UPDATE:  At 8PM the jury asked to be provided with access to the gas station video, all 20 minutes worth, and from all six camera angles.  They also indicated that they were finished for the evening, and would continue their efforts tomorrow morning.

In addition, the four alternate jurors will be kept overnight, and also sequestered from the 12 primary jurors.

Judge Healey elected to recess until 10AM tomorrow, although he and the lawyers will meet at 9:30AM to iron out the protocol for providing the video to the jury.  We’ll be here live with VERDICT WATCH from as soon as video is available from the court room, along with our usual live-tweeting.

Following today’s lunch recess the adversarial portion of the “loud music” murder trial segued through defense closing argument and state rebuttal without incident.  This was followed by Judge Healey instructing the jury, identifying (my number) the alternative jurors, and sending the 12 primary jurors into deliberations.

Defense Closing: Cory Strolla

Strolla did a very solid job on his closing, better than much of this trial work, and especially given what he had to work with.  His mission, of course is to accomplish one or both of the following goals: (1) create a reasonable doubt in the juries mind on at least one of the elements of each of the crimes charged and/or (2) create a reasonable doubt, for every element of self-defense, that the State has disproved self-defense.

burden prove crime

burden disprove SD

To put it another way, in order for Dunn to be convicted of any one of the crimes charged (or their lesser included offenses) the State must BOTH prove EVERY element of that crime charged beyond a reasonable doubt AND they must disprove AT LEAST ONE element of self-defense beyond a reasonable doubt.

Strolla began by emphasizing that Dunn had the protection of the law, and the presumption of innocence. Dunn need prove absolutely nothing, rather the burden–both for proving the crime and disproving self-defense–rested solely upon the shoulders of the State.

burden of proof

Strolla then pointed out that Assistant State Attorney John Guy had  gone so far as to claim in his opening that the State would prove Dunn’s guilt beyond ANY doubt.

beyond ANY doubt

Then Strolla began to attack the evidence supporting the State’s narrative of guilt.  He noted, for example, that there was not a single witness who had testified that Dunn had evinced any hate or anger to any person.  At worst, he had said that he hated “thug music,” as testified to by his fiance Rhonda Rouer.

The State, Strolla said, wants you to believe that Dunn’s blood was in a boiling rage. But all the evidence is that he was in a good mood coming back from his wedding.  No matter how much Assistant State Attorney Wolfson yells, noted Strolla, there was no witness testimony of anger by Dunn towards anybody.

Strolla also emphasized to the jury that they were not to consider the media, or public gossip, but ONLY the evidence that had been presented in court.  This was surely in no small part to ensure that they did not consider the content or gossip about any of the jail house phone recordings–none of which was ever introduced into evidence–or the jail house letters–only one or two of which were introduced into evidence.  The State, Strolla emphasized, had to overcome the presumption of innocence with evidence, not emotion or anger.

evidence not emotion

Strolla also characterized the State’s witnesses as being resistant to his questioning. Whereas they were simply responding “yes, no” to the prosecutors, when questioned by him, he said, he practically had to pull teeth to get responsive answers.  (In fact, much of this was created by Strolla’s antagonistic demeanor and often vague and open-ended questioning.)

He also argued that some of the State’s witnesses got special treatment for their testimony.  Shaun Atkins got to stay in the Sheriff’s lockup, a much nicer environment than the prison in which he had been serving his sentence.  Christopher LeBlanc had had a warrant for his rest made to go away by the State.  Tommy Storns got a sweetheart deal on his parole violation the night of the shooting.

The SUV, he noted, had been away from the gas station for three minutes before returning.  He then made the dramatic motion of not speaking for a full three minutes, except to announce each minute as it passed.  During this period Michael Dunn’s father was observed in the court room.

(Michael Dunn's father.)

(Michael Dunn’s father.)

Also present in the court room was Homicide Detective Oliver.  Ron Davis, Jordan Davis’ father is seen past Oliver’s right shoulder, and Lucia McBath, Jordan’s mother, over his left shoulder.

Ron Davis Detective Oliver Lucia McBath

Strolla argued that the three men from the SUV–Storns, Brunson, and Thompson–never told the police where they’d had the SUV parked while gone from the station. He also argued that within minutes Tommy Storn’s cousin was on scene. Why, he wondered, was it so much more important for Storns to call his family than to call 911?

He noted that Thompson did call 911 from the gas station, but was eerily calm on the 911 call recording (which the jurors will have with them in the deliberations room).

Strolla Argues Police Investigation Incompetent

Strolla then hit a series of talking points regarding the claimed incompetence of the police.  Why didn’t the police bring in K9 units trained to find guns and drugs? Homicide Detective Musser said it wasn’t his job.

K9

not my job

Why didn’t the ME obtain the original data on the the toxicology tests, rather than rely on the hand written notes of the toxicologist?  ME Simons said it wasn’t her job.

ME not my job

He then criticized Wolfson for arguing, in her closing, that Dunn’s inconsistencies were fatal to his credibility.  Why are the defense inconsistencies a problem, but inconsistencies among the State’s witnesses are not? When the three boys from the SUV met days later with Ron Davis, Davis himself testified under deposition that their stories were not entirely consistent.

Inconsistencies

Strolla also semi-mocked the lesser included criminal charges, suggesting that they were in place precisely because the State didn’t have confidence in its indictment charges of first degree murder.

Self-Defense: State’s Burden To Disprove

From there, Strolla shifted to self-defense. He again reiterated that it was the State that must disprove self-defense, and urged the jury not to let them get away agains with saying, “it’s not their job. It’s ALL their job.”

SD their job

He again mocked police performance, suggesting that the only reason Davis’ weapon wasn’t recovered is that they didn’t search for it until days later. Further, the only reason Dunn had ever even hesitantly doubted whether Davis had a weapon was because the police had told them they’d found nothing when Dunn believed they had thoroughly searched–but they had not thoroughly searched.

no thorough search

Dunn’s Character Witnesses.

Strolla then switched tacks to focus on Dunn’s apparent calm demeanor. All the character witnesses, he pointed out, had attested to Dunn’s reputation for peacefulness. Dunn was in a good mood that day, the wedding participants–including his ex-wife–had testified. Does it really make sense that he whipped out his gun and fired for no adequate provocation, Strolla asked.

Impeaching Rhonda Rouer

Then Strolla turned to the testimony of Dunn’s fiance Rhonda Rouer, which had been particularly damaging in rebuttal the prior day.  In particular, Rouer had denied Dunn’s claim that he had mentioned Davis possessing a weapon at any time prior to his arrest, and that Rouer had not phone his Federal law enforcement neighbor about the shooting but that the neighbor had contacted them merely to discuss social plans.

The State, argued Strolla, seeks to hang their hat on Rouer, but Rouer is essentially a basket case and was more so in the immediate aftermath of the shooting.  When asked on cross by him whether it was possible that Dunn had told her about the gun but that she’d missed it because of her stressed out condition, she’d conceded it was possible. The same with the disputed phone call to the LEO neighbor.

possible

Strolla then turned back to the police failure to record the interviews with the three boys in the SUV, noting that the absence of these recordings made it all but impossible to catch them in any effort to change or align their recounting of the night of the shooting.  This was essential, he said, because the boys were in the best position to hear Davis’ threats against Dunn–yet they all insisted that while they’d heard much other speech between Davis and Dunn they mysteriously hadn’t heard the threats.  They were never going to admit the threats, he said, because Davis was their friend and they wanted his death avenged with Dunn’s conviction.

He criticized the police for not adequately determining if the child safety locks were on. In any case, he said, even if the locks were engaged, Davis’ window was open and he could simply have reached through the window, grasped the outside door handle, and opened the door.

door handle

Bullets Can’t Violate the Laws of Physics

Strolla then turned to the bullet trajectory evidence, arguing that the State’s interpretation of it was contrary to the laws of physics.  In fact, the evidence was consistent with Davis being outside of the SUV, not inside.

matrix

Repeating his “garbage-in, garbage-out” analogy from the trial proper, he argued that the ME had failed to consider the variables necessary to determine properly whether Davis was inside of our outside of the SUV.

gigo

Justifiable Use of Deadly Force

Strolla finally moved to self-defense. He noted that self-defense is a defense to all the charges if Dunn reasonably believes he was at imminent threat of aggravated assault, grave bodily harm, death.

SD total defense

Indeed, he urged the juror to tackle self-defense first in their deliberations, because if they couldn’t get past self-defense they need never debate the criminal charges. (You’ll recall that Mark O’Mara had made a similar suggestion to the jury in the Zimmerman trial.)  He again reminded the jury that the State had to disprove self-defense beyond a reasonable doubt, and therefore, had two overcome two thresholds of beyond a reasonable doubt.

He then focused on the definition of reasonable doubt, pointing out that it’s not a possible doubt, a speculative doubt, an imaginary doubt.  If they have a reasonable doubt whether Dunn acted in self-defense, they must find that he did so act in self-defense, and therefore acquit him of all the criminal charges.

He cautioned them to be as certain of any verdict of guilt as they could, because if they found themselves with uncertainty a day or a week or 10 years later, it was too late.  And with that, he wrapped up his closing my asking the jury to return the only “just” verdict, not guilt.

Assistant State Prosecutor John Guy

To my disappointment, instead of ASA Erin Wolfson returning to deliver the rebuttal close, John Guy stepped up to do so.  That said, I was favorably impressed with his closing, which was much better than I’d come to expect from him.  For the most part he was able to keep his histrionics in check and hit the key legal points.

Guy opened his close with an appeal for the jury to apply it’s common sense, and then began working though a series of talking points–accompanied by power point slides–emphasizing “Common Sense reasons Michael Dunn is Guilty”

(1) If Jordan Had a Gun, Dunn Would Have Said So to Rhonda Rouer

1 No tell Rouer gun

(2) If SUV Had Been Aggressors, They Would Not Have Returned to Gas Station

(3) If Jordan Davis Had Gun, Dunn Would Have Been Shot

3 If Jordan had gun shot

(4) If Dunn Acted In Self-Defense, He Would Not Have Fled

(5) If Dunn Acted In Self-defense, Would have Called 911

5 If SD call police

(6) If Dunn Acted Self-defense, Story Would Be Consistent

6 if SD consistent

(7) Dunn Self-Defense Utterly Inconsistent With ME Expert Testimony

(8) If SUV Door Open, Door Plastic Be On Ground, Not on Seat

(9) If Davis Door Open, Would Have Been Damage to Dunn’s Car

9 If Davis out car damage

(10) If Dunn Was Later Afraid, Would Not Have Left Gun in Car

10 if fear have gun

Guy then turned to some specific pieces of Dunn’s testimony.

It Didn’t Matter to Me When I Called Police

This comment was around Dunn’s explanation that because he had acted in lawful self-defense, and therefore had not committed a crime, it wasn’t really important whether he called the police that night, the next day, or two weeks later. Guy mocked this in comparison to Dunn’s claim that his request to the young men to turn down their music was merely a “common courtesy.” Would not, Guy asked, calling the police after shooting at a car full of people been a “common courtesy” if you really believed you’d done nothing wrong?

common courtesy

Gangsters-Thugs

Guy then focused on the arguably “angry”language by Dunn of the terminology “gangsters” and “thugs.”

gangsters-thugs

At a Loss to Justify

Guy also focused on Dunn’s (arguable interrupted) statement to Homicide Detectives Musser and Oliver that he was at a loss to justify his last three shots at the SUV.

loss to justify

Reasonable Doubt, the Human Face of Jordan Davis

Guy then wrapped up by covering again what reasonable doubt was, and wasn’t, and by showing the photo ID of Jordan  Davis, and to ask the jury for a verdict of guilty on all the charges.

reasonable doubt

Jordan Davis

 Judge Healey Charges The Jury

Judge Healey then moved immediately to read the jurors the extensive jury instructions, dismiss (at least tentatively) the alternate jurors, and send the jury into deliberations.

The model jury instructions relevant to the case can be read here (these would have been customized for the facts of this case before being presented to the jury): “Loud Music” Murder Trial: Relevant Florida Jury Instructions

The final 12 jurors are profiled here:  “Loud Music” Murder Trial: THE 12 FINAL JURORS

 Keep on Eye on Legal Insurrection for Breaking News on Any Verdicts

–Andrew, @LawSelfDefense


Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.