brandy, l.l. cool j. the list goes on and on. for the first time ever, msnbc is broadcasting live from the event. i've been to essence festival every single year since it began. it's an incredible experience, and i'm proud to share it with you starting today and continuing throughout the weekend. but we start with george zimm zimmerm zimmerman's second-degree murder trial. for the first time, trayvon martin's mother took the stand in a gripping testimony. sybrina fulton testified about one of the most critical questions in this case, saying that she was certain it was her son's voice screaming on that critical 911 call. the jury also heard testimony from trayvon martin's older brother and from the medical

examiner who performed the autopsy on trayvon martin and who said trayvon experienced pain and suffering after the fatal gunshot. but the day began with that heart wrenching testimony that sybrina fulton that revealed her pain and her pride. >> do you have any children? >> yes, i do. >> and can you tell us who they are and their names? >> my youngest son is trayvon benjamin martin. he's in heaven. >> he's in heaven. just moments was a that emotional testimony, the jury alsolistened to a painful 911 tape that captured the final seconds of her son's life. >> prior to your son's death, had you heard him crying or

yelling prior to his death? had you ever heard him while he was growing up and while you were raising him, had you ever heard him crying or yelling? >> yes. >> i want to play a reportcordi for you, ma'am. >> i think he's yelling help, you i don't know. send someone quick, please. >> okay. does he look hurt to you? >> i can't see him. i don't want to go out there. i don't know what's going on. >> so you think he's yelling help? >> yes. >> all right. what is your phone number? >> there's gunshots. >> you just heard gunshots? >> yes. >> ma'am, that screaming or yelling, do you recognize that? >> yes. >> and who do you recognize that to be, ma'am? >> trayvon benjamin martin. >> trayvon benjamin martin. the woman who knew him best

testified it was his voice screaming on that tape, not george zimmerman as the defense says. but the defense tried to get her to concede that while she wanted to believe the voice was her son's, it might not have been. >> you certainly would hope that your son trayvon martin did nothing that could have led to his own death, correct? >> what was your question again? >> you certainly hope as a mom, you certainly hope that your son trayvon martin would not have done anything that would have led to his own death, correct? >> what i hope for is that this would have never happened and he would still be here. that's my hope. >> absolutely. and now dealing with the reality that he's no longer here, it is certainly your hope as a mom, hold out hope as long as you can, that trayvon martin was in no way responsible for his own death, correct? >> i don't believe he was.

>> i know. and that's the hope you continue, correct? >> i don't understand what you're trying to ask me. >> okay. >> george zimmerman has pled not guilty and claims he shot trayvon martin in self-defense. the question about who's screaming on the 911 call is central to that claim. joining me now, former prosecutor faye jenkins, msnbc legal analyst lisa bloom, and criminal defense attorney john burress. thank you all for being here. >> thank you. >> thank you. >> faye, let me go to you first. what impact did sybrina fulton's testimony about the 911 call have on the jury, in your opinion? >> i think her testimony and her presence on the witness stand today had a tremendous impact. i think that the jurors can understand how difficult it is for a grieving mother to get on the witness stand and here that tape live and in their presence and you could see the visible reaction she had from hearing

the tape believing that she's hearing her own son get killed. but more than anything, i think her presence meant a lot because we've heard from the defense and they've tried to paint a narrative of trayvon martin as this vicious street kid who stopped george zimmerman and jumped him and punched him and according to george zimmerman's story tried to kill him. then you see this family get up there and the college educated represent themselves so well on the stand. i think that tremendously undercuts that narrative that they tried to present about trayvon martin. so as they're representatives of him in that courtroom, i think it spoke volumes. >> now, lisa, you have five of the six jurors, i understand, are mothers. what impact would you think watching the mother of trayvon martin have on the mothers on that jury, if any? >> well, she's not only the emotional center of the case,

she's the best witness that the prosecution put on. she had a steely resolve and a poise about her. even when she disagreed with the defense attorney, she did it with a certain dignity. she didn't sass back. she didn't give him a hard time. she just stayed very centered in her testimony. it's not about hope. it's about what she remembers. she knows this was her son on that call. she's not going to waiver from that in any way. there's no question he could ask her that would get her to waiver from that. and he had no inconsistent statements on this witness, unlike so many others. so i think by far she was the best witness that the prosecution had. and the defense was very smart to just ask a few questions and sit down. that's all they could do with her. >> now, john, there was an interesting occasion when mr. o'mara started. he started by first trying to give his condolences to the mother. let me play that for you.

>> good morning, ma'am. >> good morning. >> firstly, i truly apologize for your loss. >> objection, improper. not a question. >> okay. you need to ask a question. >> excuse me? >> you need to ask a question. >> now, he started, the judge admonished him and stopped him. that kind of added to some sp u speculation throughout the day to try and offset the fact the jury saw a taped interview with mr. zimmerman where he said he had no regrets about what happened that night and that what happened was god's will. let me show you that. >> is there anything you regret? do you regret getting out of the car to follow trayvon that night? >> no, sir. >> do you regret that you had a gun that night? >> no, sir. >> do you feel you wouldn't be here for this interview if you didn't have that gun?

>> no, sir. >> you feel you would not be here? >> i feel that it was all god's plan, and for me to second-guess it or judge it -- >> is there anything you might do differently in retrospect now that time has passed a little bit? >> no, sir. >> now, john, having watched that, one, how damaging is that, if at all, to george zimmerman? two, do you feel that is why the judge -- i'm sorry, the attorney attempted to try to show some sympathy today? >> well, it is a defense tactic, of course, to let the family know he's sympathetic. i think he was trying to transpose that over to george zimmerman to offset what george zimmerman had said before when he aptly showed no regret and offset his entire demeanor throughout the entire proceeding, including through the statement he's given where he's never shown any regrets. this was a ploy on his part.

the judge was correct in denying it. he did get to say it. ms. fulton was so great. more importantly, they did not let the door get opened. because that's something the defense was trying to do the entire day, to get into this prior conduct and character around trayvon. i think it's correct that the family itself, the mother and the son, were the best testimony for trayvon martin in this case. he came from a very good family. he had parents who were sharing his custody. that goes to the father as well. i thought that she was good, and i thought that the effort by the defendant to try to minimize george zimmerman's lack of remorse did not work. >> now, faith, i noticed when trayvon's brother was brought to the stand and he was questioned about he had told a reporter earlier in the case right after

he'd heard the tape he wasn't sure if it was his brother or not and explained he was still in denial about the whole death and wasn't sure of anything. i noticed that mr. o'mara contrasted how he went after the brother as opposed to the mother. with the mother, he said, well, maybe you were hoping that was your son. with the brother, who took his time before he affirmed throughout the case that was his brother, he didn't act as though that was the natural thing to do. almost a direct contradiction in approaches. >> right. and when you have someone who's a younger witness like trayvon's brother, perhaps o'mara thought he would get more leverage with him when cross-examining him. i thought that the cross-examination of trayvon's mother and brother went a bit too far because these are things that you can argue in your closing statements. well, obviously this is trayvon's family, and we understand that they lost a

relative, but you can understand why they would be biased and want to believe that this is their son. those are things you can get up and argue in your closing statements. you do not have to try to make these points with these witnesses while they're on the witness stand in front of the jury because obviously these are grieving relatives. you want to get up, maybe ask a few questions, if any, and then sit back down and let his relatives get off the witness stand. i was surprised that o'mara tried to go as far as he did today with these witnesses. >> do you feel, lisa, that o'mara went too far or he did what he had to do to defend his client? after all, mr. zimmerman is facing life if he gets murder two, and his lawyer has got to try to defend him. >> welt, that's right. it's mark o'mara's job. he's an outstanding attorney. i thought he was gentle with them on cross-examination. he asked a few questions trying to plant the seeds of doubt with

the jury, and then he sat down. i have to say that the two family members that we've now heard from, trayvon martin's mother and brother, both came across so well on the stand that, you know, taking a broader look, i think the jury has to consider that perhaps this is the kind of young person that trayvon martin was. these are educated people, poised, confident people. certainly from the brief time they were on the stand they don't appear to be hot headed, argumentative or aggressive. so while their specific testimony was very good, i also thought their demeanor was very important. i'm sure the prosecution is delighted that they put them on the stand. >> faith jenkins, lisa bloom, and john burress, thank you for your time. have a great weekend. ahead, we'll turn back to this incredible experience down here in new orleans. essence fest 2013. the music, the food, the culture, the stars. i'll talk about it with my very special guest steve harvey. he's a comedian, author, and now

the host of his very own hit tv show. he joins me next. and we will be watching what's going on in sanford, florida, and be going there live. you're watching a special edition of "politics nation" live from the essence fest in new orleans. stay with us. [ whispering ] uh! i had a nightmare!

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♪ we're back live from the 19th annual essence festival in new orleans. every year the festival draws some of the biggest and brightest stars in the entire entertainment industry. one of those stars who's making a repeat appearance this weekend is emmy award nominated talk show host, comedian, author, friend, no one shines brighter

than steve harvey. he's won rave reviews for his brand new show in its first season interviewing everyone from oprah winfrey to the first lady. >> this is the ultimate role. >> you know, when my book first came out, you put me on. >> yes, i did. not just one but two shows. >> the first time she put me on, it was just for a segment or two. >> yeah. >> then in it the middle of the show, she said, i'm going to bring steve harvey back for a whole hour. i started crying. i'm on oprah for an hour. i went home, told my mama. she in heaven. that's on the bucket list for me. >> what, golf? >> to play golf with your husband. >> oh, i could give that to him as a gift. ♪ on the dance floor, oh ♪ you don't want to stop

shake your booty till you drdro drop ♪ >> joining me now is mr. extrorinaire, mr. steve harvey. >> you and i go way back. what a lot of people don't know is that you also have a heart for our will the of what's going on in the country. you don't give an opinion, but you open up the air waves, even as we watch the trayvon martin case. when we were trying to say it should go to trial, you had us come on and say that. you're watching all this. i just thought people ought to know that about you. >> yeah and, you know, i do have an opinion about it. but i'm not a lawyer. i do respect and love the fact that our country has a system to address things, but i break it down to the smallest common denominator. i just happen to be a father. if you take color away from the whole situation -- let's remove

race from the situation. how would you like it if your child went to the store on a commercial break to get an ice tea and a pack of candy and somebody killed him? i don't know what -- i don't care what the circumstance is, there was no reason for this young boy to die. there was no reason for him to be killed that day. he did nothing. he did nothing. all this talk about this guy was defending himself, see, trayvon martin isn't here. trayvon martin also had the right to defend himself. ain't nobody saying that. that's kind of ticking me off a little bit. >> as we speak, the prosecution is officially resting. you and i talked about there wouldn't have even been a trial if there had been some public attention and some protest. whatever way it goes, guilty or not, at least there's a trial now and we'll see what happens. >> absolutely. you came to me when it first happened and told me you were going down. when you went down there and

stirred it up and brought a lot of national attention to it, you did that. let's not make any bones about this. you did that. you went down there. you made sure it got national attention, which it deserves to be a trial for this. if it hadn't have done this, this man would have never been brought to trial. he would just be free. and he's not going free. it'll be wrong for him to go free. if they don't get him on second-degree manslaughter, i'm hoping, can they do reduced charges like aggravated manslaughter? >> yeah, they may. >> that's just as good. >> we'll see. again, he has the right to a defense. we see where it goes. they're about to bring in the jury and rest. let me ask you about essence. you've been here many years and you've seen it grow. i've been here every year and i've seen you grow. it's almost like y'all have reached the pinnacle at the same time. i mean, when essence started, no one would have imagined you'd have a hit emmy award winning tv

show and a best-selling book on "the new york times" and hanging out with the president and first lady and setting fashion standards and, and, and. i mean, god been good to you, steve harvey. >> yeah, god been good to me. i know nobody could have saw it coming because i didn't see it coming. i mean, that's the amazing thing about him, though. he rewards you along the way in ways you can't even imagine for yourself. that's the beautiful thing about it, man. i have grown as a person. essence has grown as a person. you can't grow without change. that's the one thing that i have been willing to do. i have been willing to accept the changes that are necessary in order to reinvent yourself and grow. god been good to me, man. he's allowed me to change. he brings about stuff in your life that causes you to change. you just got to not look at all of them as a mistake and something horrible that you can't recover from. just understand that all your missteps in life are very

valuable in learned, gained eed experiences that create a new you. >> you won the people's choice award for the new talk show host this year. you're nominated for two emmys. you received a star in hollywood on the hollywood walk of fame. yet, what people don't know, you do a mentoring program for young men. i was with the mayor here yesterday riding around with the crime. young black men killing and hurting each other. you spend a lot of your own money, you and your wife, dealing with trying to give mentorship and turn a lot of these young men around. >> well, see, we got to change the direction of our young men. women can't do anymore than they've done. they the bread winner in the house. they playing the role of the mother and father. we got to straighten these boys out. i got father daughters. i got to straighten somebody boy out so they can get a husband out the deal. that's the problem in our

community. if we straighten these young men out, get them on track to understand what real manhood really is, a clear picture of manhood that is not a car, a set of rims, a video, manhood -- real men go to church. real men love god. real men respect women. real men go to work. real men take care of they children. real men obey the law. real men are good citizens. real men are hard workers. that's what manhood is. we spent a week at my ranch every year with 120 of those boys instilling that principle. >> and you do it out of a lot of fanfare. i was at one of your events, and you got denzel washington involved. >> who gave us the largest single contribution of any person or corporation. denzel washington gave our foundation $1 million. >> i was there. i was there. so it's not true that people don't care once they make it. i mean, i can't think of any major thing that has happened

that you have not been available or we reached out or you called me. a lot of people don't understand success. >> two things here. my mother taught this to me. god blesses you to become a blessing. then i've learned something about money. money don't change people. money allows you to be more of who you really are. see, if you a butt hole when you get a lot of money, you just going to be a great big old butt hole. if you stingy when you get a lot of money, you're going to be real stingy. if you're a generous person when you get a lot of money, you'll be more generous. so that's what i learned about money. if it wasn't for my mother's teaching as a sunday schoolteacher to get me on the right path to understanding god blesses you to become a blessing, i would be on a different course. but i'm not the only one, al. you've rescued me, man, so many times in my career. this man right here came to me on a lot of personal issues that

you all never know about and really got me straight and helped me through some very difficult times. i really appreciate that about you. >> well, i appreciate what you've meant for the community, and i'm talking about all people. i mean, you have always said it's not about race, it's about american people. you've represented that. now you've become the relationship expert. you did that here this morning. now, who would have thought that you were able to turn your experiences into making yourself an expert on how to help other people with their relationships? >> well, look, man, all of this talk about, you know, how can he tell us anything and he's been married for the third time. i've learned an incredible thing, man. failure is a wonderful teacher. you ought to learn something, fail at something. you get it right after that. i've been fortunate in that i understand that. i want people to understand this about t man. don't get so beat up when you make a mistake.

the mistake is some time to bless it. you've got to understand you got to go through -- it got to rain on you to become a flower. when you got dirt on you and it looking ugly for you, it can turn around. my life completely turned around from a really ugly situation to where it's turned out to be a valuable learning experience for me. >> well, we are going to go to sanford, florida. mark o'mara, the defense attorney, is arguing to try to throw the case out. i want to go and hear live. i want to thank steve harvey for stopping by. we would not be where we are if it wasn't for steve harvey. thank you. let's go live to sanford, florida, and hear the argument. >> -- it has to be my son who passed away, it has to be his voice. any other possibility means my son caused his own death. you could consider it as evidence. however, you have to take it in context. you have to take it in the

reality of the other undeniable circumstances that existed that night. and here's what existed that night and the evidence you have to consider. my client's immediate statement to those who listened to him that he was screaming for help before he knew that was being recorded. we can have an argument he's this new cop want-to-be who would know it's going to be recorded. the reality is, the first person on the scene he told it to, the second person on the scene he told it to, the officer. and he has the undeniable injuries that evidence nothing other than than a violent attack by trayvon martin. there is no other reasonable hypothesis that could come from that undisputed evidence other than my client was attacked by trayvon martin. some form or fashion. is it determined quite yet how, in what precise moment?

maybe not. i would suggest that there's absolutely no evidence to indicate what my client now has before you and before the jury, which is that he was at the "t" intersection when he was atta attacked -- approached and then attacked by trayvon martin. there's no counterevidence to indicate that. and the fact that he was hit in the face and there's no evidence to counteract that. that violent act in and of itself, i would suggest to you, is sufficient for immediate response with deadly force. but he didn't. what we have is 40 seconds of somebody screaming. of course you know my client through his statement said it was him screaming. 40 seconds. receiving additional injuries consistent with and even the state's own expert said it was consistent with my client's head being bashed against concrete or

hit, contacted without using the emotional word of smashed, against concrete at least several times. that type of injury in and of itself, the way it was presented by my client, that injury and the ongoing nature of that injury supports the right of my client under 776 to reasonably believe he's in fear of future bodily injury because it was ongoing. the state's own witness, captain carter, said one good indication of future bodily injury is when you've already been injured and it's still ongoing. you can presume it's going to continue to occur. and that is, in effect, why my client acted in self-defense. and there is nothing, most importantly, under walker, there's absolutely no interpretation of the state's evidence, which excludes that as a reasonable hypothesis of innocence. if you read walker, the very

words that i said about the whole case is quite instructive. it allows for no other determination that since my client has now presented self-defense through the state's case, but it is now affirmative evidence of why he acted in the way he acted, that since the state cannot exclude a reasonable hypothesis of innocence based upon their circumstantial evidence, that the judge should grant acquittal. that's under walker. walker also cites woods. it's the woods case which also cites another supreme court case which is barwick. in 1995 it also sort of began the premise in florida law that the judgment of acquittal is appropriate if, in fact, the

state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt. you, as barwick says, you at the outset have to determine whether or not there is competent evidence from which the jury can infer guilt to the exclusion of all other inferences. i would suggest to you that this would be a textbook case. it wouldn't make it to a textbook because it is so apparent from the evidence presented at this stage of the proceedings, judgment of acquittal after the state's close, that the inference of nonguilt is much stronger than any other suggested inference of guilt. barwick, woods, and walker stand

without question for this proposition and should be considered by the court as to the circumstantial evidence issued. there are other cases that i would cite for you. you have them in front of you. simms is a 2013 case. talking about the state's obligation to eliminate any reasonable hypothesis of innocence and acquittal should have been granted and was upheld. in that case it also cited through law, state versus law. again, all of the cases i'm citing to you, your honor, you have before you. although, there are some cases, and i believe law is one of them, since it was cited in simms fairly well, you don't have that actual case in front of you.

the cite is quite specific. the stieh versus state was an instant case for the court to consider. it's been out for a couple years. it was a stabbing and the defendant argued self-defense and ag battery. the second dca advised to trial court it should have granted the motion for judgment of acquittal once the defense had presented a basic case of self-defense. now, i don't know if you believe that he has or not, so i have to argue both sides of it. i believe that the court should consider and in fact should decide that my client through his statements over the last week and a half as they were

presented. not only his statements but all the supportive or corroborative evidence. all the witnesses my client as, in fact, presented, a prominent case of self-defense. i mentioned it a moment ago. just to make sure that the foundation is properly laid, we have my client's -- if we set aside for a moment that my client is just the most amazingly competent protector of his own murder. set that aside for a minute. he didn't just decide in some snap decision to become a murderer and then was perfect in covering up everything. i would suggest to you that is a fallacy of absurd proportions that such could even be suggested by the state, certainly considered, or actually endorsed by you. if we set that aside for a moment, what we have to look at

is my client gets in the altercation with mr. martin after following him to see where he went as he agreed to with the officer. by not following him after he was told not to by dispatch. and to date, they have not presented any direct evidence -- and i would suggest not even circumstantial evidence that my client followed him after being told not to by the dispatch. they have no direct evidence, no circumstantial evidence that my client ever moved from the "t" intersection down the dog path until he was drug or forced there by trayvon martin. there's not a scintilla of evidence to support that. there was, it seems, at some point a suggestion that maybe somebody was moving left to right. i'm sure you recall that. may well have been trayvon

martin coming back for the attack. we don't know. to suggest that somehow inculpates my client to being the one moving is a stretch that i would ask you not consider making, certainly not one supported by any other corroborative facts or evidence. of course, i think she sort of came across -- well, let's just say she came across as she came across by the time we were done with her testimony. but aside from that, there is nothing to support that my client did anything to reengage or to engage mr. martin whatsoever. so if we're going to set that foundation, that that is what he did and didn't do and then see what the foundational evidence is to support that, we have general louer. jeremy wineberg was the fiance with jenna lauer.

her testimony completed supported what he said and what he said happened at the "t" intersection. it supports my client's contention that the altercation began down by the "t" intersection. of course, the manolos also do that as well. without the benefit of that testimony, we know my client gave all that information to both officer singleton and serino at a time when he had no information that any of that was available or controverted. had any of that been controverted, i'm sure the state will well have brought that out to you before the end of their case. so we have lauer, manolo. we actually even have mora, who documents my client's hypothesis

of self-defense. she says when she sort of wandered around the courtroom to look over the column to say that she saw my client on top of trayvon martin, a statement he had already given to singleton and serino before he knew that this witness would be able to come out and say he or she saw anything. but he stated exactly what he did, that he moved the hands out, i think giving dr. bauer's testimony which certainly supports the idea that even having moved the hands out, the feet still move. dr. bao seemed to say maybe the body can move, maybe it can't. nonetheless, this is the foundational evidence for which you have to make a determination to my client present a case of self-defense, one. two, is that self-defense and

its reasonable hypothesis of self-defense what it is and specifically contradicted by the state's case. under walker, woods, barwick, and now stieh, they have failed to do that. so if we look at stieh, which is interesting, out of the second dca. i don't know that i quoted it. i apologize if i have already. stating that the joh should have been granted once the defense had presented a prominent case of self-defense. it goes to a pretty good analysis of 776. in that case they were talking about defense of others. of course, the same standard applies as we have here today. jenkins, i think, is one of the most instructive cases. that's cited at 94372910. the reason why is because jenkins, a 2006 case --

remember, as an aside, there are not a lot of cases about judgments of acquittal in self-defense cases after 2006. the reason why is, of course, we now have self-defense immunity hearings as an alternative to judgment of acquittal arguments in a trial. we did not avail ourselves of that pretrial determination of immunity. so many other people in most of the other case law have so you'll see a significant number of drop offs in joa appellate case law after 2006 on a self-defense issue because, as you would imagine, most of them exist pretrial. they're addressed pretrial. we had made the voluntary decision not to do that. but jenkins, what jenkins is good for, your honor, is that first of all, the facts are

close. jenkins was in his house. a guy was outside making a lot of noise. he went outside. jenkins tried to minimize the altercation. the eventual victim in the case made a maneuver towards him, punched him in the face, wobbled back goes jenkins. then the assailant comes again. jenkins takes out a knife, catches him in the heart, he passes away. jenkins, the case, as opposed to the facts, is very significant. jenkins goes through and cites about seven cases, which is the recent history of judgment of acquittal cases in self-defense cases. judgment of acquittal issues and self-defense cases and is a pretty good rendition of it. it references, for example, thompson, which is state versus

thompson 5527224. that's an aggravated battery case where he tried to stop a fight, was attacked. defendant backed up, brandished a gun. aggressor continued to approach. defendant shot him. and that was where the court reversed the conviction on that, suggesting that the judgment of acquittal should have been grant ed. the hernandez/ramos case, again cited in jenkins, gives some good insight into a similar fact scenario. in that case, evidence was there that the defendant took some effort to ward off the attack or end it without violence. the state's witnesses in that case uniformly identified the victim as the aggressor.

we have one eyewitness in this case, john goode, i think, would present a scenario very similar to that presented by the state witnesses in hernandez/ramos. that is that we know and it is completely uncontroverted that mr. martin was the aggressor in that he had mounted mr. zimmerman, refused suggestion by mr. goode to stop doing what he was doing and continued the attack. similar to hernandez/ramos, the state's witnesses in that case suggested that the victim in the case was aggressor. again, that case similarly was suggested that judgment acquittal should have been granted. now, that is looking at the

issue of the circumstantial evidence and the direct evidence, what exists, and whether or not my client has presented a case of self-defense. i think that if you reach that alone, then the case should be dismissed presently at judgment of acquittal. as i said a moment ago, we don't -- i can't say, judge, can i stop and let you rule and i'll start over it you don't, so i have to continue as though you're not following my first track and i'll go to my second track and the second track is whether or not should the court not agree that a case of self-defense has not been proven and to the fact that circumstantial evidence is being considered by this court as presented by the state, if you decide that does, in fact, exclude any possibility of my client, any hypothesis of my client's evidence, if for some reason i've lost those two

argument, which i think the evidence supports that we should win, if we don't, then you have to look at whether or not this case should still move forward on a second-degree murder charge as to the issue of ill will and hatred. so let's talk for a moment about what ill will and hatred is and what it's not. in light versus state, a second dca case, there was a mosh pit case. mr. light didn't like the fact that the eventual victim fell back into him and hit him in a sensitive area of his body. so mr. light decided to pick him up in a wrestler move and smashing him to the ground, crushing the left side of his head, i think it was, on the cement. got up, made it outside, and died. the court ruled that that

behavior, though extremely reckless behavior to simply get upset at somebody, pick him up over your head, and smash him on to cement, is not ill will or hatred and would not sustain a second-degree murder conviction. because you can't infer any malice. i don't exactly know how you can infer malice from picking somebody up over their head and smacking them on cement. if we compare that law, which is now the law in florida, to this case, i would suggest that there is absolutely no evidence to support the contention that mr. zimmerman acted in ill will, spite, or hatred. if you can get past the exp expletives and the fact he seemed to be particularly interested in his community and that may have been why he focused on mr. martin as a suspicious person looking unfortunately similar to what we now know we have in evidence of

emanuel burgess, who was this one-person crime spree through retreat view circle who got five years in prison for his bevy of burglaries in that area. you were the sentencing judge in that case when he came before you about a year and a half ago. so, yeah, an unfortunate circumstance. that doesn't allow the outrageously over response by mr. martin. sticking to the ill will and hatred argument, basically in the light case, it was just not ill will because the courts looked to two other cases for the instruction on ill will, spite, and hatred, that being williams versus state. mcdaniel versus state, a fourth dca case, to begin the analysis that even extremely reckless

behavior itself would be insufficient for you to infer any malice that would suggest second degree. i guess in this case had trayvon martin pushed my client as happened in the light case when he actually hit him in the genitals, had trayvon martin pushed my client and my client just reeled are back to get his gun and shot him, under light i'm not certain that would have been ill will, malice, and hatred because the other overriding necessity in an ill will and spite and hatred case -- and i know the court is aware -- is second-degree murder for ill will, spite, and hatred not exclusively because they'll never say never but almost always the people have to know each other. because the ill will, despite the hatred, cannot be momentary. it cannot be instain tan use. all of the cases that talk about

ill will, hate, aspite and hatr the overwhelming majority it only occurs where that ill will, spite, and hatred has been something that has grown over time. the husband and the wife with affair. the neighbors fighting over the fence. things like that so that we can presume that there is ill will, spite, and hatred by previous acts against the two. and it cannot be presumed. it has to be by direct evidence that there was this previous animosity that would suggest the growth of therefore existence of ill will, spite, and hatred. similarly, there are two other cases that -- at first, i didn't think they were worth mentioning except as i thought more about them, they were as to the issue of ill will, spite, and hatred.

that's state versus ellison. 19. and -- i'm sorry, your honor. that's sigler, 805 second 32. i mention those cases because they were the high-speed cases, factually different from this case but interesting because in both of those cases the defendant, one, had just escaped from prison. another had stolen a car, i believe, were high-speed chases, 80, 90 miles an hour, running through intersections, running over curbs, running through toll booths and just acting about as outrageously as you can act in a vehicle and in both of those cases the court said that even

when you run into somebody and kill them, that's not ill will, spite, and hatred. there's no, in effect, transferred intent from when you act as outrageously negligent as you might act to steal a car and do 80 or 90 miles an hour through a crowded area, running people out of the way and then finally killing somebody, that's not ill will, spite, or hatred. so i mention those for that purpose. another case, state versus ellison -- i'm sorry. that was one of the two i just mentioned to you, your honor. i apologize for that. that was one of the two cases where in that case the high-speed chase was not suggested to be ill will, spite, or hatred.

dorsey versus state, a couple of years ago, 2011, in that case the defendant had a gun. the facts support that he actually went and got the gun to arm himself after having an argument with two victims. then they came to the car, further attacked him, one guy punched him in the face. and after arming himself voluntarily in anticipation of continued altercation with these guys, which is the facts of the case, he got hit in the face, got out the gun, shot them, killed both of them, and the fourth dca said in that circumstance, where you went and got a gun and came back, no ill will, no hatred, no second-degree. and impulsive over reaction to an attack is insufficient to

prove ill will, spite, hatred. they were at a keg party and people were getting drunk. okay. another case i presented to the court, 977 southern 2nd 682, 2008. this is a fight that lasted a couple of minutes. basically, a bar fight where they went back and forth and to the extent of the client -- in that case, velamese responsibility in that regard, even though there was no evidence that the victim of the final stabbing by mr. velamy wasn't even known to have caused his own death, so it was in effect what was thought by the

court to be an innocent bystander and that belamy mav reached out and decided to start stabbing people, including this guy, there was no ill will or hatred found in that case either. they mention this that case, particularly cite a number of cases with the proposition that you really -- ill will and hatred almost always and only comes from people who know each other before the event begins because it is almost impossible for that ill will and hatred to grow so quickly in the middle of a fray or a fight or an altercation such as we have here. whiley versus state 60 southern third 588, interesting because in that case there was a fight and whiley decided to take out

his gun and spak smack it against the event victim. so it was a deadly weapon but he didn't use it as a gun but he used it as a hammer. as he hit him, it went off and killed him and again in that case, even though he decided to arm himself with a deadly weapon, decided to do it the way that he did, since the intent was not there and there's no ill will and hatred, presumably it would have been found if he stood five feet away and shot him, they said that the action and the way it occurred suggest a lack of ill will, hatred sufficient for second-degree murder. so it's a complicated case in a judgment of acquittal in a number of ways and that is that in a self-defense case, the case law, walker and others, woods and others are quite clear that

even at judgment of acquittal stage, the state has to be able to, in effect, disapprove a reasonable hypothesis of self-defense, even in the light most favorable to the state, all of those standards that the state has to present, all the factual scenarios have to convince this court that a judgment of acquittal should not be granted because they have presented evidence which negates every hypothesis of self-defense or hypothesis of innocence, which they are synonymous in this case, that my client acted in self-defense. failing to do that, walker is the law of this land and suggest that a judgment of acquittal should be granted. if it is not granted outright, because they have simply failed to disapprove self-defense, of course you know that to be the standard for the jury to consider anyway, we shouldn't even need to present a defense.

and if for some reason, as i mentioned a moment ook, you think that all of that has to be ruled in favor of the state, not giving my interpretation to walker and its progeny, any consideration whatsoever, then certainly the state has failed in convincing that second degree murder charge of depraved mind has any basis moving forward to this jury because they simply have not presented any evidence to suggest that there is not a reasonable hypothesis that my client did not act ill will or hatred and that they need to present, though they get the benefit of all the evidence being presented in their favor, though they don't get is the benefit of you ignoring evidence that can't be interpreted any

other way. you cannot look at that picture of my client's nose and say he wasn't beat in the face. you can't say he wasn't beat in the head. you cannot look at the autopsy and realize my client never intended to nor landed one blow upon mr. martin. all my client did was scream out for help. mr. good, though he was questioned a lot about this area, did finally, i think, opine, though he didn't see gasps escaping from my client's face, he said it was his thought and his commonsense there was in fact my client screaming out for help. and the reality is, had it been mr. martin who we now know and it's undisputed was on top screaming for help, well, he had his chance. he had mr. good 17 feet away

asking him to stop, telling mr. martin he was going to call 911 and mr. martin continued to ignore him and continued to batter my client in whatever form or fashion however number of times he did that ended up with the injuries that my client had. they can't ignore that evidence to a jury and they really should not be able to ignore it to you on a judgment of acquittal argument. >> argument on behalf of the state? >> thank you. respectfully mr. o'mara gets the arguments backwards for starters because justifiable use of deadly force is a defense for which the defendant actually bears the initial burden and i'm not arguing necessarily that he didn't need it but because it is a defense, the first inquiry that has to be undertaken is the

elements of the crime itself of second-degree murder. only then do we move to the issue of whether or not there is sufficient evidence to dispute the defense of justifiable use of deadly force. so the first thing that should be addressed is the elements of the actual crime that the state bears the burden of proving. the intent and state of mind. included in the court's materials -- and i think it's probably the last or second to last case is gibbs versus state. it's a 2005 opinion from the fourth district court of appeal. beginning at the bottom of the first column of page 2 and continuing to the midpoint of the second column, the courts have held for a long time that when we're talking about evidence of an ill will, spite, or evil