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Appeal Likely: Dunn isn’t Done Just Yet

February 17, 2014 By: Keiron Jackman Category: Current Events, Headlines, Law

Michael Dunn

Associate Press

APLEBLOG readers may be a bit surprised we did not release an analysis of the Michael Dunn case before the verdict. However APLEBLOG was not going to release a story until the case came to a conclusion for multiple reasons. Just as expected there was not a conviction on the ultimate charge of first-degree murder, nor was there a second-degree murder or manslaughter finding by the jury. Instead there was hung jury because the twelve jurors were unable to come to an agreement on the ultimate charge of murder. However, the jury did convict Dunn of three counts of attempted second-degree murder on the basis of the three other teens in the vehicle the victim, Jordan Davis, occupied at the time of the shooting. Nonetheless this finding by the jury may not be upheld if Dunn appeals his conviction.

For those unfamiliar with the Dunn case: Michael Dunn is a Satellite Beach man who shot and killed 17-year-old high school student, Jordan Davis, while he was sitting in the back passenger seat of an SUV at a Jacksonville gas station. Dunn claims, he fired his weapon in self-defense after he allegedly saw Davis exit the SUV with a shotgun. Dunn fired 10 shots into the vehicle, 6 of which hit the passenger side of the SUV. The teens fled the gunfire, parked a short distance away, and called police before returning to the gas station. There are eyewitness accounts for almost every second of the entire event including the teens’ escape and return to the gas station, yet there was no conviction on murder and no shotgun recovered. Nevertheless the possibility of a shotgun must have still resonated with the jury.

Obviously the jury did not find the State’s case convincing. It is safe to say jurors did not believe beyond a reasonable doubt that Dunn premeditated; had ill-will, spite or hatred; or even overreacted. Had the jury believed any of those things they would have been bound by law to find Dunn guilty of first-degree murder, second-degree murder or manslaughter. Therefore it is likely that jurors more or less found Dunn’s testimony somewhat believable or plausible. If my analysis were correct that would mean that the jury’s guilty verdict on the attempted murder would be inconsistent and subject to being overturned on appeal. Let me explain.

As stated in prior articles available on APLEBLOG, Florida is a Stand Your Ground (SYG) state. That means, although many people wrongly believe you have to conjure SYG to be afforded its protection, there is no duty to retreat. There is only one self-defense statute. SYG allows an individual to use deadly force even when he or she may safely and reasonably retreat from a threat of deadly force. If you do not believe this please comment and show the author otherwise – such as a statute that requires retreat if reasonably available. No such statute exists, at least since 2005.

Why should Dunn’s conviction be overturned? SYG clothes a defendant or claimant with immunity from prosecution when (lawful) deadly force is used. When applied this means that a defendant cannot be held criminally or civilly responsible for the death or injury of another as a result of the (lawful) use of deadly force in self-defense. If a defendant were to kill a bystander as a result of his or her lawful use of deadly force, so long as the defendant was not grossly negligent in lawfully protecting his or her own life and limb, no conviction can come about. How so, one may ask?

Take for instance the case of Darling v. State, 81 So.3d 574 (Fla. 3rd DCA 2012). In this case nine-year-old Sherdavia Jenkins was caught in the crossfire of a gunfight between two men. The shooters were about 50 yards away from Sherdavia, who was playing with a doll near the porch of her house. Darling said he feared Larose would pull a gun on him so he pulled his gun first but was acting in self-defense. Sherdavia was killed1.

At trial, Damon Darling argued he was not responsible for the deadly shooting of Sherdavia because he fired in response to a perceived threat from the other shooter and that his murder charge should be dismissed based on immunity. The trial court did not immediately dispose of this argument, but rather held a pre-trial hearing to determine if Darling was in fact entitled to immunity by the preponderance of the evidence. After the hearing the trial court determined that Darling was not immune. On appeal, the Third District Court of Appeal affirmed the trial court’s decision holding that the trial court correctly weighed the evidence in concluding Darling’s actions were unlawful at the time of shooting and therefore he was not entitled to immunity.

Although Darling was convicted of manslaughter, Darling suggests, among other cases, that had Darling’s actions been lawful at the time of the shooting, he would have been afforded immunity and Sherdavia’s death ruled an accident.

Similarly, Dunn would also be afforded immunity from prosecution if the jury were to determine Dunn lawfully utilized deadly force. A defendant cannot be expected in a situation involving an imminent threat of great bodily harm or death to surgically eliminate a threat in the face of many (possible aggressors). A defendant can only be expected to act reasonably in defending his or her own life and limb. Dunn testified that he had no idea if the other teens were acting in concert once the shots rang out. He also stated he had no idea if Davis or any of the passengers was going to shoot back.

To be successful on appeal Dunn will have to file a Writ of Prohibition. The writ must demonstrate the trial record reflects by the preponderance of the evidence that he was in reasonable fear of imminent great bodily harm or death. That means there must be evidence stating that more than likely there was a shotgun and he acted reasonably. Plainly speaking, on appeal the (trial) record or facts of the case must not have had substantial evidence of the shotgun for Dunn to be successful.

Make no mistake, the author does believe that there was enough evidence at the disposal of the prosecution to secure a conviction for first-degree murder, however, the jury has spoken and they had doubts about the State’s case. The author will not go into the reasons why he believes there was sufficient evidence available to prosecution, but he will say that in a case such as this, he is completely shocked jailhouse letters written by Dunn expressing his ill-will, spite and hatred were not introduced into evidence.

1 http://www.tampabay.com/stand-your-ground-law/cases/case_50

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1 Comments to “Appeal Likely: Dunn isn’t Done Just Yet”

  1. Is it not possible that the jury considered the first and the second set of shots as two different (although closely connected) events? Assuming the defense created reasonable doubt as to the presence of a weapon (and they did), the hung jury on the three charges related to the homicide is understandable. Once the threat was over, as evidenced by the vehicle leaving, shooting into the vehicle constituted three charges of attempted murder, and is not as easy for Dunn to defend. Although I still feel the murder/attempted murder is a reach, he offered very little in the way of defense for that part of his actions in the police interview.


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