In the first proceeding of its kind in San Joaquin County history, an open session of the criminal grand jury voted not to indict two Manteca detectives and a Ripon police sergeant accused of excessive force and perjury. I represented the three officers throughout the investigation by the San Joaquin County district attorney and the presentation to the grand jury.
Last November, Manteca P.D. narcotics detectives Samuel Gallego and Stephen Harris, along with Ripon P.D. Sergeant Steve Merchant, were assigned to a specialized unit, the Manteca Chronic Offenders Problems and Solutions (MCOPS) team. The team is designed to interdict narcotics trafficking in the south San Joaquin County area (Manteca-Ripon-Escalon).
On November 6, the MCOPS team, along with several Manteca and Ripon uniformed officers, executed a warrantless probation/parole search on a compound outside the Ripon city limits. A parolee, Tamra Thompson, was believed to be living with an ex-felon, James Walton, in a shed on the property. Walton had a history of resisting arrest and assaulting peace officers. He was reported to keep a loaded shotgun next to his bed and was suspected of involvement in a recent home invasion robbery in which a weapon was stolen.
As the officers entered Walton’s shed with weapons drawn, they were caught on videotape by a camera Walton had mounted at one end of the room. The tape depicts Harris and Gallego attempting to handcuff a resistant Walton while Merchant and another Manteca officer, Mike Sexson, leave the scene to respond to a call for help outside the shed. Walton is somewhat compliant, but moves his hands and waist while the officers are making a cursory search. Before the officers can move Walton out of the building, he makes a sarcastic remark to Harris. Harris puts him down on the bed and says, “We could kill you right here,” while Gallego draws his firearm and says, “What the f— are you doing?” to Walton.
In May 2003, over six months later, Merchant testified at a suppression hearing (Pen. Code § 1538.5) that the officers had knocked and announced their presence before entering the shed. His testimony included other apparent inconsistencies. Merchant was not present when Walton was placed on the bed. Unbeknownst to Merchant, the deputy public defender who was cross-examining him had viewed the videotape. The MCOPS did not even know a videotape existed. Gallego and Harris did not testify at the hearing.
The public defender released the videotape to several local television stations in June. Responding to the ensuing media frenzy, the San Joaquin County District Attorney started an investigation, as did the Manteca Police Department. The officers cooperated fully in the investigation, including providing statements about the incident to district attorney investigators.
But in October, the district attorney announced he would take the case before the county grand jury in a session open to the public. Gallego and Harris were charged with making terrorist threats, assault under color of authority, battery, and assault with a deadly weapon. Merchant was charged with a single count of perjury arising out of his suppression motion testimony.
Penal Code section 939.1 allows a prosecutor and grand jury to agree to hold an open session on any criminal charges against public officials or employees. The rarely used provision lately has come into vogue with local prosecutors who are unwilling to make difficult political decisions about whether to file charges against police officers. A judicial order opening a session or sessions of the grand jury makes the prosecution’s arguments and the testimony of witnesses available to the media and members of the public.
Another statute, Penal Code section 939.71, requires the prosecutor to present exculpatory evidence to the grand jury. While the prosecutor generally is under no obligation to present the defense case, the mandate to provide “exculpatory evidence” usually means the prosecution will allow defendants to offer witnesses and other evidence.
The legal standard in any use of force case is whether a reasonable officer, in the same or similar circumstances, would use the same or similar tactics. (Graham v. Conner (1989) 490 U.S. 386, 396.) As the Graham court said, “police officers are often forced to make split second judgments in circumstances that are tense, uncertain, and rapidly evolving about the amount of force that is necessary in a particular situation” (Graham at p. 397.).
The MCOPS case turned on whether the act of putting Walton on the bed, and the words and firearm display accompanying that action, were proper defensive tactics or, in the prosecutor’s words, were unnecessary force used against a compliant suspect. Once the prosecutor opened the proceeding with a statement he believed Gallego and Harris had violated Walton’s rights, the outcome of the intensive four-day proceeding would come to depend on key defense witnesses.
Renowned police training expert Don Cameron, called as a defense witness, described how the officers’ conduct throughout the entry complied with POST standards for weaponless defense and restraint techniques. The officers had used appropriate distraction techniques upon entry by shouting confusing commands to Walton. Once Walton became resistive in his hand and body movements, as well as in his verbalized attitude, Cameron testified, putting him down on the bed to regain control was appropriate. Harris’ statement, “We can kill you right here,” was a warning for the purpose of asserting control over the suspect, not a threat to kill him. Gallego, who did not see what caused Harris to put Walton down, was merely reacting to Harris when he drew his gun. Cameron observed Walton even appeared resistant to going out the door of the shed.
The prosecution’s expert, Jared Zwickey of the Delta College Police Academy in Stockton, tried to take the opposite view. He criticized the officers’ use of distraction techniques and argued Walton was compliant throughout the incident. However, Zwickey was forced repeatedly by questions from the prosecutor and grand jurors to modify his conclusions to conform to the peace officer training standards explained by Cameron. The conflicting expert testimony seemed to leave the jurors without a clear understanding of the reasonableness or unreasonableness of the officers’ use of force.
One of the first prosecution witnesses was Walton, the occupant of the shed. He denied having any significant criminal history, denied living in the shed, denied that he had ever been convicted of resisting arrest, and denied any sales, use or possession of any drugs. Confronted by the prosecutor with Tamra Thompson’s earlier testimony that Walton was her supplier, Walton accused Thompson of lying. He claimed, in dramatic fashion, that he felt the “cold steel” of Gallego’s gun against his temple while he was being held on the bed.
Walton already had filed a civil suit against Manteca, Ripon, and the officers. He contended in the lawsuit, and repeated in court, that Merchant planted drugs on him. Merchant and Gallego had retrieved a baggie containing a small quantity of methamphetamine from Walton’s pocket during a search outside the shed.
The prosecutor agreed to my request to play for the grand jurors a videotape of Walton’s post-arrest interview by Merchant. Merchant elicited admissions from Walton that he used drugs, traded work for drugs, had ammunition in the shed in violation of his felon status, and had possessed the drugs found in his pants pocket. The grand jurors laughed openly at the obvious inconsistencies between Walton’s testimony and his statement to Merchant.
Once Walton was exposed as a liar, the prosecution’s investigator took the stand to testify Walton’s criminal history included 11 convictions for resisting arrest and three felony convictions. She also testified Walton had been unable to state during an earlier interview whether the gun had been pointed at him when he was on the bed.
Perjury requires proof a person testifying under oath willfully and with specific intent stated as true any material facts he knew to be false. (People v. Kobrin (1995) 11 Cal.4th 416, 420; People v. Gillard (1997) 57 Cal.App.4th 136, 158; CALJIC 7.20.) “Specific intent” in a perjury prosecution means the intent to swear falsely; that is, the defendant must be shown to have willfully, or intentionally, given false testimony about material facts. False statements are material if the statements could have influenced the outcome of the proceeding. (Kobrin at p. 427.)
The only “material” issue on which Merchant had testified at the suppression hearing was whether the officers had done a “knock and announce” before entering the shed. While Merchant did not testify before the grand jury, the prosecutor played the taped statement Merchant had given to district attorney investigators. In vivid, emotion-tinged words, the sergeant explained his honest, though mistaken, belief the team had knocked before entering the shed.
Merchant had the support of his chief and the community throughout the case. Ripon Chief Richard Bull described Steve Merchant as a “Boy Scout” and “one of the most ethical people I have known.” Bull lauded Merchant’s integrity, work ethic and experience, and praised his contributions to the Ripon Police Department as a training officer and supervisor. The chief’s testimony, together with Merchant’s obvious candor during his interview of Walton and his statement to prosecution investigators, helped persuade the jurors not to indict.
Defense preparation again came into play with Manteca P.D. Captain David Bricker, a defense witness. His extensive use of force training and personal experience with the MCOPS unit gave us the opportunity to present evidence about the unit as well as the use of force. One of MCOPS founding members in 1995, Bricker discussed the unit’s arrest, search and seizure records and described the unit as “incredibly effective” at lowering property crime rates by enforcing narcotics laws in south San Joaquin County.
Bricker also testified the possibility Walton could arm himself constituted an exigency justifying entry without “knock and announce”. He discussed the department’s use of force policy, including the firearms policy allowing officers to display a weapon if necessary to control a suspect. Bricker and another witness, Manteca Chief of Police Charles Halford, suggested Harris and Gallego could have used other tactics, but both still testified the detectives had acted within policy.
This critical testimony made it possible for the grand jurors to find the officers’ actions were consistent with their training. Detectives Gallego and Harris are senior SWAT officers with years of training in high-risk entries, narcotics interdiction, and use of force. Despite the prosecutor’s insistence on misdemeanor indictments for Gallego and Harris, common sense prevailed after months of waiting.
The defense of Merchant, Gallego and Harris would not have been possible without the support of the PORAC Legal Defense Fund. The officers are grateful to the Fund and its ongoing commitment to peace officer defense.
About the author: Christopher W. Miller is a former deputy district attorney who now provides representation to PORAC LDF clients throughout northern California as an attorney with Mastagni, Holstedt & Amick in Sacramento.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.