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Freedom For Nick
From the trial transcript where the prosecutor is questioning Nick, page 244 Lines 12 - 16
Q. And isn't it, in fact, true that you pulled the gun away from her because she was leaving?
A. No. Because she was waving it around. I wanted to get it out of her hands. I didn't want to be shot.

"It’s my interpretation of the law that I don’t have discretion, that I must sentence the 20 years; and I’ll go on record that based on this Defendant’s background, that it is a very harsh sentence. I think it’s harsh, but I took an oath to uphold and obey the law myself, and my interpretation of the law is that I must do that.” - Judge Frank Porter
Time Nick has been in prison

How He Got Here

ANOTHER UNINTENDED VICTIM OF FLORIDA’S 10-20-LIFE STATUTE
WE ASK FOR YOUR SUPPORT

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How He Got Here

We firmly believe that Nick was unjustly charged to begin with, and we are still shaking our heads as to why the State Attorney's office would have thrown the charges at him that they did, given the circumstances surrounding his arrest, and given the "victim's" story, with its many statements that defy logic and common sense.  It is an uncontroverted fact that the officer who responded to the scene reported that there were no injuries to Nick’s accuser.

The State Attorney's office knew (back in 2007) that a conviction for "aggravated assault with a deadly weapon" carried a 20 year mandatory minimum jail sentence.  We are frustrated and saddened by the prosecutors' choices and, frankly, amazed that Nick was ever convicted... proving, once again, that in Florida, anything is possible.

Following a one day trial, Nick was convicted of two separate felony charges:
    (1) aggravated assault with a deadly weapon (requiring a 20 year mandatory minimum sentence)
    (2) shooting within a dwelling.

That's right - a one day trial to put a man away for twenty years.  The jury did not convict him of battery (domestic violence), which was the third charge brought by the prosecution.

The State Attorney had initially offered Nick a plea deal, but that deal involved a three year jail term, and Nick (a principled man who knew that he had done nothing wrong) rejected the offer.  He felt that since he had only tried to defend himself from being shot, the jury would see through the falsity of the "victim's" allegations and acquit him.  He knew that his then-girlfriend was taking medication for a mental health issue, because she had told him.  He knew that she had alcohol in her system that fateful night. And he knew that she had turned on him, in his own house, with his own weapon, a weapon he had previously given to her for her own protection.

The whole nightmare began after Nick and his girlfriend came home from a night of karaoke, shooting pool and having drinks with Nick's friends. As they left the bar, Nick was offended with some of her earlier behavior that night.  They argued about this, and when they got back to Nick's small apartment, she allegedly tried to pack up some of her clothes which she was keeping there, in order to go back to her own home.  This is where the storylines diverge. You can read more details about the trial testimony on the other page on this site entitled "Her Story, His Story and the Facts."  We will be happy to provide anyone who is interested with a redacted copy of the actual trial transcript (redacted so that the name of Nick's accuser will not be revealed).

The Nick we know is a gentle, giving person with a large circle of friends.  He was the first person to help out anyone in a bind.  He is an animal lover.

That's why we struggle with the notion that he was violent in any manner on that fateful night that led to his arrest and conviction.  Our friend is the hapless victim of a he said/she said scenario in which she was scared for her own future and therefore hid the truth about her own actions by pointing the finger at him.

The former girlfriend acted out - in the heat of the moment - by threatening Nick with his own gun - he tried to disarm her, and in the process - during the struggle - the gun accidentally discharged, and a single bullet went through his computer monitor and into the wall behind it. There were no injuries.

It seems that she realized she could end up in big trouble, having started this situation which ended up with a gun being discharged, and that her first instinct was to cover her own tracks.  The way she did this was to lock herself up in the guest bedroom, call 911 and tell the 911 operator that she was afraid because Nick had just fired a gun in her direction.  Her convoluted testimony at trial was that, once she was "safe" in that bedroom, she realized her out-of-state cellphone (not a Florida area code) might not reach 911, so she opened the door and ran into the kitchen to get Nick's house phone, ran back into the bedroom and then dialed 911.

At first we wondered why the jury believed her, as opposed to Nick.  But when we read the trial transcript a few times, we picked up on something disturbing.

From the transcript, page 353: At the end of the testimony and during deliberations, the jury made a request to the judge: “We request a copy of [_redacted_] “victim’s” statement of law enforcement.” And then it says, “We request the defendant’s statement to law enforcement after his rights were read.” Judge Frank Porter responded to this request by telling the jurors: "You have all the evidence in this case.  Rely upon your collective memories."  We don't know why a criminal judge would withhold evidence from a jury after they specifically asked to see it.  We can only assume that this judge was in a rush to "call it a day" and go home.

This is just the tip of the iceberg of what happened at Nick's criminal trial.  It seems all the cards were stacked against him.

The judge refused to admit into evidence some letters that the "victim" had written Nick after his arrest, telling him she was sorry.  He refused to admit into evidence an email about how the "victim" had made plans - after this incident - to spend a weekend with Nick at a hotel.  We believe that if the jury had been allowed to see the full picture about Nick's accuser - the "victim" - if they had been aware of the post-arrest "lovey-dovey" communications with Nick, they would have realized she was definitely not afraid of him and that this was not the kind of communication you would ever expect from a "victim" of gun violence.

Everyone who has heard this story believes that the only reason Nick is in prison is that the ex-girlfriend was afraid that SHE would have faced criminal prosecution if she had admitted to what really happened that night.  And so... her story snowballed and, with the help of some overzealous prosecutors who wanted another notch in their belt, Nick was forced to either plead guilty in exchange for a plea deal, or to throw himself at the mercy of a jury of his peers.



Unfortunately, Nick cannot turn back time, cannot undo his decision to choose the defense attorney that he did, cannot re-write the joke of a trial that the system handed him.

What we can tell you, dear reader, is that the ex-girlfriend's statements to 911 and to the police officer, who showed up at the apartment, set up Nick for a long and painful journey into the bowels of Florida's prison system.




Her Story, His Story and The Facts

On this page, we have included some portions of testimony from the trial transcript.  A full copy of the transcript is available for e-mailing to anyone who is interested. We have redacted any identifying information (name, address) of Nick’s accuser. Some facts are noted that do not appear in the transcript.

FACT
Trial transcript, starting at page 194 (direct examination of Deputy “J.R.”, his initials)



Q:  What is the reason for you going to that address?

A:  We had a disturbance call with a shot being fired.



Q:  Where did you go next?

A:  I made contact with a female that was inside one of the bedrooms, who would not come out until I identified myself.



Q:  Okay.  And what did you do after you entered back into the residence?

A:  Looked for the firearm.



Q:  And where did you locate that gun?

A:  I found it under a mattress in the bedroom.



Q:  Is that one and the same bedroom she had just come out of?

A:  Yes.

Q:  Did you confront her with that information?

A:  No, I did not.




HER STORY

Trial transcript, starting at page 144 (direct examination of the accuser):



Q:  So after you get him off of you, from having choked you or grabbed you underneath the jaw, where do you go or what do you do?

A:  I just started getting more of my stuff to get out.  I went and put my uniform on the recliner that was in the living room, and then I went back in to get my work shoes and I was going to then leave.


Q:  Where were your work shoes located?

A:  On the floor of the bedroom.... The spare bedroom.

​

Q:  All right, and after you come out of the first bedroom ... then what happened?

A:  He was standing in front of the recliner in the living room when I was coming out of the room.  Again, he started yelling at me ... and pointed a gun at me and shot.



Q:  Did you know he had a gun?

A:  Yes, sir.



Q:  And how did you know that?

A:  Because he kept it beside his bed.... on the nightstand, on the bottom shelf, locked.



Q:  And did you know how to open that lock?

A:  Yes, sir.

Q:  And what did you do in response?

A:  It just happened so quickly.  I ducked and went back into the spare bedroom and locked the door.



Q:  And what did you do next?

A:  Stayed in there for a few minutes and then I didn't hear him at the door.  So I ran to the kitchen and grabbed the phone so I could call 911.



HER STORY

Trial transcript, starting at page 183 (cross-examination of the accuser)



Q:  Isn't it true that Mr. Lucanegro had given you that gun to protect yourself at one time, correct?

A:  No, sir.



Q:  So I just want to make sure of this, that you had a cell phone on your person.  You're locked in a room, safe from an individual that just beat you, choked you and shot at you, you have an opportunity to make a phone call from there without leaving the room, but you choose to leave that room and go get a phone because you were afraid the 911 phone call might go back to whatever state you were from? [Objection sustained, witness did not answer.]




FACT
Trial transcript beginning on page 208 (cross-examination of the deputy)

Q. Now, nowhere in your report did you ever mention that the “victim” had any marks, scratches, bruises, blotches anything like that around her neck?
A. No, I did not observe any.

Q. Okay. And after you spoke with her, after you cleared the house, after you arrested Mr. Lucanegro, you did search the house, correct?
A. Yes, I did.

Q. And after taking her statement and doing a search, isn’t it true that the firearm was found in the same bedroom that “the victim” was locked in?
A. Yes, it was.



Please Note...

The deputy did not question the “victim” about why or how the firearm is in the same locked room she has been in during the entire 911 call. In fact, she had possession and control of the firearm because it was in the room with her.

The deputy photographed the weapon on the box spring. The chamber (cylinder) of the weapon is in the closed-locked position. As in his report he picked up and opened the chamber of the weapon and photographed it.



HIS STORY

Trial transcript, starting at page 227 (direct examination of Nicholas Lucanegro, the defendant) by his defense attorney

:

A: I didn't want her to leave, but she was determined to leave.  So, I said, well, you might as well take all of your stuff and leave.



Q:  Were you taking her stuff and throwing it down?  Was she packing it?  What was taking place?

A:  Everything was being taken out of the closet and thrown on the bed... She was throwing them on the bed to pack them, the hangers and stuff.

Q:  What were you doing while she was throwing the clothes?

A:  Just watching.



Q:  OK, were you still arguing with her?

A:  We were saying words.



Q:  OK, and how long did this go on for?

A:  I would say about 15, 20 minutes.



Q:  OK, did you stay in the room with her the whole time?

A:  No.


Q:  What were you doing?
A:  I was either in the kitchen or the bath.  Like I say, it was a very small apartment.



Q:  Well, obviously, at some point there was a gun that came out that evening, correct?

A:  Yes, there was.



Q:  I want you to explain to the jury very briefly where you were at and how the gun appeared.

A:  Well, she was going back and forth from the guest room to the bathroom, guest room, bathroom, master bedroom.  We were arguing. She had come out and I saw she had a weapon in her hand.  She said she's not going to take any sh*t from any man anymore.  Her life's been abused enough.



Q:  Did you recognize that weapon?

A:  Yes, I did.


Q:  What weapon was that?

A:  Mine.  My off-duty weapon.



Q:  And how long have you owned that weapon?

A:  About 25 years.

Q:  At any time in your relationship, did you give the weapon to Ms. _____?

A:  Yes, I did.



Q:  How long did she have that weapon in her possession?

A:  A few months.  At least three, four months.


Q:  So she comes out with the gun.  She makes that statement about the gun.  What happens at that point?

A:  First I was in shock.  And then, it's what the hell's going on.  And that's when she said, she's not going to take abuse from any man anymore, and she started waving it.  And I saw an opportunity and I started to wrestle it out of her hand.



Q:  OK.  Now, obviously the gun went off?

A:  Yes, sir.



Q:  Can you say whether or not it was you that pulled the trigger?

A:  I couldn't tell you for sure if it was my hand or her hand.



Q:  Basically, would you classify it as an accidental discharge?

A:  Yes, sir.



Q:  Did you feel that was the force necessary based on the fact you had a gun pointed at you?

A:  Yeah.  I was afraid for my life.



Trial transcript, page 240 cross-examination of Nicholas Lucanegro by the Prosecutor
Q: Okay. And you’re telling us that you’re about four or five feet away from her and she points the gun at you, right?
A: She was waving it erratically.

Q: She was waving it around?
A: Erratically.

Q: All right. And you went ahead and claimed that you saw an opportunity to wrestle the gun away from her; is that right?
A: Yes.

Q: All right. What opportunity was that?
A: When I saw that chance – when it wasn’t facing towards me.

Q: Excuse me?
A: When the weapon wasn’t facing towards me that’s the opportunity I took advantage of.

Q: So how did you wrestle the gun away from her?
A: I grabbed it from her hand and got it away from her. As I was getting it away from her, it misfired and accidentally went off. And then I took it out of her hand.



HER STORY

In the deposition testimony of the alleged victim, given on July 19, 2007 (three months after the event, and nine months before the criminal trial of April 30, 2008 - notice what is missing here that was added nine months later - and notice a key inconsistency):

Q:  So, basically ... you guys were in the living room at the time of the gunshot?

A:  Yes, I had just stepped out of the doorway of the bedroom.

Q:  OK, and then you headed -- you said you ran back to the spare bedroom?

A:  The closest bedroom was here.



Q:  OK.

A:  The problem with that was I didn't have a phone.



Q:  OK.

A:  Phone's in the living room.



Q:  OK.

A:  Or actually the phone's in the kitchen.



Q:  OK.

A:  By the toaster.  So at first I was listening and I can hear him in the bathroom picking my stuff up.  I can hear my makeup clinking together; so I figured he was occupied.  I opened the door.  And I thought that it was a very big bolt.  But I bolted from the living room into the kitchen and grabbed the phone and I was going to do 911 in the kitchen.



Q:  Right.

A:  But then I decided I'd be safer if I went back into the bedroom and locked myself back in.



MORE FACTS
What jumps off the page, ladies and gentlemen, is that at trial, the jury heard two very, very different versions of the events - one from the alleged victim, and the other from Nick.  There were no other witnesses to what happened in that apartment on the night of April 16, 2007.  Either the jury was going to believe Nick, or they were going to believe the ex-girlfriend.   Unfortunately for Nick, the Charlotte County prosecutor's office wasn't deterred by this he said/she said scenario, nor by the rather improbable story told by the ex-girlfriend.  They went full steam ahead with their criminal prosecution of Nick, knowing full well that if he were to be found guilty of aggravated assault, he would be doomed to a 20 year prison sentence.

During the sentencing phase of Nick’s trial Judge Porter stated: “It’s my interpretation of the law that I don’t have discretion, that I must sentence the 20 years; and I’ll go on record that based on this Defendant’s background, that it is a very harsh sentence. I think it’s harsh, but I took an oath to uphold and obey the law myself, and my interpretation of the law is that I must do that.”

 Also unfortunate for Nick is that his trial attorney did not think to impeach the girlfriend's testimony with the fact that she gave a different story at her deposition, nine months earlier.

Adding insult to injury was the fact that the trial judge would not allow the jury to see a letter that the ex-girlfriend wrote to Nick while he was awaiting trial, a letter which could hardly have been written by a woman who had been shot at by him.  In order to protect the identity of the "victim," we are not publishing the letter.  But the contents of it, and other actions she took following the night of April 16, 2007, indicate to us, at least, that what she testified at trial is far from the actual truth.

On April 26, 2007 the charging document against Nick states that this information is “filed in good faith and certifies that the testimony under oath from the material witness would constitute the offense charged.”

However, in a request sent to the Charlotte County Clerk of Courts asking for a copy of the sworn statement “testimony” of the only material witness, the Clerk’s office reply on March 20, 2015 was that the Clerk’s office does not have that document in Mr. Lucanegro’s case file. Nor does the Clerk’s office have a copy of waiver of Miranda rights.

The same request was made to the Office of the State Attorney on May 5, 2015. The reply: “We are unable to locate a sworn statement of the material witness or the Miranda.”

The only material witnesses are those who were in the apartment at the time of the incident … the “victim” and Nick.

Nick stood his ground in his home and protected himself and now he sits in prison, his health declining and serving an unjust mandatory minimum sentence of 20 years.


“Tragedy is like strong acid – it dissolves away all but the very gold of truth.” ― D. H. Lawrence

If you imprison a just man in an unjust system
Then the only place for a just man is in prison ― Nick Lucanegro


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