Penn Trial Testimony Ends With Playing of Secret Tape

After nine weeks and appearances by scores of witnesses, testimony ended Thursday in the murder trial of Sagon Penn with the dramatic production by the defense of a secret tape-recording contradicting some of the claims of the wounded civilian ride-along who is a key prosecution witness.

Over the prosecution’s fierce objections, Navy housing worker Carolyn Cherry told a San Diego County Superior Court jury that she secretly recorded a conversation with the ride-along, Sarah Pina-Ruiz, when she came to a Navy office about two weeks after Penn shot her, killed a police agent and wounded another officer March 31, 1985.

On Tuesday, defense attorney Milton Silverman had asked Pina-Ruiz detailed questions about her conversation with Cherry--questions that turn out to have been drawn from a transcript of the secret tape.

Pina-Ruiz strongly denied talking to Cherry about wounded Police Agent Donovan Jacobs. She also said she was “sure” she had not outlined for Cherry the sequence of the gunshots--that Penn shot Jacobs and killed Agent Thomas Riggs before firing at her as she sat in the front seat of Riggs’ patrol car.

But the scratchy, barely audible, 17-minute tape--recorded by Cherry, a church choir director, over gospel music she had been listening to at her desk--belied Pina-Ruiz’s testimony on both those points.

According to a transcript of the recording, Cherry asked Pina-Ruiz about Jacobs, whom she called “Officer Donovan.”

In a rambling reply, Pina-Ruiz said, “He was involved, so--no, he was--he was involved . . . I don’t think he’s gonna be aware of what went around.”

Moments later, as the two women continued to discuss the shootings, Pina-Ruiz explained the sequence of shots fired by Penn. “He shot them both,” she said. “I was the last one he shot.”

The relative credibility of the two women--who met when Pina-Ruiz and her husband went to Cherry’s office April 17, 1985, to be assigned Navy housing--became a central issue in the trial’s waning days.

Cherry had testified two weeks earlier that Pina-Ruiz told her she had not seen anything the night of the shootings, because “it all happened so fast.” That statement was made before she started the tape-recording, Cherry testified Thursday.

Pina-Ruiz denied making that statement. Instead, she stood by the extraordinarily detailed description of the shootings that she offered a month ago, when she first testified in the trial.

In the earlier testimony, Pina-Ruiz described how Penn pulled back the hammer of Jacobs’ revolver and how blood splattered from Jacobs’ neck as he was shot. She said Penn then looked her in the eye and fired at her twice, hitting her in the left arm and back.

Deputy Dist. Atty. Michael Carpenter argued vigorously Thursday against allowing Cherry’s tape to be presented as evidence.

He said Cherry was “evasive” when she first testified April 24 about the conversation with Pina-Ruiz, admitting she took notes of the discussion but failing to reveal then that she had recorded it. Cherry, he said, had “an ulterior motive” for taping the conversation, though he did not specify what the supposed motive was.

Carpenter also cited technical objections to Silverman’s attempt to introduce the tape in the final rebuttal stage of the trial.

“I’m at peril. I’m at a disadvantage now,” the perplexed prosecutor complained to Judge Ben Hamrick. “This, in my opinion, is a classic example of sandbagging.”

But after listening to the tape with the jury outside the courtroom and considering precedents from other cases, Hamrick ruled the recording admissible.

“It appears to me one of the critical issues in this trial is what Sarah Pina-Ruiz actually saw in relation to the shooting of the officers,” Hamrick said. “In the ultimate search for truth, technical rules of what is proper and improper surrebuttal must yield.” He added that he believed the tape was proper rebuttal material, anyway.

Once the jury had heard the recording, Carpenter sought to raise doubts about the believability of Cherry’s claim that Pina-Ruiz had said, before the recorder was turned on, that she was unable to see what took place during the shootings.

Asked repeatedly by Carpenter what prompted her to start the recorder, Cherry varied in her answers. She testified that she wanted to be able to tell her husband about the conversation, but later said she also was concerned by Pina-Ruiz’s behavior and wanted a record in case some sort of problem developed.

Cherry, the final defense witness, also testified that she turned on the recorder because of Pina-Ruiz’s statement about not being able to see anything the evening of the shootings.

At another point in her testimony, Cherry said that Pina-Ruiz’s husband walked out of the office for a few minutes as the couple’s housing forms were being completed. Carpenter noted, however, that Pina-Ruiz had testified that her husband never left the room.

“Do you dispute that?” he asked Cherry.

“I would say she’s lying,” Cherry said of Pina-Ruiz.

“I think she’d say you were lying,” Carpenter shot back. “Does that bother you?”

“Not at all,” Cherry replied.

After Silverman rested his defense, Hamrick announced that he will meet today with the lawyers to hammer out instructions to guide the jurors in their deliberations of the murder and attempted murder charges against Penn, 24.

Carpenter and Silverman on Monday will begin their closing arguments, which are expected to last three to four days.