Woman who killed man over Walmart parking space won't be charged

Melissa Payne will not face criminal charges for fatally shooting Bart DiGuglielmo during a dispute over a parking space at a North Lauderdale Walmart on June 30, because prosecutors found she was protected by Florida's stand your ground law.

The office of Broward State Attorney Harold F. Pryor announced the decision on Thursday, Sept. 3, and released a closeout memo, dated Sept. 1, setting out its reasoning. The memo was written by Stephen Zaccor, division chief of the office's Homicide Trial Unit, who noted that the confrontation was recorded by cellphones, a Tesla and surveillance cameras, leaving little factual dispute about the sequence of events.

What prosecutors concluded

Florida's stand your ground law allows a person who is not breaking the law, and who is somewhere they have a right to be, to use deadly force without retreating when they reasonably fear death or great bodily harm. The National Conference of State Legislatures counts at least 31 states with no duty to retreat. Prosecutors concluded that Payne met those conditions and is immune from both arrest and prosecution.

Zaccor wrote that Payne was in a public place she had a right to occupy, was not a convicted felon and lawfully possessed her firearm, so she was doing nothing unlawful when she fired. The state, he found, could not prove by clear and convincing evidence that her fear was unreasonable.

He opened the memo by describing the killing as both tragic and absurd, noting that it grew out of a fight over a parking space. There was relatively little dispute about what happened, he wrote, because the entire episode was captured by various recording devices.

Payne was briefly taken into custody by the Broward Sheriff's Office on the day of the shooting and released after she said she had acted in self-defense. Her account of the events, deputies found, was consistent with the video evidence gathered from the parking lot.

How the encounter unfolded

The confrontation began over a single parking space. Payne pulled in with her niece and the niece's infant daughter in a white Chevrolet Malibu, while DiGuglielmo was alone in a white Kia SUV, according to the memo. Both drivers went for the same spot, and a brief stalemate followed before each got out of the car.

DiGuglielmo abandoned his SUV in the travel lane, grabbed a shopping cart and walked into the Walmart while Payne parked. He came back about 90 seconds later, and three witnesses said they heard him threaten her, one recalling that he vowed to mess her car up, before he drove off at a high rate of speed and parked a short distance away.

Instead of shopping, DiGuglielmo parked about two aisles west of Payne and walked back toward her car. He stood under a tree, smoking a cigarette. One witness described him as visibly angry and shaking as he watched her, and another bystander tried to defuse the situation.

When DiGuglielmo approached her car, Payne stepped out with her phone in her left hand and a gun in her right. She warned him repeatedly to keep away, telling him she would shoot if he kept coming toward her, and ordered him not to come near the vehicle. A bystander called out to both of them that it was not worth it.

The moment of the shooting

DiGuglielmo initially backed off, then continued toward Payne while making hand gestures. He walked up to her Malibu and, with keys in his hand, motioned as though he would scratch or damage it. Payne moved around the vehicle as he followed her the entire way, the memo says.

He turned back toward Payne one last time, and she fired a single shot into his abdomen.

Payne set the firearm on the roof of her car immediately afterward. She had been on the phone with her husband, who told a detective that after firing she said, "Bae, I shot. Call the cops," according to the memo. Authorities arrived a short time later and detained her.

DiGuglielmo was taken to Broward Health Medical Center, where he was pronounced dead the same day. The Medical Examiner ruled the cause of death a gunshot wound and the manner homicide.

The victim and his family

DiGuglielmo, 62, of Lauderhill, was a sergeant in the U.S. Army. His daughter, Amanda DiGuglielmo, told Local 10 News in August that he was a twin, a father of three and a grandfather who had spent 30 years as an emergency room trauma nurse, and said she was very disappointed by the decision. Asked what she would miss most, she said it was everything, from calling him to sharing holidays.

All of the references are to damage to the vehicle, damage to property, and while I understand this was a heated situation and a lot might have been said, damage to property does not constitute a reasonable ground for deadly force.

Rodriguez has argued from the start that the shooting did not qualify for stand your ground immunity and that criminal charges should be filed. The threats witnesses described, she has said, concerned damage to the car and to property rather than a threat to Payne's safety, and she does not believe the shooting was justified.

The video record

The case turned almost entirely on video. Prosecutors wrote that the encounter was recorded from several angles, including a nearby parked Tesla, a cellphone and parking-lot surveillance cameras, and that there was relatively little dispute over the sequence of events because so much of it was on film. A deputy's body camera recorded Payne's account afterwards.

Zaccor wrote that the footage showed DiGuglielmo continue to aggressively approach Payne even as she stood with a gun in her hand. The video did not establish that Payne was in the right, he concluded, only that the state could not overcome her claim of reasonable fear by clear and convincing evidence.

Why stand your ground applied

Florida places the burden on prosecutors to overcome a stand your ground claim by clear and convincing evidence, a high standard. Zaccor wrote that the state could not clear that bar, because nothing in the record disproved that Payne reasonably feared great bodily harm at the moment she fired.

The law did not require Payne to wait to be attacked or to retreat, the memo says, as long as her fear was reasonable and no evidence showed otherwise. She was not committing any crime when she fired, one of the conditions of the protection, and the evidence showed she had backed away and warned DiGuglielmo repeatedly before shooting.

In footage from a deputy's body camera released Sept. 3, Payne described what she said had happened. She told deputies that DiGuglielmo had made several threats about her vehicle, that he kept following her, and that she circled the cars and told him several times to back up before it escalated. She said he had walked up on her several times, and the encounter went from there.

She told investigators she feared for her life when she decided to fire, the state attorney's office said.

What the decision means

The finding of immunity closes the criminal case. Payne cannot be prosecuted for DiGuglielmo's death, and with the state declining to pursue it there will be no trial. The statute also grants immunity from civil suit, but a prosecutor's charging decision does not settle that question: under a 2017 Florida Supreme Court ruling it does not bind a civil plaintiff, and Payne would have to establish immunity again in any lawsuit.

Amanda DiGuglielmo and her attorney have said they still believe the shooting was not justified and that criminal charges should have been filed.