I N T R A O F F I C E M E M O R A N D U M

Transcription

1 I N T R A O F F I C E M E M O R A N D U M DATE: September 19, 2014 PHONE: (909) FROM: TO: Jill M. Gregory Deputy District Attorney Central Division Gary S. Roth Assistant District Attorney Criminal Operations Bruce Brown Chief Deputy District Attorney Desert Division SUBJECT: Officers Involved: Involved Agency: Involved Subject: Non-Fatal Officer-Involved Shooting Specialized Enforcement Division Deputies Robert Arrieta, Jose Ruiz and Luke Gaytan San Bernardino County Sheriff s Department Sammie Walton (DOB: 02/29/1948), of Victorville Date and Time of Incident: Investigating Agency: Location of Incident: March 13, 2012, at 9:43 a.m. San Bernardino County Sheriff Homicide Detail Block of Polo Court, Victorville, CA DR #: DR # H # DA STAR #:

2 SUMMARY The following facts are taken from the investigation of the shooting by the Sheriff s Homicide team headed by Sergeant Brad Toms. This included reports by Homicide Detail Detectives Randy German (the case agent), Mauricio Hurtado, Scott Cannon, and Angelo Gibilterra, Ryan Ford, Robert Warrick, and Miguel Flores. The investigation also included reports by Victorville station Detectives Hart and Zour, and Specialized Enforcement Division personnel including Detective Tim Visosky, Deputy Farris Short, Detective Kelly Craig, Detective Jason Rosenbaum, Sergeant Robert Kelly and Detective James Mahan. Also reviewed were 13 CDs containing crime scene photos, a 4 disc Leica scan of the crime scene, 6 CDs containing interviews of witnesses, a digital recording of Sergeant Timothy Kelly s contact on scene, and the tactical tractor video of the event. On March 13, 2012, at about 2:45 a.m., Witness #1, a resident of Victorville, awoke and prepared to leave for work. As she was nearly ready to leave, she was confronted in the downstairs hallway that accessed the garage, by Sammie Walton, her boyfriend and cohabitant 1. There had been strife between the two of them over the few weeks leading up to that day, and Witness #1 had previously told him of her plans to sell the house and separate from him. He indicated he wanted to talk to her, and she first noticed he had a strange look on his face and an unfamiliar chemical odor. She then noticed that he had her revolver in his right hand, holding it down at his side. She asked him what he was going to do with the gun, and he replied Nothing. She then asked if he was going to kill her and he said to her, I wouldn t hurt you. He then said [A]in t no way you gonna leave me, I ain t got nothing to lose. At this point, he fired one shot at her, striking her in the right leg. She attempted to escape from him, going out into the garage, but he told her You d better not move, and shot her a second time, as she was trying to leave out a side door from the garage to the side yard. This time, he struck her in the right buttocks. 2 She escaped out the side door and hid in the backyard near the fence, where she yelled for help. Walton exited into the backyard and appeared to be scanning the backyard for her, but then he went back into the house. After about 20 minutes, Witness #1 retrieved a small barbecue grill and climbed on top of it, rolling over the fence into the neighbor s yard and continuing yelling for help until she was contacted by law enforcement. Computer Aided Dispatch logs indicated that it was approximately 3:43 a.m. when dispatch was notified of a call requesting help and 3:46 a.m. when deputies arrived on scene. Witness #1 was located and briefly interviewed by deputies after medical aid 1 During the events of March 13, 2012, Witness #1 referred to Sammie Walton as her husband and Walton referred to Witness #1 as his wife. While not legally married, they had been together for the better part of 30 years and were the parents of an adult child. 2 There were a total of four gunshot wounds to Witness #1, an entry and exit wound in the right thigh and an entry and exit wound in the right buttocks, with soft tissue and muscle damage. The bullets did not strike any bones or organs.

3 was called out. Witness #1 indicated she had been shot twice by Walton, and indicated he was still inside her residence at Polo Court, Victorville. Deputies further learned that Walton was in possession of the revolver, a.357 caliber, that was registered to Witness #1, and that there were other firearms and more ammunition in the house, as well. She provided a phone number for the residence. Sergeant Timothy Kelly attempted to call the residence. On the first call, there was no answer. Sergeant Kelly tried again, and this time, Walton answered and indicated that he had killed his wife. Sergeant Kelly told Walton that Witness #1 was not dead, and that she was going to be okay. Sergeant Kelly told Walton that he needed to come outside with his hands up. Walton agreed to come out and then hung up the phone, but Walton did not exit the residence. In fact, Sergeant Kelly talked to Walton an additional four times, and each time Walton agreed to exit the residence, but each time he failed to exit. Deputies then set up a perimeter around the location and Sergeant Kelly used a PA system to order Walton out of the residence. Walton still failed to exit the residence. At approximately 4:50 a.m., Sergeant Kelly notified Specialized Enforcement Division/SWAT that they had a barricaded subject in the residence at Polo Court. Shortly thereafter, SWAT personnel arrived and took over the scene. Two two-person sniper and observer teams set up in neighboring residences that had clear views of the incident location. Walton could be seen repeatedly walking around on the second floor with a silver handgun in his hand. Walton appeared to be observing the actions of SWAT personnel. This was broadcast to personnel on scene. Residents in all neighboring homes were evacuated. A search warrant was authored by Detective Brett Zour and signed by the Honorable Harold Wilson, authorizing entry into the Polo Court residence and the use of a tactical tractor by the SWAT team. SWAT negotiators continued efforts utilizing the PA system, identifying themselves as Sheriff s Department personnel, to no avail. A tactical tractor was used to port the window on the second floor of the rear of the residence. Canisters of chemical agents were deployed into the residence. Walton still failed to exit the residence. One sniper team indicated that the deployment of the gas canisters had little effect on Walton; he coughed a little bit but continued to walk around the location. The tactical tractor was used to port other windows, and further deployment of gas canisters occurred. Walton did not appear to be affected by the introduction of the chemical agents. There was some indication from Witness #1 that Walton may have been under the influence of cocaine, and the SWAT team was briefed on this possibility. 3 At approximately 9:21 a.m., a tactical robot, outfitted with a camera and live video feed, made entry into the residence and the operator reported that Walton was still armed with a handgun, on the second floor of the residence. Shortly thereafter, two SWAT teams entered the residence. Sergeant Darren Goodman, Deputy Robert Arrieta, Detective Garth Goodell, Detective James Haynes, and Deputy Jonathan Mabry 3 A small amount of substances later determined by the Sheriff s Scientific Investigations Division to be cocaine not consistent with the base form and marijuana were located within the incident location.

4 entered through a sliding glass door. The second team, consisting of Sergeant Tim O Connell, Deputy Jose Ruiz, Detective Josh Smith, Deputy Farris Short, Detective Tim Visosky, and Deputy Luke Gaytan, entered through the side door into the garage, where blood was seen on the ground, and then into the house from the garage. After clearing the rooms in the downstairs, the two teams integrated as they reached the stairwell to the second floor. At that point, Deputy Luke Gaytan took cover in a hallway next to the bottom of the stairs. Deputy Gaytan was able to see Walton s head as Walton looked down from upstairs; Deputy Gaytan and Walton made eye contact, and Deputy Gaytan ordered Walton show his hands. Walton disregarded Deputy Gaytan s command and backed away out of Deputy Gaytan s sight. Deputy Gaytan notified Sergeant O Connell of what he had seen, and that he believed Walton had the advantage of visibility, cover, and concealment over the SWAT personnel. The decision was made to approach Walton on the second floor of the residence. Deputy Robert Arrieta was first in line, heading up the staircase, followed by Deputy Jose Ruiz, and Deputy Luke Gaytan. Other members of both SWAT teams followed the first three deputies. Deputy Arrieta and Deputy Ruiz first reached the landing of the stairway and could see top of Walton s head in the open doorway of the upstairs center room. A pony or half wall prevented them from seeing any portion of Walton other than the top of his head; additionally, the CS gas that was still circulating throughout the house as well as the tactical gear and gas masks worn by the SWAT personnel affected their ability to observe. Walton still appeared to be at an advantage, as he was not visibly affected by the gas, and he had cover and concealment from the half wall, and the advantage of visibility from his higher position. Upon seeing Walton, Deputy Arrieta gave Walton commands to show his hands and come out of the rooms. Walton made eye contact with Deputy Arrieta but ignored his commands, instead ducking to the left and moving out of view. Deputy Arrieta and the others continued up the stairway. When Deputy Arrieta reached the second step from the top, he was able to see Walton hiding behind the door, in the corner of the bedroom. Additional commands were given to Walton to come out and put his hands up. Walton still did not comply with the orders. Walton then moved slightly out from behind the door so that a portion of his left side was visible. In his left hand was a handgun. Deputy Arrieta described the firearm to be held up near Walton s armpit, tight against his chest, with the barrel of the revolver pointed toward Deputy Arrieta, Deputy Ruiz, Deputy Gaytan and the additional SWAT personnel on the stairs. Deputy Ruiz indicated he saw the Walton holding the gun at chest level and that it was pointed upward, but could easily be moved very slightly to be pointed at the deputies. Deputy Gaytan indicated that Walton was holding the firearm pointed upward and level with Walton s head, and that he then moved to point the firearm toward Deputies Arrieta, Ruiz, Gaytan, and the other deputies on the stairs. The other deputies on the stairs were not at a vantage point where they could see the firearm. At that point, the distance between Walton and Deputies Arrieta and Ruiz was approximately five to six feet. Walton was not complying with any of the orders to drop

5 the firearm and instead, had it at the ready and was moving the barrel toward the deputies. Deputy Arrieta again ordered Walton to drop the weapon. Deputy Ruiz also ordered Walton to drop the gun. Walton did not drop the revolver. Deputy Arrieta believed, based on all the circumstances that Walton was going to shoot him or one of his partners. Deputy Arrieta discharged his weapon to prevent Walton from shooting him, firing one ten-to-fifteen-round burst from his department issued Colt M4 rifle. Deputy Ruiz, also in fear for his life and the lives of his team members, fired two ten-round bursts using his department issued Colt M4 rifle. Deputy Gaytan also feared that Walton was going to shoot at the SWAT personnel. In fear for his life and the lives of his team members, Deputy Gaytan fired a three-to-five round burst from his department issued Colt M4 rifle. The three deputies shot at Walton nearly simultaneously. As the rounds were being discharged by the SWAT personnel, Walton disappeared back into the bedroom. The SWAT personnel continued up the rest of the stairs and moved into the bedroom. Sergeant O Connell deployed a light sound diversionary device into the bedroom. As the SWAT personnel entered the bedroom, they continued to order Walton to show his hands. A revolver was seen on the floor to the right of the doorway. Walton came out of an attached bathroom into the bedroom. Deputy Arrieta ordered Walton to show his hands and to get down on the ground. Walton sat down on the ground and leaned his back into the back wall. Walton refused to follow continued commands to lie down. Deputy Arrieta kept his gun pointed at Walton as Deputies Ruiz and Gaytan moved forward to arrest Walton. He still failed to put up his hands as he was told. As deputies moved in to arrest, Walton was still actively resisting, kicking his feet, putting his hands beneath his stomach and then putting one hand underneath an open drawer of a hutch. Deputy Haynes used his Taser to drive-stun Walton in the leg. The struggle continued for an estimated seconds before deputies were able to handcuff Walton. During the confrontation, Walton sustained gunshot wounds. He was flown on a helicopter to Antelope Valley Hospital, where he underwent surgery to repair an artery in his left forearm. There was an entry wound to the inside of the left bicep near the armpit, without an apparent exit wound. There were two wounds on the left forearm that appeared to be in line with each other, indicating an entry and an exit wound. There were also two small wounds to the top of the forearm between the wrist and elbow. They appeared to potentially be gunshot wounds from debris or fragments. The wounds were non-fatal. Walton was interviewed by Detective Scott Cannon. After being advised of his constitutional rights per Miranda v. Arizona, (1969) 396 U.S. 868, Walton indicated he understood each of his rights and agreed to speak to Detective Cannon. During the interview, Walton admitted that he shot Witness #1 with a.357 magnum revolver two times. The interview was terminated by the need for Walton to be prepped for surgery.

6 COLLATERAL INFORMATION The defendant was being prosecuted in case number FVI for the offense described in the summary above; however, he died on February 12, and the case was thereafter dismissed on February 18, He was charged with Attempted Murder (Penal Code 664/187) and four counts of Assault with a Firearm on a Peace Officer (Penal Code 245(d)(1)). Firearm enhancements as delineated in Penal Code (b),(c), and (d) and (a) and(d) were also alleged. APPLICABLE LAW Use of Reasonable Force Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to affect the arrest, to prevent escape or to overcome resistance. A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance. (Penal Code Section 835a). If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such person to refrain from using force or any weapon to resist such arrest. (Penal Code Section 834a) Self-Defense It is lawful for a person who is being assaulted to defend himself from attack if he reasonably believed that he or someone else was in imminent danger of suffering bodily injury, he reasonably believed that the immediate use of force was necessary to defendant against that danger, and he used no more force than was reasonably necessary to defend against that danger. (Penal Code Sections 692, 693 and 694; People v. Myers (1998) 61 Cal.App.4 th 328; CALCRIM 3470). 4 Walton had been transported to and was receiving treatment at San Antonio Community Hospital when he passed away as a result of multiple heart attacks. It appears he had recovered from the injuries that were sustained in the events as detailed above, but he was receiving treatment for heart problems, Hepatitis C, and he was undergoing dialysis treatment.

7 Use of Deadly Force Use of deadly force is justified when a peace officer has probable cause to believe that the decedent posed a threat of death or great bodily injury to the officer or another. A person has probable cause to believe that someone poses a threat of death or great bodily injury when facts known to the person would persuade someone of reasonable caution that the other person is going to cause death or great bodily injury to another. (Penal Code Sections ; People v. Humphrey (1996) 13 Cal.4 th 1073; CALCRIM 507). A peace officer may also use lethal force in apprehending a person who has committed a felony in order to keep the peace, PENAL CODE 197(4), where the person in question threatens death or great bodily harm. People v. Piorkowski (1974) 41 Cal.App.3d 324, Retreat Not Required A person is not required to retreat. He is entitled to stand his ground and defend himself and, if reasonably necessary, to pursue and assailant until the danger of death/bodily injury has passed. This is so even if safety could have been achieved by retreating. (People v. Hughes (1951) 107 Cal.App.2d 487; CALCRIM 3470). ANALYSIS Prior to the arrival of Sheriff s deputies on the scene, Sammie Walton engaged in violent and erratic behavior, when he told his girlfriend and cohabitant that there was no way she was going to leave him and that he had nothing to lose. While in a confined space, he fired a gun at her, hitting her in her leg. She frantically tried to escape, and he fired again, hitting her in the buttocks. It is mere fortune that Witness #1 was not injured more severely as a result of Walton s actions. His mindset at the time of the shooting was clear in his early statement over the telephone to Sergeant Kelly; he believed that he had killed his wife. As SWAT arrived on scene, it was clear that Walton was armed and homicidal. His statement that he had nothing to lose was an indication that he was potentially suicidal, as well. For hours, he certainly refused to comply with repeated commands to surrender and exit the home. He maintained focus on the actions and movements of the Sheriff s personnel. Walton did not react, other than a couple of coughs, to the introduction of chemical agents into the residence, nor did he appear fazed by the porting of the windows to the rear of the house by the tactical tractor. He continued to pace around the second floor of the house, always carrying a handgun.

8 This behavior, together with the information that the defendant was possibly under the influence of a controlled substance, carried the potential for great harm to all those on scene. Walton had demonstrated a clear willingness to use a firearm in a lethal manner, not just once but twice. As SWAT personnel climbed the stairs, reaching the top, he not only ignored repeated commands to drop the firearm, he moved into a position, mere feet from the deputies, where he could be sure they could see him holding that firearm up and at the ready. A reasonable person in the position of Deputy Arrieta, Deputy Ruiz and Deputy Gaytan could easily conclude that they were in imminent danger of death or great bodily injury if Walton were not stopped. The facts here indicate that Deputy Arrieta, Deputy Ruiz, and Deputy Gaytan each subjectively held that belief. It was objectively reasonable, given the actions of Walton at both that moment and in the hours leading up to that moment, for Deputy Arrieta, Deputy Ruiz, and Deputy Gaytan to each conclude that the threat to themselves and to the other SWAT personal was real and immediate. Walton had committed a violent felony upon the person of Witness #1, involving the use of a firearm; he posed a lethal risk should he not be immediately apprehended. Given all of these circumstances, the use of force by Deputy Arrieta, Deputy Ruiz, and Deputy Gaytan was appropriate. CONCLUSION Based on a review of the available materials, the shooting of Sammie Walton by Deputy Arrieta, Deputy Ruiz, and Deputy Gaytan on March 13, 2012, was justified. The circumstances here support the conclusion that Deputy Arrieta acted lawfully in defense of both others and himself, that Deputy Ruiz acted lawfully in defense of both others and himself, and that Deputy Gaytan acted lawfully in defense of both others and himself. Furthermore, based on the conduct exhibited by Sammie Walton, Deputy Arrieta, Deputy Ruiz, and Deputy Gaytan were justified in using lethal force to effectuate the arrest of Walton. Jill M. Gregory Deputy District Attorney Date Bruce Brown Chief Deputy District Attorney Desert Division Date

9 Gary S. Roth Assistant District Attorney Criminal Operations Date