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“Loud Music” Murder Trial Day 4: Entire Self Defense Narrative At Risk

“Loud Music” Murder Trial Day 4: Entire Self Defense Narrative At Risk

Evidence so far inadequate even for SD instruction; seems likely Dunn testifies tomorrow

After four days of trial testimony, and with at most two defense witnesses yet to testify, there exists a distinct possibility that the defense has failed to meet its burden of production on self-defense.  If so, the jury will not be instructed to consider self-defense as a possible legal justification for the shooting death of Jordan Davis.  If if THAT is so, a murder conviction would appear utterly unavoidable.

No Absolute Right to Have Jury Instructed on Self-Defense

Many people are not aware that a person has no automatic right to claim self-defense at trial. One has to qualify to have the jury instructed to consider self-defense as a justification for an otherwise criminal act.  And that qualification is met through the defendant meeting his burden of production–ensuring that there is at least some evidence in the record, however controverted, that supports a claim of self-defense.

In most genuine cases of self-defense the circumstances alone are sufficient to meet the defendant’s burden of production on self-defense.  The defendant’s 911 call, witnesses who observed the attack, later recorded statements of the defendant referencing the defensive act, defensive injuries to the defendant–the Zimmerman case is a good example of where such evidence of self-defense was in abundance.

None of that exists here, largely because Michael Dunn fled the scene of the shooting and never called 911.  Other than Defense counsel Strolla’s opening statement–which does not count for this purpose, as it is not evidence–there appears to be no facts in evidence to date that support a claim of self-defense.

Predicted: Michael Dunn Must Testify Tomorrow

Because of this, it is my expectation that of the defense’s last two witnesses, one of them MUST be Michael Dunn.  If so, we will hear him testify tomorrow morning, most likely as the last defense witness before the defense rests, as that would be the most powerful position for a self-defense narrative.

All he need to is merely utter the words “self-defense” on the witness stand, and I’m sure he’ll get the self-defense instruction. But at the cost of being cross-examined by State Attorney Angela Corey. THAT will be worth watching.  As much as I despise the prosecution’s conduct in the George Zimmerman trial–and always shall-Corey has proved herself a professional and competent prosecutor in this trial.  I expect she’ll take her pound of flesh, and then some.

(Defendant Michael Dunn.)

(Defendant Michael Dunn.)

State Has Very Credible Shot at First Degree Murder Conviction

It has also become clear over the last four days that the State has a straight-faced shot at getting the jury to convict Michael Dunn of first degree murder.  I came to my observation of this trial assuming that the first degree murder charge was a typical case of prosecutorial overcharging.

Here, however, there appears more than enough evidence from which a rational jury could find the killing was an act of premeditation, specifically in the many affirmative steps Dunn had to take in order to bring gun fire unto the SUV, and the manner in which he engaged the vehicle repeatedly.

First, in order to fire the gun at the SUV at all, he had to:

  1. lean over to the glove box
  2. open the glove box
  3. retrieve the holstered pistol
  4. remove the pistol from the holster
  5. cycle the action to chamber a round
  6. grasp the pistol in two hands
  7. turn back to the left, somewhat over his shoulder, and align the pistol on the rear passenger door of the SUV
  8. discharge three rapid shots into that door, and into Jordan Davis

After the first three shots, Dunn  paused deliberatively before firing an additional four very rapid shots, then an even longer pause followed by a final rapid three shots.  Of the 10 shots fired, nine of them struck the SUV, with each group of three being reasonably precise as well as accurate. (If interested, you can hear the number, pattern, and tempo of the gun shots on the short piece of surveillance video here: “Loud Music” Murder Trial: Sequence of Gun Shots.)

This Odd Fellow, Michael Dunn

In summary, the defense witnesses seen today drew a picture of Michael Dunn as a very odd, and very isolated young man.  Effectively no contact with his only child, although he lived in the same state and was apparently amicably divorced from the child’s mother.  His only character witnesses appear to be people who would more accurately be identified as his parents’ friends, not his own, and someone with whom he worked a relatively few times over a 15 year period.  Indeed, the people one would expect to have the keenest insight into him as a person were the first to concede, when asked, that they really didn’t know him all that well at all.

With all that said, let’s step through today’s mostly pathetically weak defense witnesses–the notable exception being when Strolla called Ron Davis, father of Jordan Davis–as well as next steps for the trial moving forward.

Randy Berry, Character Witness

(Randy Berry, Character Witness for the defense.)

(Randy Berry, Character Witness for the defense.)

The first defense witness was Randy Berry.  Randy lived in the same community as Michael Dunn’s father, apparently community build around an interest for flying light aircraft.  Randy had taught Michael Dunn aerobatics, and Michael participated on a weekly basis with various flying-related activities in the community, but by all appearances it would have been more accurate to call Randy a friend of Michael Dunn’s father rather than of Michael Dunn.

Asked by Strolla if he knew whether Michael Dunn had a reputation for being violent, Randy answered the in his experience Dunn had always been a peaceful man.

Beverly Berry, Character Witness

(Beverly Berry, wife of Randy Berry.)

(Beverly Berry, wife of Randy Berry.)

Not much to say here. Beverly, wife of Randy, was an even weaker character witness for Dunn than was her husband.  Seems like she’d even be a poor character witness for her husband, late-life marriage.

Corey was in a take no prisoners mood on cross.  In response to Beverly’s testimony about interacting with Dunn at social events, Corey asked “Any black teenagers at these social events?” Strolla promptly objected, sidebar.

Frank Thompson, Character Witness

(Frank Thompson, Character Witness.)

(Frank Thompson, Character Witness.)

This was another character witness from the community of Michael Dunn’s father, rather than from Michael Dunn’s own community.  Again, seemed more a friend of the father than of Dunn.

On cross, Corey asked, “You don’t know anything about the facts or circumstances of this case, do you?” Thompson agreed he did not. Dismissed.

Darrion Ates, Employee at Gates Gas Station

(Darrion Ates, Gates gas station employee.)

(Darrion Ates, Gates gas station employee.)

This witness was a bit of a mystery.  An employee at the Gates gas station the night of the shooting, he nevertheless seems to have had no personal knowledge of the shooting itself other than having heard shots.

Strolla showed a great many photographs of various angles of the gas station–at least 20 of them–each time asking Ates if it was a true and accurate representation of the gas station.  Each time it was. Indeed, the pictures weren’t even of the “crime scene,” in the sense that they were taken many days later. By Defense Attorney Strolla himself, who apologized for the poor quality of the photos (“I’m no cameraman.”)

Strolla also asked Ates about the dumpsters behind the gas station, but seemed to determine only that all employees shared responsibility for bringing trash bags out there.

Indeed, so pointless seemed Ates testimony that even the lovely Assistant State Prosecutor Erin Wolfson seemed at a loss at how to cross-examine the affable young man.

(Assistant State Attorney Erin Wolfson.)

(Assistant State Attorney Erin Wolfson.)

On re-direct Strolla re-affirmed again that the witnesses at the gas station had been gathered together in the convenience store, rather than kept separated somehow. Nothing new here, nor seemingly terribly relevant.

To be perfectly honest, so boring was the Ates testimony that my attention wandered. I suppose it’s possible he said something important and I missed it. But I think not.

Michelle Reeves, Plaza Employee

(Michelle Reeves, Plaza employee.)

(Michelle Reeves, Plaza employee.)

Ms. Reeves was working her job at a dry cleaners in the Plaza that adjoins the gas station. At the time of the shooting she had left her job for the day. Driving behind and around the gas station, she found herself at a red-light immediately in front of the gas station when she heard the shots. She looked over and saw a red SUV leaving the gas station parking lot.  Period.

On cross, ASA Erin Wolfson explored whether she might have been too far from the scene to see much in the evening darkness. Reeves explained it wasn’t really all that dark yet. Wolfson asked if it wasn’t true that she hadn’t seen the SUV actually stopped, but merely in motion. Reeves agreed. And that was that.

Ronald Davis, Father of Jordan Davis

(Ronald Davis, father of Jordan Davis.)

(Ronald Davis, father of Jordan Davis.)

The next called defense witness was a real surprise to me, and I think an incredible blunder by Defense Counsel Strolla:  Ron Davis, father of Jordan Davis.

Strolla’s goal seemed to be to get Davis to concede that he and the three other boys in the SUV–Kevin Thompson, Leland Brunson, and Tommy Storns–had met and discussed the facts of the shooting, in contravention to what they had been instructed by police.

When Davis resisted this implication, Strolla turned to the transcript of his earlier deposition of Davis. It turned out that Judge Healey lacked his own copy, so when Wolfson began objecting the Judge had no way to make an informed ruling.  Minutes went by as Davis sat, a forlorn and apparently broken man in the witness stand, alone, before the jury, while the paperwork was straightened out.

Once Strolla got back to questioning Davis, he accomplished little more than provide the father with a platform on which to express the devastation he, as well as Davis’ three friends, felt at the loss of Jordan Davis.  After only three minutes of this questioning Strolla gave up the effort, far too late.

Chris Dunn, Son of Michael Dunn

(Chris Dunn, son of Michael Dunn.)

(Chris Dunn, son of Michael Dunn.)

The next witness seemed at first as if he might have something to contribute, but in the end his testimony only further isolated the defendant.  It was Chris Dunn who was married the day of the shooting, and whose wedding Michael Dunn and Rhonda Rouer had just departed.

Chris seemed a nice enough young man. Asked by Strolla if Michael Dunn had seemed unhappy, angry, confrontational, intoxicated, etc., at the wedding, Chris answered in the negative, and quite credibly.  It was well known that Michael Dunn and Chris’ mother had long been divorced, and it was seen as a positive for Dunn that this post-divorce family could join together for a friendly family event.

On cross, however, when asked by Corey how many times he had seen his father in the fifteen years prior to the day of the wedding, he answered, “Three time.” Three times. In fifteen years. Yikes. Is it fair to say, asked Corey, that you really didn’t know your father very well? Yes, answered Chris, that would be fair.

Finally, Corey zoned in on an area of questioning that was both drippingly contemptuous and hilarious, all driven by the tone of her voice.

If, she asked, his father had called him that night, said there was an emergency, and asked him if he could watch his father’s new puppy, would he have done so? Yes, he answered.

The contempt was focused exclusively on the word “puppy”–she might as well have been saying “leper.”  The reason, of course, is Rhonda Rouer’s testimony that the reason Dunn and she had not called the police in the aftermath of the shooting was because they wanted to situate their 7-month-old puppy beforehand.

Phyllis Molinaro, Ex-wife of Michael Dunn

(Phyllis Molinaro, Michael Dunn's ex-wife.)

(Phyllis Molinaro, Michael Dunn’s ex-wife.)

Next up was Michael Dunn’s ex-wife, and the mother of Chris Dunn.  Again, Strolla used this witness to ask about Michael Dunn’s peaceable demeanor at the wedding, as well as whether Molinaro had any fear or concern about Michael Dunn.  Indeed not, she said, and like her son credibly so.

Again on cross, Corey came back with her “puppy” question.  If Dunn had called, said there was an emergency, and asked her to watch the puppy, would she have? I guess so, she replied, if only because it’s a puppy.  Dismissed.

Lexi Molinaro, Daughter of Phyllis Molinaro

(Lexi Molinaro, daughter of Phyllis Molinaro.)

(Lexi Molinaro, daughter of Phyllis Molinaro.)

Next up was a witness who perhaps had less to say about anything to do with this case than anybody else, even Darrion Ates: Lexi Molinaro the daughter of Phyllis Molinaro by her husband after she’d divorced Michael Dunn.

Lexi had been at the wedding, and like everyone else agreed that the affair had been affable and that Dunn had not appear angry or out of sorts or intoxicated.  That was it for the defense.

On cross, Corey asked her how many times she had met Michael Dunn before the wedding. Two or three times, she answered. Fair to say you didn’t know him well? Yes.  Would you have cared for the puppy? Sure.  Dismissed.

Homicide Detective Travis Oliver, Jacksonville Sheriff’s Office

(Homicide Detective Travis Oliver.)

(Homicide Detective Travis Oliver.)

Strolla used the appearance of Detective Oliver to get into the child-locks on the doors again but the result was simply confusion.  Strolla showed a series of photographs of the child locks, and Oliver agreed that was how they had been set when he’d inspected the SUV for that purpose some days after the shooting.  The pictures clearly show the locks in the unengaged (lower) position.

(Driver's side child door lock, unengaged.)

(Driver’s side child door lock, unengaged.)

Passenger-side child door lock, unengaged.

Passenger-side child door lock, unengaged.

It is important to what little narrative of innocence Strolla has that the child safetly locks have been in the off position at the time of the shooting.  If they were engaged, it becomes impossible to argue that Jordan Davis exited the vehicle and attacked Michael Dunn, thus justifying Dunn’s use of defensive force. Leland Brunson, the other rear passneger in the SUV, had testified that the child locks were engaged that evening.

In the greater scheme of things, it would seem not to matter a great deal, because there is as yet no witness who ever saw Jordan Davis exit the vehicle.

Don Moes, Former Work Colleague

(Don Moes, former work colleague.)

(Don Moes, former work colleague.)

Next up was another strange character reference, a Don Moes.  Moes had previously worked with Dunn some 15 years earlier, then after a 13 year lapse had worked indirectly with him again a couple of years ago.  Moes testified that his knowledge of Dunn’s reputation is that of a preaceful man. Nevertheless, he came across as a character witness who really did not know Dunn well on any meaningful personal level.

Defense Claims to Have At Most Two More Witnesses

After Moes the jury was dismissed from the day and the Judge, State, and defense discussed expectations for moving forward.  Strolla indicated that he had at most two witnesses remaining.  One of those was a purported expert that had to date not produced any kind of formal report of findings.  As a result, the State was essentially blind to what this guy would testify to.  If he is to testify, it seems likely we have a Daubert hearing facing us in the morning to qualify this expert, as well as the scientific credibility and evidentiary relevance of his proffered testimony.

It was not stated who the second witness was, but as discussed at the star of this post, if that second witness is not Michael Dunn himself it is difficult to see how he is even allowed a self-defense instruction to the jury, much less any kind of acquittal on a self-defense argument.

Next Steps

Judge Healey indicated that if they can complete witness testimony by lunch tomorrow, he’d like to move to closing arguments in the afternoon.  If, however, witness testimony moves into the afternoon, there will likely be too little time for closing. In that case, they’ll close early and start closings the following day.

Further complicating matters is a great deal of uncertainty over what the jury instructions are going to be. Closing arguments can’t really take place until the jury instructions are finalized, because they will be referred to in those closing arguments.  But the jury instructions can’t be finalized until the evidence is in final form–in this case, the last testimony is heard.

In this case, for example, if it turns out a self-defense instruction is not warranted, something on the order of 17 pages of jury instructions can be done away with.

The court’s schedule for tomorrow is that the parties will meet with Judge Healey at 8AM tomorrow to hash out whether the defense’s “surprise” expert witness will testify.  The trial proper is supposed to start at 9AM, and proceed from there as described above.

Join us all again then.  We’ll be ready to go live at 8AM in the event the early hearing is televised, and will certainly be live the moment the trial proper beings.

Until then!

–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.

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Comments

ParalegalStudent | February 10, 2014 at 6:36 pm

To get a jury instruction on self defense, all Dunn must produce is some evidence, no matter how flimsy, even if it’s just his own version of events.

From Vila v. State (2011):

According to Vila’s testimony, the victim attacked him first, and he responded in order to defend himself against that attack. The State contends that Vila was not entitled to the instruction because the evidence that he presented was minimal and self-serving. This argument lacks merit as a defendant is entitled to a self-defense instruction if there is any evidence to support his defense. Wright v. State, 705 So. 2d 102, 104 (Fla. 4th DCA 1998) (holding that defendant is entitled to jury instruction on his theory of case if there is any evidence to support it, no matter how flimsy that evidence might be); Taylor v. State, 410 So. 2d 1358, 1359 (Fla. 1st DCA 1982) (holding defendant entitled to requested self-defense instruction no matter “how weak or improbable his testimony may have been with respect to the circumstances” leading to commission of offense).
…..If evidence exists that raises self-defense as an issue, the proper approach is to offer the self-defense instruction with the forcible felony or initial provocation exceptions. See generally Cancel, 985 So. 2d at 1127.

Also see Gregory v. State and the Arthur case.

A criminal defendant is entitled to have the jury instructed on the law applicable to his or her theory of defense where there is any evidence to support it, no matter how weak or flimsy.

    Yes, but as of now they appear to have nothing.

    If Dunn testifies, and merely utters words “self-defense” I’m sure he’ll get the instruction.

    The point is he’s compelled to take the stand in order to do so.

    What do you think Corey will do to him on the stand? Nothing good for his defense, I can assure you.

    –Andrew, @LawSelfDefense

      Gremlin1974 in reply to Andrew Branca. | February 10, 2014 at 7:49 pm

      Frankly, at this point were I a juror even if the self defense instructions were given, I would just shoot right on past them. The defense has nothing, they have less than the prosecution did in the Zimmerman case.

      At this point I would vote for Murder 1 with no problem.

      It makes me wonder if the defense shouldn’t have gone for an insanity plea.

      Gremlin1974 in reply to Andrew Branca. | February 10, 2014 at 7:51 pm

      Also, Dunn had better hope it is Corey or Guy who does the cross, because frankly I think the lovely ASA Wolfson would tear him and his Attorney a new one.

        Get your mind off Wolson.

        She’s mine 🙂

        Would have been nice to see them give ASA Wolfson more running room. Very sharp. Smart, too. 🙂

        –Andrew, @LawSelfDefense

          Gremlin1974 in reply to Andrew Branca. | February 10, 2014 at 8:03 pm

          I think this trial is turning out to be everything they wanted the Zimmerman trail to be, even though it has nothing to do with SYG, but then again realistically neither did the Zimmerman trial.

          MouseTheLuckyDog in reply to Andrew Branca. | February 10, 2014 at 11:33 pm

          Redundant. I think sharp and smart are the same thing.

          It doesn’t hurt that she is pretty ( as opposed to beautiful , pretty is “someone I would like to stup”, beautiful is desirable like the model of the day. A wiseman, including your most common noir heros like Bogart, fears beauty. )

          But the thing that impresses me is that she is crisp. None of the Bernie skipping, or the John Guy “look at my dick” attitude, or the sarcastically saying puppy. ( Which may have hurt Angela badly if one of the jurors is or knows someone who think their dogs are their children. ) Just the facts, though she is better looking then Jack Webb.

          Of course Wolfson could have handled it, maybe with a more junior attorney from the office as second chair just to take a couple of the witnesses off her hands.

          But Corey and Guy came off looking like incompentent buffoons after the Zimmerman trial. They need a “big” win to get that behind them a bit, and a murder conviction of a white guy shooting a black teenager is just what the spin doctor ordered, and if it is a slam dunk case, so much the better so they can’t screw it up.

    MouseTheLuckyDog in reply to ParalegalStudent. | February 10, 2014 at 11:20 pm

    There are some interesting things for appeal here. If the judge decides to deny the instruction. How much is too little? There is Dunn’s aggressive behavior. That maybe be enough. The behavior would not be enough for me to begin action, but it is enough for me to “raise my Spidey senses”

    Another variation if Dunn takes the stand, whether or not he is a good witness, he would have been forced to testify against his will by the judges order.

    There is a fine balance here. The judge is supposed to filter the facts and screen out irrelevant or confusing facts ( sorry for me it’s hard to describe what a judge is supposed to do, sort of like knowing what pornography is ), but the jury is supposed to decide what the actual facts are.

    To me it doesn’t much matter, Dunn is very different from Zimmerman. In Zimmerman, you had his statements three or four times. You had a “mountain of other evidence” that he was getting pummelled. Just the voice recordings and screaming for 40 seconds should be enough for reasonable doubt. But in most cases of self defense, I’m sure there is no where neear that amount of evidence. In those instances, if I were a juror, I would want to hear from the defendant himself that he was “in fear of ….”

Dunn interrogation tape was just played on CNN during the trial lunch break (not in evidence yet ! ??? )

When does it come in ??? – I’m guessing maybe the D is going to call Dunn to the stand, the P will wait for him to use all the rope he brings with him on himself, and then bring it in to impeach ? I’m guessing neither Dunn nor Strolla is even close to smart enough to limit their direct enough to keep it out ?

All Dunn has to say is ‘they threatened me’, and the tape comes in. “Mr Dunn, you told the police your window was up and you couldn’t hear what they were saying ? WTF ?”

“My window was up, I couldn’t hear what they were saying”

then, Dunn says ‘There was a whole bunch of FU and such, and ‘kill him now’ etc

“Then I rolled my window down and said ‘are you talking to me ?”

get the issue here ? His window was up, ‘I couldn’t hear what they were saying”, then “They were saying this and that”. Huh ?

Dunn says he “..got his gun out …Quicker than a flash”. “Shot four times” “In my mind they got a gun” (not ‘I saw a gun’ ). Then shot some more as they were pulling away “…to keep their heads down”.

‘In my mind they got a gun …’???? Every time I walk down the street, I make that assumption subconsciously, automatically. It leads me to be polite, and cautious in my words and actions, not to whip out a piece and start blasting everyone in sight !

But that’s just me ……

(Andrew – take any of these as questions to you as you like)

Witnesses – the Berries – ‘do you know him ? “Yes.” No further questions. Why are they there ?

To Ms Berry from Corey on cross ‘Were there any young black teenagers at your parties’ Strolla objects, asks for sidebar. Camera stays on Mrs Berry – it’s obvious she is listening to the sidebar, her face reacts.

The door is open to the letters ! On recall I can see ‘Mrs. Berry, would it surprise you to hear hostility towards blacks from Dunn ? Yes ? Really ? Look at this letter he wrote !’

Next witness (lives in Dunns’ parent’s neighborhood also) is short, on the way out he nods to Strolla, Strolla pats him on the back.

Darrion Eytes – black kid with natty dreads. Works at the store. Knows where the trash cans are. Nothing else. Strolla is doubtless trying to lay groundwork for ‘the kids might have ditched a gun’.

Michelle Reeves. Worked nearby. Was driving by. Heard shots. Saw the Durango move. Saw nothing else.

Ronald Davis – dead kid’s father. Long Sidebar. “Talked to the 3 other kids after the event”. “Kids did not talk to him about the facts around the death”.

Judge wants copy of prior deposition that the D wants to bring in to impeach Davis’s words just spoken as above. Defense is poorly prepared for his own witness, Judge excuses jury for 5 minutes. Strolla doesn’t bring an extra printout or photocopy of one of his key depositions ? Enough for all three parties (D, P, and J) ?? WTF ? It looks like maybe 15 pages.

State objects – ‘improper impeachment’ (Defense is now trying to impeach their own witness that they just put on with his own prior deposition ??? )

more sidebar. Jury excused, brought back in 5 minutes.

Davis Sr. just shot Strolla in both feet. ‘You understood the words differently than I did at that time (deposition), to be on a separate topic (condolences), not ‘facts of what happened’.

Davis Sr – “Could not make out any clear statements from the kids, other than sorrow”. REFUSED to support Strolla’s attempt at making it look like the kids in the Durango were telling different stories now vs then.

Witness excused. Strolla needs a walker. No, wait -a wheelchair. Both feet bleeding profusely from self-inflicted gunshots. With his own 12 gauge.

Dunn’s Son says they bought # $ 100 worth of booze for the 30 people at the wedding. And had a bartender. Say what ? That’s not even one drink each. And they need a bartender ?

Son says he was available in town to take care of the puppy if called. Father and GF never called to ask.

Strolla is a glutton for punishment. Calls another wedding guest to show Dunn was not drunk, asks her about the puppy. Doubtless Corey will ask her if she would have helped with it in an emergency.

Corey does exactly that, Strolla objects, over-ruled. Witness says Dunn never asked for help with puppy. Witness excused, takes her bad dye job with her.

Travis Oliver – detective, Jacksonville PD. Strolla screws up again asking about dates of his reports. BAD LAWYER !!! Your own witnesses are not supposed to knock you on your ass in you in the first 3 questions, and refuse to help you back up !

Detective could not remove tripod from under seat without getting out first. IOW, Jordan could not have, either !

Corey just DESTROYED Strolla about the child locks, with the detective. They simply do not work the way Strolla wants to suggest.

Don Mays – ex Dunn boss – Another ‘Dunn is a good guy ‘witness.

End of testimony at 4 PM. Back at 9 Tuesday.

Corey – Strolla wants to bring in an expert in ‘stress reaction’. Corey has had no report in discovery, etc. But Strolla says he ‘has never had a report from him’. No Frye / Daubert done. Corey states exactly that. Objects to the witness. ‘Meets no standard of evidence’.

IOW – Strolla is trying to sandbag the P, “this will be the last or second to last D witness.”

Could ‘last possible witness’ be Dunn ? No indication.

Judge says ‘ I don’t know how y’all are going to handle it’ ??? Doesn’t the judge decide that ?

Judge suggest final testimony by noon Tuesday, closings in the afternoon, jury charge Wednesday first thing.

Sounds like a long jury instruction coming up soon.

Unless Dunn testifies, I’m left to conclude that he has no self-defense claim. That said, I have a hard time believing that the young men who survived did not discuss what happened in the Durango with Mr. Davis. Just not possible, IMO. Though Dunn may not be as “peaceable” as today’s witnesses suggested, I also don’t believe the young men were as cherubic as they were portrayed on the witness stand.

I’m still wondering about Dunn’s state of mind. Though he had apparently enjoyed himself at his son’s wedding, I cannot help but think it raised to the surface plenty of powerful emotions. There was his son, who had grown up without his dad. There was his ex-wife, who had remarried and raised a family. I wonder what Dunn was feeling deep down.

    I also doubt the kids were as clean cut as they came off. But Strolla didn’t manage to make them look like it, if they are any kind of ‘bad news’ etc.

    And Davis Senior sure shut Strolla down fast as to ‘what was talked about at his house’. Pretty bad when yet another of your own witnesses turns out to not say what you thought they would, and you have to try to impeach him.

    Isn’t there some old advice for lawyers ‘Never ask a question on the stand you don’t already know the answer to’ ? Strolla must have been out that day.

      Estragon in reply to pjm. | February 11, 2014 at 12:16 am

      Stolla is probably aware of the old advice, but he has nothing with which to defend Dunn. He’s grasping at straws and throwing Hail Marys in the hopes he will find something in medias res.

    As another side effect of him leaving, there was no BAC test on Dunn. I would think that would be standard procedure in any shooting.

    So the jury is left having heard that ‘he had 3 or 4 drinks’ at the wedding. One might speculate that he had more than that, but who knows ?

OK, so which one was the white Hispanic in this situation?

Andrew, I seem to recall that either you or someone in your twitter feed today tweeted a warning when the medical examiner was called advising that potentially gruesome content might be forthcoming in the testimony. Perhaps you should include a similar warning at the opening of court tomorrow morning because, IMHO, just about however it goes it certainly will not be pretty, especially if Dunn takes the stand. There will be no mercy for puppy lovers in that courtroom.

    Yeah, that was me.

    I don’t expect it to be pretty if Dunn takes the stand, but of course I’m speculating there.

    Don’t see how he gets a SD instruction without taking the stand, though. Corey’s explicitly said she won’t stand for Strolla’s opening being enough production to support a SD instruction.

    –Andrew, @LawSelfDefense

      And Corey’s right to take that position.

      Were I the judge, as the evidence stands today, I’d deny a SD instruction outright.

      I consider myself a SD absolutist, but it HAS TO BE self-defense.

      –Andrew, @LawSelfDefense

        I would think Dunn taking the stand is the only way an SD instruction can even be given. As it stands right now, SD is not even claimed or even hinted at in any testimony, just Strolla talking. Which so far has not been his best weapon. OK, OK, it’s his ONLY weapon… and it’s STILL not his best one.

        Dunn is going to get filleted tomorrow. Or is that ‘flayed’ ? Or both…

        Strolla’s ‘stress expert’ HAS to be there to talk about one thing – Dunn’s ‘stress’. Which is not in evidence yet, until Dunn takes the stand.

        So it will be Dunn first, then the ‘expert’ (if allowed in).

        I can’t wait to see Dunn claim ‘I was scared, they said FU and said they would kill me’, and then the State brings in the tape of his police interview where he says ‘My window was up, their window was up, I couldn’t hear what they were saying’.

        And his taped “.. in my mind they had a gun”. Not ‘I SAW a gun”.

        Like the old saying goes – ‘Dunn is done’.

      MouseTheLuckyDog in reply to Andrew Branca. | February 11, 2014 at 12:36 am

      “Corey’s explicitly said she won’t stand for Strolla’s opening being enough production to support a SD instruction.”

      Except it’s not Corey’s call. It’s the judges. The most she can do is object, but if the judge decides it is then she has to stand.

Corey asked “Any black teenagers at these social events?”

Cory has done surprisingly well so far at keeping her inner Abusive Jerk under control. The case doesn’t seem to have been terribly difficult so far for the prosecution; Strolla looked like a buffoon once again as he tried to trip up the medical examiner, but The Dragon has been playing it straight – up until this comment.

This clumsy attempt to whip us some racial animosity introduces an entirely superfluous angle to the proceedings, one she doesn’t seem to need in order for the trial to proceed to a satisfactory (from her view) conclusion. From a “game theory” standpoint, this tactic just doesn’t make sense.

So why did she do it? Is she expecting a Perry Mason moment which nobody else foresees, and feels she has to throw some precautionary sand in the gears to give her maneuvering room later?

    nightowl in reply to tom swift. | February 10, 2014 at 10:51 pm

    I reacted differently to the medical examiner. I know what Strolla was trying to do. She knew what Strolla was trying to do. But, personally, her repeated refusal to give a yes or no answer bothered me. Just answer the question and let Corey (or whomever) follow up to clarify matters. All the bobbing and weaving made me think she was trying too hard to help the prosecution.

      I believe she said she’s testified in court three times. She doesn’t know the game yet. Academics always want to give the full, totally comprehensive, “I have a PhD it took me 8 years of post-grad to earn and 4 years post-doc” answer.

      It takes serious de-conditioning before they can simply respond “yes” or “no”.

      Trust me, I’ve hired (and fired) a bunch of ’em.

      –Andrew, @LawSelfDefense

        tom swift in reply to Andrew Branca. | February 10, 2014 at 11:29 pm

        She doesn’t owe anybody “yes” or “no” answers. In fact the oath requires her to tell the whole truth, despite efforts to divert her from that.

        In this case, she defeated Defense’s efforts to channel her testimony into something it wasn’t. Sounds like a success to me.

        Or perhaps I misunderstand the concept of expert witness testimony.

          No, you’re quite right, but with more experience she would have handled it more artfully.

          The better approach is to preface the longer response with, “Well I can’t just answer that yes or no, because it’s more complex than that . . . your honor, may I? ” and then move in.

          That way you look explanatory, and not obfuscatory.

          As you say, she’s qualified as an expert for a reason–she knows more about that subject than anybody else in the court room. She can, and should, use that to get her perception of the truth before the jury.

          –Andrew, @LawSelfDefense

          tom swift in reply to tom swift. | February 10, 2014 at 11:48 pm

          So, a more active role in making her expertise useful to the court would be appropriate …

          Fair enough.

      MouseTheLuckyDog in reply to nightowl. | February 11, 2014 at 2:13 am

      Strolla was a prosecutor for three years. Then a defense attorney for 13. Those suits aren’t cheap, and there are plenty of starving young lawyers out there so you can’t be bad if you are successful.

      I think the whole abrasive thing is a Colombo-like schtick. Colombo wears a wrinkled coat, smokes a cigar, and is generally a slob and that is all accurate. But he builds on that with his bumbling manner: his “just one more thing”, his “my boss is wondering”, his “something that’s bothering me”. He does it to throw people off their guard.

      The problem with that is that it may put jurors off on him, but do the jurors then hold that against Dunn. His 16 years tell him no. I have to wonder if there isn’t a little voice in the jurors heads saying, “poor smuck, he’s got that for a lawyer”.

      I think we may seen a Kennedy-Nixon debate thing here. I am watching with 5% of my attention and listening with the other 95%. So people see Strolla’s abrasive manner, here is what I heard.

      Musser was accused of mistakes. Some unfairly. But some fairly. What did he say when he was fairly accused? He denied them. The best way to deal with an error is not to deny it, but to say something like, “I made a mistake, it’s not the first, it’s not the last, but it really doesn’t change things.”

      The ME did a good job in her duties, but then she testified to things regarding the bullet track that she can’t know and then fell back on “I’m an expert.”

      Guess, what. If there is even one initial hold out, they start reading back transcripts. THen they listen to the testimony not watch it.

      There is a scene in My Cousin Vinnie where Vinnie and the boys are excoriating him for not getting them bail, and he screams at them “Bail. This is the deep South and you are accused of killing someone. You were never going to make bail. ” People seem to be focusing on the points that Strolla lost that he was never going to win, instead of the points he actually won.

      Oh and look at John Baez. From everything I hear he is never going to be in line for a Nobel Proze.

    tom swift in reply to tom swift. | February 10, 2014 at 11:43 pm

    attempt to whip us

    D’oh, Freudian slip there – and he looked very stylish in it too, I’m sure.

    Whip up, of course.

ParalegalStudent | February 10, 2014 at 10:04 pm

Now that Angela Corey never used the jail phone calls can she be sanctioned for her refusal to release them. One of her key arguments against release was they would be used at trial.

    If she can’t be sanctioned for denying exculpatory evidence to the defense, as happened in Zimmerman, why would she be sanctioned for providing all discovery to the defense and merely denying it to the media?

    In any case, sanctions would never hinge on whether a prosecutor ended up using or not using a particular piece of evidence.

    –Andrew, @LawSelfDefense

      MouseTheLuckyDog in reply to Andrew Branca. | February 11, 2014 at 4:34 am

      It ain’t over yet.
      A few days ago there was a ruling in the Zimmmerman-NBC case. The trial cannot go forward because the parties agreed to wait until the criminal trial is over. The criminal trial is not over because the sanctions hearing is not finished.

      BTW the ruling judge? Debra Nelson. That’s right. The Zimmerman trial was her last trial before moving over to the civil side.

    The trial ain’t over yet.

    The person those calls tell badly against hasn’t testified yet. And thus hasn’t needed impeaching. Yet.

I have watched probably 80%+ of the trial plus kept up with Andrew’s coverage via twitter and the postings here. Despite the fact that Strolla was dealt a poor hand (which he likely knew coming in)I felt from the very beginning that he was far out of his league. So far he has failed to advance his case in any material way through impeaching witnesses or creating a basis for reasonable doubt about a weapon being ditched somewhere.

Some of his choices have been really strange such as calling Phyllis Molinaro, Michelle Reeves, and Darrion Ates. But to me one of the oddest things among the list of witnesses was calling Ronald Davis, the bereaved father who lost his son at such a young age and unsuccessfully trying to impeach his testimony and then immediately calling Chris Dunn who Michael had only seen maybe 3 times in the last 15 years. Chris and Jordan were relatively close in age yet on that fateful day Chris was celebrating his marriage and his potential future life with a wife and perhaps a family and on that day Jordan’s life ended.

Who could possibly think of calling those two back to back?

It was a if Strolla was just going through the motions.

    “It was a if Strolla was just going through the motions.”

    Take the state’s best HS football player, toss him into the NFL. Oh, and cut off his hands and feet (total lack of SD evidence).

    That’s what we’re watching.

    Strolla may or may not be a good lawyer, but we’ll never know from this dog of a case.

    That said, he’s done nothing that’s impressed me so far.

    In contrast, O’Mara and West had me impressed at the pre-trial hearings, before the real trial even began.

    –Andrew, @LawSelfDefense

    Baker in reply to Baker. | February 10, 2014 at 11:29 pm

    One shudders to think what might have happened if Zimmerman had ended up with someone like Strolla representing him. We tend to think now of the Zimmerman outcome as being obvious but at the time the we had our doubts about the jury considering the highly charged atmosphere and emotions in the case. And would the outcome have seemed as obvious had not the defense team presented it to us and the jury so convincingly.

      BrokeGopher in reply to Baker. | February 10, 2014 at 11:49 pm

      I think Strolla or any attorney who is awake would have slam-dunked the Zimmerman case. The state’s case was THAT weak.

        tom swift in reply to BrokeGopher. | February 11, 2014 at 12:44 am

        No slam-dunk there. Recall that, according to the scanty info publicly released after the Zimmerman trial, of the six jurors, one initially voted for conviction, and two fell into the “lesser charge” trap. So even in the clearest case of self-defense since Prussia assaulted France with the Schlieffen Plan, and even with defense handled by a powerhouse pair like O’Mara and West, only half the jurors managed to get it right.

        Justice should be done, and it should be seen to be done. But it’s no cause for celebration or complacency when it just barely squeaks by.

    tom swift in reply to Baker. | February 10, 2014 at 11:35 pm

    Leaving Ronald Davis sitting there while they fussed over who had copies of what was a real clanger.

    Were I the type to overgeneralize, I’d conclude from this trial that (1) Floridians seem to think that “911” is a toll call, and a bloody expensive one at that, and (2) the Florida legal system has yet to discover the Xerography process.

      That was a horrific disaster for the defense.

      Not that I think anything productive for the defense would have come from calling Ron Davis.

      Want to impeach that collective group? For God’s sake, call Tommy Storns as a defense witness. Not the dad lost his 17yo son.

      And the paperwork snafu gave the jury nothing to do but look at the devastated dad called by the defense just sitting there, powerless.

      KABOOM.

      –Andrew, @LawSelfDefense

        tom swift in reply to Andrew Branca. | February 10, 2014 at 11:46 pm

        And the paperwork snafu gave the jury nothing to do but look at the devastated dad called by the defense just sitting there, powerless.

        Exactly. Let’s torture the poor guy while we have him at our mercy. Ouch.

      If I’m not mistaken there was a similar type situation during the first or second day of the trial when a similar situation came about where the judge was not provided a copy of a document (a deposition I believe) and Strolla had only his own copy. He made an off-hand comment saying something about his ‘budget’. I had not followed the case in much detail prior to the trial and I wondered at the time if Strolla was a public defender. That was when I first googled Strolla and saw the first entry on google was titled: ‘Strolla Law | DUI Attorney West Palm Beach Criminal Lawyer’

      The DUI sort of stuck out.

        MouseTheLuckyDog in reply to Baker. | February 11, 2014 at 2:24 am

        Dunn was declared indigent. Kind of a funny thing for a pilot. Flying is an expensive hobby.

        I wonder how Dunn hooked up with Strolla. Maybe the cop friend.

        Why did the DUI strike you. It struck me because many DUIs are accidents where the guy leaves the scene and turns himself in the next day.

If Dunn doesn’t testify, he’s convicted. But maybe the case for premeditation is weak enough to make it 2nd degree. The law sees premeditation as something that takes no amount of time to develop, a step away or a moment’s respite in the action is enough. But people may have a harder time envisioning the acts of getting the gun out and firing three bursts as offering the opportunity at each pause.

BUT if Dunn testifies, all those “racist” calls that Corey has fought to keep under wraps can come in to impeach. If they are shocking enough, Dunn could testify himself right into a death sentence.

He’s got no practical chance at acquittal at this point. Maybe better to cut the losses and just rest the defense.

    MouseTheLuckyDog in reply to Estragon. | February 11, 2014 at 2:33 am

    I have not seen much of the calls. What I saw was probably the “juiciest” and yes Jessie Jackson would call them racist. BUt I think a person who does not think “thug” is the new N word probably would not.

Dunn has a story to tell which could mitigate his guilt, but not calling the cops undermines it, naturally so. And the witness who heard Dunn say something to the effect of “I won’t be spoken to like that” well that’s awfully damaging.

And as far as sentence time, he’s looking at a whole lot of years for just firing a gun improperly if my Zimmerman case memory is correct.

This case is a dog. Sometimes, that is just what a defense attorney has to deal with. What can an attorne3y do if the cops catch your client standing over your wife’s bullet riddled body and you are holding the murder weapon.

Dunn must testify. If he doesn’t, he is looking at life in prison. If he testifies, he will be torn to shreds by Corey, but at least he will have an opportunity to tell his version of events. If he takes his beating in the courtroom, he may have a chance to limit his punishment to twenty years.

I have no sympathy for Dunn.

Any photos of the tripod? Was it inspected for fingerprints, blood, or tampered to easily remove or expose center barrel?

I’m of the opinion Rhonda Rouer should be charged as well. She had every opportunity to phone the Police, however, her concern was not four teenagers which her fiance attempted to “gun down” but their dog Charlie, and stocking up on more booze. They both knew they’d too much to drink and they’d no intention of reporting it that evening and being subject to a blood test of any sort! Rhonda was perfectly normal in her “police interview” but on the stand she certainly turned on the nerves and water works! As for Michael Dunn, he’s an obvious racist, each new letter he releases from jail shows that, and I hope they use it should a new trial occur. Listening to the phone conversations between Michael Dunn, his fiance (Rhonda “cry me a fake river” Rouer) and his parents, Phillip and Sandra Dunn, and they will make you sick! There is no empathy for the teenager killed in cold blood, or for his family. Michael Dunn even had the audacity to claim he was the victim? The Dunn family is painting a clear picture of themselves for the world to see. Phillip and Sandra Dunn are racists who raised a racist kid, never cut from the apron strings. Michael said on the tape he “always wants to talk to his Daddy.” Please! The facts and truth are pretty clear for all to see. Michael Dunn had too much to drink, thinks he is superior to blacks, and killed this poor teenager because he raised his voice to him and used profanity. At no time was Michael Dunn under physical threat. Michael Dunn became the “judge and juror” in that parking lot, and Michael Dunn will spend the rest of his life in prison, right where he belongs! Unfortunately Rhonda Rouer is walking free, however, maybe that will change if a second trial does happen, one can only hope, she’s certainly no saint. Our hearts and thoughts are with the family and friends of Jordan Davis. We are so very sorry for your loss, it was so unnecessary.

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