Seba Deputy Acquitted Of Four Serious Felonies

Posted by Michael D. Schwartz, Esq.

For Richard Heverly, the two-year nightmare is finally over. From the first accusation, he denied any misconduct. After all, his heart had been in the right place. He was just trying to do his job, trying to help, which was the reason he went into law enforcement at the age of 40. Then came the arraignment on four serious felonies: Assault with a Semi-automatic Firearm, Battery Under Color of Authority, Criminal Threats and False Imprisonment by Menace or Threat. And if those weren’t enough, the Riverside District Attorney’s office charged all four as felonies with Use of a Firearm Enhancements. If convicted of all four, he faced up to 30 years in prison, with a minimum potential sentence of 18 years.

His administration was supportive, but tentative. The first trial resulted in a hung jury. Impervious to that result and the cost, both emotional and financial, on Deputy Heverly and his family, the district attorney tried the case a second time. Thankfully, the Indio jury in the second case did not see the case through the same distorted lens the Riverside District Attorney’s Office was peering through. After nearly three days of deliberation, Deputy Heverly was vindicated, with a full acquittal, to the shock of the stunned district attorney and judge presiding over the trial.

Deputy Renders Assistance

The nightmare began on August 10, 2008. Off-duty SEBA Deputy Richard Heverly was driving home westbound on the 10 freeway from Lake Havasu. Somewhere around the 100-mile marker between Indio and Blythe, Deputy Heverly — along with other motorists — came across a tractor-trailer on fire off on the shoulder of the freeway. Traffic was slowly passing the big rig when a tow truck driver from Blythe Freeway Towing cut across the eastbound lanes, over the center divider, cut across the westbound lanes and, driving up the westbound shoulder, swung into and stopped in the number two lane, effectively blocking off traffic in that lane. Deputy Heverly, driving with his family in his car, had to take an evasive maneuver to avoid a possible collision with the tow truck. Deputy Heverly eased up alongside the tow truck to see who was driving and why the person had driven so erratically for what seemed to him to not be such an emergency. The tow truck driver opened his door and, standing with one foot on the top outside step and one foot inside on his brake, held his hand out to stop motorists from passing his truck. At this point, there was a tractor-trailer stopped in the number one lane, slightly behind Deputy Heverly’s vehicle and the tow truck, in seeming “compliance” with the tow truck driver’s “commands” to stop, effectively blocking off that lane as well.

From inside his vehicle, Deputy Heverly displayed his flat badge and ID to the tow truck driver and ordered him to move his truck from the lane of traffic. The driver ignored his orders. Having no confidence that the driver would move his truck, and seeing how the tow truck driver had basically stopped an entire freeway with no legal authority nor exigency to do so, Deputy Heverly exited his vehicle to try and effectuate some form of traffic control by getting the tow truck driver to move his truck to the side of the roadway, clearing the lane for emergency personnel to come through and address the tractor-trailer fire up ahead. Deputy Heverly approached the tow truck and again displayed his flat badge and ID to the driver, this time also verbally identifying himself as a deputy sheriff. Seeing that the tow truck driver was on the phone, and realizing that he would not be able to get him to move the truck or obey his orders because he was so distracted, Deputy Heverly ordered the tow truck driver to get off the phone and get out of the truck several times. The driver, however, did not comply — directly ignoring Deputy Heverly’s orders. Consequently, Deputy Heverly reached up and tried to grab the tow truck driver off the step and out of the truck to gain his attention and his compliance. He was unsuccessful. Then, according to the driver, Deputy Heverly retrieved his handcuffs and again ordered the tow truck driver out of the truck. Again, his orders were rebuffed. According to the tow truck driver, Deputy Heverly then retrieved his firearm and ordered the driver from the truck. This time, he finally complied.

After exiting the vehicle and barely taking a step, the driver was handcuffed on his right wrist. The tow truck driver, however, refused to extend his left wrist for handcuffing. Instead, the tow truck driver reached with his left hand and grabbed his cell phone that had been lying on the bed of the truck. At this point, Deputy Heverly placed his gun to the tow truck driver’s right temple and threatened to kill him if he did not comply and produce the left hand for handcuffing. He finally complied and Deputy Heverly was able to handcuff the driver’s left hand as well. Heverly then put away his firearm. Deputy Heverly moved the tow truck driver to the opposite side of the tow truck where, after a brief conversation, the handcuffs there removed. The tow truck driver then moved his vehicle off to the shoulder, clearing the lane for CDF fire trucks to get through, which they did. California Highway Patrol arrived a short time later.

Chp Becomes Involved

Deputy Heverly approached the CHP officer and identified himself verbally and visually as an off-duty San Bernardino Deputy Sheriff. The CHP officer rebuffed Deputy Heverly and instead went to lay down cones for traffic control. He then returned to the tow truck driver but did not formally interview him about the event. Instead, he sat Deputy Heverly in the back of his patrol car and demanded to know what had transpired, without affording Deputy Heverly his rights under Miranda,nor allowing him to first call his Watch Commander. When Deputy Heverly tried to explain his actions and mind-set during the three-minute tape-recorded “conversation,” the CHP officer summarily turned off the tape. The CHP officer then claimed that Deputy Heverly spontaneously made an incriminating statement directly after the tape had stopped. Deputy Heverly denied ever making that statement.

Criminal Prosecution Ensues

A criminal prosecution was then commenced. The filing of criminal charges and arraignment received extensive local news coverage. After a Preliminary Hearing in which the tow truck driver was forced to admit on cross examination that, unlike his testimony on direct examination, he indeed did recognize Deputy Heverly’s badge as some form of law enforcement, Deputy Heverly was held to answer for the criminal charges and the case proceeded to trial. The defense sought the services of Audio and Visual Expert David Notowitz to glean recorded quotations from the different tape-recorded statements of the prosecution witnesses to use as impeachment during the trial. Use of Force Expert Thomas Streed, a retired Homicide Detective from the San Diego Sheriff’s Department became instrumental in helping mount the defense that would eventually succeed in acquitting Deputy Heverly.

First Trial Ends In Mistrial

Although the tow truck driver was effectively impeached at the first trial, including his admission to a felony grand theft conviction and to owning a fake badge and handcuffs (his rationale why he did not “believe” that our client was indeed displaying a “real” badge), as well as his recollection of the events being impeached by contradictory testimony from other witnesses, the first jury came back hung and the Judge ordered a mistrial.

The prosecutor moved, and was granted permission, to set the case for re-trial. Deputy Heverly’s nightmare continued.

Second Trial Ends In Full Acquittal

In the second trial, the judge severely limited the testimony of defense expert Streed, holding that only questions specifically related to the general training of law enforcement personnel — with no reference to the specific facts of our case nor any opinions as to the reasonableness of Deputy Heverly’s actions — were allowed to be asked. Additionally, although in Deputy Heverly’s taped statement he told the CHP officer that he felt threatened because the tow truck driver had not complied with any of his orders, was bigger than him, and had turned on him; the fact that Streed testified that a “dangling, uncontrolled” handcuff posed a deadly weapon to any law enforcement officer; and the fact that Streed also described that the defiance of an order to stop resisting and “cuff up” by instead reaching for something on the bed of the truck would also be considered by any trained law enforcement personnel to be active resistance and threatening, the judge refused to instruct the jury on self-defense.

In closing argument, we argued a “camouflaged” self-defense by focusing on the Use-of-Force Expert Streed’s testimony regarding officer training pursuant to P.O.S.T. Learning Domain 20 and California Penal Code Section 835a. Specifically, that according to P.O.S.T. training, officers can utilize control holds when facing such passive resistance as non-compliance with verbal orders. P.O.S.T. also dictates that use of “personal weapons” is appropriate when faced with such active resistance as pulling away, tensing up or reaching/making furtive, dangerous movements. The case was then broken down piece by piece to educate the jury on how a deputy with Deputy Heverly’s training could reasonably assess the situation confronting him and, according to his academy training through P.O.S.T, overcome resistance and secure the subject. We also explained that the tow truck driver’s non-compliance was evidence of a violation of Penal Code Section 148(a), Delaying, Resisting or Obstructing a Peace Officer in the Lawful Performance of his Duties, and that a person may be handcuffed pursuant to a lawful detention in order to stop that individual from further delaying or obstructing the officer. Further augmenting the defense argument was the complete contradiction between the tow truck driver’s recollection of the events, the percipient witnesses’ recollection, the tow truck driver’s wife’s recollection, and the 9-1-1 audio tapes of calls by several of the participants made at the time the events were happening. We also pointed out to the jury that if the CHP officer could ignore a “man with a gun” call and instead focus on traffic control, Deputy Heverly surely could also focus his attention and efforts to control traffic and secure a lane for emergency personnel. All in all, we argued, there was no way the jury could justify convicting Deputy Heverly of four serious felonies based on the entire body of evidence.

The jury deliberated for nearly two days when a note came back that they were unable to come to a unanimous decision. Upon inquiry from the court, two jurors alleged that one — the lone hold-out — was possibly not comprehending what was going on and becoming impossible to deliberate with. The judge inquired further of the foreperson and, after the prosecutor moved to have the hold-out discharged and replaced with an alternate juror, the judge sent the jury home for the weekend.

On the following Monday morning, the judge inquired again regarding the lone hold-out. Upon another prosecution motion to discharge the hold-out, the judge did in fact discharge the hold-out and substituted in an alternate juror to replace her. An hour later, the jury came back with four not guilty verdicts, fully acquitting Deputy Heverly. Outside the courtroom, a relieved Deputy Heverly exchanged hugs with his wife, his attorney, and many of the jurors. After a two-year nightmare, two trials and some tense courtroom drama, Deputy Heverly can finally breathe deep, and freely, once again.