MEMORANDUM TO:

STATE ATTORNEY OFFICE FILE (CASE ID 2279865)

FROM:

ASSISTANT STATE ATTORNEY DANIEL P. FEINBERG

SUBJECT: AGENCY REVIEW 16-134478 REQUESTED BY LEE COUNTY SHERIFF’S OFFICE DATE:

MARCH 23, 2017

CC:

LEE COUNTY SHERIFF’S OFFICE DET. E. HURD

INTRODUCTION On March 20, 2016, Ryan Modell (hereinafter Modell) was shot once in the chest by James Taylor (hereinafter Taylor). The shooting took place at approximately 2:30 a.m. in front of Taylor’s home located at 17483 Old Harmony Drive, Fort Myers, Florida. Modell was pronounced dead at 2:50 a.m. at the scene of the shooting. The Medical Examiner concluded that the cause of death was “(g)unshot wound of the torso with perforation of the heart.” The Medical Examiner found the projectile entered the left side of Modell’s chest, penetrated the center of Modell’s heart and traveled through his kidney, liver and stomach. The pathway of the projectile is front to back, left to right, and downward. The Medical Examiner found the gunshot wound to be of “close range.” Taylor admits firing the projectile that killed Modell; however he alleges Modell attempted to enter his (Taylor’s) residence, refused to leave his (Taylor’s) property and that he (Taylor) was defending himself. It is reasonable to surmise that Modell mistook Taylor’s home for his own home, at least in part based on his heightened level of intoxication. The Lee County Sheriff’s Office has submitted this case and requested the State’s opinion whether or not Taylor’s use of deadly force was justified. Based upon a review of the available evidence and witness testimony, it is the opinion of the State Attorney’s Office that James Taylor was defending himself when he shot Modell. Therefore, Taylor’s use of deadly force was justified. Below are the findings upon which this conclusion is based.

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REVIEW OF THE FACTS PERSONS INVOLVED There is no dispute that Taylor shot and killed Modell on March 20, 2016. At the time of the shooting: Taylor was 45 years old; Taylor’s driver’s license states he is 5’11’’ tall; Taylor was married to Patrice Taylor (hereinafter “Patrice”); and Patrice and Taylor resided at 17483 Old Harmony Drive #102. The Taylors moved into Unit # 102 on October 16, 2015. At the time of the shooting: Modell was 33 years old; According to the Medical Examiner, Modell was “well-developed, well nourished,” 6’1’’ tall and weighed 224 pounds; and Modell resided with his 34 year old girlfriend, Kristin Westlund at 17477 Old Harmony Drive Unit # 102. Modell moved in with Westlund in 2015. Neither Modell nor Taylor have any criminal history. There is no evidence that Taylor or his wife, Patrice, knew or had any contact with Modell or Westlund prior to the shooting. THE SHOOTING LOCATION The shooting occurred in a subdivision which is made up of buildings that have four (4) units each. The buildings all are designed and look the same. It appears Modell mistook the Taylors’ unit for his own. In fact, both Taylor and Modell resided in Unit # 102 of different buildings. MODELL’S ACTIVITIES PRIOR TO THE SHOOTING Numerous witnesses associated with Modell and/or his girlfriend, Westlund, reported that they and Modell had consumed substantial amounts of alcoholic beverages during the afternoon and evening of March 19, 2016, and the early morning of March 20, 2016. Modell’s girlfriend reported that she and Modell consumed multiple alcoholic drinks between 3:30 p.m. and 5:30 p.m. at the Sanibel Resort; consumed alcoholic drinks and smoked marijuana between 7:30 p.m. and 10:15 p.m. at a friend’s home; and then went to Rusty’s Raw Bar and consumed more alcoholic drinks before the shooting.

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At the time of the shooting, Westlund, and/or Modell’s friends that had returned to the subdivision in which Modell, Westlund, and the Taylors resided were at the community pool. Modell was expected to join them but never did. Amongst the Medical Examiner’s findings, Dr. Thomas Coyne states: Modell had “(e)levated ethanol concentration in postmortem heart blood (0.250 g/dl), urine (.299 g/dl), and vitreous (0.266 g/dl); and Modell’s “Blood Immunoassay Screen” and “Urine Immunoassay Screen” are negative for any controlled substance, including cannabinoids. TAYLOR’S ACTIVITIES PRIOR TO THE SHOOTING Taylor’s wife, Patrice, reported that they went to bed at approximately 8:15 pm on March 19, 2016, and they were awakened by someone banging on their front door and window just prior to placing the 911 call at 2:29 am on March 20, 2016. Taylor reports that he drank 2 to 3 beers between dinner and when he went to bed around 11:00 p.m. Using Taylor’s bedtime, 3 and ½ hours passed between the time he went to bed and the shooting. (See Taylor’s statement of April 4, 2016) There is no evidence that Taylor was under the influence of any alcohol or substances at the time of the shooting. A search warrant to collect a sample of Taylor’s blood was obtained. A sample of Taylor’s blood was collected at 10:20 am on March 20, 2016. Although, the collection took place approximately eight hours after the shooting, no ethanol was detected in the blood sample collected from Taylor. THE FIREARM Taylor shot Modell with a 10 mm Glock 29. Taylor has a concealed weapons permit. Taylor claims prior military service; specifically he claims serving during the first Gulf War. WITNESSES TO THE SHOOTING Although numerous witness were interviewed only three (3) witnesses provided relevant information about what took place between the time the Taylors reported Modell’s attempt to enter their residence and the time that Taylor shot Modell. Those witnesses are: Patrice Taylor (hereinafter “Patrice”), Taylor’s wife who called 911 immediately prior to the shooting; Timothy Lynch (hereinafter “Timothy”) who resides in Unit # 202 of the same building as the Taylors; and Landon Lynch (hereinafter “Landon”), Timothy Lynch’s 20 year old son, who resides in Unit # 202 of the same building as the Taylors.

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PATRICE TAYLOR 911 CALL Patrice called 911 at 2:29 a.m. During the 911 call Patrice reported: An unknown man (Modell) was beating on her door and windows; Modell came at her husband; Her husband (Taylor) told her to call the police; and Her husband (Taylor) is in the driveway. When the 911 operator instructed Patrice to have her husband come back into the house, Patrice stated her husband is in the house with the door open and he is looking out. Patrice advised that Modell had been banging on the door because he has his apartment confused, because they all look the same. She also told the operator that Modell appeared drunk. Before the 911 call ended, Patrice confirmed Taylor was inside their home. PATRICE TAYLOR (PATRICE) INTERVIEW At 5:01 a.m. on the morning of the shooting, Patrice gave a sworn recorded statement. Patrice stated: She and her husband (Taylor) went to sleep at 8:15 p.m.; They were awakened by the sound of someone aggressively trying to enter their locked front door; She described hearing someone banging on the door and windows; Taylor got up and went to the front door; Taylor told Modell this is not your apartment, go away and slammed the door shut. After this initial encounter, Taylor told her to call the police and retrieved his pistol, which is normally kept next to his bed; A few minutes later, while talking to 911 Patrice noticed Taylor was no longer in the apartment; She walked outside to tell Taylor that the police were on the way; Upon walking outside, she saw Modell, who she described as a 30 year old white male with curly/bushy hair with no shirt; Modell walked towards her; At that time, she could not see Taylor, but heard him tell her to go back inside and lock the door; She went back inside;

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She did not see what happened next in front of their home, because their unit is on the bottom floor and has no windows on the front side of the home where Taylor and Modell were located; and She and Taylor have not had any issues in their community. TIMOTHY LYNCH INTERVIEW On March 23, 2016 in a sworn recorded statement, Timothy stated: He went to bed at approximately 2:30 a.m.; He was awakened a short time later when he heard a noise, he described as loud banging; He got up to investigate; From his kitchen he could see an unknown man walking around with a flashlight (Note: Taylor had a flashlight attached to the firearm he was carrying); Timothy went to his son, Landon’s bedroom, because it has a better view of the area in front of the building; After asking his son, Landon, what was going on, he moved to the guest room; From the window of the guest room he saw Taylor standing in the roadway; He could not see anyone else, but did see water flying past his second floor window (Note: Taylor reported that Modell threw a hose into the air and then charged at him); He heard someone say “come and get this, I’m going to fuck you up;” He went to talk to Landon about the his observations; and Thirty seconds later he heard a single gunshot. LANDON LYNCH INTERVIEW On March 23, 2016 in a sworn recorded statement, Landon stated: At approximately 2:45 a.m., his father Timothy came into his room and asked him if he heard a noise; Landon looked out the window and saw Taylor standing in the roadway and a tall unknown male (hereinafter Modell) with longer dark hair spraying water from a hose in Taylor’s direction; He heard Modell call Taylor a “faggot” and state “I’m going to fuck you up;” He heard Taylor tell his wife to call the police; He then walked into the bathroom and spoke to his father for approximately 2 minutes;

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When he went back to his window he saw the Modell rushing towards Taylor in an aggressive manner; He saw Taylor respond by running backwards while still facing the unknown male; When Taylor and Modell moved closer to the garages on first floor of their building, he could no longer see them; and Seconds later he heard one gunshot. JAMES TAYLOR’S STATEMENTS Taylor made spontaneous statements to two (2) responding deputies. Taylor also agreed to go to the Sheriff’s Office that morning. During the response by the Lee County Sheriff’s Office Taylor was cooperative, however after be advised of his rights he declined to give a sworn recorded statement without an attorney. After contacting an attorney Taylor agreed to give a sworn recorded statement at the office of his attorney, Rob Harris. A sworn recorded statement was taken on April 4, 2016, at the Law Office of Robert Harris. Harris was present for the interview. Taylor was advised of his Miranda Warnings, indicated he understood his rights and agreed to give a statement. March 20, 2016 Statement to 1st Responding Deputy When the first deputy arrived, Taylor immediately told her “I just shot that man who was trying to get into my house.” After placing Taylor into her vehicle and checking on Modell, she went back to check on Taylor and he told her: That guy (Modell) was pounding on my front door and window and it woke my wife and me up; I told him to leave and I slammed my door on his toe; There’s blood by my front door and his toe is bleeding; He was spraying me with the garden hose; and He charged me twice and I shot him. March 20, 2016 statement to Responding Sergeant The responding sergeant stated in an effort to determine the number of persons involved he made contact with Taylor. The sergeant reported that Taylor explained: An unknown male (Modell) was pounding on the front door of his (Taylor’s) residence; When he (Taylor) opened the front door, Modell charged him; He (Taylor) shut the door on Modell’s foot; 6

He (Taylor) went and got his gun and went outside to see where Modell went; He (Taylor) saw Modell next to his (Taylor) truck with a garden hose; Modell sprayed Taylor with water and charged him (Taylor); He (Taylor) responded by telling Modell he had a gun; While attempting to move backwards, he (Taylor) became concerned that he would trip and fall, and Modell might get his gun; Modell charged at him (Taylor) again and Taylor responded by shooting Modell. April 4, 2016 statement to LCSO Detective Hurd During his sworn recorded statement given at his attorney’s office James Taylor stated: He was awakened by loud beating noise on his front door during the early morning hours of March 20, 2016; He went to the front door to investigate; He turned on the porch light, opened the blinds and observed an unknown man (hereinafter Modell) wearing only shorts standing at his front door; He attempted to tell Modell that he (Taylor) had the wrong door; Modell did not respond; When Modell stepped away from the door and Taylor felt that Modell could not get into his home, he (Taylor) opened the front door; He told Modell that he was in the wrong place and at the wrong door; He then pointed his gun at Modell and stated I have a gun; Modell did not respond; He thought Modell appeared to be under the influence of drugs; He described his gun as being a 10mm with a laser sight, flashlight and an extended magazine; He did not recall if the flashlight was on or off; Modell then rushed towards the front door and pushed the front door inward; He (Taylor) then managed to shut the door; Modell disappeared from his view; He (Taylor) walked outside to see which way Modell went; 7

Modell was sitting on the ground to the right of his front door and was holding his toe; There was a large amount of blood around his toe (Note: Blood was found inside the threshold, where apparently Taylor closed the front door on Modell’s foot); At that time, Patrice Taylor came out of the home and stood in the doorway; He (Taylor) told Patrice to go back inside and call the police; Modell stood up and starting walking towards Patrice; Patrice got inside and closed the door; Modell then turned from the door and started coming towards Taylor; He (Taylor) retreated by backing away to the sidewalk and onto the roadway to avoid contact; He (Taylor) was on the roadway and Modell was on the sidewalk in front of the garage door; Modell then used the garden hose to attempt to spray water at him; He (Taylor) backed up to avoid getting hit with the water; Modell called Taylor several names; Taylor again warned Modell that he has a gun; Modell then threw the hose into the air and screamed I am going to fuck you up while charging Taylor; He (Taylor) again backed away by running backwards (facing Modell) from his driveway to his neighbor’s driveway; When Modell got within two feet from Taylor, he (Taylor) feared for his life and fired one shot into Modell’s chest; Taylor described retreating approximately 200 feet in a J hook pattern; Taylor advised he is a former member of the military and has participated in many firearm classes; and Taylor routinely carries a firearm and six spare magazines and owns multiple firearms. Shooting Scene Detectives and crime scene investigators did find blood inside the Taylor’s home consistent with where Taylor states he slammed the door on Modell’s foot. Additionally, the Medical Examiner found “(t)he dorsal aspect of (Modell’s) left toe has a 0.4 cm abrasion and a 2.0 cm oblique superficial laceration with a skin flap.”

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CONCLUSION AND APPLICATION OF LAW During the immediate response to the disturbance Modell caused, James Taylor spontaneously described to the 1st responding deputy and the responding Sergeant who questioned him that he was defending himself. Specifically, Taylor told them that when he tried to tell Modell he was in the wrong place, Modell aggressively attempted to enter his home. Examination of the shooting scene revealed blood within the doorway of Taylor’s home, consistent with his spontaneous statements. The 911 call made by Taylor’s wife Patrice and the witness statements are also consistent with Taylor’s spontaneous statements to the deputies. The statements of Taylor and Landon Lynch are consistent regarding what took place in front of Taylor’s home after Taylor stopped Modell from unlawfully entering Taylor’s home. This consistency includes most importantly that Modell was calling Taylor names and threatened to “fuck” Taylor up. The investigation does not reveal any particular relationship between Taylor and Landon other than neighbors. Landon and his father Timothy live above the Taylors. According to Landon Lynch, he only met Taylor a couple of times since the Taylors moved in. (See Landon Lynch statement of March 20, 2016) Furthermore, the Medical Examiner’s finding that the gunshot was “close range” is consistent with the Landon Lynch’s statement that Modell was advancing towards Taylor; and with Taylor’s statement that he shot Modell at close range. Under the totality of these circumstances, Taylor had a right to defend his home, his wife and himself. It is not completely clear if Taylor left his home before or after the police were called. Patrice’s 911 call tends to show he was inside the home after she called the police and Taylor’s statement indicates he was outside when he instructed Patrice to call the police. Regardless of this potential inconsistency, it is clear that Modell was making verbal threats to Taylor, advanced towards Patrice and charged Taylor immediately prior to being shot. All of this took place after Taylor tried to convince Modell to leave and warned Modell that he had a gun. The fact that Taylor left his home during the incident is of no legal consequence, since he was lawfully within the curtilage of his home and since the verbal and physical threats occurred within that curtilage. Pursuant to existing Florida self-defense and Stand Your Ground laws (see Florida Statutes §§776.012; 776.013; 776.032) the burden will be on the State of Florida to prove that Taylor was not justified in defending himself. There is no available evidence upon which the State could rely to satisfy that burden.

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ADDENDUM TO MEMORANDUM REGARDING AGENCY REVIEW LCSO 16-134478 On September 13, 2016, I received an e-mail from the office of the attorney representing the Modell’s father and his girlfriend. Attached to the e-mail was a “Comprehensive Background Check” on James Steven Taylor completed by Full Circle Investigations, LLC. Full Circle Investigations reports: Taylor has one leased vehicle registered in his name; A second vehicle is located at the Taylor’s address is registered to a business “most likely (Taylor’s) employer;” Taylor is associated with two Facebook profiles. Taylor uses an alias of “Zig Erikssen” for one of the Facebook profiles; Both Facebook profiles “rendered several posts and pictures that pertained to war related scenes and artillery;” Taylor has two criminal cases in North Carolina filed 10/24/2001 (2001 CR 021312) and 2/3/1992 (1992 CR 01245) the offenses are both unspecified. The Full Circle report further states “(c)ontact was made with Cabarras (sic) County Court and according to a records clerk, none of the above referenced case numbers were located for the subject. A criminal history ran in December 2016 by our office shows Taylor has no criminal history.” The findings of Full Circle Investigations, LLC have no legal relevance on the conclusion of the Office of the State Attorney that Taylor’s use of deadly force was, under the circumstances of this case as presented in this investigation, justified.

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