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Highlands Today

Jury Frees Man Who Shot His Wife

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By Dan  Fearson | Highlands Today

Published: October 17, 2007

Can someone's age play a role in a jury verdict?

David A. Will, 83, of Lake Placid, was found not guilty late Tuesday afternoon by a Highlands County jury for attempted second-degree murder with a firearm.

Will was on trial for shooting his wife, Barbara Will, 63, at their home on 116 Lake Huntley Drive, in Lake Placid, during February 2006, following a dispute. Both Will and his attorney said that his age may have played a factor in the verdict.

"I certainly feel as though (Will's age) played some role in the verdict," said defense attorney Justin S. Gaines of Lakeland.

"I think there were a number of factors, but yes, I do think that my age was probably one," said Will, during a phone interview Wednesday morning.

If he had been convicted, Will, who suffers from chronic obstructive pulmonary disease and experiences problems breathing, more than likely would have been sentenced to live out his remaining days in prison.

In May, Will had a trial that resulted in a hung jury.

"I think that following (the hung jury verdict) the state could have come up with more appropriate charges, which may have led to a conviction," said Gaines.

During Tuesday's trial, Will contradicted testimony he made during his previous trial and information that he provided to law enforcement following the shooting.

Arrest reports provided by the Highlands County Sheriff's Office indicate that Will admitted to shooting Barbara in the upper right triceps area of her arm. According to the reports, Will told investigators that he fired the shot in the air to prevent Barbara from calling 911. The wound shattered a bone in Barbara's arm and required surgery.

When Will took the stand Tuesday he stated that he could not recall all of the proceedings that took place after he picked up the handgun, which was fired at Barbara, and said that the incident was an accident.

"I started thinking about things differently while I was in jail, and my story started to change," said Will.
"My opinion is that (Will's) age and the way he presented himself as more feeble, probably played a role in the verdict," said prosecutor John Kromholz. "He probably received a little bit of sympathy from the jurors. I've done this for a little over 14 years and sometimes you get verdicts that are just 'wow' verdicts, and you have to move on."

Will, who was an inmate at the Highlands County Jail, was released following his trial, and spent Tuesday night at a friend's house.

"I feel like I'm on the moon," said Will. "I've spent the last 20 months in jail."

Will said he made a trip to get his driver's license back Wednesday morning, and that he was going to try to get "reorganized, rehabilitated, and back into the mix" of living his life.

Trial Details

Gaines' defense relied on repeatedly telling jurors that the shooting was accidental. He said that Will had no intent to injure or murder his wife.

Kromholz argued that the shooting was not an accident and showed pictures indicating bullet holes in the Will home, where David had shot at Barbara in the past in an attempt to scare her.

Jurors had four options when presented with instructions about the verdict they could make. Options included charges of attempted second-degree murder and lesser charges of attempted battery, attempted manslaughter or a verdict of not guilty.

Jurors took about three hours to deliberate, and lawyers had to be recalled into the courtroom multiple times because the jurors had questions, including whether the counts were the only options they had to choose from and whether testimony from Will's previous trial could be heard.

Will had previously been arrested in 1995 and 2004 for domestic violence and battery charges. Will told investigators in his arrest report that he "didn't want to go back to jail, so he fired the shot in the air to get (Barbara's) attention."

"He has admitted to shooting his wife. Whether or not he intended to kill her is not a viable defense," said Kromholz. "But he's been found not guilty. So in our system, the man is not guilty."

Gaines said that the state can no longer seek charges in the shooting incident. An injunction against Will remains intact, which limits his ability to be around Barbara.

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