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Judge rejects 'Stand Your Ground' defense in fatal shooting

News Channel 8 photo by ERIC HAUSMANN

Donald Montanez testifies in Hillsborough County Circuit Court on May 12.

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By TOM BRENNAN | The Tampa Tribune

Published: May 18, 2009

TAMPA - A towing company owner must stand trial for fatally shooting a man who was trying to reclaim his wife's towed car, a judge ruled Monday.

Hillsborough County Circuit Judge Robert A. Foster said the state's Stand Your Ground law does not give Donald Montanez immunity from prosecution.

"It is inherently dangerous to pull a firearm and is best left to well trained individuals who have a duty to serve and protect," Foster said. "Citizens carrying firearms, whether licensed to do so or not, proceed at their own risk subject to the laws of the state of Florida, which are very clear.

"Montanez was not justified in firing his weapon," he said.

Montanez faces second-degree murder and other charges in the death of Glen "Chuck" Rich. He declined to comment.

"Our client is evaluating whether to appeal," said Jay Hebert, one of his attorneys.

Assistant State Attorney Jay Pruner declined to comment.

Montanez shot Rich about 5 a.m. on Jan. 8, 2006, as Rich was driving off in his wife's Chrysler Sebring, which Montanez's employees had towed from behind the after-hours club Sugar Shack on East Hillsborough Avenue.

Montanez said Rich was racing the Sebring toward him and employee Lorraine Marie Whitehead when he fired a single shot from his .40-caliber semiautomatic pistol. Montanez and Whitehead testified that they feared for their lives.

Forensic evidence showed the bullet traveled through the passenger window, hitting Rich under his right armpit.

That weighed heavily in Foster's decision, which followed three days of testimony and one day of arguments last week.

Foster said there is a "zone of uncertainty" in which someone might fear being hit by an oncoming car. But the imminent threat Montanez or Whitehead felt had dissipated once the front of the car was past them.

Montanez and Whitehead had time to get out of the way, Foster said.

He said most of the questions raised during last week's hearing are more properly settled by a jury. Montanez can raise his claims of self-defense at trial.

Jeffrey Brown, another of Montanez's attorneys, said the ruling sends the wrong message.

"It seems to indicate it is open season on (tow) truck drivers," he said.

Florida was the first state to adopt a Stand Your Ground law. Adopted in 2005, the law says people don't have to exhaust all avenues of retreat before using deadly force to defend themselves against an aggressor.

Use of the defense is rare in the Bay area.

Earlier this month, Hillsborough Circuit Judge Daniel H. Sleet refused to dismiss charges against James Behanna, who said he was acting in self-defense when he fatally stabbed a man in December 2005.

Behanna faces a September retrial on a manslaughter charge.

In January, Pasco Circuit Judge Michael Andrews denied a defense motion to declare Max Horn immune from a second-degree murder prosecution in a fatal shooting in March 2008.

The law's application isn't always clear-cut, said Robert Batey, a criminal law professor at Stetson University College of Law.

"These laws were passed with the idea of the innocent homeowner protecting himself but as cases come up they more reflect the reality that one side is not wholly innocent and the other side is not wholly guilty," he said.

Batey said the few cases invoking the statute in Florida have reached different results.

"At some point relatively soon the state Supreme Court is going to have to take a case and try to settle some of the confusion that has arisen in the lower courts," he said.

News Channel 8 photojournalist Kate Caldwell contributed to this report. Reporter Tom Brennan can be reached at (813) 259-7698.

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