Judge Admonishes Prosecutor for Hinting Penn Belonged to Gang

Superior Court Judge Ben W. Hamrick on Thursday chided prosecutor Michael Carpenter for taking a “cheap shot” when he implied that a tattoo on Sagon Penn’s left hand could have indicated he was a gang member.

“Up to now you have tried to get in the evidence in such a way that he could say he has had a fair trial,” Hamrick told Carpenter while the jury was out of the room. “But this is a cheap shot.”

When the jury returned, Hamrick told the jurors: “You’re instructed that based on the evidence you would have to find that (Penn) is not a gang member. You are to disregard totally the testimony of Officer Salvatierra concerning the tattoo and its significance.”

The judge acted after defense attorney Milton Silverman complained bitterly that Carpenter unfairly suggested that Penn was a gang member after police experts had testified that he was not.

Penn is on trial for a March 31, 1985, shooting that left Police Agent Thomas Riggs dead and Agent Donovan Jacobs and civilian ride-along Sarah Pina-Ruiz wounded.

The dispute over the tattoo arose Wednesday, when Carpenter asked police Detective Alfonso Salvatierra to inspect a tattoo on Penn’s left hand. Moments earlier, Carpenter had asked Salvatierra if there are gang members who are not known to police, and he answered “yes.” Salvatierra, who served on the department’s gang detail for six years, had testified at the preliminary hearing and again Wednesday that Penn is not a gang member.

However, Carpenter pointed to a tattoo of a Playboy rabbit on Penn’s hand and asked Salvatierra to comment. The detective said that the tattoo did not mean anything to him but added that there is a local black gang called the Playboy Bunnies. Then Salvatierra said that the tattoo could mean that Penn is a “player”--a man with an abundance of women friends.

But an angry Silverman complained that the damage had already been done when Salvatierra testified that not all gang members are known to police. Silverman jumped up and asked, “Well, is he or isn’t he?”

“To my knowledge he is not,” Salvatierra said.

On Thursday, Silverman threatened to ask for a mistrial because of Carpenter’s action.

Carpenter responded that the tattoo indicated “some evidence” that Penn may be affiliated with a gang. But Hamrick disagreed.

Hamrick later tempered his criticism of Carpenter, whom he called a “reputable, hard-working prosecutor.”

Thursday’s session also included an unusual dispute between Silverman and Carpenter over a taped confession given by Penn to police. Hamrick noted that, under normal circumstances, Carpenter would be arguing that the confession be entered into evidence. But Carpenter argued that it would be unfair to his case if the confession were to be introduced.

Silverman countered that Carpenter did not want the confession entered as evidence because it contained exculpatory evidence.

“The gist (of the confession) is that the defendant turns himself in to the police and spills his guts,” Silverman said. “ . . . Isn’t it interesting that Mr. Penn within half an hour (of the shooting) is spontaneously spilling his guts? . . . And a year later the prosecutor says, ‘No, I don’t want that in because it’s exculpatory.’ ”

Silverman argued that Penn “told the truth and spilled his guts to these police officers,” but Carpenter responded that Penn’s taped statement was not spontaneous. The prosecutor called Penn’s statement “self-serving and untrustworthy” and said that he made it only after reflecting on what he should tell police.

“He (Penn) is attempting to justify his action to everybody he comes in contact with. That is completely untrustworthy,” Carpenter said.

But Silverman said that Penn’s statement parallels most of the testimony about the shootings that Hamrick has heard during the trial. Several witnesses have testified that Penn was provoked by police, who beat him and used racial slurs when they attempted to arrest him. The defense attorney said that Penn’s nervousness and excited state at the time of his confession prove that he did not have time to reflect on what he would tell police.

Carpenter continued with his argument that the confession was not spontaneous and it was self-serving.

“But a spontaneous declaration is usually self-serving,” Hamrick said. “ ‘My brakes failed,’ that’s self-serving . . . but a lot of times it comes in as a spontaneous declaration. . . . If there were no eyewitnesses and he (Penn) showed up at the police station, the district attorney would be the first one to want to introduce this statement because it is incriminating.”

Several witnesses have testified that Riggs and Jacobs called Penn “nigger.” The witnesses also testified that Jacobs beat Penn repeatedly with his fists, while Riggs beat him with two police batons.

During his scuffle with police, Penn removed Jacobs’ service revolver from its holster and shot Riggs, Jacobs and Pina-Ruiz. After the shootings, Penn fled in Jacobs’ patrol car to his grandfather’s house. The grandfather then drove Penn to the police station, where he turned himself in.