Audiotape Yields New Evidence in Beating Case

Although Riverside County sheriff’s deputies did not know it, a California Highway Patrol officer tape-recorded a clash between the deputies and suspected illegal immigrants, and a copy of his tape shows that the deputies tried to order the suspects down on the ground but did not give any commands in Spanish until after striking the man and woman.

Just moments after the beating was over, CHP Officer Marco DeGennaro described it to a supervisor by saying that the deputies “were whaling on those guys,” according to the tape, a copy of which was obtained by The Times. That supervisor responded by asking whether cameras had recorded the incident. DeGennaro said that they had but that “nothing happened on CHP side.”

In addition, sources said that DeGennaro, who is considered potentially the most important witness in the case, told investigators from the Los Angeles County Sheriff’s Department and the FBI that he could see the hands of one suspect and did not perceive him as threatening. DeGennaro also told investigators that he never felt threatened, and he described the male beating victim as looking confused and disoriented as a deputy clubbed him with a baton, sources said.

DeGennaro, 26, a relative newcomer to the Highway Patrol, has provided material not only to investigators but also to lawyers for Deputies Kurt Franklin and Tracy Watson, both of whom have been suspended with pay while the investigation proceeds. He was interviewed by investigators last week and again Monday and has agreed to be interviewed by defense lawyers as soon as it can be arranged, said DeGennaro’s lawyer, Harland W. Braun.

“He wants to be cooperative with everyone,” said Braun, a Century City criminal defense attorney who represented Officer Theodore J. Briseno in the federal Rodney G. King civil rights case.

Although his tape and testimony could prove damaging to the deputies in some respects, DeGennaro’s evidence also may help them in at least two ways: The tape-recorded comments suggest that the deputies were trying, however unsuccessfully, to order the suspects to the ground, and they bolster the contention that the deputies had lost radio contact with their supervisors by the time the chase ended.

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Those disclosures could help demonstrate that Watson and Franklin were not deliberately disobeying any orders and could suggest that their intent at the scene was to arrest the suspects, not beat them. A lawyer for one deputy seized on that point and said he believed that the tape would help prove that his client was not guilty of criminal wrongdoing.

“What’s very clear from this tape is that they’re attempting to get the people to comply,” said John D. Barnett, Franklin’s lawyer. “At the very least, it establishes that the motive for their conduct was a legitimate police purpose.”

Michael P. Stone, Watson’s lawyer, agreed, calling the tape “a very important piece of defense evidence” that would demonstrate that the deputies only intended to make arrests, not to punish.

Barnett acknowledged that the English-only commands at the outset of the incident underscored a potentially serious communications problem between suspects and deputies, but emphasized that what was at issue from a legal perspective was the deputies’ intent. And Barnett, arguing that the tape features the deputies attempting to gain compliance with lawful orders, said he believes that it will strengthen the argument that their intent was to arrest the suspects, not beat them.

The tape, whose existence was unknown to investigators until this weekend, provides a soundtrack to the explosive videotaped images of Franklin and Watson as they struck two illegal immigrants at the end of a harrowing high-speed chase. Those images were broadcast worldwide, caused an international uproar and led the deputies’ own boss, Riverside Sheriff Larry Smith, to publicly denounce them for using excessive force.

The videotape is also at the center of a joint federal-local criminal investigation and a Riverside County internal affairs probe. Those investigations are exploring whether Watson and Franklin violated department policies or state and federal laws limiting the force that officers can use to make an arrest.

Although the existence of DeGennaro’s audiotape took investigators by surprise, it is increasingly common for police officers to carry their own tape recorders as a way of protecting themselves against false accusations. DeGennaro turned on his tape recorder just as he joined the pursuit and appears to have forgotten to turn it off afterward.

Lawyers on both sides of the issue said the audiotape could be key to a full understanding of what really happened at the end of the 80-mile chase.

As the tape begins, DeGennaro can be heard joining the chase, which was passing him westbound on the Pomona Freeway just west of the interchange with the San Gabriel River Freeway.

Moments after joining the pursuit, DeGennaro, his voice taut, radioed to his dispatcher: “They’re coming to a stop just west of Peck Road.”

The tape then erupts in confusion, and seconds later the voice of one of the deputies can be heard yelling: “Get down! Get down! Get on the ground. Put your hands on the ground!”

In the background is traffic noise and the sound of a helicopter overhead, mingled with thumping sounds that appear to resemble baton blows. Two voices shout for suspects to get down, but neither delivers those orders in Spanish, which could explain the suspects’ failure to comply with that order, since neither speaks English.

Only after shouting at the suspects to “stay down” do the deputies deliver their first order in Spanish, yelling “Manos aqui,” Spanish for “Hands here.”

Stone said his client, Watson, speaks only rudimentary Spanish, and stressed that he should not be held accountable if his language skills failed him during the altercation.

“That’s just too much to expect of anyone,” said Stone, a former police officer who said he learned a few phrases during his law enforcement career but would have difficulty using them under extreme stress.

On the videotape, one deputy can be seen striking the male suspect, Enrique Funes Flores, three times as DeGennaro speaks into his radio microphone. On the audiotape, those blows can be heard as DeGennaro tells a dispatcher that the officers have three suspects in custody and as the deputy yells “Manos aqui.”

Barnett said he could not comment in detail on the language barriers that may have hampered communication at the scene, but said the repeated shouts of the deputies make it clear that they were struggling to get the suspects to comply. Why the suspects failed to obey their order, according to Barnett, is less significant than that they did not get to the ground when ordered to.

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Because of that, he said, the deputies may have perceived them as resisting arrest. Deputies are not permitted to strike a suspect merely for failing to comply with an order. To justify using a baton as a weapon, officers must reasonably believe that the suspect poses a threat; under Riverside sheriff’s policies, deputies are expected to first attempt other ways of subduing a suspect, such as using pepper spray.

In his interview with investigators, DeGennaro said he never perceived any threat to himself and did not see anything that he interpreted as a threat to the deputies, sources said. But DeGennaro also stressed that his attention was frequently diverted by the man he had subdued, whom he was standing over as the incident unfolded. DeGennaro took one person into custody without striking him or using pepper spray, and tried to signal another to drop to the ground--actions that won him praise from use-of-force experts who examined the videotape.

As the audiotape recording continues, DeGennaro can be heard describing the beating to a CHP sergeant just moments after he had witnessed it from a few feet away.

“Those SO’s [sheriff’s officers] were whaling on those guys,” DeGennaro told the sergeant. “All I did was grab mine and throw him on the ground.”

“Were there cameras?” the sergeant asked.

“There were cameras, sarge,” DeGennaro responded over the sound of circling helicopters. “Nothing happened on CHP side. Yeah, all the cameras are up there.”

“Great,” said the sergeant, who is not identified on the tape. “Well, this is all going to be turned over to them, so what I want from you is I want you to get all the names and ID numbers of all those [sheriff’s deputies].”

A portion of the tape is unintelligible, but then the sergeant can be heard stressing: “You’re not involved in it. You’re providing assistance.”

That exchange is followed soon after by DeGennaro rejoining the hunt for suspects, who had fled the truck and scattered into a nearby nursery. After helping catch one of them, the patrol officer can be heard talking to an unidentified officer who, according to a source, was not involved in the pursuit.

The unidentified officer refers to the fleeing immigrants by a derisive slur, and DeGennaro does not object.

“You know what’s a . . . shame?” the officer said. “What are they going to do to ‘em?”

“Nothing,” DeGennaro said.

“Not a . . . thing,” added the other officer.

DeGennaro, still breathing heavily from the foot chase, responded: “After all that.”

Although lawyers for the beating victims have not yet received copies of the tape, they were dumbfounded by news of its existence and said it could provide powerful evidence in any trial. In particular, lawyers for the female beating victim, Alicia Sotero Vasquez, said the deputies’ failure to give understandable orders and the CHP officer’s subsequent description of their actions as “whaling” could work against the deputies in any trial.

“In order to give a command, it must be given in a way that can be understood,” said Dan Stormer of Hadsell and Stormer, one of the attorneys representing Sotero. “Otherwise, it’s not a command.”

Sotero’s lawyers said DeGennaro’s reference to deputies “whaling” on suspects was particularly compelling and could provide persuasive evidence of how unreasonable the force was.

“That’s the sound of a smoking gun,” said Mark Rosenbaum, an ACLU lawyer and a member of Sotero’s legal team. “This case has buckets of evidence, but that’s Exhibit No. 1.”

Still, like other pieces of evidence, the tape is subject to varying interpretations, and in at least one area, it appears to strongly support the deputies.

For days, investigators have attempted to determine whether Watson and Franklin received and disobeyed an order from a supervisor directing them to turn over pursuit of the immigrants to the Highway Patrol. If they did, it could suggest that their motive in staying with the chase was to punish the immigrants.

But Riverside sources have warned that the deputies traveled so far that they might have strayed outside radio range and thus might not have heard any direction to give up the chase, even if one was given. On the tape, two exchanges seem to bolster that contention.

In the first, a deputy prefaces a question to DeGennaro by stating that “I haven’t had radio communications for quite some time.” And in the second, a deputy asks DeGennaro to “call my dispatch center to let them know where we are and we’re OK.”

DeGennaro agreed to pass along the message and then, in evidence of the confusion that surrounded the chase’s closing minutes, asked: “You guys are San Bernardino?”

“Riverside County,” the deputy responded.

Riverside officials had promised to release transcripts of the radio calls Monday, but delayed that until after investigators can listen to them. Sgt. Mark Lohman said his review of the tapes indicated that the deputies were told to call off the official pursuit somewhere around Chino and to follow the truck filled with illegal immigrants from a safe distance and without their lights and sirens on. Lohman added that a department helicopter was following the truck as well.

“They were told to back off,” Lohman said of Franklin and Watson, who were driving separate squad cars. “They were not told to stop.”

That would cloud the question of the appropriateness of the deputies’ actions, as would the fact that they may have traveled so far away that they could not have received any orders in the pursuit’s final minutes. ACLU lawyers said they did not believe that it would absolve the deputies, arguing that they should have backed off based on their training, whether or not they received direction from a supervisor.

But Barnett said the tape made it clear that they were doing their jobs and that they tried to relay word to their supervisors as quickly as possible once the chase ended.

“This tape,” Barnett said, “gives you a look inside their mind-sets at the moment of truth.”

Times staff writer Josh Meyer contributed to this story from Riverside.

* LAW REPUDIATED

Judge refuses to sentence smuggler under 1994 law. A3

* CONCERNS RAISED

Beating of immigrants raises concerns about policing. A5

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Tape-Recorded Beating

Following are excerpts from a tape recording made by CHP Officer Marco DeGennaro at the end of a televised pursuit last week after which two Riverside County sheriff’s deputies struck suspects after a high-speed chase.

Rustling noises, shouting in background.

Deputy: Get down! Get down! Get on the ground. Put your hands on the ground!

Other voice: Get down, get down, get down, get down . . .

Deputy: Get down on the ground!

Pause. scuffling noises, sounds of pounding.

Voice: Stay down!

DeGennaro to dispatch: LA-3810, all suspects are fleeing, they’ll be northbound just west of Peck.

Deputy (in background): Get your hands back. Manos aqui, manos aqui, manos aqui.

DeGennaro: . . . We’ve got three and possibly the driver in custody.

Helicopter heard overhead.

DeGennaro: . . . We’ve got ‘em in the bushes, too.

Deputy: We’ve got no radio, man. It’s up to you.

DeGennaro: Airship, are you on the frequency?

Airship: LA-3810, what is your 10-20? . . . 605?

DeGennaro: We are westbound 60 just east of Peck. . . . We’ve got about eight to 10 Mexican males and females running just north of our location and then westbound towards Peck Road. They’re in the bushes there.

Airship: . . . the driver . . . ?

DeGennaro: We think so.

Deputy: I know you’re real busy, but hang on just a second, I haven’t had radio communications for quite some time. Did this [end] as a crash?

DeGennaro: No. Uh, not that I know of. . . .

Voice: People bailed into here?

DeGennaro: People are bailing. Some are going north through here. Some are going west. Thiswas, well, I don’t even know what to tell you.

Voice: I know. . . . What city are we in?

DeGennaro: Industry?

Deputy: Could you have someone call my dispatch center to let them know where we are and we’re OK?

DeGennaro: Yeah, I’ll do that.

Deputy: Because we lost all radio. . . .

DeGennaro: You guys are San Bernardino?

Deputy: Riverside County.

Pause while authorities figure out where they are and while DeGennaro returns to his car to call dispatcher.

DeGennaro [speaking to a sergeant]: Those SO’s [sheriff’s officers] were whaling on those guys. All I did was grab mine and throw him on the ground.

Sergeant: Were there cameras?

DeGennaro: There were cameras, sarge. Nothing happened on CHP side. Yeah, all the cameras are up there.

Sergeant: Great, well this is all going to be turned over to them, so what I want from you is I want you to get all the names and ID numbers of all those SO’s. . . . You’re not involved in it. You’re providing assistance. . . .

After a foot pursuit, DeGennaro helps catch one of the immigrants and then is joined by an officer who sources said was not involved in the pursuit.

Voice: You know what’s a . . . shame? What are they going to do to ‘em [the immigrants]?

DeGennaro: Nothing.

Voice: Not a . . . thing.

DeGennaro: After all that.

Voice: This is becoming more and more common. I was down at the Border Patrol inspection facility in San Clemente a week ago. I’m watching these guys, these illegals, they know they can run from us, and the Border Patrol can’t chase them anymore, man.

DeGennaro: That’s ridiculous.