Letter From State Attorney Regarding Officer Involved Shooting in Tarpon Springs

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Letter From State Attorney Regarding Officer Involved Shooting in Tarpon Springs

This is the letter from State Attorney Bernie McCabe to Tarpon Springs Police Chief Robert Kochen related to the officer involved shooting death of Nicholas Provenza on May 6, 2017. He concluded that Officer MacIsaac was in the performance of his lawful duties and that the shooting was justifiable homicide.


 

Chief Robert P. Kochen
Tarpon Springs Police Department
444 South Huey Ave.
Tarpon Springs, FL 34689

June 7, 2017

OFFICE OF THE STATE ATTORNEY

RE: Shooting incident resulting in the death of Nicholas Provenza on Saturday, May 6, 2017, at approximately 1:36 p.m. at the intersection of E. Tarpon Ave. and Safford Ave., Tarpon Springs Pinellas County, FL

Dear Chief Kochen:
SIXTH JUDICIAL CIRCUIT OF FLORIDA
PASCO AND PINELLAS COUNTIES

Pursuant to notification by your Department to this office at approximately 3:15 p.m. on May 6, 2017 that a shooting incident had occurred at the intersection of E. Tarpon Ave. and Safford Ave., Tarpon Springs, Pinellas County, FL we have conducted an investigation as described herein.

On May 6, 2017, at approximately 4:30 p.m. representatives of this office arrived at the
scene of the shooting, were briefed by officers of the Tarpon Springs Police Department, agents of the Florida Department of Law Enforcement and Forensic Science Specialists of the Pinellas County Sheriff’s Office. They also examined the scene, reviewed raw surveillance video from one of the businesses that captured, in very low quality, portions of the contact between the officer and the deceased. They then proceeded to the Tarpon Springs Police Department to take sworn testimony from the following witnesses:

1. Douglas Renker
2. Timothy Pendrys
3. Veronica Kauchak
4. Wayne Zelinsky
5. Richard Collins
6. Robert and Myrtie Bernstel
7. Richard Collins
8. Officer Scott Maclsaac

On May 11, 2017, sworn statements were taken from the following individuals:
9. Gary Barbosa
10. Robey and Deborah Tate

On May 12, 2017, sworn statements were taken from the following individuals:
11. Jessica Stombaugh
12. Sheri Wilken
13. Frederick Rushing
14. Jeffrey Renker

Additionally, we have reviewed Tarpon Springs Police Department reports, Pinellas County Sheriff’s Office and Largo Police Department reports involving their prior investigations involving Provenza, Pinellas County Sheriff’s Office Forensic Science Specialists’ reports, fire department EMS reports, photographs of the scene, law enforcement radio transmissions and autopsy report and photographs. We also reviewed CCTV videos from businesses in the area and a video posted by a civilian on social media.

We spoke to Deputy Medical Examiner Dr. Christopher Wilson, MD, District Six Medical Examiner’s Office and a Forensic Toxicologist from the Pinellas County Forensic Laboratory.

The reports from the Florida Department of Law Enforcement, the lead investigative agency were not available for review and would not be available in the very near future. Based on our investigation, which included the taking of sworn testimony from the same witnesses interviewed by FDLE, we concluded that a decision in this matter could be made without reviewing their reports.

Based upon our investigation we have determined the facts surrounding the incident of May 6, 2017 resulting in the death of Provenza, to be as follows:

On May 6, 2017 a car show was taking place in and around the area of the intersection of E. Tarpon Ave. and Safford Ave., Tarpon Springs, Pinellas County, FL. Officer Scott Macisaac, a seasoned veteran with the Tarpon Springs Police Department stated he was working an off­ duty assignment at the car show. He was in uniform, carrying his duty pistol a Glock 21, .45cal. He carried one cartridge in the chamber and twelve in the magazine. His remaining magazine holds 13 cartridges.

Jessica Stombaugh is employed by Sheri Wilken at the Mad Hatter store located on E. Tarpon Ave. Within the Mad Hatter store is a second business, the Back in the Day Books owned by Frederick “Bo” Rushing.

On May 6, 2017, at approximately 1:30 p.m. they were at work when Provenza entered the store. His contact with them at the store was captured on the store’s CCTV video system(very poor audio).  Stombaugh stated she greeted him when he first came into the store. Initially their conversation was about the car show. The conversation then turned to drugs. Both stated that he asked them about the drug “Kava”. He described the drug as a natural form of Vicodin and Xanax. He said the drug made your throat feel numb like when you use cocaine. Wilken told him he needed to leave. Wilken described his demeanor as unpredictable, stressed and anxious. She thought his talk about drugs was inappropriate with her employees.

When Wilken demanded he leave her store his demeanor turned to anger. He stated she shouldn’t have named her store Mad Hatter if “I hadn’t been on psychedelic drugs”. He was just talking crazy. Again Wilken demanded he leave the store. He left the store leaving the door wide open. While on the sidewalk and facing the store Provenza used a lot of “f-bombs” as he made statements to the affect that he was androgynous, saying he’s a guy but he’s a girl and something about pink and blue. Both stated the subject backed out of the doorway and when on the sidewalk he got down on his knees and began bowing to them. All the while he was talking “crazy stuff”. His overall demeanor scared both of them.

Frederick “Bo” Rushing, who was in the back of the store when Provenza entered stated that after speaking with Wilken he saw the subject pick up his bicycle and proceed on foot, pushing his bicycle west towards Pinellas Ave. He stated that he went outside and followed him. He saw him make contact with event staff members. He heard him say words to the affect “how attractive the man was”. He felt the contact and comments by Provenza were inappropriate. He stated he decided to inform law enforcement of the Provenza’ s conduct.

Rushing stated he found a uniform officer, Scott Macisaac in the area and told him about Provenza’ s activity and conduct inside the Mad Hatter store and with two of the event staff members. He told the officer that he believed “this guy is not right”. He suggested to the officer that he should “at least check on this guy”. Rushing provided Officer Macisaac with a description of Provenza’s clothes and the color of the bicycle he was riding.

At approximately 1:36 p.m., Officer Scott Macisaac saw a subject matching the description provided by Rushing riding a bicycle in the area of the intersection.

Officer Macisaac approached Provenza and made contact with him on the sidewalk in the area of the southeast comer of E. Tarpon Ave. and Safford Ave. in front of the Current Restaurant.

At the officer’s request, Provenza stopped, however remained standing, straddling
his bicycle as he initially spoke to the officer. Officer Macisaac began his contact by informing Provenza that he was investigating a complaint of a suspicious person and asking Provenza for his name. Provenza provided Officer Macisaac with a name; however the officer was told by dispatch that no record was found for that name. Becoming suspicious, Officer Maclsaac asked Provenza for his real name. Provenza responded “Provolone” like the cheese. Officer Maclsaac contacted dispatch to run the second name provided by Provenza.

Douglas Renker, a dispatcher with the Tarpon Springs Police Department was with Officer Maclsaac when he contacted Provenza. He stated that while the officer was checking on the second name given by Provenza, he saw his left hand in his pocket. He stated he alerted the officer that the Provenza was “doing something in his pocket.”
After being alerted to Provenza’ s movement, Officer Maclsaac looked up and saw Provenza’ s left hand in his pocket. Officer Maclsaac ordered Provenza several times to stop reaching into his pocket. Provenza failed to comply. Officer Maclsaac moved toward him with the intention of patting him down but as he did so, Provenza dropped his bike, stepped back and withdrew his hand from his pocket producing what appeared to be a knife or “shank”.

Douglas Renker also saw the subject pull a silver object from his pocket. He described the object as approximately three to four inches long, with a pointed end. He stated that Provenza had the pointed end of the silver object pointed towards the officer.

As he raised the knife or “shank” and pointed it towards Officer Maclsaac, Provenza said “You’re not going to ruin my dreams”. Off-duty deputy Cpl. Wayne Zelinsky of the Pinellas County Sheriff’s office was at the car show and also heard Provenza make the same statement to the officer.

Provenza, with the knife or “shank” pointed towards Officer Maclsaac, charged the officer. Officer Maclsaac responded by backpedaling away from Provenza. As Provenza continued to quickly advance towards Officer Maclsaac, he was ordered several times by the officer to drop the knife or “shank”. Again he failed to comply with the officer’s commands.

Provenza continued to quickly charge at the officer with the knife or “shank” in his hand pointed at the officer. After repeated commands to drop the knife or “shank”, Officer Macisaac drew his pistol and fired three shots at Provenza. Officer Maclsaac stated he perceived that Provenza was gaining ground on him because he was backpedaling at a slower pace than Provenza was moving forward. Witnesses who were in a position to judge the distance between Officer Maclsaac and Provenza estimated that they were between four and ten feet apart when the shots were fired.

Officer Maclsaac immediately radioed dispatch indicating shots had been fired. He also advised over the radio “he came at me with a knife”.

Jeffery Renker, a former Pasco County Sheriff office deputy who was at the car show stated he walked up to the officer and asked if he was all right. The officer told him he just shot someone. He stated the officer told him that the subject had a knife. He looked down on the ground and saw a silver object, about three to four inches long lying by the subject’s right hand.

Sgt. Crawford, Cpl. Thornton and Officers Rose and Gomez were the first officers to respond to Officer Maclsaac’ s location. Sgt. Crawford and the other three officers saw what appeared to be a knife underneath Provenza’s right hand.

At the direction of Sgt. Crawford, Officer Gomez collected the object and placed it in a paper bag. Sgt. Crawford took possession of the paper bag with the object and placed it in the trunk of his cruiser. The paper bag was subsequently turned over to a Forensic Science Specialist from the Pinellas County Sheriff’s Office.

The silver, metallic like object found underneath Provenza’s right hand was later found to be approximately 5 inches long and 1/2 inch wide. It appeared to be made of a harden resin type material that was covered with a thin silver, metallic substance. It had been shaped in the form of a pocketknife blade with a pointed end. When the knife or “shank” is held in the hand it gives all the appearance of a deadly weapon and is consistent with the observation of the officer and witnesses who indicated that Provenza had a knife in his hand as he charged the officer.

Douglas Renker, Timothy Pendrys and Deborah Tate all stated that on May 6, 2017, they were at the Cars for Charity event. While each had a different vantage point when they made their respective observations of the interaction between Officer Maclsaac and Provenza, collectively they stated that when Provenza charged towards the officer he had an object in his hand they thought was a knife or “shank”.

Robert Tate, Gary Barbosa, Robert Bemstel, Myrtie Bemstel, Richard Collins and Veronica Kauchak, Cpl. Wayne Zelinsky all stated that on May 6, 2017, they were at the Cars for Charity event. While each had a different vantage point when they made their respective observations of the interaction between Officer Maclsaac and Provenza, collectively they stated that Provenza increasingly became agitated when the officer asked for his name; he was shouting at the officer; he threw down his bicycle and backpack; he charged at the officer; the officer in response to Provenza charging at him backpedaled into the middle of the intersection;  Provenza was closing the gap between himself and the officer; when Provenza was several feet away from the officer, several of them heard the officer say “stop”; and that when Provenza was several feet away from the officer, the officer drew his pistol and fired three shots at him. All of them stated Provenza was the aggressor. Due to their individual vantage point they were not able to see anything in Provenza’ s hand when he charged the officer.

It should be noted one witness; Carly Trewyn reported that when the officer drew his pistol as Provenza was approaching, Provenza dropped his knife and turned his back on the officer as the officer fired twice at him. This witness’s account of the shooting is inconsistent with all other witnesses, the evidence collected at the scene and the autopsy findings. Her account of the shooting incident was not considered as a reliable, accurate account of the shooting, therefore played no part in the findings and conclusions by my office.

Forensic Science Specialists recovered three spent .45 cal. casings from the intersection.
The location where the spent casings were recovered is consistent with the officer firing his firearm towards Provenza who was charging at him from the area of the southeast corner of the intersection.

The autopsy findings by Dr. Christopher Wilson, M.D. are consistent with the testimony of Officer Maclsaac and observations of witnesses at the scene. Provenza sustained two (2) gunshot wounds to his front torso and a grazed gunshot wound to his right elbow. The surrounding skin of the three (3) gunshot wounds was free of stippling, soot or muzzle imprint.

The gunshot wounds and the lack of stippling, soot or muzzle imprint are consistent with the testimony of Officer Maclsaac and witnesses at the scene as to the officer’s orientation and his distance (greater than three feet) from Provenza when he fired his pistol.

A drug screen on Provenza’ s blood by a Pinellas County Forensic Laboratory Forensic Toxicologist was positive for cannabinoids. The testing results indicate recent usage.

During the course of the investigation we became aware that Provenza had a history of behavior resulting in multiple contacts with law enforcement and the mental health community.

Most recently, on May 5, 2017, Provenza had multiple contacts with law enforcement for various reasons. At approximately 8:00 a.m. the Pinellas County Sheriff’s Office responded to a restaurant on US Hwy. 19 N, Palm Harbor after customers reported Provenza and another individual were harassing customers. The deputy asked him to leave the restaurant. At approximately 4:30 p.m. deputies responded to Provenza’s location in Palm Harbor. Provenza’s father and girlfriend told deputies that he was abusing his prescription medicine, Klonopin and had already consumed his monthly prescription. They told the deputies that last night Provenza made homicidal threats against his girlfriend and was going to cut off her fingers for being unfaithful. Provenza also made incoherent statements in their presence. Provenza said that he and his friend had plans to ride their bicycles to Colorado. He asked the deputy if he (the deputy) had his third eye open. When the deputy indicated he did not know what he (Provenza) was talking about, he told the deputy he understood why he did not want to talk about it because of the microphone on his shoulder. From their observations and the history provided by family and friends the deputies determined that there was a substantial likelihood that without care or treatment Provenza would cause serious bodily harm to himself or others.

Deputies placed Provenza into protective custody under the Baker Act and transported him to P.E.M.H.S.

On May 5, 2017 at approximately 8:30 p.m. Largo Police Department responded to Largo Medical Center regarding a missing patient. The officers learned that Provenza walked out of the E.R. after being transported from P.E.M.H.S. The officers’ efforts to locate Provenza in the immediate area met with negative results.

A countywide missing endangered BOLO was issued for Provenza. Provenza did not come in contact with law enforcement until his encounter with Officer Maclsaac.

Officer Maclsaac did not know Provenza’s mental health history. Within minutes of corning in contact with Provenza he had the opportunity only to observe Provenza’s behavior as he questioned him on the street comer and his aggressive, threatening behavior when he charged at him with what appeared to be a knife in his hand. To what extent Provenza’ s mental health status played in his aggressive interaction with the officer is not known and cannot be determined by the toxicology results.

As a result of the investigation conducted by my office, I have determined that Officer Scott Maclsaac was in the lawful performance of his legal duties when he was threatened by Nicholas Provenza with a deadly weapon. After Nicholas Provenza ignored the repeated commands to drop his knife, he continued to point the knife at the officer as he charged towards the officer.

It was reasonable for Officer Maclsaac to believe that it was necessary to use deadly
force to defend himself in order to prevent his own imminent death or great bodily harm.

Therefore, it is the conclusion of the State Attorney’s Office that the death of Nicholas
Provenza was the result of having been shot by Officer Scott Maclsaac who was in the performance of his lawful duties, and that the shooting was justifiable homicide, pursuant to Section 776.012, Florida Statutes.

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