In the first major surprise of the 11-week retrial of Sagon Penn, a black police officer testified Tuesday that he was threatened by Police Agent Donovan Jacobs after he criticized Jacobs for manhandling a young black man and calling him "boy."
Billy Irving Anderson, an officer with the San Diego Community Colleges police force who earlier had served for eight years as a patrol officer in the San Diego Police Department, said Jacobs engaged in "conduct unbecoming an officer" in the incident just weeks before his confrontation with Penn in Encanto on March 31, 1985.
The testimony, which caught prosecutors off guard, echoed the themes defense attorney Milton J. Silverman has emphasized as he has sought through both of Penn's trials to portray Jacobs as a racist hothead who instigated the encounter in which Penn wounded Jacobs and shot Police Agent Thomas Riggs dead.
Anderson, an East San Diego resident, said he was parked outside Greene Cat Liquors at Imperial Avenue and Euclid Street on a Saturday afternoon in March, 1985, when he saw an officer he identified as Jacobs park his patrol car.
Under questioning by Silverman in San Diego County Superior Court, the veteran officer described the incident:
Jacobs gestured to a black teen-ager who was crossing the parking lot, calling to him: "Come here, boy." The youth responded angrily: "I ain't your . . . boy."
Jacobs then grabbed the youth by the scruff of his neck, "pulled him roughly over toward his car and slammed him against the roof," Anderson said.
Angered at what he was observing, Anderson--who was out of uniform and in his personal car--yelled out to Jacobs. "I told him there was no need to slam that kid around like that--he didn't do anything," Anderson said.
Jacobs--his teeth clenched and his voice sounding "as menacing as possible"--then turned his attention to Anderson, ordering him to "get your black ass over here or you'll find yourself over the roof of this car."
Anderson said the verbal confrontation ended shortly afterward, when Anderson identified himself as a college district police officer.
The account adds pointedly to the ledger of incidents involving Jacobs that Silverman has presented to the retrial jury as evidence of what he considers the police agent's inflammatory conduct toward blacks.
Although Jacobs has denied using racial epithets or harboring ill will toward blacks, several eyewitnesses have testified that he told Penn before the shootings, "You think you're bad, nigger? I'm gonna beat your black ass"--thus sparking the fight that ended in deadly gunfire.
Silverman also has made extensive use of a transcript of a Police Academy counseling session with Jacobs in 1978 that surfaced after Penn's first trial, in which he was found not guilty on the most serious charges against him, including the murder of Riggs.
The defense attorney has argued that the transcript constitutes a "chilling prophecy" of the March, 1985, confrontation. In it, training officers criticize Jacobs for a willingness to use racial slurs and other derogatory language in the line of duty "as long as it gets the job done."
Also, a former police lieutenant has testified that he believed Jacobs had used excessive force in the arrest of a black man, and a motorist said Jacobs was profane and rude when he stopped him for a traffic violation in 1982.
Deputy Dist. Atty. Wayne Mayer, who is expected to continue his cross-examination of Anderson this morning, said after Tuesday's court session that he did not believe the surprise testimony was "very significant." But prosecutors told Judge J. Morgan Lester they wanted to review Anderson's police personnel records to aid their questioning.
Contacted at his home Tuesday, Jacobs declined to comment on Anderson's testimony.
Under cross-examination Tuesday, Anderson acknowledged that the youth he watched Jacobs confront was wearing a cap bearing a Playboy bunny insignia and carrying a bandanna--both emblems of area gangs. He testified, too, that Jacobs appeared to be questioning the youth about a break-in, and that the young man was carrying a metal-toothed comb that could have been used as a weapon.
But Anderson insisted that Jacobs nonetheless acted improperly in interrogating the youth.
"I was concerned that something was happening that was getting blown out of proportion," he said.
Anderson, a 6-foot-tall man with graying hair and a pencil-thin mustache, said he had mentioned Jacobs' conduct to other campus patrol officers in the days after the Encanto shootings. But he came forward to tell the story publicly only after he was contacted last month by Silverman's investigator, former San Diego Police Lt. Robert McDaniel, who was Anderson's sergeant when he was a city patrolman.
In an interview, Anderson said he had seen no reason to tell the story earlier in the protracted court proceedings.
"I figured they had umpteen witnesses already," he said. "I didn't think it was that important, to tell you the truth."
Anderson, who left the San Diego police force in 1976, said he quit because he "got sick of the politics" in the department.
Penn, 25, is being retried on charges on which the jury in his first trial deadlocked while heavily favoring acquittal. The charges include voluntary manslaughter in Riggs' death; attempted murder in the wounding of Sarah Pina-Ruiz, a civilian who was riding in Riggs' patrol car the night of the shootings, and attempted voluntary manslaughter in the wounding of Jacobs, whose left arm remains semi-paralyzed from a bullet wound.