A man who opened fire on a Key West street gets a new trial over what the jury was told
A Florida appeals court has reversed the conviction of a Louisiana man who fired into a busy Key West street in 2016, wounding three tourists.
Derek David will be given a new trial because the Third District Court of Appeal ruled that the jury in the March 2018 trial was given incomplete instructions, and prosecutors made improper comments during closing arguments, the three-judge panel wrote in its June 10 decision.
Lawyers for David, 38, claimed the shooting was in defense of his wife, and argued he was innocent due to Florida’s controversial “stand-your-ground” law allowing deadly force in self-defense or in defense of another.
A jury rejected the argument in March 2018, and Monroe County Circuit Judge Luis Garcia sentenced David to 18 years in prison on three counts of attempted manslaughter and one count of aggravated assault.
David claimed he fired the shots to protect his wife, Jodie David. But the jury instructions omitted the words “defense of others” when explaining the legal justification of lethal force.
Because that phrase was excluded, the three-judge appellate panel ruled that the jury was under assumption David argued he acted in self defense when he fired his weapon, while David always maintained he opened fire to protect his wife.
“This inadvertently and indirectly created a strawman defense which was likely expeditiously rejected by the jury,” the panel wrote.
The judges also said prosecutors Colleen Dunne and Val Winter went too far with the language they used during closing arguments and rebuttal closing arguments.
Specifically, the panel found fault with Dunne saying the bullet wounds inflicted on the victims were souvenirs “given” to them by David. The judges said the line of argument was aimed at “synthesizing the victims’ status as tourists with the nature of the injuries inflicted.”
David’s attorney, Donald Barrett, repeatedly objected to the comments, but Garcia overruled him.
During the rebuttal closing argument, Winter told the jury they should reach a verdict “that also speaks the truth and speaks justice” for each of three victims.
The panel wrote that both attorneys’ remarks were “overreaching” and were “by design only intended to invoke sympathy.”
Barrett said he asked that the phrase “defense of others” be added to the jury instructions that the Monroe County State Attorney’s Office prepared. Both Garcia and prosecutors agreed the language should be added, but that never happened, according to Barrett.
“The State Attorney’s Office made various revisions to the instructions, but failed to add that phrase,” Barrett said in an email Friday. “We did not notice the error [omission] after the revisions, nor did the State or the Court.”
Monroe County State Attorney Dennis Ward placed the onus on Barrett, saying he never objected to the final jury instructions.
“I don’t know how he could miss it. It was part of the discussions,” Ward said. “The defense, prosecutors and jury are all in the conference.”
Barrett is running as a Democrat to unseat Ward in November. Ward faces one opponent, former State Attorney Mark Kohl, in the August Republican primary.
Barrett said he’s not sure if he will represent David during the new trial, which has not yet been scheduled.
The shootings
David shot three men he didn’t know and had never met before on March 21, 2016. Under Stand Your Ground, if shots are fired in the “proper and prudent exercise of self-defense” and innocent people are accidentally hit, “the unintentional harm to an unintended victim is also justified,” the appeals panel wrote in their ruling.
The chaos started after an argument he had with his wife as they walked down Charles Street, a side road that leads to and from the popular Duval Street in Old Town Key West.
The entire incident was recorded by various security cameras located on different buildings in the Southernmost City. Jurors saw the footage during the 2018 trial.
The video shows David shove his wife to the ground several times. They had been drinking at several bars that night, and he said he was trying to get an intoxicated Jodie David home to Sugarloaf Key, where they lived at the time.
He wanted to call it a night and she didn’t, both testified during the trial. Jodie David also testified that she was the one being aggressive, and her husband was trying to stop her from hitting him.
Nevertheless, two men who have never been identified came to Jodie David’s aid by running up behind Derek David and shoving and punching him. Since their identities have never been established, prosecutors called the men “Fedora Hat Man” and Basketball Jersey Man” during the trial.
According to the footage, Fedora Hat Man threw the first punch. David tried swinging back, but was overwhelmed with hits. The other man joined in, pushing David from behind. After the brief scuffle, David walks off Charles Street and onto Telegraph Lane, where Fedora Hat Man follows him, punches him and shoves him into a row of parked scooters.
Meanwhile, cameras on Charles Street filmed Jodie David punching and tugging at the shirt of a Louisiana man named Trent Pauls, who was vacationing in Key West with a group of friends, including Brendan Boudreau.
Both said during the trial that they walked down Charles Street from Irish Kevin’s bar on Duval after hearing the couple fighting. They said they intended to intervene on Jodie David’s behalf, but the two unknown men got involved first.
But Derek David said his wife was being “tossed like a rag doll” by Pauls and Boudreau. He thought they were with Fedora Hat Man and Basketball Jersey Man, but they were not.
The video shown at trial, however, clearly shows Pauls trying to get away from Jodie David.
Barrett argued at the trial that Derek David was determined to protect his wife from the type of beating he received, and that’s why he pulled out his .380 pistol.
Camera footage shows Derek David waiting 20 seconds as he looks down Charles Street from Telegraph Lane. He pulls the handgun from his back waistband of his shorts, points it up in the air, racks the weapon, then points it forward and fires four shots.
Boudreau was hit in the right thigh as he ran down Charles to Duval. He took shelter inside a T-shirt shop and lay on his back in between clothing racks. He testified that the bullet entered directly underneath his buttocks and exited near his groin.
Unaware of what was happening, Scott McBride, who was vacationing from Daytona Beach with his girlfriend, was shot in the right thigh as he walked toward Irish Kevin’s. The bullet exited beneath the back of his knee.
Filmmaker Reid Ogden was on a first date with a woman he met in Key West as the two walked down Duval in front of Charles Street. He was shot in the left forearm. The bullet then pierced his abdomen.
After the shooting, video on Charles Street shows Jodie David trying to get the gun from Derek David, and the two briefly shove each other and he walks away toward Telegraph Lane.
Derek David then left her there and walked by the Smoking Tuna bar. A man walked outside the building and David pointed his gun at him, the video shows. The man backed into the bar, pleading with David, “Don’t.”
A bouncer at a nearby strip bar called 911 and followed David until Key West police arrived. Footage from the dashboard camera on the first arriving officer’s car showed what prosecutors say was David pointing his weapon at the bouncer.
Several officers pointed their guns at David and ordered him to drop his gun. When he came out of an alleyway, officers stun-gunned him.
Cuffed on the ground, David is shown on body camera footage yelling repeatedly, “I’ve done nothing wrong, sir. You’re on camera, sir. There’s no shooter, sir. You’re tripping out, sir.”
This story was originally published June 16, 2020 at 4:10 AM.
