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'Stand your ground' decision raises prospect of new hearing in Pasco theater shooting

Curtis Reeves Jr. takes the stand to testify during his "stand your ground" hearing at the Robert D. Sumner Judicial Center in Dade City on Feb. 28, 2017. Reeves, a retired Tampa Police Department captain, shot and killed Chad Oulson, 43, over the use of his cellphone during a confrontation inside the Cobb Grove 16 theaters in Wesley Chapel, Florida in 2014.
Curtis Reeves Jr. takes the stand to testify during his "stand your ground" hearing at the Robert D. Sumner Judicial Center in Dade City on Feb. 28, 2017. Reeves, a retired Tampa Police Department captain, shot and killed Chad Oulson, 43, over the use of his cellphone during a confrontation inside the Cobb Grove 16 theaters in Wesley Chapel, Florida in 2014.
Published May 9, 2018

For two weeks last year, a retired Tampa police captain tried to persuade a judge that he was terrified and desperate to protect himself when he fatally shot another man in a darkened Wesley Chapel movie theater.

The judge didn't buy Curtis Reeves' argument. But now the defendant might get another chance. And this time, his attorneys would have less work to do to demonstrate that Reeves should be immune from prosecution under Florida's "stand your ground" law.

A sequel to the highly anticipated, heavily watched, epic Reeves hearing became more likely last Friday, when a three-judge panel of the Second District Court of Appeal declared that a revised version of the controversial self-defense law can apply to cases that were pending when it was passed.

"The beauty of this particular decision is it allows Mr. Reeves to have another 'stand your ground' hearing with the appropriate burden of proof," said Reeves' attorney, Richard Escobar.

PREVIOUS COVERAGE: Judge rejects 'stand your ground' in Curtis Reeves case (March 10, 2017)

For the time being, though, a second Reeves hearing is still a long way off.

An appeal of Pinellas-Pasco Circuit Judge Susan Barthle's denial of Reeves' self-defense claim remains pending. Prosecutors and his attorneys have both filed written arguments, but appellate judges have yet to decide if Barthle got it right.

If the appeals court upholds the judge's decision, the Reeves case will continue in circuit court, with the prospect of another "stand your ground" hearing a distinct possibility.

At the same time, the appellate court's decision to uphold the new law could go to the Florida Supreme Court.

Reeves, 75, is charged with second-degree murder in the Jan. 13, 2014, shooting of Chad Oulson, which occurred inside the Cobb Grove 13 theaters. The two men argued over Oulson's use of a cell phone during movie previews. Oulson, 43, confronted Reeves, tossing a bag of popcorn in his face, before Reeves shot him in the chest.

The "stand your ground" law, first passed in 2005, states that a person has no duty to retreat when faced with a violent confrontation and can use deadly force if in fear of great bodily harm or death.

The Florida Supreme Court previously ruled the defense had the burden of proof in cases where the law was invoked. But that changed last spring.

RELATED: How might 'stand your ground' changes have affected the Curtis Reeves theater shooting case? (April 6, 2017)

As Reeves' attorneys worked to prove their claim in a Pasco County courtroom, state legislators in Tallahassee debated a new version of the "stand your ground" law, which shifted the burden of proof to the state. The law passed in May.

Prosecutors throughout Florida have criticized the change.

They say it puts them in the precarious position of having to prove a defendant's state of mind, which is a tall order in cases with few eyewitnesses and limited physical evidence. They also argue that the law essentially forces them to try cases twice and makes it easier for criminals to escape violent charges.

"From the moment the Legislature spilled this law all over Florida, it was destined that the Supreme Court was going to have to clean up the mess," said Hillsborough State Attorney Andrew Warren, whose office is not involved in the Reeves case.

Prosecutors in the Reeves case declined to comment.

RELATED: Florida lawmakers changed 'stand your ground' law. Chaos followed. (Feb. 2, 2018)

Judges throughout the state have differed on whether the new law can apply to cases that were pending when it passed.

At least two circuit judges in south Florida declared the change to be unconstitutional, for different reasons. Others avoided challenging the law's constitutionality, but declared that it can only apply to future cases. Still others have allowed "stand your ground" cases to go forward under the new law.

Enter Tymothy Ray Martin. In 2016, Martin was charged with felony battery after he punched his girlfriend in a McDonald's parking lot in Tampa. He claimed he did it because she threatened him with a gun in an argument.

Martin invoked "stand your ground," but a judge ruled that he failed to meet the required burden of proof. A jury later found Martin guilty.

In an appeal, his attorneys argued that the new law should apply retroactively.

The appeals court agreed. But their written opinion, issued Friday, also acknowledged widespread uncertainty on the issue, referring the question of retroactivity to the state's highest court.

"I think this was a well-reasoned opinion," said Escobar. "The prosecutors would be hard-pressed to have this opinion overturned by the Florida Supreme Court."

Whether the high court will take up the Martin case remains to be seen.

Contact Dan Sullivan at dsullivan@tampabay.com or (813) 226-3386. Follow @TimesDan.

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