He was convicted of shooting 3 people in Key West — but a judge said, hold everything
A Louisiana man convicted of shooting into a crowd on the streets of Key West in 2016, wounding three men, could soon be out on bond because a judge on Monday ruled there was no choice but to set aside a jury's March 1 guilty verdict.
The judge's action comes after an appellate court decision late last week on Florida's controversial Stand Your Ground law.
A six-member jury convicted Derek David, 35, on three counts of attempted manslaughter with a firearm, two counts of aggravated assault with a deadly weapon without intent to kill and discharging a firearm in public.
But Monroe County Circuit Judge Luis Garcia said he had no other option other than to vacate the conviction based on a Second Court of Appeal decision on Friday that made changes to the Stand Your Ground law enacted last summer. The changes are retroactive and affect all cases.
David argued that he fired four .380 Ruger pistol rounds down Charles Street in defense of his wife, Jodie David. He hit one person on the side street and two more who were walking along bustling Duval Street shortly after 1 a.m. March 21, 2016.
His defense attorneys Donald Barrett and Dustin Hunter argued from the beginning that he was within his right to open fire under Stand Your Ground.
Judge Wayne Miller ruled in February 2017 that the case did not meet the criteria. The law allows people to protect themselves or others with deadly force without retreating if they perceive an imminent threat is present. The Third District Court of Appeal sided with Miller in a decision later last year.
The change
But Miller made his ruling before the state Legislature in July 2017 revised the law in a major way, shifting the burden of proving Stand Your Ground from defense attorneys to prosecutors. So instead of defendants having to show deadly force was justified, prosecutors must now show it was not, arguably making Stand Your Ground defenses ripe for more success.
A Second Court of Appeal panel on Friday ruled the change to the law is retroactive to all defendants whose Stand Your Ground cases were pending before the change to the law. Calling the appellate court decision "the elephant in the room," Garcia, who was prepared to sentence David on Monday morning, possibly to up to 60 years in prison, instead had to grant him a new bond.
This does not mean the charges in the case are dismissed or that the conviction has been thrown out. Rather, Garcia's decision means David must have a new hearing to argue that his actions on March 21, 2016, met the standards of Stand Your Ground. If Garcia denies the motion, the March 1 conviction stands, Monroe County State Attorney Dennis Ward said.
The new hearing has not been scheduled.
Assistant State Attorney Colleen Dunne on Monday argued David's new bond should be set at $1 million, but Garcia set it at $240,000 after David's bail bondsman Roberto Vigil testified that he met all the requirements of his previous $400,000 bond from Louisiana. It wasn't immediately clear if Derek was released Monday. Some of the conditions of his release are abstaining from alcohol, no firearms, not living in a house that has firearms and wearing a GPS tracking device.
The shooting
David shot three men he had never met after an argument with his wife as he walked down Charles Street escalated into a fight with two men who have never been identified. They were referred to at the trial and in police reports as "Fedora Hat Man" and "Basketball Jersey Man" because of the clothing they were wearing.
The incident, including the shooting, was recorded by security cameras attached to several Key West businesses. The footage was shown to jurors during David's trial in late February.
The video shows him shove Jodie David to the ground several times. He said he was trying to get her back to their vehicle so they could return home to Sugarloaf Key, where they were living at the time. Jodie had become drunk during their date night out together, and after hitting three bars, he wanted to call it a night. She didn't, and the two began to fight as they walked.
Fedora Hat Man ran up behind David and pushed and punched him. David tried swinging back, but was out-fisted. Basketball Jersey Man joined in, pushing David from behind.
David did not testify during the trial, but during the February 2017 Stand Your Ground hearing, he stated he saw two men, Brendan Boudreau and Trent Pauls, engaged in a struggle with his wife. In reality, the footage shows, she was hitting Pauls, and he and Boudreau were trying to get away from her.
Nevertheless, David said he thought they were with Fedora Hat and Basketball Jersey and he thought, after the beating he took, Jodie's life was in danger. David, standing at the intersection of Charles Street and Telegraph Lane, pulled his .380 from his waistband, held it in the air, then pointed it down range and fired four rounds toward Duval.
Boudreau and Pauls ran. Boudreau was hit in the upper back of his right leg, with the bullet exiting below his groin. Pauls escaped unharmed. A man named David McBride, who just arrived in town from Daytona Beach for a paddleboard vacation with friends and his girlfriend, was hit on the right thigh.
A filmmaker, Reid Ogden, finished a job earlier that day and was wrapping up a date with a woman he met in the afternoon. They were walking on Duval to his car when a bullet went through his left arm and stopped in his abdomen.
Another bullet was found lodged in a poster frame outside the popular Irish Kevin's bar on Duval Street. The bullet missed McBride's head by inches.
This story was originally published May 7, 2018 at 2:36 PM with the headline "He was convicted of shooting 3 people in Key West — but a judge said, hold everything."