INTEROFFICE MEMORANDUM. SUBJECT: Officer Dennis Fogelgren, North Miami Beach # VICTIM: Alphaeus Daniel Dailey, commonly known as Dukie

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1 OFFICE OF THE STATE ATTORNEY ELEVENTH JUDICIAL CIRCUIT KATHERINE FERNANDEZ RUNDLE STATE ATTORNEY INTEROFFICE MEMORANDUM TO: Katherine Fernandez Rundle DATE: February 13 th, 2002 State Attorney FROM: Abraham Laeser Senior Trial Counsel Assistant State Attorney RE: Police Shooting by North Miami Beach Officer Dennis Fogelgren SUBJECT: Officer Dennis Fogelgren, North Miami Beach # VICTIM: Alphaeus Daniel Dailey, commonly known as Dukie INJURIES: Gunshot entry wounds to upper rear of torso (Fatal) DATE AND TIME: Sunday, June 17 th, 2001 (Father s Day), at approximately 9:45 P.M. LOCATION: In the street, in the vicinity of N.E. 15 th Court and N.E. 152 nd Terrace, in North Miami Beach WEAPON: Sig Sauer, 40 caliber semi-automatic pistol, Model # AB LEAD INVESTIGATOR: Detective Michael Stein, North Miami Beach # CASE NUMBERS: North Miami Beach # Florida Department of Law Enforcement # MI State Attorney # 62/02/01/23/003 Factual Summary

2 The events in question took place just after 9:45 P.M. on Sunday night, June 17 th, 2001; which many of the witnesses remember because it was Father s Day. Several moments before the shooting of Alphaeus Daniel Dailey (also known as: Dukie ), Officer Dennis Fogelgren was in the vicinity of the 1500 block of N.E. 152 nd Street, responding to a dispatched call involving the theft of an automobile. Officer Fogelgren was interviewing several witnesses concerning that crime when he heard three gunshots ring out, relatively close to the scene of the theft report. He immediately drove to the area from which he believed the gunshots had come from, while calling for any available backup officers. The gunshots had come from about one block east of the location of the theft case investigation. When Officer Fogelgren arrived in the area of the gunshots, he observed a red car driving slowly away, and he also saw Dukie Dailey. Although he was wheelchair bound, Mr. Dailey was a man known to Officer Fogelgren to be a violent person, who had previously been arrested and convicted for violent felony crimes, and was now observed to be rolling rapidly away in his wheelchair. Mr. Dailey made a right turn at the corner of N.E. 15 th Court and N.E. 152 nd Terrace, and Officer Fogelgren chose to follow him. He pulled his marked police car up behind Mr. Dailey and ordered him to stop. Mr. Dailey tried to maneuver his wheelchair through a gap behind a van, but could not fit between it and a fence. By this time, Officer Mundy and Officer Garcia had arrived as back up. Since Mr. Dailey was blocked by the van, he abruptly stopped short in the wheelchair. At that instant, Officer Fogelgren and Officer Mundy saw Mr. Dailey bend from the waist toward the ground. From his vantage point immediately behind the wheelchair, Officer Fogelgren could see Mr. Dailey bend to retrieve a dark handgun, and lift it to his lap. Officer Fogelgren immediately broadcast that he had seen the gun, in order to warn the other officers. He also loudly ordered Mr. Dailey to show his hands and to stop. Instead, Mr. Dailey went around the street side of the van and continued to rapidly wheel forward, to a point just past the front of the van. Once he had wheeled past the van, Mr. Dailey then used his left hand to push himself toward the sidewalk, while taking his right hand off of the wheel and placing it into his lap, where the gun had been seen. Officer Fogelgren took a position along side of the van, while Officer Mundy moved across the street, behind a dark colored Taurus on the north sidewalk. Both officers observed Mr. Dailey s right arm come up in a rapid movement. From his position and distance, Officer Mundy saw only a rapid elbow movement by Mr. Dailey. He then heard Officer Fogelgren shout, Gun! and Officer Fogelgren began to fire. Officer Fogelgren stated that he, from his closer position and direct line of sight, saw Mr. Dailey raise the gun over his shoulder point it back towards him. It was at this instant that Officer Fogelgren began to fire. Officer Fogelgren fired eight shots, three of which struck the back of Mr. Dailey through the wheelchair, a fourth struck Dailey s left upper back, and a fifth struck the wheelchair itself. Three other projectiles could not be located, while all eight casings were found near Officer Fogelgren s position in the street. No weapon was found on Mr. Dailey. However, in a subsequent search of nearby bushes a handgun was found. This handgun was positively matched to the casings from the scene of the initial three gunshots. That same gun has also has been identified by witnesses as the type of gun that Mr. Dailey often carried. That weapon was also identified as looking like the gun that 2

3 Mr. Dailey had been seen using that night when he fired the first three gunshots, while he was on N.E. 15 th Court. Law Enforcement Officer s Statements The primary investigative efforts were taken by Detectives Michael Stein, Denise Love, and Richard Rand of the North Miami Beach Police Department, and Investigators Ed Royal and Ed Fortune of the Florida Department of Law Enforcement. The F.D.L.E. agents did not take any independent statements from law enforcement officers, but primarily monitored or assisted the North Miami Beach investigators. North Miami Beach investigators were responsible for the primary interviewing of the police witnesses, and participated in the taking of sworn statements from all of those persons. In addition, as will be noted, multiple re-enactments were conducted at the scene of the events, during both daylight and in the nighttime. Statements were taken from all persons who were known to have any information on this matter, as well as all persons who claimed to have information; although it was later discounted or proven to be inaccurate. In addition, agents of the Federal Bureau of Investigation, who were present for the reenactments, and were also in attendance for many of the interviews, have closely monitored the investigation. The Assistant State Attorneys involved in preparing this memorandum conducted multiple additional interviews. Summary of Witness Officer Sworn Statements (Love) The following witness officers were interviewed by Detective Denise Love of the North Miami Beach Police Department: Officer Chris Sweigert of the North Miami Beach Police Department; Special Agent Bruce Goode of the Florida East Coast Railway; Officer Helen Morrison of the Aventura Police Department; Officer Joel Charles Merz of the Miami-Dade Police Department; Officer Steve Klein of the North Miami Beach Police Department; Officer Mike Scott of the Miami-Dade Police Department; Officer Richard Raphael of the Miami-Dade Police Department; Special Agent Ashton Garner of the Florida East Coast Railway; and Firefighter/Paramedic Brandon Corie, of the Miami-Dade Fire Department. Detective Love also interviewed Officer Edward Garcia of the North Miami Beach Police Department, who was present on the scene during the time of the shooting. Virtually all of the officers interviewed by Love were not actually present during the relevant events. More than half of those spoken to by Detective Love arrived well after the shooting, and their exclusive duties involved putting up crime scene tape and/or assisting in crowd control. Others were called to the scene to assist in portions of the investigation, but were ultimately not needed; while some could only state their observations of the efforts being made by fire rescue personnel. None had any conversations with the involved officers, and only one overheard any conversation of relevance from the gathered crowds. As noted, Detective Love did interview one of the officers who was present during the shooting, Officer Edward Garcia. The one officer who overheard statements made by a citizen witness was Officer Chris Sweigert. Officer Sweigert responded to the scene of the shooting as crime scene tape was 3

4 being put up. He was asked by a Sergeant to assist with security and he was standing at N.E. 15 th Court and N.E. 152 nd Terrace, when an older Black male who stated that he had information for the police approached Officer Sweigert. The man stated that he knew the person involved was Dukie and he knew that Dukie had carried a firearm in the past. Officer Steve Klein has been with the North Miami Beach police department for a little over three years and worked the midnight shift. He heard Officer Fogelgren state over the radio that he had heard shots fired and that he was going around the corner. Klein continued to listen to the radio transmissions and heard Officer Fogelgren state that he saw Dukie wheeling away from the area in a wheelchair, and also saw a red car leaving the area. He heard Officer Fogelgren request backup and Klein responded to the scene. When he arrived Klein observed the subject lying in the roadway next to a wheelchair, and there were already other officers present. His role was to keep a running list of everyone who was on the scene, including the names of the fire rescue personnel. He also observed Sergeant William Beauparlant when Beauparlant discovered the firearm under some bushes near the front steps of the St. Mary s Church. This location was a few feet from, and almost immediately south of, the final resting place of the wheelchair. A report was written by Sergeant Beauparlant regarding his finding of the firearm at about 1:50 A.M. on the morning of June 18 th, while conducting a general search in the vicinity of the shooting scene. Fire Rescue Officer Brandon Corie was dispatched at 9:49 P.M., in response to a call regarding a shooting. When he arrived at the scene the victim was on the ground bleeding. Another medic was already treating him. He recalls seeing a wheelchair close by, in an upright position. The victim made no statements. Officer Edward Garcia Officer Edward Garcia of the North Miami Beach Police Department. Officer Garcia was dispatched to the area of N.E. 155 th Street and N.E. 15 th Avenue at approximately 9:00 P.M. or 9:15 P.M. on the night of the shooting. The call was in regard to loud music. He responded, as did subject Officer Fogelgren and witness Officer Mundy. All three officers were in their own patrol vehicles. Subsequent to handling the loud music call, Officer Fogelgren left the area to handle another call and Officer Mundy and Officer Garcia sat for a short time talking while in their cars. A few minutes later, Officer Fogelgren got on his radio advising that he had a Priority. He advised that he had heard shots fired in the area of N.E. 151 st Terrace or N.E. 152 nd Street and N.E. 15 th Court. Officer Garcia knew that to be the Washington Park area. Officer Garcia and Officer Mundy both rushed to take backup positions. According to Officer Garcia, his vehicle was directly behind Officer Mundy s vehicle, while Officer Mundy was directly behind Officer Fogelgren s vehicle as they all stopped on N.E. 152 nd Terrace, heading eastbound. Officer Garcia was the last to arrive and the last to get out of his vehicle, which was stopped near the intersection at N.E. 15 th Court. When asked what he saw or heard as he got out of his vehicle he stated the following: 4

5 I could hear Officer Fogelgren advising that he had Mr. Dailey was, I believe, refusing to stop and I could hear him stating, you know, He has a gun as I was exiting my vehicle. I believe that s what he said. Officer Garcia states in his sworn statement that as he got out of his car he initially could see the victim. He states that Mr. Dailey was east of him on the south side of the street and he was moving in his wheelchair, further eastbound. According to Officer Garcia, Mr. Dailey was approximately five to six houses ahead of him and due to their positions, he couldn t see anything but Mr. Dailey s back. Officer Garcia ran along the side of the driver s door of Officer Mundy and Officer Fogelgren s cars in order to move into a closer position and try to observe Mr. Dailey s movements. According to his statement, Officer Garcia observed Officer Fogelgren walking along side the driver s side of the van and he heard him yelling, Let me see your hands. Officer Fogelgren continued to follow Mr. Dailey, giving various loud verbal commands to show his hands. Officer Fogelgren had his gun drawn. Officer Garcia lost sight of Officer Mundy as he broke from view and moved to the left, toward the north side of the street. In fact, from his vantage point, as the wheelchair began to move toward the front of the van and then toward sidewalk, Officer Garcia could no longer see Mr. Dailey. This was primarily due to Officer Fogelgren being in a position directly in the line of sight. Officer Garcia, in his sworn statement, further states: As I began to round the front of Officer Fogelgren s vehicle and he was yelling, you know, Let me see your hands! I continued to hear, Let me see your hands, as I rounded the front of the vehicle and I got to the front of his vehicle, basically to the front of his vehicle and the back of the van, I began to hear the shots approximately four to five. The wheelchair had turned toward the sidewalk, in front of the van. According to Officer Garcia, at the time the shots were fired he could not see anything because the van was blocking his view of the wheelchair and its occupant. When the shots stopped and Officer Garcia reached the front of the van, he saw that Officer Fogelgren and Officer Mundy had their guns drawn and pointed at the victim, and the victim was on the sidewalk out of the wheelchair. According to Officer Garcia, he never fired any shots and he did not see a gun in the victim s hand or near the victim as he approached after the shooting. Summary of Witness Officer Sworn Statements (Rand) The following witness officers were interviewed by North Miami Beach Detective Richard Rand: Officer Mabel Navarro, Aventura Police Department; Officer Ray Roman, North Miami Beach Police Department; Officer Sean Bergert, Aventura Police Department; Officer Charles Carlantone, Aventura Police Department; and Officer Christian Lystad, North Miami Beach Police Department. With the sole exception of Officer Lystad, none of these officers were present during the shooting or had relevant testimony to offer. They were primarily assigned to post-shooting 5

6 crowd management duties. Their duties involved putting up crime scene tape, and most arrived well after the shooting itself. With the exception of interviewing Officer Lystad, Detective Rand was primarily involved with the questioning of Officer Michael Mundy, who was present during the shooting, and an essential witness officer. Officer Christian Lystad responded to the scene from Parkway Hospital. He had heard Officer Fogelgren on the radio stating that shots had been fired and Officer Fogelgren advised that he saw a red car leaving the immediate area and that Dukie was rolling eastbound on N.E. 152 nd Terrace. Shortly thereafter he heard Officer Fogelgren advise that Dukie had a gun. During the transmissions, Officer Lystad had been approaching the area in his car, from Parkway Hospital. When Officer Lystad got out of his vehicle at the shooting scene, he observed Officer Mundy and Officer Garcia standing over the victim with their guns drawn. He observed shell casings in the middle of the street just west of where the officers were. He observed the wheelchair on its side. Officer Lystad helped put up the crime scene tape. Two black males approached him and told Lystad that they had seen the whole thing. Officer Lystad instructed them to stay on the scene and wait for a detective to interview them. According to Lystad they did. He did not take down their names. Officer Michael Mundy Officer Michael Mundy, of the North Miami Beach Police Department. Officer Mundy s statement was taken at 2:17 A.M. on June 18 th, 2001, during the early morning hours subsequent to the shooting. Officer Mundy had been employed by N.M.B.P.D. for approximately 2 years and 8 months at the time of the shooting. Earlier in the evening Officer Mundy, Officer Garcia, and Officer Fogelgren were all working together at a guard gate assignment. Some time later they were all dispatched to a call regarding loud music in the area of N.E. 155 th Terrace. All three officers responded to the call, but when each arrived in his own patrol vehicle everything was quiet. After about a minute, according to Officer Mundy, Officer Fogelgren was dispatched to another call in the Washington Park area. According to Officer Mundy, a minute or two later, while he and Officer Garcia were still at the scene of the loud music call, Officer Mundy heard Officer Fogelgren come over the radio saying that he had a priority ; which according to Officer Mundy means: Emergency. Officer Fogelgren got on the air and stated that shots had been fired about a block away from him. He wanted as many units as possible in the area for officer safety. Officer Mundy immediately headed toward the area and ended up heading east on N.E. 152 nd Terrace. (Note: the time gaps described by Officer Mundy are not consistent with the dispatch records, the actual time gaps are longer) Before Officer Mundy s arrival, according to Officer Mundy s sworn statement, he heard Officer Fogelgren advising over the radio that he had observed a red car heading north on N.E. 15 th Court from the area where he had heard the shots being fired. Officer Mundy also heard Officer Fogelgren broadcast that he also observed a subject by the nickname of Dukie wheeling his wheel chair, heading east on N.E. 152 nd Terrace. According to Officer Mundy s sworn statement, after his arrival he observed Dukie in the wheelchair look in the direction of the police vehicles and then begin a fast motion in an apparent attempt to flee from them. Officer Fogelgren made a right hand turn onto N.E. 152 nd Terrace and Officer Mundy was right behind him. They both got out of their vehicles. Officer Fogelgren pointed the spotlight 6

7 attached to his vehicle on Dukie. When he arrived on N.E. 152 nd Terrace, Officer Mundy stopped and pulled his car up behind Officer Fogelgren s vehicle. According to Officer Mundy, Dukie, who he knew was Mr. Dailey, continued to rapidly roll his wheelchair as if he was attempting to flee, as he was headed towards a tan colored van. Officer Fogelgren and Officer Mundy continued to walk forward, almost parallel, with Officer Mundy more on the north and Officer Fogelgren closer to Dukie, on the south side of the street. According to the words in his sworn statement, Officer Fogelgren, who was still near his car, advised Dukie several times: Police, Stop where you re at! several times, over and over, which he did not do. He did not stop. Mr. Dailey, according to Officer Mundy, then stopped near the rear of the tan colored van and reached down to the ground. According to Officer Mundy, he could not tell what the victim was doing. As Mr. Dailey sat back up he heard Officer Fogelgren yell that Dukie had a gun. When Officer Mundy heard those words, he ran for cover behind a dark colored car on the north side of the street, drawing his gun as he ran. According to Officer Mundy, Officer Fogelgren sought cover near the rear of the van. As the wheelchair kept rapidly wheeling to the front of the van, Officer Mundy observed Mr. Dailey take his right hand off his right wheel, keeping his left hand on his left wheel. Officer Mundy then observed the victim place his right hand into his lap. Officer Mundy continued to try to maintain his direct view of Dukie, but Officer Mundy had run to the north side of the street. According to Officer Mundy he didn t know exactly where Officer Fogelgren was at that instant. Officer Mundy then observed the victim wheeling his chair with his left hand and the chair started to turn in a southeasterly direction, toward the sidewalk. Officer Mundy then observed the victim move his right arm, primarily from the right elbow, in a rapid upward motion. Officer Mundy continued that this caused Mr. Dailey s body to slightly turn in our direction. (Note: During the two nighttime re-enactments, it became obvious that due to the dark background, Officer Mundy could only have seen the elbow area when the arm was moved.) In his sworn statement Officer Mundy states: He did not turn around directly, but he was turning as his arm came up, with his right arm, as it was coming up, his body was turning in a clockwise direction. At that point Officer Mundy maintained cover, believing the victim to be armed. He then heard approximately five gunshots. The shots came from the south side of the street. After the gunfire, and as Mr. Dailey was falling out of his chair, Officer Garcia and Officer Mundy approached at gunpoint. Officer Mundy did not see a firearm in Mr. Dailey s hand or in his immediate vicinity either immediately before or after the shooting. According to Officer Mundy, Mr. Dailey never made any statements after the shooting, and Fire Rescue personnel were called immediately and responded within minutes. During the first re-enactment, Officer Mundy showed his exact position and aiming stance behind the dark colored vehicle. He explained that Mr. Dailey s wheelchair was moving fast. 7

8 When asked to re-create the precise amount of time it took from the moment he got out of his car until the instant of the first of the shots was being fired, it was timed as having taken eight seconds. Most of those eight seconds were consumed in Officer Mundy s running to the north side of the dark colored car. Summary of Witness Officer Sworn Statements (Stein) The following witness officers were interviewed by Detective Michael Stein of the North Miami Beach Police Department, who was assigned as the lead investigator: Officer John Renaud, North Miami Beach Police Department; Officer James Moore, North Miami Beach Police Department; Officer Ray Hernandez, North Miami Beach Police Department; Officer Jim Genova, North Miami Beach Police Department; Officer Joseph Craig, Aventura Police Department; Officer Elricco Barnes, Aventura Police Department; Officer Rafael Estrugo, North Miami Police Department; Lieutenant Gomer, North Miami Beach Police Department; Officer Mark Patterson, North Miami Police Department; Officer Xerxes Callahan, North Miami Police Department; Officer Allen Daise, North Miami Beach Police Department; Officer J. Randazzo, North Miami Beach Police Department; Officer Richard Gauvreau, North Miami Beach Police Department; Officer Lisa Torres, North Miami Beach Police Department; and Officer Mark Frieder, Aventura Police Department. In addition, Detective Stein was primarily responsible for the interviews and the reenactments with witness officers and with the shooting officer, Dennis Fogelgren. Detective Michael Stein, as the lead investigator, spoke to the bulk of the officers on the scene. As was true of those interviewed by the other investigators, most of those officers had limited information about the events, and either arrived well after the events or were responsible only for crowd related matters, and did not see or hear anything of relevance. In addition, the following summaries of relevance are listed: Officer John Renaud arrived soon after the shooting and Officer Fogelgren came running to meet him and told him to secure the scene by sealing off the street. Subsequent to that Officer Renaud assisted Detective Steve Klein in getting the names of everyone who had entered the scene. Officer James Moore arrived on the scene after it was already roped off. He was directed to speak with people in the community who were outside of the crime scene tape in an attempt to locate anyone who had seen the shooting. He located a witness named Terrill and also a 10- year-old child, each of whom claimed to have relevant information. He directed both of those witnesses to investigators to be interviewed. Officer Jim Genova s only involvement was in marking the tires of the vehicles involved so that if they were moved everyone would still know where exactly they were the night of the shooting. This evidence was used in creating the re-enactments. Lieutenant Lawrence Gomer was contacted by Sergeant Gamrell at home and informed that there had been a police shooting. He responded immediately to the scene, and it was about 8

9 10:10 P.M. when he arrived. He asked where the involved officers were and was told that they had been separated. He spoke briefly with a citizen witness, Rosie Crews, and took information from her to pass on to the detectives. According to Lieutenant Gomer, Ms. Crews resides near the scene of the shooting and initially stated that she heard the first three shots and came outside to see what was going on. She saw Dukie in a wheelchair going down the street eastbound. She said there were a couple of police cars following Dukie. Lieutenant Gomer indicated in his statement that Ms. Crews told him that the officers got out of their cars and started following Dukie on foot. They had their guns out and were yelling Stop, stop, stop. Then she heard more shots. According to Lieutenant Gomer, she told him that she didn t know which officer shot. Lieutenant Gomer stated that three other individuals in the crowd indicated they were witnesses and so they were identified and they were also brought inside of the initial crime scene area to be interviewed. Officer Allen Daise heard Officer Fogelgren calling for back up over the radio, as a result of shots being fired in the area. Officer Daise was clearing another call and so he responded to back up Officer Fogelgren. As Officer Daise got out of his vehicle he observed Officer Fogelgren, Officer Mundy, and Officer Garcia standing next to a victim lying on the sidewalk. Each had his gun drawn. He ran up to them and asked what had happened, and according Officer Daise s statement, Officer Fogelgren just told him to start putting up tape at the scene. Officer Daise immediately went to his car and began taping off the scene. He then assisted with security, to keep people from entering the scene and disturbing evidence. Officer Jimmy Randazzo and Officer Richard Gauvreau both performed minimal duties at the scene of the shooting. In addition, they had both previously been involved in the investigation of a stolen purse case. That incident had taken place about two weeks before the shooting, and Mr. Dailey was the primary suspect in that crime. In a subsequent search of police records, numerous calls concerning acts of violence or threats of violence allegedly committed by Mr. Dailey were reviewed prior to the creation of this memorandum. Several of those calls claim that Mr. Dailey was armed and/or brandished a firearm during those alleged incidents. In addition, the varied investigators interviewed a fairly large number of additional police and fire rescue personnel. Those statements will not be listed separately. Other officers were not interviewed by investigators, but were instructed to create reports on their activities on that date. A fair summary of their statements and reports would be that they had little to offer. Some officers heard shots in the distance, or listened to the broadcasts through their police radios. The fire rescue personnel could describe Mr. Dailey as having labored breathing, some minimal electro-cardiac responses, and being unconscious and unable to respond in any fashion. In fact, the only issue raised by those persons was whether or not the wheelchair was upright upon their arrival. Testimony seems to show that it was originally on its side on the ground, but eventually set upright by an officer. Shooting Officer-- Officer Dennis Fogelgren 9

10 The shooting Officer, Dennis Fogelgren, gave a voluntary sworn statement on June 22 nd, The sworn statement was fifty-nine pages in length, and extremely detailed. In addition, he voluntarily appeared for a re-enactment at the Miami-Dade Police Department training bureau at a later date. Present for the initial sworn statement were the following people: Special Agent Ed Royal, Florida Department of Law Enforcement; Mary Cagle, Assistant State Attorney; Detective Michael Stein, North Miami Beach Police Department; and Michael Doddo, Esquire, Officer Fogelgren s attorney. The following is a summary of Officer Fogelgren s sworn testimony (Note: page numbers of direct quotations from the sworn statement are listed): Officer Fogelgren has been employed by the North Miami Beach Police Department for the past three years. At the time of this incident he was assigned to the afternoon shift as a road patrol officer. He had previous experience in the military police, including a stint as an instructor. On the evening of June 17 th, 2001, subsequent to responding to a loud music call with Officer Garcia and Officer Mundy, Officer Fogelgren was dispatched to the area of the 1500 block on N.E. 152 nd Street in regard to a stolen vehicle report. While in the front yard of that residence, speaking to one of the witnesses, he heard three gunshots. Officer Fogelgren stated, it scared me cause it was so close, I pressed my emergency button on my radio and I advised I had a priority. (page 7) He advised the dispatcher that he had heard three gunshots in the area of N.E. 15 th Court and N.E. 152 nd Terrace. Officer Fogelgren asked for back up officers to respond in an emergency mode, which entailed using emergency lights and sirens. Officer Fogelgren directed the individuals he was speaking to about the stolen vehicle to go inside of their home for their own safety. Officer Fogelgren, in a subsequent re-enactment explained that he believed that the sounds had come from just east of his location. Officer Fogelgren got into his police vehicle and drove east on N.E. 152 nd Street to N.E. 15 th Court; he then made a left turn and drove north onto 15 th Court. He observed a red Chevrolet driving north on N.E. 15 th court, going past N.E. 152 nd Terrace and continuing to head north. He also observed the victim, Alphaeus Dukie Dailey, seated in a wheel chair. Mr. Dailey was with another male individual, and both were in front of the recreation center on N.E. 15 th Court, between N.E. 152 nd Terrace and N.E. 152 nd Street. Based primarily upon reputation and anecdotal information, Officer Fogelgren knew who Dukie Dailey was, and believed that Mr. Dailey had a history of having been involved in criminal activities, often while armed. This was why he continued to follow Mr. Dailey s wheelchair, thinking that he was involved with the three shots that Officer Fogelgren had just heard. According to Officer Fogelgren s statement, he activated his vehicle s spotlight and pointed it directly at Mr. Dailey. Mr. Dailey immediately began rapidly wheeling away, as if attempting to flee north on N.E. 15 th Court. At the intersection of N.E. 15 th Court and N.E. 152 nd Terrace, Mr. Dailey made a right turn, to head east onto N.E. 152 nd Terrace. Officer Fogelgren stated that he then lost sight of the other male, while concentrating on Mr. Dailey; since he kept the spotlight on Mr. Dailey. Officer Fogelgren followed Mr. Dailey in his police vehicle. Officer Fogelgren also became aware of the fact that Officer Mundy was behind him, due to his familiarity with Officer Mundy s 10

11 particular vehicle. Officer Fogelgren observed Mr. Dailey continue to rapidly wheel his chair east on 152 nd Terrace and approach a tan colored van parked on the south side of the street. According to Officer Fogelgren, Mr. Dailey had turned to the right to where it looked like he was going to go in between the van and the fence. With my spotlight still illuminated on him, he stopped short. I thought he couldn t fit. And he stopped short. It was at this point I got out of my car (page 27). Officer Fogelgren moved on foot to a location he verbally described as being approximately 15 feet behind Mr. Dailey. In subsequent re-enactments, the actual distances measured were up to 22 feet. According to Officer Fogelgren, after the wheelchair stopped rapidly he observed Mr. Dailey bend over at the waist, reach down from the wheelchair, and saw Dukie pick up a handgun. Officer Fogelgren assumed that it had fallen off Mr. Dailey s lap when he stopped abruptly in the wheelchair, near the rear of the van. Officer Fogelgren, in explaining his angle of sight to the gun, and why only he had observed the handgun itself, stated, I was looking under his wheelchair. (page 32). Officer Fogelgren yelled at Mr. Dailey several times to drop the gun and, at this point, he pulled his own weapon out of its holster. He then shouted over the radio, He s got a gun! He s got a gun! There was no verbal response from Mr. Dailey. According to Officer Fogelgren, It appeared that he had put the gun on his waist and had started pedaling his wheelchair again. He maneuvered his wheelchair to where he more or less turned to the left and then cause he was already facing more towards the left. And then he just positioned it and continued to go back east on 152 nd Terrace. (page 37). Officer Fogelgren followed on foot behind Mr. Dailey loudly ordering him to drop the gun, to stop, and to show his hands. Officer Fogelgren followed him, with his gun drawn and aimed at Mr. Dailey. His firearm had an authorized laser sight activated, and it was pointed at the rear of the wheelchair as Mr. Dailey moved further away. When Mr. Dailey reached the front of the van, Officer Fogelgren was alongside of the van, near the back. Officer Fogelgren could see Officer Mundy to his left, out of the corner of his eye. Officer Fogelgren doesn t remember seeing any other officers or any civilians at that moment. Officer Fogelgren continued by stating: As I reached midway point of the van, Mr. Dailey maintained a 15 to 20 foot lead in front of me, is when Mr. Dailey let go of the wheelchair wheel with his right hand. When he let go of the wheel, he placed his right hand in his lap. From there, he came from his lap area and held his right hand over his left shoulder pointing the gun at me. (page 41). On page 41 and 42 of Officer Fogelgren s statement are the following questions and answers describing the shooting itself: 11

12 Q: Were you able to see the entire from your vantage point, were you able to see the entire weapon? A: No. Q: Okay. But it was aimed in your direction? A: Yes. Q: Did you give him any commands at that point? A: As soon as I saw the gun, I started firing. Q: Okay. And do you recall how many shots you fired? A: I guess about seven to ten shots. Q: And where were you aiming when you fired those shots? A: The back. Q: And why did you fire those shots at that time? A: Because I thought he was going to kill me. Mr. Dailey then fell to the ground and Officer Fogelgren, Officer Mundy, and Officer Garcia approached him. They radioed for assistance. At that point, Officer Fogelgren did not see a weapon in the vicinity of Mr. Dailey, nor did he know what could have happened to it. Civilian (non-police) witnesses Marquis Christopher: Marquis Christopher is a ten-year-old male who attends the sixth grade in Waycross, Georgia. He was visiting his mother for the summer and was in North Miami Beach on the day of the shooting. Mr. Christopher gave a sworn statement at the State Attorney s Office Children s Center accompanied by his mother, Roxy Peterson, and an attorney, Rod Vereen. Mr. Christopher had gone to the Washington Park basketball courts at approximately 1:00 P.M. that Sunday. The basketball courts are located about 1½ blocks to the west of the shooting scene. He had stayed in that area until dusk. When he was asked, Was it more light or more dark?, he responded, It was like more light. It must be noted that the shooting actually took place just after 9:45 P.M., a time described by all other witnesses as being in complete darkness. A sketch of the area was reviewed with Mr. Christopher. He made marks on the sketch showing what route he had taken and where the events took place. A copy of that sketch is attached to the addendum segment of this memorandum. Mr. Christopher stated that the first thing that drew his attention was police flying down the street with their lights and sirens on. He did not hear the first grouping of shots on 15 th Court, which took place prior to any police involvement. Mr. Christopher stated that he then hid behind the Resource Center. He marked the sketch to show the route he took and where he had hidden. He also stated that he had hidden behind some bushes. He stated he saw four police cars, two policemen in each. The police cars stopped directly behind the man in the wheelchair. The four officers got out of their cars. He stated that one policeman, wearing a police suit and shorts yelled to Stop, freeze. The other officers stayed behind their cars. One was behind the passenger side door and the others, They hide behind the doors of the car they were in. Mr. Christopher stated that after the officer yelled, the man in the wheelchair put his hands up. He 12

13 stated he could not see anything in the man s hands, that he did not see him throw anything, and that he believed that he (Mr. Christopher) was close enough to have seen the man throw something and he did not see him throw anything. He stated he saw four red targets from the gun on the man s back, and he heard 12 shots. Mr. Christopher knew it was twelve shots because he counted them each time he heard the shots. He stated that he was scared and hiding behind bushes at the Resource Center at the time of the shooting. Mr. Christopher stated he saw the man in the wheelchair fall out of it, right in front of it. He further stated, They ran over there, see if he was dead. They put him in the ambulance. They rushed him to the hospital. As soon as he got there, they announced that he was dead. He stated that the police who said, Freeze told everybody that the doctors at the hospital had pronounced Mr. Dailey dead. Mr. Christopher was asked if he was told this or heard this, and he stated that he had only heard it. Mr. Christopher stated that the police put up yellow tape, that he never went inside the yellow tape, and had not entered that area prior to the taping. Mr. Christopher stated that he had seen the man in the wheelchair on four previous occasions. He said that on those occasions that he had spoken to him, the man was nice to him. Mr. Christopher goes on to state, without any further form of explanation, that one of the bullets could not have hit the man in the wheelchair because: They shot as soon as he hit the ground here flat out, he was lying straight like head right there, legs just straight out and then he shot the bullet and then it couldn t hit him because he was lying straight out, it had to fly over him because he was lying straight and they were standing up. Mr. Christopher also stated that one of the police officers who shot Mr. Dailey had been standing by the wall of the pool (referring to the swimming pool located in Washington Park) and, upon seeing another officer put his red target on the man in the wheelchair, put his red target on him and they just started shooting. Mr. Christopher stated that he did not see the bullets strike the wheelchair; he did see the bullet holes in the wheelchair after the shooting. He saw this after the crime scene tape was put up. He reiterated that he did not go inside of the crime scene tape. He stated he was able to observe this from the sidewalk on the other side of the tape. Mr. Christopher also repeated that he saw all four officers shoot their guns. The wheelchair, which has a black fabric backing, was at the front of the van, at least ½ block inside of the crime scene tape. Mr. Christopher was then asked where the man in the wheelchair was when he fell out of the wheelchair. He stated he was by the stop sign in the empty lot by the store. He marked a sketch illustrating this. Mr. Christopher was asked if he had heard anything about this on T.V. He responded that they said he had a gun, but he (Mr. Christopher) did not see a gun in the deceased s hands. He also said it was five to ten minutes from the moment he saw the police cars until the man in the wheelchair was shot. (Note: Radio broadcasts show it to have been less than two minutes from the initial broadcast by the dispatcher concerning shots having been fired to the call for fire rescue personnel) 13

14 Mr. Christopher was also asked if he had seen the red car. He stated he had, and that the police had been chasing the red car. The red car was driving away like a regular driving car. Upon further questioning, Mr. Christopher stated that he had not actually seen the red car when the police were chasing it; but he had heard the man in the red car say, when he returned to the scene after the shooting, that the police had chased him. Mr. Christopher then stated that there were not four police cars, as he had previously stated, but that there were two cars and four people. Mr. Christopher was then given an opportunity to review and amend the sketch if he felt that was necessary. He did not change anything and signed it. It must be noted that there are several matters that are inconsistent with Marquis Christopher s version of events. The most notable are: the fact that only one officer ever fired his weapon, that three officers arrived, each in his own vehicle, that no police officer was ever in the vicinity of the pool in Washington Park, that no shots were fired in the pool area, that the incident took place well after dark, that no officers ever took cover behind the doors of any cars, no officer other than Officer Fogelgren had activated a red laser sight, that no shooting took place near a stop sign, that the deceased was not found near a store, and that there is no unobstructed line of sight to the shooting scene from behind the bushes at the Resource Center. Rosie Crews: Sworn Statement given on June 18 th, 2001: Ms. Crews lives in the house directly across from the empty lot next to the St. Mary s Baptist Church, which is located adjacent to the shooting scene. The address of the house is 1565 Northeast 152 nd Terrace, North Miami Beach. Ms. Crews has given two sworn statements, one to police investigating the shooting and one to the State Attorney s Office. She has also spoken to an unidentified investigator for the Mr. Dailey family, and additionally to The Miami Herald. She had also given some verbal information to Lieutenant Gomer at the scene, as previously noted. Perhaps the best starting place to discuss Ms. Crews is with her initial sworn statement, in which she first stated that she could not see Mr. Dailey at the exact moment of the shooting. Ms. Crews stated that she was in her house watching television at approximately 10:30 or 11:00 P.M. when she heard three shots from the area of 15 th Avenue. She went outside to get her dog. While outside, she saw Dukie and also saw the policeman running down the street. Her tan colored van was parked across the street from her house facing eastbound, towards 16 th Ave. When she saw Dukie, he was going past her van, riding in his wheelchair. There were three officers running behind him. They were saying, Freeze or Stop. All three officers had their guns out. They were approximately 20 feet from Dukie. The officers were all in the street, in front of her van. They were kind of separated. When she saw this, she backed up into the shadows where she couldn t be seen. 14

15 Ms. Crews stated that at the moment of the shooting she was looking at the officers. She heard four shots, but did not see any muzzle flashes. She thought they were shooting over the guy. She heard them yell to Freeze or Stop, two to three seconds elapsed, and then the officers shot. Dukie was not in her field of sight at that moment. Ms. Crews stated that at the time of the shooting, she could not see what Dukie was doing. The officers, according to Ms. Crews, then went up to Dukie and asked, Why didn t you stop? Dukie responded by telling them that he was hurt. The officers told him that they would get paramedics and get him to the hospital. (Note: No other person, including the involved officers, had any recollection of such words being spoken at the scene.) Ms. Crews then drew a sketch. On it she drew the relative positions of the officers and stated that they were approximately two feet from one another. Sworn Statement given on June 29 th, 2001: Rosie Crews stated that this statement was her fourth. She had initially given one to the police, one to a private investigator, and then one to The Miami Herald. Ms. Crews stated that at approximately 9:30 P.M. to 9:45 P.M., she was in her home, watching television, when she heard three gunshots. Her dog started barking. She ran outside to get him so he wouldn t bite anyone. Once outside, she called her dog, but she did not see him. She then looked on the street and saw Dukie go by. Right behind him were three policemen. She then heard them shouting Freeze, freeze! She went on, And then they shot, all three of them, I guess. After that they ran over to Dukie and had the guns out and said: Why didn t you stop? He said, Man, you got me. I am hurt. Then one of the officers said, We will get a paramedic. Ms. Crews also stated that when she first saw Dukie, he was going right by, went right by, middle of the street and that the police officers were about feet behind him. She described their pace as being that of a jog or a trot. She said, They were spread apart. Two was most in the same line and one was just a little bit ahead of the other one. She stated the officer closest to her was using a radio. She heard four shots. When asked if she thought all three police officers had fired, she said, Right. Both shot. She was then asked, Did you actually see anyone doing the shooting? She responded, I don t know. I couldn t see that good. Ms. Crews stated that at the time of the shooting, she couldn t see Dukie because Bushes there, all flowers or plants or trees, whatever. After the shooting, she did move forward and was then able to see where Dukie had fallen. Ms. Crews was then asked about a quote attributed to her in a Miami Herald article: I have a Miami Herald newspaper article here dated June 19 th and in it you are quoted as saying, I saw the man go by in the wheelchair, and three police behind him, all dressed in shorts and shouting They were running on the side of him, almost. They were close enough to push that chair over. She was asked if that was an accurate quote? She responded, No, because I said 15

16 it seems like they could have caught him, turned the chair over. She was then asked, At the time they fired the shots, how far would you say? She answered, They stopped running I guess because he had stopped; that is my opinion. He had stopped. I didn t see him down. They stopped right here near my van, all three of them had the guns out, that is when I saw the shots. I didn t hear nothing from Dukie until after he was on the ground. Ms. Crews was then also asked, Did you see him wheeling with his hand on the wheel as he was going? She responded, No, I saw him, seemed like one hand on the wheelchair, that was his right. She was later asked, Did you see what Dukie was doing with his left hand, if he was wheeling with his right hand? Could you see what he was doing with his left hand? She responded, No, I didn t pay too much attention to him. I see him all the time going. I didn t pay him any attention. Jonathan Eldira: Sworn Statement given on June 21 st, 2001: Jonathan Eldira is a seventeen-year-old male who resides at N.W. 2 nd Avenue in North Miami Beach, Florida. He has given two sworn statements, one to police officers and one to the State Attorney s Office. Mr. Eldira arrived in the Washington Park area on June 17 th, 2001 at approximately 6:30 P.M. He played basketball and then video games. At approximately 8:00 P.M. to 8:30 P.M., Mr. Eldira was sitting on a low wall located at the northeast corner of N.E. 152nd Terrace and N.E. 15 th Court. He was facing northwest, so directly across the street from him was the Recreation Center. While he was there, a man known to Mr. Eldira as Dukie came up and spoke to him. Mr. Eldira describes him as having been in a wheelchair and wearing a black shirt and black shorts. They spoke about Mr. Eldira s brother. During this time, a man nicknamed Black began to approach them as, and called for Dukie to meet him. They met half way to the nearby corner store. Black and Dukie then had a conversation about a cassette player. During this time, Mr. Eldira noticed a car parked on N.E. 152 nd Street with its high beam headlights on. Mr. Eldira could not see who was in the vehicle because of the bright lights. Eldira observed Dukie and Black move away, and go out of his view. Approximately twenty minutes later, Mr. Eldira heard three gunshots. He thought these shots were being fired on N.E. 152 nd Street. Mr. Eldira instantly jumped the fence and ran away from the scene. He stopped at the bench at the entrance of the playground, across from the store. He did not again see Dukie or Black in the area. He sat on the bench for seven to eight minutes. He did see two police cars go by. He then returned to where he had been sitting just prior to hearing the initial three shots. He looked down the street and observed Dukie on the ground, the empty wheel chair and two to three police officers. He approached the scene and called out Dukie, but there was no response. The police told him to back up, Mr. Eldira backed up as ordered. He returned to the place where he had been sitting, which was just outside of the crime scene tape. He stayed there for approximately four hours. 16

17 Mr. Eldira stated that he had a hi and bye relationship with Dukie. He did not know Dukie to carry any weapons. Mr. Eldira was asked if he saw who fired the three shots. He did not. He was then asked how many shots he heard in the second grouping of shots, and he responded, About six to seven, which Mr. Eldira heard when I was sitting on the bench. He stated he could not see down 152 nd Street from his position and did not see who fired the six to seven shots. He then left the bench to see who had been shot, and ran to 152 nd Terrace because he had seen the police pass by and thought they were there. Mr. Eldira was then asked about the relationship between Dukie and Mr. Willie English, a friend of Mr. Dailey s. When asked about Mr. English, he responded, Oh, he helps him. He s like he s like a staff to him. He helps him get around; you know what I m saying? Help him with things that Dukie have problems with because he s in a wheelchair and he just helps him out. He had seen Dukie with Mr. English at about 6:00 P.M. to 6:30 P.M. that evening. (Note: Mr. English will be discussed later in this report) Sworn Statement given on June 29, 2001: Mr. Eldira was dropped off by his friend Ricky in the Washington Park area at approximately 6:00 to 6:30 P.M. Then he and another friend, Chris Evering, went to the basketball court to play basketball. At approximately 8:00 P.M., Eldira and Evering went to the store in the park and got cigarettes and a soda. Then they went to Evering s house and played video games. At approximately 8:45 P.M., Mr. Eldira went to N.E. 152 nd Street and N.E. 15 th Terrace. There he sat on the short cement wall that surrounds the Jacksons house. His position was such that he was facing Lucinda Neal Park. While there, Dukie came up to Mr. Eldira and asked about Mr. Eldira s brother and his conditions in prison. Then an individual called Black called to Dukie. Dukie met him halfway. Mr. Eldira stayed where he was. Approximately twenty to thirty minutes later, Mr. Eldira heard three gunshots. The sound came from Mr. Eldira s left. The shots sounded pretty close. Mr. Eldira was scared and ran away and sat on a bench in a kiddie playground area in the park. Approximately seven to ten minutes later, Mr. Eldira heard seven or eight gunshots. He had previously noticed a car at the corner with its high beams on. Twenty to thirty minutes had passed between the time he first noticed the car with the high beams and the grouping of three gunshots. Approximately seven to ten minutes after hearing the three gunshots, while he was at his position on the bench in the kiddie area of the park, Mr. Eldira heard more gunshots. He ran back over there. He ran back to the scene because he heard Miss Tiff screaming the name Dukie. Mr. Eldira then attempted to look at Dukie s body. The officer there told him to back up. He observed Dukie face down on the ground, out of his wheelchair. There were officers all around. He called Dukie s name, but there was no response. He then stood behind the yellow tape. Mr. Eldira then described a red car he had seen and stated that the driver was an individual nicknamed Easy. He heard the seven to eight shots a couple of seconds after he had seen the 17