Perjury charge dismissed against former Volusia deputy who is now appealing his firing

A former Volusia County Sheriff’s Office sergeant’s appeal of his firing will go forward now that prosecutors have dismissed a perjury charge against him related to his alleged use of a prohibited neck or chokehold.

The ex-deputy's defense attorney is also critical of the prosecutor's handling of the dismissal.

Jacob Kraker, 38, was fired in September 2020 for violating agency policies, including the unlawful use of deadly force due to his alleged use of the hold, according to the sheriff's office. He appealed his firing on Sept. 22, 2020.

But the appeal process was put on hold once 7th Circuit State Attorney R.J. Larizza’s office on March 16, 2021, charged Kraker with perjury in an official proceeding. Kraker was accused of lying about using a neck or chokehold while working off-duty at an apartment complex.

With the criminal case over, the Volusia County Personnel Board is slated to hear Kraker’s appeal on April 6.

Attorney Gary D. Wilson in Maitland is representing Kraker in the appeal. Wilson declined comment. The sheriff's office also declined comment.

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But someone who does have a comment on the case is Kraker's criminal defense attorney, Mike Lambert.

In dismissing the third-degree felony on Dec. 2, the State Attorney’s Office checked off a box on a form which noted “Arrest is sufficient sanction.”

That did not sit well with Lambert.

“Contemplate that for a minute,” Lambert wrote in an email. “The power of the government exerted against you via an arrest, causing a record, mugshot, humiliation, etc.

“The government then announces, as you begin to aggressively contest it, 'Dismissed, the arrest of him was sufficient punishment.' In this vein, the government gets the cake and eats it as well, precluding a defense.”

Lambert also wrote about the "arrest is sufficient."

"Sufficient to cast doubt on his character, reputation, honesty, integrity, self-respect and self-dignity. Sufficient to have humiliated, embarrassed and brand him? Sufficient to have shown who is boss, who runs the show?" Lambert wrote.

Lambert also wrote that the charging document accusing Kraker of perjury in an official proceeding claimed it occurred from July 25, 2020, through Sept. 15, 2021.

“Not only a 14-month time frame, BUT also for six months AFTER charges were filed, i.e. in futuro. Not only would it take a clairvoyant to so allege, but one cannot charge someone for an anticipatory crime,” Lambert wrote.

Assistant State Attorney Bryan Shorstein, who is a spokesman for Larizza, declined to comment about the case.

“We have no comment beyond the document. It speaks for itself,” Shorstein wrote.

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Prosecutors sometimes file memos about decisions to close cases, but Shorstein wrote that no memo had been written in this case.

Lambert said that Kraker should not have been charged with perjury because such a charge can’t be based on a belief or opinion.

Lambert points to sheriff's office training supervisor Capt. Brian Bosco, who was asked during the investigation whether, in his opinion, Kraker violated policy. Bosco said yes.

“It was a behind the neck takedown, which we do not teach,” Bosco said according to documents.

Bosco went on to say that such a neck hold is considered deadly force and not to be used as a take down.

Sheriff Michael Chitwood fired Kraker on Sept. 15, 2020, for unlawful use of deadly force and other violations, according to a letter listing past issues for Kraker at the sheriff's office.

The sheriff’s office had sustained previous disciplinary actions against Kraker: careless handling of equipment and or vehicle in 2011 and again in 2015, according to the letter terminating him.

The sheriff’s office also sustained complaints of leaving an assigned work area, failure to follow directive or order, and two counts of disregard of or frequent violation of laws or county ordinances, which were all dated from June 6, 2019, according to the letter.

The sheriff’s office also sustained a violation involving knowledge of official directives on July 29, 2020, according to the letter.

The letter terminating Kraker also stated he did not request or receive approval to work off-duty at the apartments.

'Courtesy officer' in Port Orange

The incident that led to Kraker's firing and criminal charges happened after he moved on June 1, 2020, to the Sanctuary at Westport Apartments in Port Orange. He received a $600 a month discount on his rent to serve as a “courtesy officer.”

On July 25, 2020, Kraker received a noise complaint about people being in the pool after hours. He grabbed his badge and, dressed in civilian clothes, walked to the pool.

Kraker asked the men to leave. But one, Dane Wehr, who was drunk and celebrating his 21st birthday, refused and threatened Kraker with a beating, according to statements Kraker made during an internal affairs investigation interview with the sheriff’s office.

Kraker stated that when he crouched down to show his badge to Wehr, Wehr snatched it, swam around the pool with it and then tossed it on the pool deck, according to documents. A security video captured that, according to documents.

Wehr, who stood 6 feet 4 inches and 245 pounds, then got out of the pool and got in Kraker’s face, according to Kraker's statements.

Kraker said that Wehr “shoulder checked” him or bumped into him several times, according to the interview.

Kraker stated he grabbed Wehr to control him and ended up taking him down onto a pool chair next to the pool. Kraker said he told Wehr to stop and seconds later Wehr ran from the pool.

When asked if he used any type of neck hold or chokehold or any variation of one, Kraker said “no.”

Kraker, who had called Port Orange Police, said that because he lived at the complex and Wehr was celebrating his 21st birthday he didn’t press changes, saying he didn’t want to ruin Wehr’s life.

The aftermath

The following day when a supervisor from the Volusia County Sheriff’s Office talked to Wehr, Wehr said Kraker had placed him in a “rear naked choke” completely restricting his breathing, according to documents.

Wehr said he “submitted” to Kraker by “tapping out” and Kraker released him, according to documents. The supervisor said he did not observe any visible injuries on Wehr.

But during a subsequent interview with the sheriff’s office, Wehr stated he was intoxicated and remembered little of the incident.

Wehr said in the interview about Kraker “He just laid me down onto a pool bench thing. Just took me by my back and put me down there.

“Very relaxing, calm manner in my mind. It was nice, it was, you know, just a nice little settle down moment kind of thing,” Wehr stated according to the documents.

When asked why his statement was different, Wehr said he had been initially mistaken about the chokehold. He said he had subsequently apologized to Kraker at the apartment complex and had asked Kraker whether it was a chokehold and Kraker had said no. Wehr said his friends had also told him it was not a chokehold.

Wehr, who previously lived at the complex, had talked to Kraker before the confrontation at the pool, documents state.

In interviews with investigators, Wehr’s two friends at the pool that night described the hold as a chokehold or “like a chokehold” or a hold with his arm around the neck, according to documents.

This article originally appeared on The Daytona Beach News-Journal: Former Florida deputy's perjury charge dismissed in chokehold case