Judge to weigh use of new self-defense claim in slaying of ex-USF football player

TAMPA — It was past 3 a.m. when cellphones and surveillance cameras caught snippets of a 2015 brawl on a crowded Ybor City sidewalk. After the fighting stopped, Elkino Watson, a former University of South Florida football player, collapsed nearby with stab wounds.

It has been almost two years since his death gripped the Tampa Bay area. In that time, the case against Randolph Graham, the man accused of killing him, has quietly progressed toward trial.

But now, Graham's lawyers say he should be immune from prosecution under Florida's recently revised "stand your ground" law. The move puts the case against the 25-year-old in the midst of the latest statewide debate over the controversial self-defense law.

Previously, it was up to the defense to prove that immunity applied. But the new law shifts the burden of proof to the state. It's now up to prosecutors to prove that a killing was not in self-defense.

At the same time, the seeds of what could ultimately lead the Florida Supreme Court to overturn the new law are being left in circuit courts throughout the state.

Graham, accused of second-degree murder in Watson's death, is among the first of what attorneys expect will be many defendants to invoke the revamped law, which Gov. Rick Scott signed June 9.

While a "stand your ground" law has been on the books since 2005, the new version sports key changes that open the door for more such claims.

It will make things tougher for prosecutors, said Bruce Bartlett, the chief assistant state attorney for Pinellas and Pasco counties.

"This is just going to create a lot of turmoil that will make it more difficult to try cases in the state of Florida and achieve justice for victims and defendants," he said.

The law says a person in a violent confrontation has no duty to retreat and can use deadly force if in fear of great bodily harm or death. If a judge determines that the case meets the legal criteria, the defendant becomes immune from prosecution or civil action.

The process was on display earlier this year during a high-profile two-week hearing in the case of Curtis Reeves, a retired Tampa police captain accused of shooting a man in a Wesley Chapel movie theater.

Reeves' attorneys vigorously argued that he thought he was about to be pummeled when he shot Chad Oulson during an argument over a cellphone. A judge didn't buy it; her decision is being appealed.

The new law gives defense attorneys a major tactical advantage, said Charles Rose, a professor at Stetson University College of Law. They no longer have to worry about presenting a case. They can also get a preview of the state's case in a "stand your ground" hearing, which is similar to a trial.

"Florida right now is on the cutting edge of 'stand your ground,' " Rose said. "We quite frankly don't yet know what the impact will be."

Among the uncertainties is whether "stand your ground" applies to cases that were ongoing before the new law was passed.

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Some, including Graham's attorneys, assert that it does.

In recent weeks, the new law has been invoked in at least one other pending criminal case in Hillsborough County, according to the Hillsborough State Attorney's Office.

Bartlett said the Pinellas-Pasco State Attorney's Office also expects more claims, but he was unaware of any that have already occurred.

Criminal lawyers expect to see cases go forward until, ultimately, one reaches the state Supreme Court, which will have the final word on the law's retroactivity and other issues.

"We're in for about three to five years of appellate uncertainty as they try to figure this out," Rose said.

On Monday, Miami-Dade Circuit Judge Milton Hirsch ruled that the new version of "stand your ground" is unconstitutional.

He said the Legislature overstepped its authority in changing the law, and that under the state Constitution, such changes should have been made by the Florida Supreme Court.

Hirsch's ruling only has precedence in his courtroom and is not binding on cases that come before any other judge.

The law's potential effect on individual cases remains to be seen.

"When you have eyewitnesses and that kind of stuff, it's really no big deal," Bartlett said. But lacking that, or solid forensic evidence, it will be difficult to disprove a defendant's assertion that an attack was self-defense.

"The new 'stand your ground' law is already hurting our criminal justice system," Hillsborough State Attorney Andrew Warren said in an emailed statement. "As predicted, violent criminals are exploiting the law to create technical hurdles to make it harder to prosecute them, which delays justice for victims and wastes valuable resources — and they are doing it for crimes committed long before the new law took effect."

Randolph Graham is charged with second-degree murder in the Sept. 6, 2015, death of Watson, who had visited the Orpheum in Ybor City for a party after a USF victory over Florida A&M.

The state says the confrontation stemmed from an incident inside the club when a friend of Graham's slapped Watson's girlfriend, Diamond Hall.

Hours later, as the club's patrons were leaving, Hall pointed to Graham and his friends and told Watson they were the ones who had hit her, according to court documents.

Watson and his friends "had a significant height and weight advantage" over Graham and his friends, according to Graham's "stand your ground" motion. The hulking football player, at 6-foot-2 and 290 pounds, towered over Graham, who stood 5-foot-6 and weighed 140 pounds.

The defense motion says Graham "was forced to act in order to prevent great bodily harm" to himself and his friends.

Attorney from both sides will present arguments today about whether the law should apply retroactively to Graham's case.

If a judge sides with Graham, a more extensive hearing with evidence and witnesses could be held as soon as August.

Information from the Miami Herald was used in this report. Contact Dan Sullivan at dsullivan@tampabay.com or (813) 226-3386. Follow @TimesDan.