Legal Battle Over Clearwater Shooting Begins

posted by Felix Vega, 970 WFLA Legal Analyst - 

Clearwater, Fla. (970 WFLA) - Now that the Pinellas-Pasco State Attorney's Office has charged Michael Drejka with Manslaughter in the shooting death of Markeis McGlockton, self-defense and Florida's controversial Stand Your Ground law will be center stage in the ensuing legal battle as the case heads to court.

The decision to charge Drejka with Manslaughter weeks after Pinellas County Sheriff Bob Gualtieri announced that no arrest would be made, then turning the case over to the State Attorney's Office raises questions of how prosecutors will use witness statements, video and forensic evidence against Drejka.

Some details of those statements and evidence were revealed on Monday in the arrest affidavit that was filed along with the charging document, called an "information," formally charging Drejka.  That includes Drejka's own statements and a reenactment of the shooting with a detective in a 10 foot by 10 foot interview room at the Sheriff's Office.

As more evidence will be turned over to whoever will represent Drejka, a decision will be made whether to file a motion to dismiss the case under Florida's controversial Stand Your Ground law.  That would ultimately lead to a hearing that becomes a type of "mini-trial" for prosecutors.  Under the latest version of the law, the burden is on them to prove that Drejka was not justified in shooting McGlockton.

However, self-defense will also be a central part of the State's case should Drejka ultimately stand trial for Manslaughter. The shooting death of McGlockton, outside a Clearwater convenience store during an argument over a handicapped parking space, gained national attention as surveillance video captured the shooting, yet no arrest was made.

The reason according to Sheriff Gualtieri was the state's Stand Your Ground law.

The Stand Your Ground law is one part of the broader umbrella of self-defense laws used by defendants, usually at trial.  In  2005, lawmakers eliminated the part of the self-defense law that said a person had a "duty to retreat" prior to using deadly force, thus creating what is now known as the "Stand Your Ground" law.  An initial change to the law in 2010, created the mechanism for defendant's to file a motion to dismiss under the Stand Your Ground law and have a judge decide whether the case should proceed. 

The burden was initially on defendants to prove that they were justified in their actions, many times leading to the victim's death.  That changed in 2017 when lawmakers shifted that burden to prosecutors to prove by "clear and convincing evidence" that the defendant was not justified in using deadly force in cases  like Drejka's.  That new standard for prosecutors is less than "beyond a reasonable doubt" standard used in a jury trial.  It's also higher than the burden defendants would use which was the greater weight of the evidence, or "tipping the scales" one way or the other.

The arrest affidavit details the confrontation between Drejka and McGlockton's girlfriend, Britany Jacobs, over her decision to park in a handicapped spot at the Circle A convenience store while McGlockton and his 5-year-old son were inside.  It also lays out Drejka's version of what happened in a video interview with Pinellas County Sheriff's Detective George Moffett.

According to the detective, Drejka describes being tackled by McGlockton and landing on the ground before pulling out his gun, then pointing it at McGlockton.  Drejka goes on to say that no words were exchanged between the two and that he only saw McGlockton's legs and some sort of "twitch" that caused Drejka to open fire.

When the detective asks Drejka to re-enact how far apart he was from McGlockton, Drejka reportedly sits on the ground in the interview room, pointing at the detective (who is portraying McGlockton) and orders him to keep moving back.  The Detective says he moved as far back in the interview room as he could, indicating the two were more than 10 feet apart in the parking lot.

In either a Stand Your Ground hearing, or at trial, prosecutors will square that statement with the video, showing McGlockton turning away from Drejka and towards the store before being shot. The affidavit also reveals details of the autopsy report, showing the fatal bullet went through McGlockton's body from "left to right in a slightly upward direction." Prosecutors will use that evidence to back up what is seen in the video in court.  Forensic mapping of the scene by the Sheriff's Office also shows the distance between McGlockton and Drejka to be approximately 12 feet.

In proving Manslaughter, prosecutors will need to show that Drejka committed an intentional act, although without the intent to kill McGlockton.  They will also have to prove that act (shooting McGlockton) was not justified or excusable.  The "justified" portion of that element will allow prosecutors to address the self-defense issues in their case under the "Justifiable Use of Deadly Force," or self-defense instructions that guide the jury's verdict. That also includes the Stand Your Ground law. 

Three other incidents involving Drejka are detailed in the affidavit that may also be used in trial under Florida's similar fact, or "Williams Rule" evidence.  While that evidence can not be solely relied on to convict Drejka, it can be used to show a pattern of conduct with a similar motive, lack of mistake or accident, or even proving identity.  Witnesses involved in those incidents would have to testify themselves in court.  

One incident reportedly occurred in the same parking lot of the Circle A store 3 months before McGlockton was shot.  A septic truck driver parked in a handicapped spot, was confronted by Drejka.  According to the affidavit, Drejka threatened to shoot the driver before he left in his truck, shouting racial slurs at the driver.  Drejka then called the driver's boss to complain and ending the call by reportedly saying he was "lucky he didn't blow his employee's head off."

Two other road rage type incidents are also reported from 2012.  One involves two teens stopping at a yellow light that was about to turn red on State Road 580.  Drejka allegedly honks his horn and yells at the driver.  At some point Drejka holds a handgun out the driver's side window.  Neither of the teens decided to press charges.

Another incident occurred in  December of 2012.  A female driver told a Largo Police Officer that Drejka had pointed a gun at her and the people in her car.  The affidavit goes on to say that the officer tracked down Drejka and spoke with him about what happened. Drejka reportedly complained that the woman was driving too slow in a school zone, but denied pulling out a gun.  That driver then left the area.

While the affidavit sheds light on how prosecutors may make their case against Drejka, this is only the starting point of what promises to be a long legal battle that many will be watching.  Whether or not it will have any influence on possible efforts to change or even repeal the controversial Stand Your Ground law remains to be seen.  

Court challenges are still brewing over whether the new standard, shifting the burden to prosecutors in Stand Your Ground hearings, can be applied to cases that were pending before the law changed in 2017.  

Booking Photo of Michael Drejka, Courtesy: Pinellas County Sheriff's Office

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