The defense lawyer in a home invasion and murder case says his client was in a do-or-die situation and had to act accordingly.
By WILLIAM R. LEVESQUE
Published August 4, 2004
LARGO - Vernon Gilbert was about to die.
He clutched the phone in his bedroom after shooting a man who had broken into his home. He whispered urgently to a police dispatcher so the wounded robber wouldn't hear.
"I can barely hear you," the dispatcher said.
"I just shot a guy in here robbing us," Gilbert said, giving his address. "Hurry. Hurry."
Then the line went dead. When police responded to his Largo home, they found Gilbert's body just feet from a phone spotted with drops of blood. Gilbert, 88, had been shot in the head.
On Tuesday, testimony opened in the trial of the man accused of killing Gilbert. Prosecutors are seeking the death penalty against Brandon Scott Ware, 21, who is charged with first-degree murder and home invasion robbery in the Nov. 26, 2002, slaying of Gilbert.
In opening statements, Pinellas prosecutor Lydia Wardell told jurors that Ware followed Gilbert and his wife, Helen Gilbert, home as they shopped at a nearby Publix. Once the couple arrived at their condominium on Washington Avenue, Ware forced his way in with a club, she said.
Helen Gilbert, who died in May, suffered from advanced Alzheimer's disease.
At some point during the robbery, perhaps as Ware rummaged through another room, Vernon Gilbert retrieved a .38-caliber handgun he owned. As Ware confronted him, Wardell said, Gilbert shot Ware both once in the face and back.
Gilbert called 911, but for some known reason had to hang up. A phone in Gilbert's living room was later found upended.
When a Largo police dispatcher called back, Gilbert picked up the phone in a bedroom and told them he had just shot a robber.
"With his very last breath, he spoke to the 911 operator," Wardell said. "Those are his last words."
Ware staggered from the hall where he was shot. He confronted Gilbert in the bedroom, killing him with a single shot from the same gun Gilbert used to shoot Ware, prosecutors say. Ware walked away and collapsed in the living room.
When Largo police arrived, they found Helen Gilbert wandering on the balcony outside. She had suffered a severe cut on her head. Ware may have knocked her with the butt of a gun, Wardell said.
As police entered the condo, Ware held the cocked revolver in his hand. Police quickly disarmed him and found jewelry and other stolen items in his pockets.
Ware was rushed to the hospital, asking for his cell phone on the way.
Defense attorney Dyril Flanagan acknowledged his client forced his way into the Gilberts' home. And he admitted that Ware shot and killed Gilbert during the robbery. But Flanigan said his client had no choice.
"It's a do-or-die situation for Brandon Ware," Flanagan said. "I suggest to you the evidence will show Mr. Gilbert is coming in for the death blow. . . . This became a life struggle and an instantaneous decision my client had to make."
Flanagan said the slaying wasn't premeditated and said jurors should convict Ware of a lesser crime, but not first-degree murder.
Ware worked near the Publix at a Beef O'Brady's restaurant. He was serving a probation sentence for cocaine charges at the time of the shooting.
Gilbert, an Army veteran of World War II, was frail but fiercely protective and doted on his wife, friends and relatives said. The Gilberts had celebrated their 60th wedding anniversary just months before the shooting and had lived in the condo for 32 years.
Testimony is scheduled to continue today before Pinellas-Pasco Circuit Judge Brandt Downey. The guilt phase of the trial may conclude by the end of the week.
