Predominant/Dominant Aggressor Law
State v. Diaz (2017) WL 3887341 Unpublished
The victim was choked twice, causing her to lose consciousness. In the second incident he stuffed a plastic bag down her throat. The victim ran out of the house. She called 911 from a bus.
The 911 operator told the victim to get off the bus because she just called paramedics and she needed to be examined.
The paramedics tracked down the victim and convinced her to be transported to the hospital.
The officers met the victim at the hospital. After they interviewed the victim (on body cam), they changed the dispatch from domestic abuse battery to attempted murder.
They also called out crime lab to photograph the victim.
The officers then searched for, located, and arrested the suspect. The doctor ordered a CAT scan despite NO visible injuries. The prosecutor called Dr. Heather Murphy-Lavoie as the treating physician and an expert.
The doctor testified that the victim showed no visible injuries and had no reported problems swallowing or breathing. Dr. Murphy-Lavoie explained, however, that external injuries are commonly NOT observed in cases of strangulation, which is why she ordered the CAT scan.
Despite the victim recanting, the prosecutor continued with the case and won.
The judge sentenced the defendant to 8 years for strangulation and 10 years for attempted manslaughter.
State v. Fox, 184 So.3d 886 (2016)
The act of choking another person has been repeated recognized as indicative of a specific intent to kill. Choking someone after the point of unconsciousness, was a disproportionate use of force that went beyond self defense.
Defendant claimed that the victim died from prior existing injury.
Dr. Welke indicated that Tegretol is used to treat seizures and depression, that Prozac is used to treat depression, that trazodone is used to treat depression, and that Vistaril is used to treat anxiety.