Jacobs’ Testimony Differs in Retrial : Search for Gang Member, Not U-Turn, Led Him to Stop Penn, Officer Says

In testimony that differs in emphasis from his court statements of 11 months ago, Police Agent Donovan Jacobs told jurors Wednesday in the retrial of Sagon Penn that he stopped Penn’s truck before a deadly 1985 confrontation in Encanto because he believed the vehicle contained members of a black youth gang.

In Penn’s first trial, Jacobs testified that he pulled Penn over for questioning after Penn made an illegal U-turn in front of him, an action disputed by numerous other witnesses and by evidence that the turning radius on Penn’s truck made such a maneuver impossible on 65th Street.

But under questioning from Deputy Dist. Atty. Michael Carpenter on Wednesday, Jacobs said he pursued the pickup truck Penn was driving home in with several friends after an outing in Balboa Park because he suspected it contained “Crips” gang members who may have been connected with a crime that had just occurred elsewhere in the neighborhood.

“I saw someone in the bed of the truck . . . wearing a black hat and shirt,” Jacobs recounted. “He was possibly a gang member, and the remainder of persons could have been gang members, so I felt I should see whether they were involved with” the earlier incident.

While Jacobs said he noticed a U-turn, he did not cite it as the reason for the traffic stop. The officer, who has been assigned to desk duty, will continue his testimony today.

Penn, 25, was acquitted in June of murder and other major charges in the March 31, 1985, slaying of Police Agent Thomas Riggs and the wounding of Jacobs and a civilian observer in Riggs’ patrol car. He is being retried on five charges--ranging from assault to attempted murder--on which the first jury deadlocked.

Prosecutors are attempting to prove that Penn triggered the fatal episode by refusing Jacobs’ request that he remove his driver’s license from his wallet and resisting legitimate attempts by the two officers to arrest him.

Defense attorney Milton Silverman, meanwhile, argues that a “racist” and “enraged” Jacobs attacked Penn, who is black, with his fists and police baton, prompting Penn to grab the officer’s revolver and shoot Jacobs, Riggs and civilian Sarah Pina-Ruiz in self-defense.

Carpenter’s use of Jacobs as the debut prosecution witness came as a surprise to observers packed into Superior Court Judge J. Morgan Lester’s courtroom Wednesday. In the first trial, the 30-year-old officer was one of the final witnesses the district attorney called to the stand.

But prosecutors apparently sought to establish for jurors early on Jacobs’ version of the episode at the center of the trial, as it differs considerably from the account that many eyewitnesses provided in the first trial.

Holding his left arm--semi-paralyzed in the shooting--tightly to his side, Jacobs walked quickly into the courtroom and smiled at the jury as he made his way to the stand. Dressed in a gray suit with his blond hair slicked back, the officer seemed slightly nervous and answered questions earnestly, slowing his responses only when asked about details of the shooting.

Aside from providing a different reason for stopping Penn’s truck, Jacobs’ three hours of testimony varied little from his courtroom account of a year ago. In particular, Jacobs insisted it was Riggs and not he who was involved in the initial scuffle with Penn, testimony that conflicts with that provided by numerous other witnesses in the first trial.

After he pulled into a driveway behind Penn’s truck, Jacobs said, he got out of his patrol car and asked Penn for his driver’s license. Instead of providing the license, Jacobs said, Penn “tried to hand me his wallet . . . I said I can’t take the wallet (because of department regulations). I need to see your driver’s license.”

Penn continued to offer his wallet, and Jacobs continued to insist that he remove the license, an exchange that went on “maybe three or four” times, Jacobs said. Then, he testified, Penn turned and walked away, saying “in an angry voice, ‘Don’t you touch me.’ ”

Because of such behavior, Jacobs said, his belief that Penn might be the gang member he was seeking was strengthened.

Carpenter: “Did Penn’s actions raise your suspicions?”

Jacobs: “To a certain degree . . . Somebody who walks away from a police officer tells me something. Normal citizens don’t walk away from a uniformed police officer.”

At that point in his testimony, Jacobs’ memory weakened. He said he walked around the patrol car, intending to head Penn off, and “the next recollection I have, Penn is in a fight with Tom Riggs.”

While witnesses in the last trial testified that Jacobs was the first officer to hit Penn, Jacobs said he came upon Riggs with his baton “up in front of his face and Penn was throwing blows at him, and he was blocking blows with his baton.”

Jacobs said he then struck Penn four or five times on the back with his baton.

Carpenter: “What is the purpose of using the baton on Sagon Penn?”

Jacobs: “To cease the attack on Tom Riggs. If he stops . . . the batons go back in and we effect the arrest. We’re not there to beat people. We’re there to get the job done.”

Soon after, Jacobs said, he and Penn fell to the ground, with Penn landing on his back and the officer on top of him. He could not recall how the pair wound up on the ground. Jacobs said he ordered Penn to turn over so he could be handcuffed, but that Penn refused.

Carpenter: “How could he turn over (with you on him)?”

Jacobs: “At that time I weighed 165 and it was possible for him to turn over. I was preventing him from getting up but not from turning over.”

Then, the officer felt a tug on his holster and decided that if “this guy’s gonna go for my gun, then it’s no holds barred.” So, he said, he hit Penn in the chest and then attempted to reach for his handcuffs.

“At that point that’s when I got shot,” Jacobs recalled. “Only thing I have a picture of in my mind is of him with the gun, and then I saw a flash.”

Jacobs said he heard screaming and gunshots as he lay there, unable to move, but he did not see Penn shoot Riggs or Pina-Ruiz. Then, he said, he remembered looking up to see the undercarriage of a car as he was run over by Penn, who fled the scene in Jacobs’ patrol car and later turned himself in to police.

Earlier Wednesday, Silverman concluded his opening statement, which spanned two days and involved numerous props plucked from a table cluttered with evidence in paper grocery sacks. In typically dramatic style, the defense attorney assailed Jacobs’ conduct and told jurors that it was the officer who was to blame for the 1985 encounter’s deadly consequences.

“The evidence will show that it was Jacobs who started the altercation, and it was Jacobs who started swinging wildly at Penn’s head, and it was Jacobs who sat atop Penn and called him nigger and said, ‘You think you’re bad, I’m going to beat your black ass,’ . . . to give meaning to what he was doing,” Silverman said.

To enhance his case, the defense attorney employed a 1978 transcript of a Police Academy counseling session in which Jacobs, then a recruit, is upbraided by three superiors for his willingness to use racial epithets in police work.

“What we have here in this transcript is a chilling prophecy of the events of March 31, 1985,” Silverman said.

He argued that Jacobs’ behavior toward Penn triggered the shootings and capped “a pattern” of character problems that made Jacobs unwilling to “see himself not dropping this nigger.”

The 36-seat courtroom was mostly filled during Wednesday’s proceedings. For the first time during the trial, Colleen Riggs, Officer Riggs’ widow, was in the audience.