TAMPA — A neighbor who fatally shot a 41-year-old father on a basketball court after they argued over a skateboarder is not entitled to immunity under Florida's "stand your ground" law, a judge has ruled.
When Trevor Dooley, then 69, shot his Valrico neighbor David James in the chest in 2010, "There was no reasonable belief that deadly force was required," Hillsborough Circuit Judge Ashley Moody wrote in her order released Monday.
Although James was younger and bigger than Dooley, the judge said, testimony showed James was trying only to get Dooley's gun away.
"The court finds that Mr. James was justified in grabbing (Dooley) because defendant had reached for and pulled out a gun to confront Mr. James," Moody wrote.
Her ruling means that Dooley will stand trial for manslaughter, unless her order is overturned on appeal. He is still entitled to present a "stand your ground" argument, or any other self-defense argument, to a jury. No trial date has been set. A status hearing will be held Thursday.
Dooley's attorney, Ronald Tulin of Plant City, had no comment on the order.
Other defense attorneys had predicted the judge would rule against immunity. "A jury ain't going to buy this one either," Tampa defense lawyer Rick Terrana said Monday.
The "stand your ground" law is the same law being invoked in the fatal shooting of Trayvon Martin in Sanford by George Zimmerman — a case with many similarities. There, lawyers also dispute which one was actually standing his ground.
Testimony for and against Dooley has been painful, including that of James' daughter, who was 8 years old when she saw her father shot. Danielle James, now 10, said she remembers little about the shooting. She remembers Dooley saying he didn't want to fight. She doesn't remember seeing a gun, or hearing threats. What she remembers most was a gunshot.
In his own testimony in February, Dooley admitted shooting James. He said he had no choice, that James had a hand around his throat. "He was killing me," Dooley testified. "My finger was on the trigger. I shot."
But three witnesses, including the 14-year-old skateboarder Dooley was trying to shoo away, testified that Dooley first flashed a gun at James, then pulled it from his pants when James stepped toward him. They said they didn't see James choke Dooley. They said James tried to wrest the gun away.
In her ruling, Moody accepted only one of Dooley's arguments — that he was legally entitled to be where he was, in a public park.
She said he failed to show that he was in fear for his life. No other witnesses saw James try to hurt him. Paramedics at the scene saw no injuries on him.
Moody also wrote that Dooley broke the law when, according to witnesses, he first flashed the gun. Even though he had a concealed weapons permit, Moody said, the state showed "prima facie evidence of unlawful activity, namely the crimes of improper exhibition of a dangerous weapon, or open carrying of weapons."
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Other lawyers say Dooley's best option at this point is to continue to claim he fired in self-defense. He cannot claim the gun went off accidentally because he has already admitted in court to deliberately firing. But he can argue that, in his mind, he believed James would have killed him.
"The best approach is to create the impression in each juror's mind that the victim was an aggressor, that he made some kind of movement," Terrana said. "That's all he can do."
Tampa lawyer Ronald Kurpiers, who lost a "stand your ground" argument with a judge in April, but then won acquittal for his client last week on an attempted murder charge, said the Dooley case will probably turn on whether a jury believes Dooley flashed his gun at James before they fought.
Kurpiers last week defended a teenager who admitted shooting a drug dealer, claiming he thought his life was in danger. Hillsborough Circuit Judge Gregory Holder refused to grant immunity under the "stand your ground" law, partly because the teenager was breaking the law by trying to buy drugs. But a jury refused to call the shooting attempted murder.
Lawyers don't suggest that Moody or Holder was swayed by the Trayvon Martin case, but they do believe the law, which was passed in 2005, has been misapplied in many cases and is now under intense scrutiny.
Said Kurpiers, "Judges are being careful."
John Barry can be reached at (813) 226-3383 or email@example.com.