A Valrico bus driver accused of gunning down a man in front of the victim's 8-year-old daughter on a neighborhood basketball court last year will invoke Florida's "Stand Your Ground" defense.
Monday was the deadline for defendant Trevor Dooley to seek dismissal of the charges based on the statute adopted by Florida lawmakers in 2005. The statute says people don't have to exhaust all avenues of retreat before using deadly force to defend themselves against an aggressor.
Killed in the altercation was David "D.J." James, a 41-year-old Air Force veteran who died on the basketball court on Sept. 26, 2010, as his daughter watched. He was defending a teen-ager who was skateboarding at the other end of the basketball court.
Defense attorney Ronald Tulin of Plant City filed the court motion seeking dismissal late Monday afternoon. Dooley is charged with manslaughter, improper exhibition of a weapon and open carrying of a weapon.
"This is a horrible tragic thing for this little girl and for her family," Tulin said late Tuesday afternoon. "But it is also tragic for my client. I don't think he wanted to be in this position and some of the blame has to be focused on Mr. James who put these wheels into motion."
"I was horrified when I found out about it [the court motion]," said James' widow, Kanina James. "My husband wasn't doing anything wrong. He was sticking up for the kids and Mr. Dooley killed him for that.
"It's just wrong all the way around."
She said she was told by prosecutors that such a motion likely would be filed and that the defense would try to shift some of the blame for the shooting to her husband.
More than a year later, the family still is in grief, she said.
"It's still hard every day to live without him," she said. Her daughter is coping as best she can. "Every now and then, she'll pop off and say something that takes me back and reminds me that she was there. This happened to her, too."
Hillsborough County sheriff's deputies said James was playing basketball with his daughter near their home when he gave a 14-year-old boy permission to skateboard on the basketball court. That's when Dooley, 69, who saw James give the teen permission, came out of his house, saying skateboarding was not allowed.
Tulin said the witness statements have one common thread: that Dooley was done with the argument and had turned to leave. Tulin said James persisted and closed the distance between the two.
James "was a much younger man," Tulin said, and seemed aggressive. "Mr. Dooley is an older guy in his 60s with some physical disabilities.
"My client was walking away from this," the attorney said. "Immediately prior to the shooting, he had turned to walk away and was going home."
The motion to dismiss asserts immunity under the "Stand Your Ground" law and says Dooley used deadly force to protect himself from being severely injured or killed.
The motion says there are four witnesses to the shooting, including James' daughter, the skateboarder and a married couple playing tennis adjacent to the basketball courts. They all said Dooley yelled at the skateboarder to get off the court and James told him it was ok, that there were no signs prohibiting skateboarding.
The two men exchanged words and James began walking toward Dooley, chiding him for cursing in front of his daughter and saying, "I'm not done talking with you," the motion quoted witnesses as saying.
Dooley walked toward his house, and James closed the distance between the two, the motion said.
At 6-foot-1 and 240 pounds, "Mr. James was almost half as young and twice as large as Mr. Dooley," the motion said. Dooley is 5-foot-7 and weighs 162 pounds. The motion quotes witnesses as saying James caught up with Dooley and spun him around and Dooley went down. James landed on top of him. It was then, the gun was drawn and the fatal shot fired.
Prosecutors say they have argued against such motions in the past, but declined to talk specifically about this case.
"We'll review it," said Mark Cox, spokesman for the Hillsborough County State Attorney's Office, "and prepare for the hearing." A hearing date had not been set. A trial is scheduled to begin Jan. 23.
Tampa attorney John Fitzgibbons said he believes Dooley's attorneys are right to use the defense that Dooley was standing his ground when the shooting happened.
"Sometimes one person may be armed and the person designated by the state as the victim is not," he said, "and it could still be a stand your ground situation," he said.
Fitzgibbons has represented a few clients using the "Stand Your Ground" defense. He said lawyers around the state have used the law "dozens and dozens of times" in recent years.
"It certainly has changed the landscape in Florida as far as cases in which deadly force has been used by one person against the other," he said. "There's no duty to retreat, and it gives a right to someone to literally stand their ground and meet force with force if they believe it's necessary."
STAND YOUR GROUND
There are three elements to the Stand Your Ground law:
If you are attacked in a place where you have a right to be
If you are not engaged in any unlawful activity
If you believe it is necessary to use force to prevent your death or great bodily harm to yourself
Source: Attorney John Fitzgibbons