R.J. Larizza Says No Charges Against Sheriff’s Deputy in Second Fatal Shooting in 2 Years

State Attorney R.J. Larizza said today no charges will be filed against Volusia County Sheriff’s deputy Joel Hernandez, who shot and killed a man who was allegedly reaching for a gun while sitting in his car at a towing yard in Daytona Beach in September 2014.

Hernandez was in plain clothes at the time of the shooting. The family of the victim, Edward Prescott Miller, 52, said Miller was deaf and disabled, and was not wearing his hearing aid that day. He was killed last Sept. 20 in front of Fryer’s Towing Service on North Segrave Street in Daytona Beach.

Hernandez had been cleared in another fatal shooting in January 2013, when he killed 52-year-old Kenneth Morrow of Bunnell, who, according to a text he’d sent his girlfriend two hours before, was planning to kill himself. Flagler County Sheriff’s deputies had been alerted to the possible suicide and gone on a search of Morrow, tracking his cell phone. When he crossed into Volusia, they asked for help from the Volusia Sheriff’s Office. Hernandez spotted Morrow at Highbridge, where he threatened to shoot himself several times before allegedly advancing toward Hernadez in a threatening manner, according to a police report. When he didn’t stop, Hernandez fired, killing him.

A month later, Hernandez was involved in an incident with an individual who was allegedly struggling with a deputy. Hernandez kicked the man in the face, and subsequently struck the man’s face three times with the butt of his Taser gun. He was reprimanded for the initial kick.

The State Attorney cleared Hernandez in the shooting based on the FDLE report, but the process isn’t done. “Now that the independent investigations have been concluded,” Volusia Sheriff Ben Johnson said in a statement today, “the Sheriff’s Office will be conducting an internal review to ensure that the deputy’s actions were in full compliance with our policies and procedures regarding the use of deadly force. Until that review is concluded, it would be inappropriate for us to comment further at this time.”

Miller was at the towing yard on Sept. 20 with his 25-year-old son, who’d been involved in a minor traffic accident two days earlier, and had had his Ford F-350 towed. The older Miller had taken his son there in his Jeep. The Millers had issues with the towing company. They’d gone there the previous day to retrieve the car but had arguments with staffers, who felt threatened and called police. The Millers claim the older Miller’s deafness caused him to raise his voice, and he’d been misunderstood, leading to the impression of an argument. Either way, they were not able to get the vehicle because the business closed before they secured the cash to do so. They returned the next day to retrieve the Ford.

Hernandez was there with another deputy on an unrelated matter.

Hernandez was represented by Daytona Beach attorney Michael Lambert, but he declined to provide a statement to the FDLE. Deputy Matthew Andracke, who was assisting Hernandez the day of the shooting—and who was also represented by Lambert—did provide a statement. According to Andracke’s account of the incident, he and Hernadez at one point walked to Miller’s Jeep because it was blocking the way they were about to exit.

Earlier reports in the News-Journal had described Hernandez walking up to the car because he’d heard an argument between Miller and towing company employees. But Miller’s son would tell FDLE investigators that there had been no argument that day. He was not part of the shooting incident, having been examining his Ford at the time, though as soon as he existed the Ford he was ordered to put his hands on top of his head and walk backward. By then, his father had just been shot.

Hernandez was in a t-shirt and jeans. He was wearing his gun in a holster on his belt. His badge was also on his belt, according to Andracke. Andracke was not armed, and was also in plain clothes. Hernandez walked up to the Jeep, knocked on the window, announced himself as a deputy sheriff, and asked Miller to roll down his window, by gesturing. Miller, according to Andracke, rolled the car forward about a car’s length. (Miller’s son would tall investigators that the window was broken and could not roll down.) The Jeep moving forward a car’s length would presumably have cleared the exit and enabled the deputies to drive out of the yard.

Hernandez though walked up to the Jeep again, with Andracke behind him, and knocked on the window again, repeating his identification and his order to roll down the window. Andracke said Miller did not comply, so Hernandez opened the door of the Jeep and again said, “Sheriff’s Office,” ordering Miller to show him his hands. Miller’s hands were in his pockets at that moment, according to Andracke. When Miller did not comply, Hernandez drew his gun and continued to order Miller to take his hands out of his pocket, according to the FDLE summary of the investigation.

“Deputy Andracke said that he briefly looked away, and then looked back towards the Jeep when he saw that [Miller’s] hand was no longer in his pocket.” Andracke told investigators that he saw Miller holding a silver revolver, and that Hernandez fired four or five shots at Miller before retreating with Andracke behind a wall.

Daytona Beach police responded to the shooting. One officer, Tammy Pera, told FDLE investigators that she saw a firearm between Miller’s leg and the car seat, with the butt of the gun sticking out about two inches and the barrel pointed downward, according to the investigation report. Miller’s right hand “was positioned like the gun fell out of his hand,” Pera told investigators. She “grabbed the gun to secure it for officer safety,” the investigative report states, and had another officer unload it to secure it in her vehicle.

Miller had a concealed weapon permit.

“Based on our review of the investigation and information provided, no further action is warranted by this office,” Larizza, whose 7^th Judicial District includes Flagler, Putnam, St. Johns and Volusia, wrote the FDLE today. In a letter copied to Volusia Sheriff ben Johnson and Lambert and circulated to local media.

“Any loss of life, regardless of the circumstances, is tragic,” Johnson said in the statement. “And this case is no different. Our deputy did what no law enforcement officer ever wants to do, yet must always be prepared to do if circumstances require it — to defend himself by neutralizing a deadly threat. I’m pleased that an independent investigation by both the Florida Department of Law Enforcement and the State Attorney’s Office has showed that our deputy’s actions were within the legal scope of his duties.”

FDLE Investigative Report of Deputy Joel Hernandez in Fatal Shooting of Edward P. Miller (2015)