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For mistaking Pasco deputies for looters, Holiday man is in prison

HOLIDAY

Before he went to sleep that Saturday night, J.J. Daiak took his .357 magnum revolver out of the safe next to his bed, held it up and inspected it to be sure it was clean, then set it on top of the safe. Hurricane Frances was starting to whip trees and flood streets that Labor Day weekend in 2004. Daiak was thinking about the storm looters he'd been warned about on TV.

Then he drifted off.

A few minutes later, the sound of men's voices outside woke him up. No one else was supposed to be there. His girlfriend had said she was going to her sister's house nearby.

Daiak got out of bed and walked into the dark hallway. He remembers going up to the front door and locking the deadbolt.

The voices were indiscernible over the wind and rain. He yelled back for them to go away, get out of his house. There was a pounding on the door, so hard it rattled in the frame.

Daiak's heart was racing. He held the gun in his hand.

• • •

Out in the front yard, five Pasco sheriff's deputies were trying to get the man inside, who had a gun, to come out peacefully.

They parked down the street so the flashing lights and sirens on their cars wouldn't upset him. They yelled out "Sheriff's Office" repeatedly. When they heard him respond to get out of his house, they replied that they weren't in the house and just wanted to talk.

A few minutes earlier, a 911 call had come in to the Sheriff's Office alleging a domestic disturbance between Daiak and his girlfriend, Donna Vaillancourt. Her brother had been hanging out with them that day, grilling, having some beers and getting ready for the storm. But they kicked him out when he started to get obnoxious. He drove to his mother's house a few blocks away, woke her up and got her to call 911.

When a deputy arrived, Vaillancourt saw him in the yard and said they'd had a minor argument but there was no problem.

But when she went in to get Daiak to come out and talk to the deputy, she didn't understand what she was seeing: Daiak inspecting his revolver. Shocked, she turned and walked out without a word, and told the deputy Daiak had a gun to his head.

The deputies were huddled near the front door — they all say it was open; Vaillancourt says she closed it — when the first shot rang out. It landed with a thud somewhere close to them.

They were backing up when the gun fired again.

• • •

Daiak is 58. He has worked as an economist and a lawyer, and for a while ran a small craft and frame shop in downtown New Port Richey. Before that night he'd never been in trouble with the law.

The bullets didn't breach the house. The first one struck the sofa near the door, about a foot off the floor, and lodged in the front wall. The second one hit the same wall at the other end of the room, by a bookcase.

Daiak called them warning shots.

Authorities called it aggravated assault of law enforcement officers.

He went to trial in 2006. His defense: He never knew the people outside were deputies.

Had he known, he testified in the trial, "I would have gone outside and talked to them; say, 'Hi, guys, what's up?' "

The prosecutor took a far less casual tone.

"What he did on Sept. 5 of 2004 is a crime," Assistant State Attorney Eva Vergos told jurors. "Those officers were there to protect him, and he had no right and no authority to put them in danger, to put them in that kind of fear."

The jury convicted him, and under a state law known as "10-20-Life" setting mandatory sentences for gun crimes, Daiak was sent to prison for 20 years.

"If I had thrown a spear or drawn a sword, I still could have been convicted of aggravated assault, but not with the mandatory (sentence). By using a legal gun, I'm serving 20 years in prison," Daiak said in a recent interview at Sumter Correctional Institution in Bushnell.

Now, from the confines of the prison, he's on a mission to reverse the outcome of that fateful night.

"I didn't commit a crime. I didn't shoot anybody. I didn't hurt anybody," Daiak said. "You have to defend your family, your home."

From his wakeup time at 5:30 a.m., he writes letters trying to get the attention of attorneys and legislators, and works in the law library researching issues of self-defense. He goes outside twice a day only because he is made to.

For his original case Daiak hired the attorney who represented Vaillancourt in her divorce.

"The price was right," Daiak's mother, Fay, said.

After he was convicted, she took out an equity loan and dipped into her savings to pay a new lawyer $40,000 to do the appeal for a new trial.

That attorney argued that the prosecutor went too far in her closing argument, imploring the jury to send a message about protecting law officers' safety instead of focusing on the elements of the case.

The appeal was denied in 2008.

Now Daiak is working to find legal errors or abnormalities that could win him a new trial.

One point of particular interest:

When Daiak made his first appearance in court after his arrest, the judge found no legal basis for the criminal charges, saying the deputies outside had no reason to be in fear.

"He's got a firearm inside of his house. He didn't point the gun at them. There's no suggestion that he was attempting to point the gun at them. He just fired a gun off," Judge Michael Andrews said at the hearing.

Prosecutors then had 48 hours to amend the information. Deputy Mark Curtis, the first to arrive at Daiak's house, had written in his report that Daiak yelled "Get out of my house" during the standoff. After Andrews' decision — more than three weeks after the shooting — Curtis amended his report to say that Daiak yelled "Get out of my house" and "Do you want to die?" and "Die, die, die."

It's not uncommon for such reports to be amended, Sheriff's Office spokesman Doug Tobin said. Prosecutors may identify elements of a crime that deputies didn't address, so they go back to their notes or talk to other deputies who were on the scene and then add information.

Daiak was brought back before a different judge, who read the amended report and found probable cause to hold him.

"Die, die, die," which Daiak denies ever saying, became the first words of the prosecutor's opening statement in Daiak's trial. The judge didn't allow the jury to hear about the two versions of the report.

• • •

After Daiak fired his gun that night, the voices outside stopped. He figured the "looters" had gone on their way. Gradually, he settled down from the adrenaline rush and fell back asleep.

Outside sheriff's SWAT team and crisis managers assembled. They say they called the house over and over but got no answer. Daiak said he never heard the phone — he didn't have one in the bedroom — and there were no messages left on his machine.

Finally, the SWAT team charged into his house, jolted him awake and cuffed him.

"There are just men in black with machine guns," Daiak said. "I (had) no idea how this (was) tied to the warning shot two hours ago."

He spent 18 days in the hospital under the state's Baker Act because he had shot at deputies, an indication someone could be suicidal. It was there, he says, that he finally learned from Vaillancourt who was outside the house that night.

• • •

Daiak and Vaillancourt have been together since 1998, when they spotted each other in a restaurant bar, started talking and that was it.

He was educated and confident. He'd lived overseas as a youngster and seen the world. Vaillancourt, born and raised in Dunedin, had dropped out of high school, married and had four children. She met Daiak after her divorce. He encouraged her to get her GED and helped her raise her two youngest kids, one of whom is heading to college this year on a full scholarship.

They have seen each other only once in four years. The Department of Corrections won't let her visit him in prison, having labeled her a threat to security based on the official account that a domestic dispute between her and Daiak led to the deputies being shot at.

But they talk on the phone every night, about the case sometimes, but also about regular stuff. Vaillancourt, 48, recently moved out of the house on Honor Drive where their lives were so suddenly disrupted and bought one a few blocks away, with help from Daiak's mother.

Vaillancourt mailed him pictures of the new place and got his input on paint colors and crown moulding.

She doesn't think of it as her house. It's theirs.

"I hate seeing him where he is," she says, "but I know we'll be together."

Molly Moorhead can be reached at moorhead@sptimes.com or (727) 869-6245.

For mistaking Pasco deputies for looters, Holiday man is in prison 08/07/10 [Last modified: Saturday, August 7, 2010 2:58pm]

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