The Brett Kimberlin Saga:

Follow this link to my BLOCKBUSTER STORY of how Brett Kimberlin, a convicted terrorist and perjurer, attempted to frame me for a crime, and then got me arrested for blogging when I exposed that misconduct to the world. That sounds like an incredible claim, but I provide primary documents and video evidence proving that he did this. And if you are moved by this story to provide a little help to myself and other victims of Mr. Kimberlin’s intimidation, such as Robert Stacy McCain, you can donate at the PayPal buttons on the right. And I thank everyone who has done so, and will do so.

Monday, July 8, 2013

“Great Bodily Harm” and the Zimmerman Case

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.]

So let’s step through that.  First it seems obvious that George Zimmerman used deadly force on Trayvon Martin.  I mean not to be crass, but he is dead after all, and that is the kind of thing that shooting a gun usually accomplishes.  But it is still worth taking a moment to flip over to Fl. Stat. §776.06 and see what the full definition of “deadly force” is.  And what that statute reveals, in relevant part, is that “‘deadly force’ means force that is likely to cause death or great bodily harm.”  And what that means, putting it all together is that deadly force can only be used if reasonably believe that such force is necessary to prevent either 1) imminent deadly force or 2) a forcible felony (which most likely covers acts like kidnapping or rape). 
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.

Embedded image permalinkSo 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.



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.

No comments:

Post a Comment