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Prosecution may try to block FSU student's battered child defense in murder trial

Nicole Nachtman, right, watches jury selection in her upcoming trial at the Hillsborough County Courthouse in downtown Tampa. She faces two counts of first-degree murder in the 2015 shooting deaths of her mother and stepfather. Nachtman’s defense will argue that she suffered from battered child syndrome, the result of years of abuse from her mother. [OCTAVIO JONES | Times]
Published Jul. 23

TAMPA — If Nicole Nachtman's defense wants to tell a jury that battered child syndrome led her to kill her mother, they can only do so if it's tied to a claim of self-defense.

That's what a judge decided six months ago.

But in between rounds of jury selection this week, a prosecutor argued that there is no evidence Nachtman was defending herself when she shot and killed her mother and stepfather in 2015.

The state may be signaling that they'll try to block the defense from arguing that Nachtman was abused when her trial on two counts of first-degree murder starts.

PREVIOUS COVERAGE: Is a former FSU student a battered child, mentally ill, or a liar? A jury in her murder trial will be asked to decide

Nachtman, now 25, faces up to life in prison if convicted of the shooting deaths of Myriam and Robert Dienes. Her public defenders intend to argue that Myriam Dienes was overbearing and abusive to her daughter, and that Nachtman was so afraid of her mother that she feared for her life.

In January, Hillsborough Circuit Judge Christopher Sabella said he would allow the defense to use those arguments in the murder of Myriam Dienes as long as the attorneys establish a foundation for claiming self-defense. That could mean that Nachtman will have to testify about how she shot and killed the couple in August 2015.

But in court Monday, Assistant State Attorney John Terry noted that Nachtman has already recounted the murders to three psychological experts. Their reports do not describe a situation where Nachtman was acting in self-defense, Terry said.

"There is no evidence of self defense," he said. "None, whatsoever."

The state did not make a formal motion or ask the judge to make a ruling. However, Sabella noted that in other cases the foundation for a self-defense claim is not established until the defendant testifies.

However, the defense has not said whether Nacthman will testify on her own behalf.

Related: Judge allows 'battered child' evidence in one half of Tampa double-murder case

The prosecutor expressed concern that the defense could prejudice the jury by bringing up the abuse allegations during opening statements. Assistant Public Defender Dana Herce-Fulgueira countered by arguing that openings are where attorneys tell the jury what they believe the evidence will show.

"He can argue that the evidence is not going to show that," Herce said.

The defense also intends to argue to the jury that Nachtman was diagnosed with schizophrenia and was insane at the time of the murders.

During Tuesday's court proceedings, the prosecution voiced challenges to a number of pieces of evidence that they said might elicit sympathy for Nachtman. The items included photographs of her as a child.

In looking at some of the images, Sabella said it appeared they had been "cherry picked" to show her smiling and laughing. Herce said they would be relevant to the testimony of her family members, who are expected to talk about how she was a happy child, but changed when she became a teenager.

The judge said he would allow some photos if they related to witness testimony. But he singled out a close-up of a smiling Nachtman as a toddler as an example of what kind of photos he won't allow.

"By herself?" he said. "No."

Backstory: Doctor testifies that former FSU student turned murder suspect was abused

Nachtman sat quietly at a defense table throughout jury selection this week, her skin pale after nearly four years behind jailhouse walls. The judge asked her Monday morning how she was doing.

She spoke briefly, her voice soft and polite.

"Could be better, could be worse," she said.

Sabella explained that her lawyers intend to use two affirmative defenses, meaning that during the trial they will concede that Nachtman pulled the trigger. The judge asked if she understood that.

"Yes, sir," she said.

When the judge introduced her to the prospective jurors, she stood, but looked toward the floor, never meeting their gaze. Jurors were asked if they had heard about the case in the media. About half from the initial group had, and many were excused.

They were asked if they had ever attended Florida State University, where Nachtman was a student, and where she was arrested after the slayings. A handful said they'd graduated from there.

They were asked if they own firearms. They were asked if they had any experience with child abuse or mental illness. They were asked if they would be troubled looking at photos of blood or dead bodies.

By midday Tuesday, about 55 prospective jurors remained. A panel of 12, with a handful of alternates, will need to be seated before the trial can begin.

Opening arguments are expected to start as soon as Wednesday.

Contact Dan Sullivan at dsullivan@tampabay.com. Follow @TimesDan.

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