Drejka v. State

• Decision Date: 29 December 2021
• Docket Number: No. 2D19-4385,2D19-4385
• Parties: Michael DREJKA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

330 So.3d 1055 (Mem)

Michael DREJKA, Appellant,

v.STATE of Florida, Appellee.

No. 2D19-4385

District Court of Appeal of Florida, Second District.

December 29, 2021

Bryant R. Camareno, Tampa, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Peter N. Koclanes, Assistant Attorney General, Tampa, for Appellee.

LaROSE, Judge

Michael Drejka shot and killed Markeis McGlockton during a clash over a parking space. Rejecting Mr. Drejka's self-defense argument, the jury found him guilty of manslaughter. He now appeals his judgment and twenty-year sentence. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A) ; 9.140(b)(1)(A), (F). Mr. Drejka brings eight issues to us. After careful review of the record and briefs,¹ we affirm.

Background

On the afternoon of July 19, 2018, Mr. McGlockton picked up his long-time girlfriend, Brittany Jacobs, from work. The couple's three children were also in the car. Mr. McGlockton stopped at a convenience store to buy snacks for the youngsters.

Neither Mr. McGlockton nor Ms. Jacobs had a disabled parking permit or license plate. Nevertheless, Mr. McGlockton parked in a space reserved for persons with disabilities. He exited the car and entered the store with his five-year-old son in tow. Ms. Jacobs and the couple's younger children waited in the car.

While Mr. McGlockton was in the store, Mr. Drejka drove up. He parked adjacent to the disabled parking spot, exited his automobile, and began circling Ms. Jacobs' car. Mr. Drejka, now positioned one foot away from Ms. Jacobs' car, began pointing at her. She was "scared [by] this strange, suspicious man."

Ms. Jacobs cracked open her car window to hear Mr. Drejka rebuking her for parking in a handicapped parking spot. He told her, "People that park here, I give problems to all the time." Ms. Jacobs described Mr. Drejka as "angry and aggressive." She admitted "getting loud with [Mr. Drejka] ... because [she] just wanted this man to ... just leave [her] and [her] babies alone." Ms. Jacobs asked Mr. Drejka whether she should "get [her] man." He responded, "Yes, if you want him to fight."

An eyewitness, Vicki Conrad, described Mr. Drejka as the louder of the pair, behaving in an "authoritative" and "argumentative" manner. Another eyewitness, Robert Castelli, was sitting in his car as the confrontation erupted. Mr. Castelli "heard screaming ... a man basically yelling at a car.... He was pointing at the window." Mr. Castelli was concerned for Ms. Jacobs' safety "because [Mr. Drejka] was shouting very loud, and [he] could tell [Mr. Drejka] was very upset" and behaving "in a threatening manner towards the car, pointing at the car, yelling, screaming." Mr. Castelli went inside the convenience store and told the clerk about the ongoing altercation.

Upon hearing this, Mr. McGlockton left the store. He approached Mr. Drejka and told him to "[g]et away from [his] girl." Mr. McGlockton, who was unarmed, pushed Mr. Drejka to the ground. Mr. McGlockton advanced no further and made no threats. Witnesses say that he turned and retreated several steps. But, Mr. Drejka drew a gun and trained the weapon on Mr. McGlockton. Mr. Drejka fired. The bullet pierced Mr. McGlockton's heart. Mr. McGlockton stumbled back inside the store and died beside his son.

A surveillance video captured the shooting. The entire incident, from Mr. McGlockton's initial confrontation with Mr. Drejka to the shooting, lasted about eleven seconds.²

According to Ms. Conrad, after the shooting, Mr. Drejka was "very calm" and "very matter-of-fact." Mr. Castelli observed that Mr. Drejka was not confused, disoriented, or in pain. Indeed, Mr. Drejka "calmly" got up, walked to his car, opened the door and placed his firearm inside. Mr. Castelli heard Mr. Drejka muttering, "He shouldn't have pushed me down. What did he think was gonna happen?"

Mr. McGlockton's shooting prompted a sizeable law enforcement presence at the scene. Law enforcement officers detained and questioned Mr. Drejka for less than an hour and released him. Almost a month later, the sheriff's office arrested him.

During his initial interview with detectives, Mr. Drejka offered conflicting and evolving justifications for the shooting. Throughout the interview, Mr. Drejka used tactical jargon. For instance, following his shove to the ground, Mr. Drejka told the interviewing detectives that as he began to sit up "[he] started drawing [his] weapon" and "[a]s [he] start[ed] leveling off [his] weapon [Mr. McGlockton] ma[de] his next step towards me and 21-foot rule." As Mr. Glockton allegedly advanced towards him, Mr. Drejka explained that he had to utilize a "force multiplier" to "[n]eutralize the immediate threat." Mr. Drejka informed the detective that "a force multiplier is a sidearm."

Seeing the media coverage of the shooting, Richard Kelly recognized Mr. Drejka's car and recalled a run-in with Mr. Drejka five months earlier. Prior to trial, the trial court ruled that evidence of Mr. Drejka's encounter with Mr. Kelly was admissible under section 90.404(2)(a), Florida Statutes (2018), that permits the admission of "[s]imilar fact evidence of other crimes, wrongs, or acts ... when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." See also Truehill v. State , 211 So. 3d 930, 945 (Fla. 2017) ("Similar fact evidence[ is] also known as Williams^{[3 ]}–rule evidence ....").

At trial, Mr. Kelly recounted that he had parked his company vehicle in the same handicap spot and ran into the convenience store for a soda. Upon returning, Mr. Kelly saw Mr. Drejka lurking around his truck taking pictures. Mr. Drejka confronted Mr. Kelly about the handicapped parking spot. In fact, Mr. Drejka threatened, "I should shoot you, kill you." The confrontation became so heated that Abdalla Salous, the convenience store manager, intervened to de-escalate the situation. Mr. Drejka responded that "I can't help it. I always get myself in trouble for that." Mr. Drejka seemingly was so incensed following his run-in with Mr. Kelly that he called Mr. Kelly's employer, John Tyler, to report that one of his employees had parked in a handicapped parking space. During their conversation, Mr. Drejka told Mr. Tyler that "[Mr. Kelly] was lucky.

[Mr. Drejka] said that if [he] had a gun, he ... could have shot [Mr. Kelly]."

The State called Dr. Roy Bedard, a police trainer, as an expert witness on use of force and defensive tactics. Dr. Bedard testified that he reviewed Mr. Drejka's interview with detectives. Mr. Drejka's use of "jargon police talk" caught his attention. For example, Dr. Bedard testified that Mr. Drejka used the term "force multiplier," a military term, incorrectly, and probably meant "force continuum." See generally Coit v. City of Philadelphia , No. 08-4744, 2010 WL 1946911, at *1 (E.D. Pa. May 11, 2010) ("[Police Officer's deposition testimony] described force continuum training as steps an officer is supposed to take in escalating order of severity to defend himself while doing his job: police presence, verbal commands, control holds, and physical force, including deadly force.").

Dr. Bedard then explained the "21-foot-rule," a police concept about how fast someone with a knife could close the distance before an officer could draw a gun. See generally Buchanan v. City of San Jose , 782 F. App'x 589, 592 (9th Cir. 2019) ("The 21-foot rule provides that a person at a distance of 21 feet or less may pose a threat to the safety of an officer."). Specifically, Dr. Bedard related that the 21-foot-rule "doesn't mean that if someone's within 21 feet, you can automatically shoot them." To the contrary, he stressed that invoking the rule is inappropriate when the advancing individual is unarmed. Dr. Bedard carefully cabined his testimony, explaining that he "was just defining terms. [He] was not trying to characterize anything that might have gone beyond what [Mr. Drejka] said."

Based on his review of the surveillance video, Dr. Bedard also opined that Mr. Drejka had full possession and control of the firearm when he fired it. At no point did Dr. Bedard comment upon Mr. Drejka's self-defense claim.

Mr. Drejka's trial lasted five days. Upon returning from a lunch break on the final day, Mr. Drejka's counsel advised the trial court that while in the courthouse cafeteria, he witnessed a woman, "[who] is here with the head of the NAACP," approach a juror. Counsel reported that the two embraced in "a big hug, and they engaged in conversation for about three to five minutes." Counsel asserted that jurors are "not supposed to be having contact with anyone who might be here in the capacity as an activist or something, on behalf of the McGlockton family." Counsel asked that the juror be replaced with an alternate.

The trial judge interviewed the juror. The juror forthrightly admitted that he had spoken with "a friend of my wife." He denied that he had spoken with his wife's friend about the case. The juror told the trial court that the woman did not tell him why she was at the courthouse, and he did not ask.⁴ He "just saw a really good friend from the past." The trial court concluded that it "ha[d]n't heard anything to indicate that there's any improper contact." The trial court denied Mr. Drejka's motion to excuse the juror.

Following deliberation, the jury returned a guilty-as-charged verdict. The trial court sentenced Mr. Drejka to twenty-years' imprisonment.

Analysis

Issue I: Alleged Improper Comments

Mr. Drejka argues that "the State made several objectionable comments" during closing argument.

The numerous allegedly improper comments advanced by Mr. Drejka are not an insurmountable obstacle to our complete and careful review of this issue. We observe, however, that Mr. Drejka's use of lengthy block and/or italicized quotes, failure to accurately quote the record, and omission as to whether the comment was objected to and, in turn,...