Sometimes, the 'stand your ground' defense cuts both ways

Richard Kelly, 25, was arrested in August 2011 after wounding — and being wounded by — his former neighbor, Don Madak, 44, during a fight on the street in which they lived. Madak was also arrested.

DOUGLAS R. CLIFFORD | Times

Richard Kelly, 25, was arrested in August 2011 after wounding — and being wounded by — his former neighbor, Don Madak, 44, during a fight on the street in which they lived. Madak was also arrested.

CLEARWATER — Richard Kelly says he thought he was doing the right thing Aug. 3 when he called 911 about a neighbor on Macomber Avenue in Clearwater.

"He's drunk, kind of belligerent, walking around with a gun in his pocket,'' Kelly said. "He basically just threatened the whole neighborhood. He's gonna shoot the whole neighborhood.''

A deputy responding to the call discovered Don Steven Madak with watery eyes, slurred speech and "under the influence of something." He patted Madak down, found no weapon and told him to sleep it off.

Barely an hour later, another call came in from Macomber Avenue.

"My brother Ricky got shot!'' a woman screamed.

Madak, who is white, had shot it out with Kelly, who is black. Paramedics found Madak with a bullet wound to the thigh, Kelly bleeding from ankle and hand.

Both men were arrested and spent weeks in jail. Both eventually walked free, spared in part by the prospect of a "stand your ground'' defense that would have made prosecution difficult.

"It's certainly unusual to have two individual neighbors shooting and both being shot and testimony coming out favorable to each for self-defense,'' said Kendall Davidson, an assistant Pinellas-Pasco state attorney. "We took a long time to investigate because it was a strange facts scenario.''

Though unusual, the Macomber Avenue shootout was not unique, according to a Tampa Bay Times analysis of nearly 200 cases in which people could claim self-defense under Florida's "stand your ground'' law. The Times found other cases in which more than one participant raised the defense.

Madak, who had a concealed weapons permit, didn't want to talk about that August night.

But he did say, "I feel very strongly that I'm the person who got attacked and everything made it look like I was an aggressor.''

Kelly, too, remains angry. In light of the Trayvon Martin case, in which police released a Hispanic man who killed a black teen, Kelly wonders if deputies initially went easy on Madak because he is white and Kelly is black.

"If the police had heard me out correctly when I first called,'' Kelly said, "nothing would have happened."

Tensions developed over time among neighbors

Macomber Avenue, a few miles from downtown Clearwater, is a one-block, racially mixed street.

Several months before the shootout, Madak, his wife, Kimberly, and their daughter, 11, had moved from Safety Harbor to this "somewhat ghetto neighborhood,'' as Kimberly later described it to investigators. Madak was disabled by a back injury and the family had financial problems, she said.

At home a lot, Madak, 44, became friends with Kelly, who lived across the street. Unlike Madak, who had never been arrested, Kelly had a record that included the sale of counterfeit drugs.

But Kelly, 25, had stayed out of trouble in recent years. And like Madak, he wanted an end to gang activity on nearby State Street.

Over time, tensions developed. Kelly and other neighbors thought Madak, who carried a 9mm Luger, was too obsessed with guns. Madak thought Kelly was becoming sympathetic to the gangs and less interested in cleaning up the area.

On Aug. 3, the two men argued on and off. Madak had three Cokes with Crown Royal at dinner.

At 9:15 that night, Kelly called 911.

"He threatened my household,'' Kelly told the dispatcher. "He said he had enough ammo to knock down the house or something like that.''

Pinellas Sheriff's Deputy Joseph Miner went to check. After advising Madak to go to bed, he watched him go inside and turn off the porch lights.

But less than an hour later, the men were in the street trading punches. Madak tired quickly and returned to his yard. Kelly's stepfather showed up with a friend and moved toward Madak, yelling at him.

Madak pulled out his Luger and pointed it at the men. Kelly, in his own yard, fired several shots into the air from a .22-caliber handgun.

What happened next is in dispute. Madak said Kelly shot him first. Some witnesses said Madak fired the first shot. By his own account, Madak emptied his Luger of all 12 rounds, then ran inside for his shotgun.

By the time Miner arrived the second time, Madak had collapsed. "I should have listened to you and stayed in the house,'' he told the deputy.

Whom to prosecute was difficult to determine

Each man was charged with aggravated battery with a deadly weapon. Madak also faced two counts of aggravated assault.

Interviews by the Pinellas-Pasco State Attorney's Office showed the difficulty of prosecuting. Miner, who wouldn't comment for this article, "thinks that Madak was the aggressor based on his intoxicated state previous in the evening,'' an interviewer wrote, but acknowledged he didn't know what happened later.

To the interviewer, Kelly "was polite and respectful and seemed …credible.''

As for Madak, the interviewer found a man who "obviously cares about his daughter and wife" and thought he had to defend them.

"At the end of the day I questioned some of the things that (Madak) said, just because it doesn't quite match with what the witnesses have said, but he would make a good witness," the interviewer wrote.

Public Defender Bob Dillinger agreed, saying Madak could have had a strong "stand your ground" case.

It never got that far. Kelly and Madak indicated they did not want to press charges against each other and prosecutors concluded both shooters could successfully argue self-defense. In September, charges were dropped and the two men walked out of jail.

The Madak family quickly moved away from Macomber Avenue.

Susan Taylor Martin can be reached at susan@tampabay.com.

Sometimes, the 'stand your ground' defense cuts both ways 06/01/12 [Last modified: Sunday, February 17, 2013 1:52pm]

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