Miami Beach

State attorney: No charges for Miami Beach cop who shot, killed alleged bank robber

Miami Beach police survey the scene where alleged bank robber David Winesette was shot and killed by police near Alton Road and 16th Street in Miami Beach on Dec. 5, 2015.
Miami Beach police survey the scene where alleged bank robber David Winesette was shot and killed by police near Alton Road and 16th Street in Miami Beach on Dec. 5, 2015. Special to the Miami Herald

Two and a half years after a Miami Beach police officer shot and killed an attempted bank robber armed with a barber’s straight razor, the State Attorney’s Office has decided not to file criminal charges against the officer.

It is still unclear if the officer violated a department rule about where to place his trigger finger on the AR-15 he had aimed at the man, a policy that might have prevented him from firing a lethal two rounds — one through the heart — immediately after another officer hit the man with a Taser.

Miami-Dade State Attorney Katherine Fernandez Rundle recently signed a closeout memo that concludes Beach police officer Fabio Cabrera was justified in using deadly force against David Winesette, 51, who had escaped a Miami halfway house and attempted to rob a South Beach bank while claiming he had a bomb on Dec. 5, 2015.

Because Winesette said he had a bomb, buried his hand in his pocket and refused to show his hand when he first encountered police, and because he later stepped forward “in a threatening manner, raising the straight-edged razor upward toward” officers, prosecutors found the shooting was legally justified.

“The subject’s actions and claims of explosives indicated a willingness to commit an act of violence,” wrote Fernandez Rundle in the July 19 memo. “It is reasonable to believe that Officer Cabrera considered it necessary to use deadly force by firing his weapon to prevent injury to himself and others. Therefore, no criminal charges will be filed.”

The deadly confrontation between police and Winesette, shirtless and holding up the razor in the moment before his death, played out in the middle of Alton Road and on the Internet after bystanders posted videos of the shooting online. The highly visible police shooting made national headlines.

The Miami-Dade Police Department interviewed 11 police officers and 11 civilian witnesses over the course of its investigation, which was handled by the outside agency because of the Beach department’s policy on officer-involved shootings. Using those interviews, Fernandez Rundle’s office made the decision not to charge Cabrera.

Cabrera won’t face criminal charges, but Beach police will launch an internal affairs inquiry into the incident. The internal investigation could answer the question of whether Cabrera violated department policy by keeping his finger on the trigger of his AR-15, which he had pointed directly at Winesette.

Cabrera, who appeared to have his finger on the trigger for several seconds before he pulled it, fired less than a second after another officer, Sgt. Philip Elmore, shot a Taser at Winesette. The prongs from Elmore’s Taser hit Winesette, who fell backward as Cabrera shot Winesette twice. An autopsy later showed that one of those bullets tore through Winesette’s heart.

WARNING: The following video showing the shooting contains graphic content.

In the aftermath of the shooting, reporters and firearms experts immediately raised concerns about sympathetic gunfire, or the discharging of a weapon as a reaction to another weapon being fired. Police officers are typically trained to keep their fingers off the trigger until the moment they shoot.

Miami Beach Police Chief Dan Oates declined to comment on the trigger finger rule or the state attorney’s decision, citing a pending internal review.

“Now that the state attorney has concluded her evaluation of this incident, our Internal Affairs investigation will proceed,” wrote Oates in an email Friday night. “I must await the findings of that investigation before I make any determination in this matter. It would be inappropriate to comment on any element of this case until our Internal Affairs review is complete.”

On that rain-soaked day in December 2015, Winesette had escaped a halfway house in Miami where he was serving probation following 12 1/2 years in federal prison. He took a bus to South Beach, which was busy during the height of Art Basel. Around 10:30 a.m., he tried to rob a Bank of America by handing a note to the teller saying he had a bomb and he wanted cash.

All witnesses interviewed by Miami-Dade police gave similar accounts of what happened next.

Winesette left the bank empty-handed and walked a block north to the RazzleDazzle Barbershop at 15th Street and Alton Road (the shop has since closed). He was met by police responding to the bank robbery. Winesette grew agitated, taking his shirt off and putting one hand in his pocket while pacing back and forth in front of the barbershop, ignoring officers’ commands to show his hands.

Winesette then entered the barbershop, scaring three employees who ran to hide in the bathroom while he trashed the business, tossing items around and banging the shop’s front glass window. He walked out of the shop with a straight razor in hand, moving erratically and stating he had just gotten out of jail and he didn’t want to go back, according to multiple witnesses and officers.

Several told investigators Winesette cut himself on his torso with the razor, and he was telling officers to shoot him as the police told him to calm down and get on the ground.

With traffic blocked and a crowd of bystanders gathered across the street, some filming the scene on their cellphones, officers converged on Winesette. As Winesette stutter-stepped forward, placing his left hand on the hood of a parked patrol car as he held the razor with his right hand, Cabrera aimed his rifle while Elmore held a Taser. When Winesette held up the razor and pointed it at an officer standing close by, Elmore fired the Taser. Less than a second later, Cabrera fired two shots.

Winesette was serving probation following a 12 1/2 year stint in federal prison for a bank robbery conviction.

One of the officers interviewed by investigators described Winesette’s actions as “suicide by cop.”

Cabrera and Elmore both still work full time with Beach police. Cabrera is a detective working in the criminal investigations division. Elmore is a supervisor in the motor unit.

A police officer has not been convicted for an on-duty shooting in Miami-Dade County since 1989, when Miami Officer William Lozano was convicted of manslaughter after fatally shooting a black man trying to evade a traffic stop. The conviction was later overturned by an appeals court, and Lozano was later acquitted after a new trial.

From the perspective of prosecutors, that case has left a lasting legal legacy in Miami, all but dooming prosecutions of police officers. Fernandez Rundle, first appointed as state attorney in 1993, has never prosecuted a police officer for an on-duty killing. The first time her office charged a police officer for a nonfatal on-duty shooting was in 2017, when prosecutors charged North Miami police officer Jonathan Aledda with attempted manslaughter after he shot an unarmed caretaker of an autistic man. The caretaker survived. That trial is pending.