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State attorneys will not charge Cape man in accidental shooting death of teen

By Staff | Jan 20, 2009

By CONNOR HOLMES, cholmes@breezenewspapers.com
State prosecutors will not charge a Cape Coral man in the accidental shooting
death of a teenager after discovering police violated the man’s constitutional
rights to acquire evidence against him, they announced Tuesday.
According to State Attorney’s Office spokesperson Samantha Syoen, attorneys have closed their case against David Casman, who police initially charged with culpable negligence in the accidental shooting death of his son’s 14-year-old friend, Colton Hutchinson.
Hutchinson died of a gunshot wound to the head Dec. 8 while in Casman’s home. He was at the home with Casman’s 12-year-old son, police reports state.
According to state attorneys, detectives used a statement recorded during a
private conversation between Casman, Casman’s son and their attorney Michael Rich in their case against him.
Since the attorney-client privilege is a constitutional right, Chief Assistant
State Attorney Randall McGruther said prosecutors could not consider the
statements as evidence against Casman and would not pursue the charge placed against him.
McGruther addressed the issue in a letter addressed to Deputy Police Chief Jay Murphy with the Cape Coral Police Department on Tuesday.
McGruther wrote that upon interviewing Casman and his 12-year-old son in the presence of Rich, their attorney, a detective questioned the 12-year-old about the incident, who stated there was an accident involving Casman’s .38-caliber handgun that caused Hutchinson’s death. However, the 12-year-old did not say how the gun discharged.
During police questioning Casman and his son decided to consult with Rich, which the interviewing detective acknowledged and stopped recording the interview, McGruther said. However, the recording was then resumed without the knowledge of Casman, Rich or Casman’s son, he said.
“Unfortunately, according to the narrative prepared by the detective, the only
admission that actually occurred that day, including where the .38 (caliber
handgun) was located, how the minors came into possession of it, and how the discharge of the firearm and the tragic death of the victim occurred, were made during this privileged conversation,” McGruther wrote. “Therefore, none of this can be used either against David Casman or the 12-year-old, and cannot be considered by this office in our charging decision.”
McGruther said police had cited two improperly stored firearms in Casman’s home, which minors had access to. However, the .38-caliber gun which discharged causing Hutchinson’s fatal injury was found to be in the possession of Casman’s 17-year-old son, thus Casman could not be held accountable for its improper storage, the letter states.
Additionally, attorneys couldn’t prove the gun had been stored loaded, which was a crucial component of the charge against Casman.
McGruther wrote that investigating attorneys would not even view the material
which they found to be inappropriately acquired.
“The attorney-client privilege is so fundamental to an attorney’s ethical
obligations that the assistant state attorney assigned to review the case, upon
reading the transcript and coming to the point where the privileged conversation began, stopped reading so as not to risk committing an ethical violation,” McGruther wrote. “For the same reason no one from this office has viewed the DVD of the surreptitiously recorded conversation or read the transcript, and I will be turning those over to attorney Michael Rich without viewing them. I would ask that you likewise take such steps to ensure that the recording of the privileged conversations is sealed and not released to any person.”
As police continue to investigate the specifics of the shooting incident,
McGruther requested attorneys from outside the 20th Judicial Circuit be asked to handle future advancements in the case.