Defense Rests; Penn Not Called to Stand : Rebuttal Phase Begins as Officers Praise Jacobs; Judge to Rule on Personnel Files

The defense rested its case Monday in the murder trial of Sagon Penn without calling the 24-year-old Southeast San Diego man to testify why he shot and killed one police officer, seriously wounded another and injured a civilian ride-along.

Defense attorney Milton Silverman said that, after deliberating for weeks, he decided on Sunday not to call Penn because he is satisfied with the evidence in the case and with witnesses’ accounts of the shootings.

“What is he needed for?” Silverman said of Penn. “He is really gratuitous. If we didn’t have 39 eyewitnesses at the scene who could testify impartially and objectively about what they saw, then certainly it would be a different story.”

Numerous witnesses have said during the 10-week trial that San Diego Police Agents Thomas Riggs and Donovan Jacobs repeatedly struck Penn with night sticks and Jacobs used racial slurs during the attack. At one point, according to witnesses, Jacobs was on top of Penn, punching him in the face and shouting: “You think you’re bad, nigger! . . . I’ll beat your black ass!”

According to those witnesses, Penn reacted by taking Jacobs’ weapon and shooting the officer in the neck. He then turned and fired three shots at Riggs, who died moments later, and shot twice at Sarah Pina-Ruiz, a civilian observer who was wounded while sitting in the front seat of Riggs’ patrol car.

Testimony continued Monday during the rebuttal phase of the trial as Deputy Dist. Atty. Michael Carpenter began calling police officers, who discussed Jacobs’ outstanding reputation as a seven-year member of the Police Department.

The prosecution strategy to contradict defense witnesses who were critical of Jacobs’ aggressive conduct appeared to backfire when Superior Court Judge Ben W. Hamrick indicated that he may allow Silverman to examine Jacobs’ police personnel file.

Since he took over the case in the fall, Silverman has tried unsuccessfully to gain access to the personnel files to investigate defense claims that Jacobs has a history of using excessive force and of racial bias. Despite objections by the city attorney’s office, which is representing the Police Department, Hamrick said Monday that he believes the defense should have access to at least parts of the file because Jacobs’ character has become a central issue in the case.

Hamrick said he will rule on the personnel files today.

During the next couple of days, a parade of police officers and supervisors are expected to take the stand. On Monday, Jacobs’ captain, sergeant and a fellow officer testified on his behalf. Eight more officers were waiting outside the courtroom to testify when Monday’s session ended.

Capt. George Malloy, commander of the police Southeastern Division station, described Jacobs as an “informal leader, businesslike in his approach, very professional and dependable.” He confirmed several commanding-officer citations awarded to Jacobs for his exceptional police work in several areas, including narcotics arrests.

Malloy said he based his praise of Jacobs on police evaluations, private conversations, discussions with supervisors and observation of Jacobs’ demeanor around the police station. But under cross-examination by Silverman, Malloy acknowledged that he had not reviewed Jacobs’ personnel file recently and could not recall any specific conversations with Jacobs’ supervisors. He said he had talked with Jacobs about five times, and the longest conversation lasted about 15 minutes.

Malloy said he was not aware that Jacobs had worn a medallion bearing the word “CLIK” into the Police Department’s Northern Division station as a joke after he and three other officers had been admonished by a sergeant for forming a clique. The officers were reassigned to separate divisions and ordered to stop being too “buddy-buddy,” Jacobs testified during Penn’s preliminary hearing.

“If it was intended as a joke to countermand authority, that’s not acceptable and appropriate action should have been taken,” Malloy said.

Carpenter also used the police witnesses to attack the credibility of former police Lt. Doyle Wheeler, who testified last week that Jacobs was “a hothead and . . . had some problems with bias and racism.”

Sgt. James Duncan said that he would not believe Wheeler even if he testified under oath, and Officer Alexander Lutzi Jr. called Wheeler “a very untruthful person.” The officers also provided several cases in which Wheeler purportedly lied, but admitted they had no firsthand knowledge of the incidents.

Lutzi, who worked under Wheeler for a year on the police narcotics street team, said he believed Wheeler was untruthful because he had evidence that the former lieutenant had fraudulently reported a $300 leather jacket stolen from his house and collected the money from his insurance company.

Lutzi said he mentioned the jacket to the detective investigating the burglary, but failed to write a police report on the incident, even though he knew it was a felony.

“It’s a very sticky situation when you’re talking about family,” Lutzi said. “Mr. Wheeler at the time was married to my godfather’s daughter. I am very close to my family . . . and I just did not do anything to arrest Doyle Wheeler.”

The defense rested its case after Carolyn Cherry returned Monday for cross-examination by the prosecution.

Cherry, a Navy housing officer, testified on Thursday that Pina-Ruiz told her less than a month after the shootings that she had been unable to see anything because “it all happened so fast.” Two weeks ago, Pina-Ruiz testified in detail that she had stared into Penn’s eyes, saw the barrel of the gun, and believed she would die.

On Monday, Cherry said that she no longer sympathized with Pina-Ruiz after the wounded civilian came into her office to apply for military housing. Cherry said that Pina-Ruiz initially played the role of a sick victim during a 30-minute meeting, but her demeanor changed once her husband, who is in the Navy, left the room.

Pina-Ruiz became talkative, joked that her husband would have received $25,000 in life insurance had she died, and danced in her chair to the radio rock music being played in the office, Cherry said.

“I felt sorry in the beginning when she first came into the lobby, but my opinion changed when I saw her sitting there dancing and making jokes about that,” Cherry said. “ . . . She wasn’t as much a victim as the media had pointed her out to be.”

Cherry added that the normal wait for Navy housing for Pina-Ruiz would have been three years, but the shooting victim was given priority after the San Diego Police Department requested that she receive special assistance.

Pina-Ruiz and Jacobs are expected to be recalled to the witness stand by the prosecutor later this week.