opened him up on the cheek bone, right below the eye, and on the side of the
head, in order to insert an instrument to pry the bone upward so that to be in
alignment with the other broken fragment and to stabilize this I had to take
hold of both bones and wire it together.
Q. You did cut into
him and then you had to stitch that up too, is that correct?
A. Yes. He has to be
stitched in the area where I went through on the cheek and on the side of the
head.
Q. Was that the
extent of your treatment to Mr. Cundiff?
A. Yes sir.
The court noted that “Cundiff was
hospitalized four days.” So I would say
that is worse and was found to be “great bodily harm as required by their
statute, which doesn’t mean something less cannot also be found to be great bodily harm. But the case gave us
another passage that was quoted in Owens:
Great bodily harm
defines itself and means great as distinguished from slight, trivial, minor or
moderate harm, and as such does not include mere bruises as are likely to be
inflicted in a simple assault and battery under Ind. Ann. Stat. § 10-403 (Supp.
1967).
Also the cases cited by the cases
cited in Owens are likely to have
more authority. Anderson, for instance, cited Hallett
v. State, 109 Neb. 311, 190 N.W. 862 (Neb., 1922). I am giving you the longer citation because
free case directories don’t appear to have the case so I wanted to maximize
your ability to check and dispute my work.
Once again it was an assault case, where grave bodily harm had to be
proven. And these were the injuries
found to be sufficient:
He attacked Mr.
Cliff Penn, a school-teacher and superintendent of schools of the town of
Lynch, as they met upon the village street, knocked him down with his fist and
struck him again while down, inflicting upon him by his blows and by the
described fall a deep two-inch cut above his eye, a contusion on the back of
his head, a cut on the inside of his check, and several minor abrasions on his
face.
This, again, was sufficient to
allow a jury to find that great bodily harm had been inflicted.
Running out of useful cases with
even a tenuous tie to Florida, we finally look at other jurisdictions
generally. Here are a few fact patterns
where the court said that grave bodily harm either 1) occurred, or 2) a jury
could find it had occurred. I won’t be
able to list all of them (there are over 100 hits) but for my fellow lawyers,
let me tell you enough to let you recreate my search. I was using Fastcase, using a keyword search
in all jurisdictions and for the following “‘broken nose’ and ‘great bodily
harm.’” For those who don’t know about
legal databases, in this case, “and” ends up operating as a "logical and" requiring both quoted phrases to be in the case somewhere.
Anyway, here are some of the
cases and fact patterns:
the evidence
essentially showed that Simmons struck Terry once or twice with his closed
fist. Terry suffered a cut on her forehead requiring nine stitches to close and
a broken nose. She was treated and released at a Wichita hospital. Some 4
months later, Terry underwent a 45–minute surgical procedure to realign her
nasal passages because she had experienced some difficulty breathing normally
as a result of the injury.
State
v. Simmons, 45 Kan.App.2d 491, 249 P.3d 15
(Kan. App., 2011). This is interesting because a jury did not
find this was great bodily harm, but the court felt it was possible to find
it to be the case.
Next we have People
v. Salas, 143 Cal.Rptr. 755, 77 Cal.App.3d 600
(Cal. App. 2 Dist., 1978).
The question there was whether, in the midst of a robbery, the defendant
inflicted great bodily harm. The jury
found it did and this court felt the evidence was sufficient to support that
finding. Here’s what happened to the
victim:
The evidence herein
shows: Defendant followed Guadalupe Escobar into the rest room of a cocktail
lounge. Inside the rest room defendant, using his fist, hit Escobar in the
face, knocking him to the floor. While Escobar was on the floor defendant again
struck him in the face. Defendant then took $110 from the pockets of Escobar's
shirt and trousers, forcibly removed the jacket Escobar was wearing, and took
it. When Escobar left the rest room, his face was covered with blood. As a result
of the blows inflicted by defendant, Escobar's nose was broken and one of his
teeth was knocked out. He also sustained cuts on his nose, cheek and lip.
Following the attack he was taken to a hospital, where three or four sutures
were applied to each cut. At the time of trial, Escobar's broken nose had
healed but, on touching the nose, he still was able to feel a separation of the
bone. When he had a cold, his sense of smell was impaired because of the injury
to his nose.
This was in turn cited with approval
by the California Supreme Court in People
v. Wolcott, 192 Cal.Rptr. 748, 34 Cal.3d 92,
665 P.2d 520 (Cal., 1983).
Next we have State v. Rodriguez, No. 2008AP2520-CR (Wis. App., 2010). Fastcase doesn’t give a citation more proper
than that. This is another case where
“great bodily harm was found in an assault case, and the court had to
determine if there was sufficient evidence of such. Here’s what the defendant did to the victim:
The evidence, which
Rodriguez does not dispute, showed that he beat Cristal T. and as a result she
sustained a broken nose, swollen eyes and lips, a left corneal abrasion,
bruising and scratching on her hands, arms, wrists, and chest, and a
concussion. She repeatedly lost consciousness during the attack and, at the end
of the incident, she was covered in blood and required treatment at a hospital.
The jury found Rodriguez guilty as charged.
On the other hand, Wisconsin’s
statutes specifically define “great bodily harm as “bodily injury which
creates a substantial risk of death, or which causes serious permanent
disfigurement, or which causes a permanent or protracted loss or impairment of
the function of any bodily member or organ or other serious bodily injury.” And by contrast, “substantial bodily harm” is
defined as “bodily injury that causes a laceration that requires stitches,
staples, or a tissue adhesive; any fracture of a bone; a broken nose; a burn; a
petechia; a temporary loss of consciousness, sight or hearing; a concussion; or
a loss or fracture of a tooth.” So it
seems that ordinarily under Wisconsin law a broken nose is not sufficient, by
itself, to be a great bodily harm.
Next we have, sadly, a story
involving child abuse. In People
v. Psichalinos, 594 N.E.2d 1374, 229 Ill.App.3d
1058, 171 Ill.Dec. 854 (Ill.App. 2 Dist., 1992), the court was
again faced with whether an assault involved grave bodily harm:
In this case, the
evidence established that after the first incident in which the defendant
struck Victor while in the kitchen, Victor's nose was bleeding and that he cried
when the defendant hit him in the nose. Lena Alsen testified that, as a result
of the defendant hitting Victor the second time with his fist, Victor's nose
again bled and he fell on the floor and cried. The following day, Victor had a
purple, red and yellow mark under his left eye. Theresa Gordon testified that
later that week she observed a deep blue bruise on the side of Victor's nose.
Additionally, Joseph Schlosser of DCFS testified that on February 26, 1990, he
observed a faint yellow bruise around Victor's eyes and nose. Moreover, Dr.
Lesica testified that Victor had a nondisplaced fracture of his nose on
February 25, 1990. We believe this evidence cumulatively supports the trial
court's finding that Victor suffered great bodily harm.
So a more severe broken nose, by
itself, was sufficient.
Another case with no good
citation in Fastcase: People v. Golden,
No. 282604 (Mich. App. 5/19/2009) (Mich. App., 2009). The court found that the following could be
held to be assault with great bodily harm:
Testimony at trial
established that defendant repeatedly struck the victim in the face and head
after the victim was lying on the ground and rendered unconscious. As a result
of the attack, the victim suffered marked facial injuries including a broken
nose, a black eye, two cuts that required stitches, and excessive swelling to
the left orbit region and the left side of his head. There was concern during
treatment that the victim suffered intracranial injuries
And there is pretty much nothing
to this citation, People v. Blair, a
2011 case, but thankfully I found a version on Illinois’ websites here. There is also this related case, here.
The issue involved an abusive husband claiming he beat his wife out of
self-defense because she dared to pick up a knife while he beat her. That didn’t fly, but the case is also notable
because he was ultimately convicted of assault causing great bodily harm
evidently just because he broke her nose, although the injury still might have
been more severe than the one Zimmerman suffered.
Next we have People
v. Costello, 95 Ill.App.3d 680, 420 N.E.2d 592,
51 Ill.Dec. 178 (Ill. App. 1 Dist., 1981). Again, the issue is if a jury could find that
there was an assault resulting in “great bodily harm.” The court found that the following injuries
could be considered to be such:
Arteaga testified
that defendant struck him "in the nose and on the face" with a
blackjack. Officer Goc observed three men beating Arteaga "with their
fists" and that defendant had "a black object in his hand."
Arteaga's testimony that as a result of the beating by defendant he suffered a
broken nose, which "still bleeds now and then" and lost a tooth, is
also clear and convincing. There is substantial evidence in the case at bar
from which the trial judge could properly have found that Arteaga sustained
injuries of the nature required by statute.
Next up, State v. Allison, 546 N.W.2d 885, 200 Wis.2d 491 (Wis. App., 1996),
where the court found the following could be found to be great bodily harm:
One of the
individuals, later identified as Allison, threw a chunk of concrete at Nelson's
back and punched Nelson in the face while holding a rock. While Nelson was
struggling with Allison in an attempt to hold him until police could arrive,
Allison pushed Nelson down to the pavement. Nelson hit his forehead and nose on
the pavement. He suffered a broken nose, severe facial lacerations with
permanent scarring, and thoracic back injuries. Nelson's facial lacerations did
not require suturing, but they needed to be debrided and cleansed, and
antibiotics were applied.
Next we have another case with no
good citation for, perhaps because it is an unpublished opinion. In People
v. Pearson (Mich. App., 2010), the court wasn’t concerned with the
sufficiency of the evidence, but it did note that the defendant was convicted
of aggravated assault, being defined as assault that causes great bodily harm:
“McCarthy suffered severe injuries, including two broken orbitals and a broken
nose, as well as a bruised and a swollen eye and lips.”
And you remember how above, a
Florida court held that a person’s fists were not a deadly weapon? Well, in State
v. Rogers, 153 N.C. App. 203, 569 S.E.2d 657
(N.C. App., 2002), they held that a man’s hands did count as
such because they were capable of inflicting great bodily harm. Specifically this is what he did to two
victims:
Here, the State's
evidence tended to show that both Prevette and Hadley were hit in the face
multiple times and were choked by defendant. Prevette suffered a broken nose, a
concussion, bruises on the upper and lower parts of both arms, and abrasions to
other parts of her body. Dr. Strickland testified that Prevette's broken nose
was the type of injury that would cause "severe pain." Hadley
suffered a cracked cheekbone, a broken nose and a broken jaw. The broken jaw
required surgery which resulted in Hadley's jaw being wired shut for three
weeks.
And we get another unpublished
Michigan case with a poor citation: People
v. Gravelle, (Mich. App., 2011), and considered whether there was enough
evidence to convict the defendant of assault with intent to cause great bodily harm:
On the afternoon of
December 26, 2008, Charles McClusky and several others, including defendant,
went to Joe's Bar in Rudyard, Michigan to socialize. While there, defendant and
McClusky, who had not previously known each other, became engaged in an
argument. At some point, McClusky and defendant were in the men's bathroom at
the same time and the argument continued. One of defendant's friends, Justin
Dufresne, entered the bathroom and the argument escalated into a physical
assault upon McClusky, with Dufresne and defendant punching and kicking
McClusky repeatedly as he lay on the bathroom floor. McClusky suffered a broken
nose, a fractured nasal bridge and eye socket, and various cuts and bruising.
Defendant was charged with assault with intent to do great bodily harm less
than murder and was convicted at the conclusion of a jury trial of that
offense.
And another unpublished opinion,
this time in California, in the case of People
v. Zarate, F054525 (Cal. App. 2/17/2009) (Cal. App., 2009). This dealt with a sentence enhancement for
great bodily harm and the following was found to be sufficient to support a
jury’s finding of great bodily harm:
As a result of the
beating, he suffered a swollen left eye, a swollen neck, red marks on his back,
a wound on his nose that required stitches, a broken nose, and several scrapes
on his arms and chest.
Another Californian unpublished
opinion, People v. Ross (Cal. App.,
2011), found the following supported a conviction of great injury:
Johnson had a
half-inch cut between his eyebrows, a two-millimeter laceration across his
nose, a broken nose, bruising over the nose and under his eyes, pain in his
neck, swelling in his left leg, pain in his left shoulder, pain in the iliac
crest of his right hip, and a dislocated his right thumb.
Particularly the court found the
broken nose to be persuasive:
Viewing the evidence
in the light most favorable to the judgment, Johnson's injuries included a
broken nose, a cut between his eyebrows that had to be closed, a dislocated
thumb, and the fact that he was knocked unconscious during the beating. These
injuries support a finding of great bodily injury. The broken nose caused his
left nostril to narrow significantly and four years after the beating he
continues to have a mucous build up in his throat due to draining from that
nostril. The beating changed the way his nose looks and now Johnson has two
knots on his forehead.
And yet another Californian
unpublished opinion, People v. Coye, B192755 (Cal. App. 11/30/2007) (Cal. App.,
2007). They didn’t discuss the
sufficiency of evidence, but a jury found the following constituted great bodily harm:
Corrigan spent three
hours in the hospital emergency room that night. His nose and his septum were
broken, he lost the ability to breathe through his right nostril almost
completely, and he suffered nerve damage under his right eye that produced
periodic throbbing, loss of feeling, and swelling. He needed surgery to repair
his septum, which required that he be "put under by
anesthesiologists" plus a day-long stay in the hospital and four
additional days to recover. By the time of Coye's trial six months later,
Corrigan had regained about half of the use of his right nostril, still had to
use a nose pump to administer a saline solution into his nostrils twice a day,
and was contemplating additional surgery in hopes of having his normal
breathing fully restored.
Incidentally this was all from
one punch.
In an unpublished North Carolina
case, State v. Christmas, No.
COA07-564 (N.C. App. 2/5/2008) (N.C. App., 2008), we dealt with another example
of a hand being called a deadly weapon.
This meant that it had to have caused great bodily harm and it was found
to be the case based on these facts:
In the case at bar
the State's evidence tends to show defendant knocked Snyder unconscious with a
blow landed by his fist. Snyder testified defendant outweighed him by as much
as 45 pounds and stood two to three inches taller. The evidence shows that
defendant continued to beat Snyder even after he was knocked unconscious. Lee
described Snyder's head as going "up and down" off the concrete as
defendant beat him. As a result of the beating, Snyder sustained a broken nose,
dislocated septum, severe muscle trauma, and multiple contusions. Snyder
subsequently underwent surgery which involved re-breaking and re-setting his
nose and repairing his septum. Snyder remained out of work for six months after
the assault. We conclude a jury could reasonably find, based upon the foregoing
evidence, that defendant's hand constituted a deadly weapon.
And in another unpublished
California case, People v. Harvey,
A109795 (Cal. App. 4/30/2007) (Cal. App., 2007), while the appeal didn’t
concern the definition of “great bodily harm” the court below did find this
based on the following:
Doe was bleeding
"a lot." Doe's friends convinced him to go to the hospital. Hospital
personnel contacted the police. Emergency room staff stapled Doe's head and
stitched his chin. Doe also had a broken nose and thumb, scrapes, bruises and
belt marks.
And almost the same set up with People v. Hooker, H034111 (Cal. App.
12/18/2009) (Cal. App., 2009)... California case, unpublished (sigh), and again
aggravated assault involving great bodily harm.
The injuries at issue are as follows:
As a result of
defendant's assault, she had a cut lip, a baseball-sized knot on the back of
her head, and bruises on her shoulder, inner thigh, and forearm. Also on the
day after the incident, Cynthia was taken to the hospital. She was diagnosed as
having had a concussion and a broken nose. After several days, Cynthia's right
eye was swollen shut.
And we get another unpublished
opinion in People v. Maile, 2013 IL
App (3d) 110543 (Ill. App., 2013). There
the defendant was aggravated domestic battery, it required the usual showing of
great bodily harm which in this case was satisfied with the following:
While Rottach was in the
bathroom, she heard her dog yelp and assumed defendant had kicked the dog.
In order to protect
her dog, Rottach [the victim] jumped on defendant and began pulling his hair
and punching him in the face. Defendant did not fight back at first because
Rottach was on top of him, but he eventually managed to slap Rottach in the
face. Rottach asked defendant "is that all you got?" Defendant then
struck Rottach in the face and broke her nose. Rottach testified that she fled
to a neighbor's house, who called for emergency assistance. Rottach was taken
to the hospital and received treatment for a broken nose.
In other words, the most serious
injury was the broken nose. But there is
little information in how badly it was broken.
Next we have a case that isn’t
marked as “unpublished” but it lacks any proper citation: People v. Lund, No. 274892 (Mich. App. 5/15/2008) (Mich. App.,
2008). And again it involves domestic
violence and it involves a claim that a person suffered great bodily harm. And again, the most severe harm is a broken
nose:
During the
altercation, defendant obtained the couple's phone and the keys to the car they
used. When the victim attempted to wrest these items from him, he seized her
hair and smashed her face on his knee. She suffered a broken nose that required
surgery, as well as multiple bruises.
The case didn’t concern itself
overly much with the definition of great bodily harm, but it did affirm the
conviction.
And another California
unpublished opinion: People v. Berkley
(Cal. App., 2011). That’s right,
California finally had enough and charged Berkley university with aggravated
assault on American values.
No. They didn’t.
It actually involved a defendant who happened to be named Berkley,
charged with aggravated assault. The
court wrote the following about the victim’s injuries:
Berkley admitted at
trial that he punched David until his face became "lumpy" and
threatened to kick him. Berkley told the police that he "lost [his]
cool" and "started beating his ass." David ended up with a
broken nose, swollen eye, and a laceration on his arm that required four
staples, while Berkley ended up covered in blood (apparently David's blood),
with swelling and bruising on his own hands from the punches he threw.
Berkley's only defense was that he acted in self-defense. Under this evidence,
any reasonable juror would have found that the force used was likely to produce
great bodily injury.
Next up we have a real
blockbuster in Kansas, but sadly another unpublished opinion. In Manning
v. State, 281 P.3d 1146 (Kan. App., 2012) a defendant was charged with
assault against two people. Here are the
facts:
Manning went to the
home of Robert Rocha and Melena Weaver at around midnight on April 21, 2006, at
the behest of their landlord, to ask them about why they had not yet paid their
rent. Rocha testified that when he arrived home Manning was inside his house.
He believed Manning entered the house by breaking through a back window. An
argument ensued that ultimately resulted in a struggle on the front porch of
the residence. Rocha and Weaver testified that Manning hit Weaver in the nose,
without provocation. Weaver's nose was broken and she received lacerations to
her face.
As the court then noted: “Manning
was convicted of battery (against Rocha) and aggravated battery (against Weaver).”
One of the claims on appeals was
that he was entitled to an instruction of ordinary battery in the case against
Weaver. The difference between ordinary
battery and aggravated battery, in that state, is the familiar requirement of
grave bodily harm.
And here is the part that is
blockbuster in it. The court noted there
had been a prior appeal where in relation to Weaver, the defendant argued
should have been granted an instruction on “misdemeanor battery.” And the court held the following:
Our court determined
that a reasonable jury could not have convicted Manning of misdemeanor battery
because the harm inflicted on the victim—a broken nose—was not slight, trivial,
minor, or moderate.
If that language sounds familiar,
it is because it is exactly echoed in Anderson,
in a portion that was quoted by Owens. To refresh your memory, the court wrote that:
Great bodily harm
defines itself and means great as distinguished from slight, trivial, minor or
moderate harm, and as such does not include mere bruises as are likely to be
inflicted in a simple assault and battery under Ind. Ann. Stat. § 10-403 (Supp.
1967).
So in Kansas, a broken nose is
not only sufficient to call it great bodily harm, but in fact no reasonable
jury could find it was not great bodily harm.
I don’t have Westlaw here, but some enterprising attorney out there
might also look up the citation of that previous decision, 2008 WL 4291504
(Kan.App.2008).
And another unpublished
California opinion, People v. Ortiz
(Cal. App., 2010). This one is unusual
because the charge was torture, and one of the elements in that charge was
grave bodily harm. Here’s the
description of the beating:
Cabrera testified
that Ortiz opened the door to the apartment, walked directly over to where
Cabrera was sitting, and, with a little smile on his face, started punching
Cabrera in the head. Villa came in a minute or two after Ortiz entered. Villa
pushed Cabrera, face-down, onto the floor. Cabrera's face and nose were
bleeding. Villa put his knee on the back of Cabrera's head and shifted all his
weight on to that knee. Cabrera lost "concentration" and felt dizzy.
He could not breathe and thought he might die. While Cabrera was lying there
bleeding defendants tied his hands behind him with a telephone cord. Cabrera
recalled having been punched many times, mostly by Ortiz, but Villa punched him
two or three times as well. All the punches were to his face. The beating
lasted about 20 minutes....
The ear, nose, and
throat specialist who examined Cabrera on February 22, 2008, noted that a CT
scan taken on the day of the beating showed that the upper bony portion of
Cabrera's nose and the right eye socket bone (the orbital bone) were fractured.
The fractures did not require treatment and would heal on their own.
Then here is the remarkable part
of this opinion:
As shown, there are
two elements to the crime of torture: (1) the infliction of great bodily
injury; and (2) the specific intent to cause cruel or extreme pain and
suffering for revenge, extortion or persuasion or any sadistic purpose. In this
case, there is no dispute that Cabrera suffered great bodily injury (the broken
nose and orbital bone).
From Michigan we get another
unpublished opinion. In People v. Glover (Mich. App., 2013), the
court confronted a prison assault, with intent to do great bodily harm. That term was not central to the case, but it
affirmed a conviction when the injuries were described as follows: “The assaulted prisoner sustained a broken
nose and other facial fractures.”
So what does all this tell
us? Well, there are some states in the
extreme. In Wisconsin, a broken nose is
plainly excluded from the definition of “great bodily harm.” In other words, it has to be something more
than that alone. On the other hand, in
Kansas as a matter of law a broken nose is always a great bodily harm.
For most jurisdictions, it is
exceedingly clear that if a broken nose is not enough by itself to suffer a
great bodily harm, one is well on one’s way to having suffered a great bodily
harm when one receives it.
And remember, the question under
the statute isn’t whether you are actually suffering great bodily harm. No, the statute says deadly force is
justified if “[h]e or she reasonably believes that such force is necessary to
prevent imminent... great bodily harm[.]”
So, for instance, in Owens, a jury found that the victim
suffered great bodily harm when he suffered a broken nose, one eye completely
shut and another eye he could barely see out of, and a busted lip. If Zimmerman already has a broken nose, would
he reasonably fear also being given a busted lip if the beating continued? And one eye being beaten until it closes and
another beaten almost as badly?
Indeed, should you wait until you are nearly blind before you use deadly
force to defend yourself? Is that when
we want a person to fire his gun? When
he can’t see very well?
Meanwhile in Guthrie, a Florida jury found that the victim suffered great bodily
harm when he had “substantial” bruising, and a multitude of cuts. Would Zimmerman reasonably believe that if
the assault wasn’t ended he would suffer equally?
And that is only looking at
Florida cases. If you look at the
multitude of cases around the nation, it appears plain that a broken nose is at
least nearly a great bodily harm,
that one doesn’t have to add very much to make a person suffer a great bodily harm. Therefore any person having
suffered a broken nose because of a man’s bare hands, and still being beaten by
that man, would seem to have a reasonable belief that they were imminently in
danger of facing a great bodily harm.
Not that any injury is necessary
to be shown in order to prove that even deadly force is justified. But let’s face it, it helps.
By the way, there is an
additional reason why a person could even fear death in Zimmerman’s
situation. It comes from another case I
found, State
v. Shepherd (2006), although it didn’t bear on the topic of what
constituted “great bodily harm.” In that case, the court made the following observation: “Dr. Hunt
testified that a severely broken nose, such as Officer Fields' nose, could
cause death if the small bones behind the nose are driven into the brain.” That is, if you break a man’s nose badly
enough and then keep striking him,
the bone fragments could have been driven into his brain and killed him. I don’t know if Zimmerman’s nose was broken
severely enough and probably Zimmerman himself wouldn’t know, but would he be
reasonable to believe that if he keeps getting struck on the nose he might
die? I would say “yes.”
---------------------------------------
Sidebar: A reasonable reader might also be confused and wonder what
to make of all these unpublished opinions.
Well, in the legal profession, no one knows. They often carry a warning that they are not
to be used as precedent, but many judges use them anyway. Those judges who use them think positively it
is an affront to the legal system to create court opinions that aren’t supposed
to be cited or followed. Our entire
legal system is set up around precedent.
You might sense, correctly, that I agree with that approach. But practically speaking a lawyer in a
courtroom is not sure what to do with them.
Ideally you use published opinions only, but if a really useful
precedent is unpublished, you cite it and note that it is unpublished when you
do and hope the court will not dismiss it out of hand.
---------------------------------------
Disclaimer:
I have accused some people,
particularly Brett Kimberlin, of
reprehensible conduct. In some cases, the conduct is even
criminal. In all cases, the only justice I want is through the
appropriate legal process—such as the criminal justice system. I do not want to see vigilante violence
against any person or any threat of such violence. This kind of conduct is not only morally
wrong, but it is counter-productive.
In the particular case of Brett
Kimberlin, I do not want you to even contact him. Do not call him. Do not write him a letter. Do not write him an email. Do not text-message him. Do not engage in any kind of directed
communication. I say this in part
because under Maryland law, that can quickly become harassment and I don’t want
that to happen to him.
And for that matter, don’t go on
his property. Don’t sneak around and try
to photograph him. Frankly try not to
even be within his field of vision. Your
behavior could quickly cross the line into harassment in that way too (not to
mention trespass and other concerns).
And do not contact his
organizations, either. And most of all, leave his family alone.
The only exception to all that is
that if you are reporting on this, there is of course nothing wrong with
contacting him for things like his official response to any stories you might
report. And even then if he tells you to
stop contacting him, obey that request. That
this is a key element in making out a harassment claim under Maryland law—that
a person asks you to stop and you refuse.
And let me say something
else. In my heart of hearts, I don’t
believe that any person supporting me has done any of the above. But if any of you have, stop it, and if you
haven’t don’t start.
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