Circuit Judge Terry Lewis has denied a “stand your ground” motion by defendant Clark Mayers that sought immunity from prosecution in the March 2015 shooting in the Apalachicola National Forest that left one man dead and another paralyzed for life.
In a 10-page ruling issued Friday, Lewis found Mayers, 42, of Milledgeville, Georgia, as represented by Tallahassee attorney Richard H. Smith, “had not met his burden of proving by the greater weight of the evidence that he was justified in the use of deadly force” against either Wesley “Dice” Jones, who was left a quadriplegic, or Jacob “Smiley” Cardwell, who was killed, at a Rainbow Family gathering.
Lewis applied the “greater weight of the evidence” legal standard, as required of the defense, that existed at the time of the shooting. Last year, the Florida legislature changed the law to require prosecutors prove a defendant, by clear and convincing evidence, did not act justifiably in self-defense.
At the outset of his ruling, Lewis noted that “because of the uncertainty in the law, and with the anticipation that whatever ruling I make might be appealed,” he would also determine whether the state, as represented by Assistant State Attorney Jared Patterson, had met the clear and convincing evidence burden.
“If the amended statute were to apply retroactively, I find that the state has not met its burden for proving by clear and convincing evidence that the (shootings were) not the result of the justifiable use of deadly force by the defendant,” he wrote.
In his ruling, which means Mayers continues to face prosecution for second degree murder, attempted first degree murder, and two counts of aggravated battery with a firearm, Lewis found contradictions in the testimony both of Jones and other prosecution witnesses, as well as that of Mayers.
The broadest outlines of the story appeared to be that an armed Mayers confronted Jones and Cardwell in the early morning hours, over their burning of a tire not far from the river, and that they backed him up to his trailer at which time Mayers fired his gun, after being struck allegedly by a shovel wielded by Jones.
“Both narratives, in my view, are internally inconsistent, and not supported by the other testimony or physical evidence,” Lewis wrote, noting that the most glaring contradiction in Jones’ testimony was the location of the incident, which he testified was “maybe ten to fifteen feet away from the fire.
“The crime scene photos and the physical evidence, plus they other testimony shows that the shootings occurred some 60-75 feet away from the fire, right next to the defendant’s trailer,” wrote the judge. .
Jeremy Strickland, a prosecution witness, testified that the shooting occurred near the trailer, and that he and Jones had backed Mayers up to the trailer “but did not do so aggressively,” wrote the judge. “He (Strickland) testified that they had their hands up and were saying things like ‘you’re not a killer,” and ‘calm down,” and that neither he nor Jones had any weapons, specifically no shovel in their hands.”
Lewis indicated he believed Mayers’ story had holes in it as well. In his testimony at the Feb. 23 hearing, Mayers said that he was awakened earlier that evening by a couple arguing loudly outside of his trailer.
“Rather than simply opening the door or a window to call out to the couple, he gets dressed, complete with his keys, a flashlight that attaches to a band around his head and a loaded handgun, just to open the door and speak with this couple,” wrote the judge. “That made no sense to me. Then with this problem solved, he decides to use the bathroom nearby and takes his gun with him. He explains that this is because there are bears and alligators in the woods. That didn’t make sense to me either.
“What does make sense is that the defendant needed some explanation as to why he was walking around with a gun before his confrontation (with Jones and Strickland). Because, if Mayers went and retrieved his gun after Jones threw his camera in the fire, that would suggest he acted out of anger,” wrote Lewis. “It would suggest premeditation.”
The judge noted that “Pointedly, Mayers denied on cross examination that he was angry when his camera was thrown in the fire. He was upset, he said, but not angry. That also doesn’t make sense.”
Lewis also wrote that “it seems rather awkward to be carrying a gun tucked under your arm, as the defendant maintained he did, throughout the time of going to the bathroom, going to the fire, and arguing with the people around the fire, going to retrieve his camera and coming back to film the event apparently using just one hand, while holding the gun in lace with the other arm.”
The judge also voiced skepticism regarding Mayers’ claim that Jones, who had the use of only one arm due to an injury sustained a few years prior, “punched him in the jaw and snatched the camera from his hands all in one motion.
“That doesn’t make sense either,” Lewis wrote.
Mayers went on to testify that Jones picked up a shovel as he and Strickland advanced on him, and that he only then pulled out his gun and retreated towards his trailer, pointing it at the two men as he told them to get back.
“As he (Mayers) testified, ‘I couldn’t believe someone could be so stupid,” wrote Lewis. “Nor can I, unless, as Strickland testified, they were trying to get him to put away or give up his gun.”
The judge said he believed it was most likely that “consistent with Jones’ testimony, (Mayers) was angry at being disrespected by Jones and the others, especially having his camera taken away, and thrown into the fire, and that he came back with the great leveler, his handgun, to get that respect – or at least fear.
“When Jones smarted off to him again, he pulled out his gun and pointed it at him,” wrote Lewis. “But he didn’t get the reaction he expected. No one took the threat seriously. They didn’t think he would really shoot them. They started to approach him, trying to calm him down and get the gun from him.”
In Lewis’ opinion, it is not essential to decide whether Mayers only shot Jones after being hit in the face with a shovel, or whether he shot Jones after he pushed the gun away with the shovel.
“(Mayers) was not justified in using deadly force because he was engaging in criminal activity at the time, specifically aggravated assault against Jones and Strickland,” the judge wrote. “And while it might have been foolish to do so, armed only with a small folding shovel against a pistol, Jones had the right to defend himself against the defendant.”
The judge also took issue with defense attorney’s Smith’s contention that the inconsistencies in their testimony and the physical evidence suggest they were making things up. “But if these witnesses were trying to get their stories straight, and fabricate some testimony, they certainly could have done a better job of it. Indeed, the inconsistencies in the testimony suggest candor rather than intent to deceive, a lack of accurate memory rather than purposeful falsehoods.”
In his analysis of Cardwell’s killing, which Mayers said took place shortly after he shot Jones, as he leaned against his trailer to collect himself, the judge said the defendant’s testimony was contradicted by Jones, Brian Achison and Joshua Campbell, none of whom testified they saw Cardwell wielding a weapon.
“But, even accepting the defendant’s testimony that Cardwell came at him with a machete, that does not mean he was justified in using deadly force if, as I have found, the defendant had just shot Jones without legal justification.
“Cardwell had the right to defend himself and his friend, or anyone else in the vicinity from additional violence from Mayers,” Lewis wrote.
“Admittedly, if someone is coming at you with a machete, it is understandable that you would shoot them to protect yourself from harm,” the judge wrote. “But a pre-condition to the lawful use of deadly force is that you are lawfully where you have a right to be and are not otherwise engaged in criminal activity.
“Pointing a gun at someone is an aggravated assault. Shooting them is at least aggravated battery,” Lewis wrote. “If you commit two violent felonies and appear capable of committing more violence, you don’t get to kill someone who tries to stop you, and then claim self-defense.”
In his closing, which addressed the two legal standards, the judge noted that while “I don’t think the defendant was justified in using deadly force in either situation, there is a big difference between him persuading me by the greater weight of the evidence that he acted in lawful self-defense, and the state persuading me by clear and convincing evidence that he did not.”
The judge noted that clear and convincing evidence must be precise, explicit, lacking in confusion, and “of such weight that it produces a firm belief or conviction without hesitation about the matter in issue.
“The evidence must be of sufficient weight to convince the trier of fact without hesitancy,” he wrote, in referencing the definition of his standard by the Florida Supreme Court.
“(A) jury is free to believe or disbelieve all or any part of the evidence, and reasonable people could disagree on what the evidence provides,” Lewis wrote. “But, I am the fact-finder in this proceeding and I just can’t say the evidence is clear and convincing (according to this definition.”