Page 1 BEFORE THE LAW ENFORCEMENT ACADEMY...

BEFORE THE LAW ENFORCEMENT ACADEMY BOARD FOR THE STATE OF NEW MEXICO

IN THE MATTER OF:

PABLO PADILLA, Certification No. 01-0385-P,

Respondent.

TRANSCRIPT OF FORMAL HEARING Volume 2 June 30, 2015 9:16 a.m. Law Enforcement Academy 4491 Cerrillos Road Santa Fe, New Mexico 87507

REPORTED BY: Jan A. Williams, RPR, NM CCR 14

1 A P P E A R A N C E S

2 LOUIS A. MEDINA, HEARING OFFICER NEW MEXICO LAW ENFORCEMENT ACADEMY

3 4491 Cerrillos Road Santa Fe, New Mexico 87507

4 505-827-9251

5 WALTER HART, ESQ., ADMINISTRATIVE PROSECUTOR NEW MEXICO ATTORNEY GENERAL'S OFFICE

6 111 Lomas Boulevard, N.W., Suite 300 Albuquerque, New Mexico 87102

7 505-222-9000

8 JOHN J. D'AMATO, ESQ., COUNSEL FOR RESPONDENT

9 807 Eighth Street, N.W. Albuquerque, New Mexico 87102

10 505-246-0045

11 RICHARD B. WORD, ESQ., BOARD COUNSEL NEW MEXICO ATTORNEY GENERAL'S OFFICE

12 408 Galisteo Street Santa Fe, New Mexico 87501

13 505-827-6029

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1 INDEX PAGE

2 EXAMINATION OF PABLO PADILLA By Mr. Hart 46, 131

3 By Mr. D'Amato 88, 128 By the Hearing Officer 120, 133

4EXAMINATION OF GABRIEL MARES

5 By Mr. Hart 135, 164, 168 By Mr. D'Amato 153, 167

6 By the Hearing Officer 166

7 EXAMINATION OF JAMES ANTHONY GONZALES By Mr. D'Amato 170, 211

8 By Mr. Hart 196, 213

9 EXAMINATION OF PAUL DURAN By Mr. Hart 214

10 By Mr. D'Amato 221

11 EXAMINATION OF STEVEN KOEHNKE By Mr. Hart 223

12 By Mr. D'Amato 226

13 REPORTER'S CERTIFICATE 238

14 EXHIBITS MARKED OR ADMITTEDNUMBER

15 Attorney General1 - APD Pre-Booking Worksheet 23

16 2 - APD DWI Offense Report 233 - State of NM Supplemental Report, 4/25/14 23

17 4 - State of NM Supplemental Report, 4/25/14 235 - State of NM Supplemental Report, 4/25/14 23




21 12 - State of NM Supplemental Report, 4/26/14 2313 - APD IA Unit, Use-of-Force Report Form 23


23 16 - Bernalillo County Detention Center, Offender Booking Sheet, 5/19/14 23

24 17 - Letter, 8/6/14 2318 - Letter, 10/2/14 23

25 19 - DPS Misconduct Report, 10/2/14 23

1 EXHIBITS MARKED OR ADMITTED (Cont'd)NUMBER

2 20 - NM POST Employee Profile, 10/17/14 2321 - Notice of Contemplated Action 23

3 22 - Letter, 11/7/14 2323 - Response to Notice of Contemplated Action 23

4 24 - Document entitled "Officer Pablo Padilla/ Albuquerque Police Department, Summary" 23

5 25 - Letter, 12/24/14 2326 - Notice of Final Decision 23

6 27 - Respondent's Request for a Formal Hearing 2328 - Respondent's Statement of Issues 23

7 29 - "Detailed History for Police Call #P141150016 as of 5/21/14 08:20:48" 23

8 30 - Copies of photographs 2331 - Albuquerque Fire Department Patient Care

9 Report, 4/25/14 2332 - APD IA Unit, Use-of-Force Report Form 23

10 33 - Interoffice Memo, 5/5/14 2334 - Interoffice Memo, 5/5/14 23

11 35 - Letter, 5/6/14 2336 - Interoffice Memo, 5/12/14 23

12 37 - Letter, 5/20/14 2338 - Letter, 5/20/14 23

13 39 - APD IA Unit, Investigative Index 2340 - APD General Orders, 1-02, Officer's Duties 23

14 41 - Emails, 5/20/14 and 5/21/14 2351 - IRO Investigative Report, Table of Contents 23

15 52 - Email, 6/12/14 2353 - APD Supervisors Recommendation Form 23

16 54 - APD Training Recommendation Form 2355 - Chain of Command Recommendations 23

17 56 - Letter, 7/17/14 2357 - Letter, 8/1/14 23

18 58 - Final Discipline to be Imposed 2359 - APD IA Unit Final Recommendation Form 23

19 60 - IA Unit, Disciplinary Status Sheet 2363 - Interoffice Memorandum, 8/20/14 23

20 66 - IA Unit, Disciplinary Status Sheet 2372 - Interoffice Memorandum, 1/13/15 23

21 73 - DVD containing various videos and photos 2374 - DVD containing photos of Martin in hospital

22 (Admitted with specified photos redacted) 23375 - Letters of commendation for Pablo Padilla 23

23 76 - Response to Statement of Issues 23

24 Respondent1 - CV of James A. Gonzales 23

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1 HEARING OFFICER: Today is June 30, 2015.

2 The time is approximately 9:16 a.m. We're at the Law

3 Enforcement Academy in Santa Fe, New Mexico. And this

4 is day two of a hearing that started on April 27,

5 2015.

6 During that time, Mr. Hart, you were to

7 provide Mr. D'Amato with certain discovery documents.

8 Has that been done and can you report about that,

9 please?

10 MR. HART: Actually what happened was, at the

11 time of the last hearing, we had not had time to

12 evaluate all of the documents received in discovery.

13 They had already been produced to Mr. D'Amato.

14 Since the last hearing date, I have pared

15 down the actual documents that we're going to offer

16 into evidence. And the revised version was provided

17 to Mr. D'Amato about ten days ago. And those

18 documents are here on the table now.

19 HEARING OFFICER: Okay. Do I have a copy of

20 those?

21 MR. HART: Yeah. There are originals here,

22 the Hearing Officer copies, the Hearing Officer

23 attorney copies.

24 There were some additional objections raised

25 this morning by counsel for Respondent to certain of

1 the exhibits in the revised presentation. I have

2 agreed to withdraw the exhibit that's labeled now

3 No. 70, which is a copy of a complaint filed by Jeremy

4 Martin against the City of Albuquerque and Officer

5 Padilla.

6 HEARING OFFICER: Okay. Are you happy with

7 those documents, Mr. D'Amato?

8 MR. D'AMATO: Partially. There are a list of

9 other exhibits that I will object to in no particular

10 order. I can categorize them in two categories.

11 One is any medical record or photograph of

12 injuries without laying the proper foundation. I

13 believe there is a CD that the Hearing Officer will

14 have that in part -- Mr. Hart, you may be able to

15 explain this better than I. Do you have the CD with

16 medical photographs or the report of injuries, the

17 medical records?

18 MR. HART: I don't know that we have medical

19 records in here. But what we do have -- and this is

20 something that I was concerned about. What I've

21 labeled as Exhibit 74 is a disk.

22 It's an actual CD provided by Albuquerque PD

23 Internal Affairs. And this disk contains photographs

24 showing Jeremy Martin in his hospital bed. And it

25 shows numerous pictures of his injuries. Okay.

1 Now, he's got abrasions and cuts to his face

2 and other parts of his body. But there are some very

3 sensitive photos in here showing a surgical incision

4 whereby one of his testicles was removed.

5 So it's relevant. And if I could have, I

6 would have copied out all the pictures, you know,

7 showing the cuts and scrapes and other things and left

8 to your imagination the picture of the incision to the

9 scrotum.

10 But there was no way for me to print out just

11 certain of these pictures or to -- they wouldn't let

12 you print out any at all. I could have copied the

13 entire disk, but it would have included this other

14 material. And I'm worried, I don't want this to

15 become public information through any kind of IPRA

16 requests.

17 MR. WORD: Mr. Hearing Officer, if I may.

18 Counsel, is there no way to copy just those other

19 photos from the disk?

20 MR. HART: No. I mean not by me. I don't

21 know how to do that.

22 MR. D'AMATO: Well, we're putting the cart

23 before the horse.

24 MR. WORD: Yes.

25 MR. D'AMATO: First of all, the problem I

1 have with this is that there's no proper foundation

2 for this. The individual whose injuries it purports

3 to show will not testify today; he's unavailable in

4 the discovery process, he won't give foundational

5 testimony today. So I think, with all due respect to

6 Mr. Hart, we lack the actual foundation for its

7 admission into evidence.

8 Number two, once it's proffered, if my

9 objection to the foundation is overruled and it is

10 admitted into evidence, there's absolutely no way I

11 believe that this can be carved out of the record

12 proper and insulated from an IPRA request.

13 I don't have standing to raise a HIPAA

14 violation, only the purported patient does. But I

15 think that we do have standing and assert properly the

16 lack of foundation for this Exhibit 74.

17 HEARING OFFICER: Are you going to be talking

18 about the injuries?

19 MR. HART: Well, I mean I think the injuries

20 were pretty substantial in this case and they will be

21 a part of this case. I don't think that HIPAA

22 necessarily applies.

23 These are photographs that were taken by the

24 police-assigned officer who photographed the injuries

25 for purposes of documenting their criminal

1 investigation and for other purposes. It's not a

2 doctor taking photographs of these injuries.

3 MR. D'AMATO: They are medical records.

4 MR. HART: I don't see them as medical

5 records. They happened in a hospital. But these are

6 just photographs. They could have taken place

7 anywhere.

8 MR. D'AMATO: Okay. Given that then, my

9 understanding then is the officer who actually took

10 the photographs, which goes to the foundation

11 argument, will not testify today. I don't think the

12 AG's office can lay a proper foundation for the

13 admission of Exhibit 74. And that's my objection.

14 HEARING OFFICER: Well, let's see if he does.

15 MR. HART: I would say that's a little bit --

16 you know, I mean this is not a judicial proceeding in

17 which the rules of evidence apply. I mean I don't

18 think that anybody is -- I mean if you want to require

19 a foundation from the officer who took these photos,

20 then I would ask for a continuance so we can call him

21 in.

22 And he's going to say, yes, I was sent over

23 to the hospital to take these photos. And this is not

24 the kind of evidence that normally we require that

25 extent of a foundation in terms of introducing into an

1 administrative proceeding. But if you think that

2 that's necessary.

3 Now, these are taken, you know, five hours

4 after the incident. And there's a --

5 MR. D'AMATO: We don't know that.

6 MR. HART: Okay.

7 MR. D'AMATO: We don't know that. And that's

8 the fear I have, is that we're going to make offers of

9 proof that may or may not be true. We don't know when

10 these photographs were taken, we don't know who took

11 the photographs, we don't know the identity of the

12 persons. We can assume certain things. But that's

13 not the proper standard to admit evidence.

14 HEARING OFFICER: Is there a report attached

15 to these photographs?

16 MR. HART: There's reference I think. I can

17 probably find -- when you say attached, I would say

18 that -- the officer was Maurer I think. No, it wasn't

19 Maurer. Maurer did an interview. But there's an

20 officer who prepared a report I think. I have to find

21 it.

22 MR. D'AMATO: While Mr. Hart is looking for

23 that, I believe he has no objection to the admission

24 of R-1.

25 MR. HART: Okay. There's a report prepared

1 by Officer Charles M. Crook. He says, "Photos were

2 taken of Jeremy's injuries and submitted to the

3 photography unit at the MFSC." It's Exhibit 12.

4 MR. WORD: I'm sorry, Mr. Hart. Could you

5 repeat that.

6 MR. HART: Proposed Exhibit 12 is a

7 supplemental report prepared by Charles M. Crook. It

8 indicates that, "Photos were taken of Jeremy's

9 injuries and submitted to the Photography Unit at the

10 MFSC." It starts out, "At 0523 hours, I was

11 dispatched to a battery call at Presbyterian Hospital

12 located at 1100 Central Avenue. On arrival at 0532, I

13 made contact with Sergeant B. Maurer. Maurer was with

14 Jeremy Martin who had several injuries."

15 MR. D'AMATO: The exhibit will speak for

16 itself. I don't know if that answers your question.

17 Are you testifying?

18 MR. HART: I'm reading from the exhibit to

19 say, yes, there is a report associated with the

20 photographs.

21 HEARING OFFICER: I'm going to allow it.

22 Let's move on.

23 MR. HART: My only concern was that issue

24 about the photograph.

25 MR. WORD: Excuse me. One at a time please,

1 because the Hearing Officer spoke and you're both

2 jumping in.

3 HEARING OFFICER: Mr. Hart, you go first.

4 MR. HART: I have concerns that, if

5 introduced into evidence in its entirety as it exists

6 today, that those photographs showing the incision to

7 the scrotum are going to be public record.

8 And I don't know that for a fact. I'm not

9 somebody in the AG's office who does IPRA responses.

10 And I think this is an area where maybe the law should

11 probably have certain restrictions on disclosure of

12 information.

13 But I don't know what the ultimate result

14 would be under the law. And I do have concerns that

15 that photo could become public record or those photos

16 showing that part of the injuries.

17 MR. D'AMATO: So Exhibit 74 is admitted I'm

18 understanding?

19 HEARING OFFICER: Hold on a minute.

20 MR. WORD: No. He was talking about another

21 exhibit, the police report.

22 MR. HART: Yes.

23 HEARING OFFICER: That's what we're talking

24 about.

25 MR. WORD: For the record, Mr. Hart,

1 Exhibit 74 is what you're speaking of?

2 MR. HART: Yes. I don't have copies of this.

3 I did not make copies.

4 MR. WORD: Okay. And Exhibit 74 is a CD

5 containing a series of photographs?

6 MR. HART: Yes. There are numerous

7 photographs on it.

8 MR. WORD: And are they identified by number

9 or in some fashion?

10 MR. HART: Well, the thing is it's a single

11 file I think that contains numerous photographs.

12 Okay. And I would have to look at it. You know, for

13 purposes of evaluating this, maybe we should plug it

14 in and look at it here, you know, just to see what you

15 want to do with it.

16 MR. D'AMATO: May I have an opportunity to

17 speak.

18 MR. WORD: It has not been admitted yet.

19 MR. D'AMATO: It has not been admitted?

20 MR. WORD: It has not been admitted yet. And

21 what we're talking about is a number of photos on one

22 disk. And this is one of the problems in these

23 hearings of disks that contain numerous photographs.

24 And there can arise circumstances where some

25 of them are admitted and some are not. And we need to

1 be able to break those out. Now, there has not been a

2 ruling at this point on this particular exhibit.

3 I'm sorry, Mr. D'Amato. You were trying to

4 say something.

5 MR. D'AMATO: Yes. Thank you. Opposing

6 counsel referred to Exhibit 12 as a proper basis for

7 laying a foundation for Exhibit 74. Exhibit 12 is

8 taken out of context in the sense that, although

9 Charles Crook with the Albuquerque Police Department,

10 a detective, indicates he took photographs, in that

11 same exhibit, Exhibit 12, he alludes to another

12 detective taking photographs as well.

13 So the foundation is improper still. I don't

14 believe we can cross Mr. Hart's concern about whether

15 it's a public record or not until a ruling is made on

16 the foundation. I still believe the improper basis

17 for foundation has been shown by Mr. Hart. We don't

18 know who took these photographs.

19 HEARING OFFICER: Well, you know somebody

20 from the police department did.

21 MR. D'AMATO: Sorry?

22 HEARING OFFICER: You know somebody from the

23 police department did. The hospital doesn't do it.

24 MR. D'AMATO: We don't know who took these

25 photographs. We do know that there is one report,

1 Exhibit 12, published by Detective Crook who alludes

2 to another detective taking additional photographs.

3 MR. HART: There were other photographs taken

4 on scene by a different officer. And that's what's

5 being alluded to. And those other photographs are

6 included in Exhibit 73, which lists them as No. 7,

7 "Photos on scene of both Padilla and Martin."

8 MR. WORD: So if I may, Counsel, Hearing

9 Officer, to use Mr. D'Amato's phrase, perhaps we're

10 putting the cart before the horse. Hopefully

11 Mr. Hart, in his case-in-chief, can clarify and

12 provide some foundation.

13 But I want to reiterate -- and Mr. D'Amato

14 and Mr. Hart both know this from doing lots of these

15 hearings -- the rules of evidence do not apply in

16 these hearings. Hearsay is admissible.

17 MR. D'AMATO: The objection is not based on

18 hearsay.

19 MR. WORD: You're saying there needs to be a

20 foundation. You're basically arguing that it's

21 hearsay because there's not a proper foundation

22 showing who made these photos, where they came from.

23 How am I misunderstanding your objection?

24 MR. D'AMATO: Yeah. It's a foundation under

25 the proper admission of evidence. It is not a hearsay

1 objection.

2 MR. WORD: How is that not -- you're arguing

3 the rules of evidence.

4 MR. D'AMATO: Well, the difference between

5 the foundation of a piece of documentary evidence

6 versus hearsay. We all know hearsay can be

7 admissible.

8 And the weight of the evidence goes to the

9 Hearing Officer. And he determines whether it's

10 admissible or not -- I mean whether he gives it great

11 credence or little credence or no credence. That

12 presupposes the admission of the evidence. Before

13 evidence is admitted, a proper foundation has to be

14 shown.

15 MR. WORD: And the foundation being that this

16 is Jeremy Martin in the photographs?

17 MR. D'AMATO: That the individual who

18 identifies the photographs on that document took the

19 photographs, the time of the photographs. Proper

20 foundation elements. I mean it's just basic

21 evidentiary rulings.

22 Now, allow me to say this also. If Exhibit

23 74 is admitted, by definition it is a public record

24 subject to an IPRA request.

25 MR. WORD: And that's not being argued. I do

1 IPRA. And it is. So I have real concerns. And my

2 recommendation to the Hearing Officer would be any

3 sensitive photos of someone's, you know, anatomy not

4 be admitted into the record today because it would be

5 subject to an inspection of public records request.

6 And it may or may not be useful if the

7 injuries -- we don't know. We're arguing again before

8 we've heard any presentation by the Prosecutor or you.

9 I think a lot of this is a premature

10 discussion of what may or may not be on this exhibit.

11 I assume Mr. Hart's case-in-chief is going to provide

12 some kind of foundation and some sort of basis.

13 MR. HART: If I could respond to that. There

14 were approximately 12 different police officers who

15 prepared reports arising out of this incident.

16 Included in those officers, you have the officer who

17 went to the hospital whose sole job was to take these

18 photos.

19 You had an officer whose sole job it was I

20 guess to take photos of Jeremy Martin and Pablo

21 Padilla on the scene. And then you have numerous

22 other officer reports. I have not called all of those

23 people to testify here today.

24 What I can say is that what I'm holding in my

25 hand is the actual copy of a disk that I received from

1 the Albuquerque Police Department Internal Affairs

2 Department when I asked for a copy of their file

3 pertaining to their investigation of this matter.

4 I don't think there's any reasonable basis to

5 conclude that what's on here is not what it purports

6 to be. I think there's going to be time-stamped

7 photographs on here that show when these photographs

8 were taken. That time is going to correlate with the

9 times that are shown in Exhibit 12.

10 It's also going to correlate with Sergeant

11 Maurer. Sergeant Maurer went to the hospital. And

12 when he was interviewing Jeremy Martin in the bed with

13 a lapel camera going, he said there's an officer who

14 is coming to take photographs of you. Oh, he's here.

15 Okay. So there's all sorts of corresponding

16 and reaffirming evidence, documentary or video

17 recording, that says this is what it purports to be.

18 Photographs taken in the hospital at 5:30 a.m. the

19 morning after the events unfolded at the scene of the

20 DWI arrest.

21 Now, I would say one more thing.

22 HEARING OFFICER: Hold on.

23 MR. HART: If I could say one more thing.

24 HEARING OFFICER: Sure. Go ahead.

25 MR. HART: I can't segregate out the pictures

1 showing the incision of the scrotum from the other

2 ones. But I do believe that Albuquerque Internal

3 Affairs could. I mean they can probably print out

4 whatever you want.

5 So if you want to look at this and say we're

6 going to admit photos one through whatever and we'll

7 wait to supplement the record with what the

8 Albuquerque IA people can provide us, we can do that I

9 think.

10 HEARING OFFICER: Okay. What we're doing is

11 we're starting this hearing the same way we started

12 the last one. And I thought you guys were going to

13 have all this ironed out by the time we got here

14 today.

15 So I'm setting that aside. I'm not going to

16 make a ruling on that, whether we're going accept it

17 or not at this time. I will accept your other

18 exhibits, if you all agree on them, and we'll give

19 them the weight they deserve when making my decision

20 in this matter. Start the hearing, please.

21 MR. HART: Okay. Was that all of the

22 objections, Mr. D'Amato?

23 MR. D'AMATO: I will object as I go given the

24 direction of the Hearing Officer.

25 MR. WORD: Can we have a statement of what

1 the parties have stipulated to other than what we've

2 already discussed? I believe Mr. D'Amato was talking

3 about an Exhibit R-1.

4 MR. D'AMATO: I think Mr. Hart stipulated to

5 Exhibit R-1, which is a curriculum vitae of James

6 Gonzales, a Respondent's witness, who by the way as a

7 housekeeping matter cannot appear to testify until

8 after 1:30.

9 MR. HART: I don't have any objection to R-1.

10 I thought we had a stipulation as to all but a few.

11 MR. D'AMATO: The objections to the exhibits

12 I have are numbered 61 through 69 -- 43 to 50 and 61

13 through 69. As we get to those exhibits, I will state

14 my objection.

15 MR. WORD: Perhaps it's easier to express it

16 in a positive fashion, which exhibits are the parties

17 stipulating to.

18 MR. D'AMATO: Well, we're stipulating to

19 Exhibits 1 through 41. Objection is made to 42

20 through 50, objection is made to 62, 64, 65, 67, 68,

21 and 69. And 70 has been withdrawn. And I guess

22 Mr. Hart's Exhibit 71 is correspondence that's stemmed

23 off of 70.

24 MR. HART: So you object to Exhibit 71?

25 MR. D'AMATO: Yes. Will you withdraw

1 Exhibit 71 based on its relationship to 70?

2 MR. HART: I think the fact that a civil

3 complaint was filed -- I don't see how --

4 MR. D'AMATO: I'll stipulate to the fact that

5 a civil complaint was filed. Exhibit 71 is a city

6 attorney email.

7 MR. HART: I don't see it as being important.

8 But I have no objection to withdrawing Exhibit 71.

9 MR. WORD: What about Exhibits 51 through --

10 MR. D'AMATO: It was Exhibits 42 through 50.

11 MR. WORD: You object to?

12 MR. D'AMATO: Yes. I will object based on it

13 being --

14 MR. WORD: All I'm asking, if I can interrupt

15 you, is not get into the arguments about those. But

16 can you just tell us what exhibits there is a

17 stipulation to admit to at this time.

18 MR. D'AMATO: Yes. All exhibits are

19 stipulated to with the exception of 42 through 50, 61,

20 62, 64, 65, 67, 68, and 69.

21 MR. WORD: We don't know how many exhibits

22 there are. So, Mr. Hart, you guys need to tell us how

23 high the numbers go.

24 MR. D'AMATO: Let me just tell you what we

25 stipulate. Exhibit 1 through 41. Mr. Hart, I expect

1 you will correct me if I misspeak.

2 MR. HART: Okay.

3 MR. D'AMATO: Exhibit 51 through 60, 63, 66,

4 72, 73, and 75. I'm sorry. Exhibit 76 is case file

5 documents, the pleadings contained in this action

6 through the Law Enforcement Academy Board.

7 MR. WORD: Excuse me. Exhibit 75 is what?

8 MR. D'AMATO: Exhibit 75 is letters of

9 commendation.

10 MR. WORD: But it's stipulated to?

11 MR. D'AMATO: Yes.

12 MR. WORD: So for the record what I've heard

13 is there's a stipulation to the admission of

14 Exhibits 1 through 41, 51 through 60, 63, 66, 72, 73,

15 75, and also 76?

16 MR. D'AMATO: Yes.

17 MR. WORD: Thank you.

18 HEARING OFFICER: Is that correct, Mr. Hart?

19 MR. HART: Yes. I proposed all these. I

20 mean I obviously agree to all of them. And the other

21 ones are objected to by Respondent.

22 HEARING OFFICER: Okay. I'll go ahead and

23 accept those that you've agreed to and give them the

24 weight they deserve when making my decision in this

25 matter.

1 (AG Exhibit Nos. 1 through 41, 51-60, 63, 66,

2 72-73, and 75-76 admitted.)

3 (Respondent's Exhibit No. 1 admitted.)

4 HEARING OFFICER: As to the others, as we go

5 through the hearing, we'll stop so I can confer with

6 counsel whether we're going to let them be accepted or

7 not.

8 MR. HART: Well, and I guess for my purposes,

9 I would just like to offer them into evidence right

10 now. I don't have any particular witnesses associated

11 with these. These are records obtained through the

12 Albuquerque Internal Affairs Department.

13 I think it would be more efficient just to go

14 through them now and either accept or reject them.

15 There's not going to be a witness to address them.

16 HEARING OFFICER: Okay. All I have is

17 numbers. I don't know what these documents are.

18 MR. HART: Right. Exhibit 42 --

19 HEARING OFFICER: Exhibits 42 through 50,

20 what are those?

21 MR. HART: Exhibit 42 are emails from and to

22 Robin Hammer who is with the investigation. Let me

23 see. They are with the IRO. A man by the name of

24 Jeff Ponce sent a complaint to the Albuquerque Police

25 Department about the incident in question.

1 This was forwarded to Paul Skotchdopole by

2 Robin Hammer of the Independent Review Office. And

3 this I guess began part of the IRO investigation.

4 HEARING OFFICER: IRO?

5 MR. HART: Independent Review Office. And my

6 understanding is in Albuquerque you can have

7 investigations conducted either/or or both by the

8 Internal Affairs Department or by the Independent

9 Review Office.

10 Ultimately the documents that are produced by

11 the Independent Review Office are returned in my

12 understanding to the Internal Affairs Department and

13 kept on record there. And so that's where these

14 documents came from.

15 And basically 42 shows a copy of the email

16 that commenced the Independent Review Office

17 investigation of the matters at issue.

18 MR. D'AMATO: A brief response.

19 MR. WORD: Go ahead.

20 MR. D'AMATO: Unless, Mr. Word, you wanted to

21 say something.

22 MR. WORD: As a preliminary matter, looking

23 at the transcript of day one, I don't believe there

24 was much argument and much discussion about exhibits

25 that were going to be offered. I don't believe there

1 have been openings which would be very helpful at this

2 point.

3 The Hearing Officer and myself know virtually

4 nothing about this case. So it's very difficult to

5 comprehend all the arguments about particular exhibits

6 when we haven't heard from counsel sort of putting it

7 in perspective, what this case is about, what counsel

8 would like the Hearing Officer to focus on.

9 So if you keep that in mind, if you finish

10 your thoughts on this particular exhibit. I submit it

11 may be more useful to have this discussion after

12 you've sort of made a preliminary statement or opening

13 about what this case is about. And that will help

14 contextualize these arguments.

15 MR. D'AMATO: You're right on point, Counsel.

16 If I may address that by way of addressing the

17 exhibits I'm objecting to.

18 MR. WORD: Well, before you get into

19 arguments about the exhibits, let's hear some opening.

20 MR. D'AMATO: Well, I want to advise the

21 Hearing Officer through these exhibits that I'm

22 objecting to what this case is about.

23 Pablo Padilla made an arrest of an

24 individual --

25 MR. WORD: But it's Mr. Hart who has the

1 burden of proof. He gets to go first with opening.

2 MR. D'AMATO: I'm not making an opening.

3 MR. WORD: Well, I'm really afraid we're

4 getting off track here. I understand the concerns of

5 counsel and I appreciate it. But it's hard for the

6 Hearing Officer to assess arguments about the

7 admissibility of exhibits when we haven't even really

8 heard an opening statement.

9 What we've done, as we always do here, is we

10 try and get the parties to stipulate to as much

11 documentary evidence as possible. It sounds like

12 you've done that. And we've heard which exhibits are

13 not being stipulated to.

14 I think it's hard to go into the arguments

15 about the admissibility of those remaining documents

16 or proposed exhibits when we haven't even heard

17 opening statements from counsel.

18 MR. D'AMATO: Your point is well-taken.

19 However, Respondent should be given an opportunity to

20 respond to the arguments in support of the admission

21 of Exhibit 42 and those that I objected to.

22 MR. WORD: He's only talking about

23 Exhibit 42. Respond to 42 and the others we'll reach

24 when those are offered. Okay. I'm not hearing them

25 offered now. I'm hearing that they have not been

1 stipulated to.

2 MR. D'AMATO: Walter, may I.

3 This case is about Jeremy Martin. His

4 complaint, his complaint, against Officer Padilla. It

5 is not in reference to any other complaint made by any

6 other individual who may or may not have been on scene

7 the night of his arrest, Martin's arrest.

8 Exhibits 42 through 50 are individual

9 civilian complaints wholly unrelated from those

10 individuals who were on the scene. Any civilian can

11 make a complaint against an officer. A person can see

12 a news report of Officer Padilla's alleged misconduct

13 and discipline and file a civilian complaint.

14 That's what Mr. Hart is referring to in those

15 exhibits that are wholly irrelevant to the complaint

16 before this Hearing Officer. It's a Jeremy Martin and

17 Pablo --

18 MR. HART: I never saw Jeremy Martin initiate

19 any IA or Independent Review Office.

20 MR. D'AMATO: The LEA-90 was sent out by APD.

21 That's who initiated this action. And the LEA-90's

22 subject matter was Jeremy Martin's treatment allegedly

23 by Officer Padilla. Nothing more, nothing less.

24 Narrow the focus of this Hearing Officer to

25 that night and Officer Padilla's actions, not what

1 some civilian thinks of Officer Padilla, not what some

2 civilian who may or may not have been on the scene

3 thinks what should happen to Officer Padilla. Wholly

4 irrelevant, immaterial to this Hearing Officer's

5 mission.

6 HEARING OFFICER: Well, I agree with what

7 you're saying. The problem I'm having is I don't even

8 know what an IRO is to start with. And you want me to

9 rule on something that I don't even know what it is.

10 What is an IRO?

11 MR. D'AMATO: An IRO is an Independent Review

12 Officer, which is an animal created by the Albuquerque

13 City Council as an extension of a police oversight

14 commission.

15 HEARING OFFICER: How do you get that out of

16 RIO?

17 MR. D'AMATO: IRO. The Internal Review

18 Officer would be Robin Hammer. Her investigators,

19 Paul Skotchdopole and others, are tasked with

20 investigating civilian complaints, of which Mr. Martin

21 never made a civilian complaint.

22 These unknown individuals which identified --

23 and that's my objections are to. That's all my

24 objections are to, are those documents which reference

25 unknown individuals who have filed civilian

1 complaints.

2 HEARING OFFICER: I guess what I would need

3 for you to do is make some kind of presentation to me

4 so I will know what you're talking about and if we're

5 going to allow it or not.

6 MR. D'AMATO: Let's take ten minutes, if we

7 may.

8 HEARING OFFICER: Pardon me?

9 MR. D'AMATO: Let's take a ten-minute break.

10 HEARING OFFICER: Okay. We're going to go

11 off record at 9:50 a.m.

12 (Recess.)

13 HEARING OFFICER: We're back on record. It's

14 10:28 a.m.

15 One of the problems that we have is that I

16 have not seen any of these documents. And I don't

17 allow them to send them to me so I'll have a better

18 idea of what's going to happen in the hearing, which

19 seems more fair to you than me reviewing everything

20 and then trying to make a decision before any

21 testimony is given.

22 So, Mr. Hart, go ahead and start your case,

23 call your witnesses, and then we'll see where we go

24 from there. Are you going to do an opening?

25 MR. HART: Yes, of course.

1 HEARING OFFICER: Okay. Go ahead.

2 MR. HART: Did we introduce ourselves for the

3 record yet?

4 HEARING OFFICER: No. We can, though.

5 MR. WORD: We did last time I think. But

6 let's do it again for today.

7 MR. HART: I'm Walter Hart with the Attorney

8 General's Office. I was formerly with the Litigation

9 Division. I'm now with Criminal Appeals. I'm

10 handling this case as the Administrative Prosecutor

11 for the Law Enforcement Academy Board.

12 MR. D'AMATO: My name is John D'Amato, I

13 represent Pablo Padilla who is seated to my right.

14 MR. WORD: I'm Rick Word. I am an Assistant

15 Attorney General in the Open Government Division of

16 the Attorney General's Office. And I am here in my

17 capacity as counsel to the Law Enforcement Academy

18 Board to assist the Hearing Officer.

19 HEARING OFFICER: And I'm Louie Medina, the

20 Hearing Officer.

21 MR. WORD: Do you want to say a little

22 something about yourself for the record?

23 HEARING OFFICER: Also by way of

24 introduction, I'm a 27-year veteran of the New Mexico

25 State Police and retired as a commander. While in the

1 State Police, I worked in a number of areas; in

2 uniform, training, governor's security, and spent over

3 five years in Internal Affairs.

4 I was selected to rewrite New Mexico State

5 Police policies and procedures to bring the department

6 into compliance with the Commission on Accreditation

7 for Law Enforcement Agencies. I was also a zone

8 commander in charge of all uniform districts and

9 commander of the Special Operations.

10 After the New Mexico State Police, I spent

11 over two years conducting investigations for New

12 Mexico Risk Management, investigating tort claims

13 filed against the State of New Mexico and was later

14 commander of the Lea County Drug Task Force for

15 approximately two years.

16 I attended Northwestern University Police

17 School of Staff and Command, where I was selected and

18 received the highest leadership award given by

19 Northwestern. I hold every advanced training

20 certificate issued by the New Mexico Law Enforcement

21 Academy, from intermediate one all the way up to

22 executive. And I have a Bachelor's degree in criminal

23 justice.

24 Mr. Hart, your opening, please, sir.

25 MR. HART: All right. This case involves an

1 incident that occurred on the evening of April 25,

2 2014. It involved Albuquerque Police Department

3 Officer Pablo Padilla, who is the Respondent in this

4 case. And it also involves a young man by the name of

5 Jeremy Martin.

6 At the time of the incident, Jeremy Martin to

7 my understanding was a law school student. He was

8 also working as an intern for the New Mexico Attorney

9 General's Office. I did not know him, I never met

10 him, and I know of no contact I had with him even in

11 writing or email.

12 Like most Law Enforcement Academy Board

13 cases, this incident and the matters at issue before

14 the Hearing Officer come down to the question of

15 whether the conduct of the officer demonstrates a lack

16 of the moral character necessary to perform the duties

17 of a certified law enforcement officer in the State of

18 New Mexico.

19 Under the Law Enforcement Training Act, the

20 Law Enforcement Academy Board may impose discipline

21 only for certain statutorily identified grounds for

22 imposition of discipline. And one of those bases is

23 the failure of the officer to meet the qualifications

24 necessary for certification.

25 And it's a little bit inartfully drafted.

1 But the way it arises in this case and in most cases

2 is, if at any time an officer demonstrates a lack of

3 one of those criteria, including the requirement of

4 good moral character, discipline may be imposed.

5 What the Law Enforcement Training Act does

6 not specifically identify --

7 MR. D'AMATO: Respectfully, Mr. Hart. I'm

8 going to object. This is more of an argument rather

9 than an opening.

10 MR. HART: I think it's necessary to frame

11 the evidence in this case. And in this particular

12 case, the Law Enforcement Training Act does not

13 identify the excessive use of force as a ground for

14 discipline.

15 MR. D'AMATO: Can I have a ruling on my

16 objection.

17 HEARING OFFICER: Your objection is

18 overruled. Go ahead.

19 MR. HART: Okay. The way that cases of

20 excessive force get handled, as a matter of

21 discipline, is through the regulations adopted by the

22 Board, which must be seen as being an interpretation

23 of the requirement that an officer possess good moral

24 character.

25 So in this case and every case involving

1 alleged excessive use of force, what must be evaluated

2 is the subjective intention of the officer regarding

3 the use of force.

4 Now, going to the facts of this case that

5 frame the issues, on the late evening of April 25,

6 2014, Officer Padilla witnessed a red truck being

7 driven by Jeremy Martin go through a stop sign.

8 Officer Padilla stopped that vehicle.

9 In the vehicle were four young individuals,

10 Jeremy Martin and three other young men. The police

11 reports that I've seen don't identify any of the other

12 three men. I don't know why that is given what

13 happened subsequently.

14 I think what the evidence is going to show is

15 that from the outset Officer Padilla interacted with

16 Jeremy Martin in a confrontational, derisive, and

17 ridiculing way. He would not allow Jeremy Martin to

18 complete sentences or to ask questions that would be

19 reasonable under the circumstances.

20 And ultimately I think what's going to be

21 shown is that this pattern of disrespect by Officer

22 Padilla led to frustration on the part of Jeremy

23 Martin and ultimately led him to be disobedient in the

24 course of their encounter.

25 And that disobedience escalated into a

1 situation in which Officer Padilla used a knee strike

2 to bring Jeremy Martin into his control. And the knee

3 strike ultimately ruptured his testicle and caused the

4 removal of it.

5 After the initial physical violence, Jeremy

6 Martin was handcuffed. And during this time, at the

7 outset, Mr. Martin was required to remove his glasses.

8 He was using glasses while he was driving.

9 Officer Padilla instructed him, while in the

10 vehicle, to remove those glasses in order to perform

11 eye gaze nystagmus testing. Jeremy Martin,

12 apparently, based on the video, forgot that that's

13 where his glasses were.

14 After he had sustained the knee strike and

15 had been wrestled to the ground, Martin, who was

16 apparently intoxicated to some degree, insisted that

17 he be given his glasses back in the mistaken

18 assumption that they were somewhere on the ground

19 after having been in the scuffle with Officer Padilla.

20 Mr. Martin continued to insist that he be

21 given his glasses. And Officer Padilla continued not

22 to address that concern. And when Mr. Martin

23 exhibited some type of resistance, and there might be

24 questions about how much and what kind of resistance

25 Mr. Martin gave after having been handcuffed,

1 Mr. Martin was slammed into the concrete face first

2 while handcuffed and sustained injuries to his face at

3 that time.

4 Now, a related aspect of this case involves

5 the conduct of Officer Padilla with respect to the

6 three other young men who were in the vehicle. At the

7 outset, when Officer Padilla approached the driver's

8 side of the vehicle, one of the passengers, the

9 front-seat passenger, had a telephone, a cell phone in

10 his hands.

11 And you're going to see from the video that

12 Officer Padilla was very confrontational. He first

13 instructed the young man not to make any calls, not to

14 use his phone. The young man responded by asking why.

15 Immediately Officer Padilla said for officer safety

16 reasons. The young man then, based on the video, put

17 his phone away.

18 Later what happened was that Officer Padilla

19 confiscated that telephone. And in relation to an

20 iPhone that one of the back-seat passengers had, one

21 of the back seat passengers apparently, while Officer

22 Padilla was interacting behind the vehicle with Jeremy

23 Martin, began to videotape the interaction of Officer

24 Padilla and Jeremy Martin.

25 When Officer Padilla discovered that camera,

1 that cell phone recording a video, he seized that

2 iPhone and erased the video that was being taken on

3 it. The question is, you know, what motivated him --

4 I'm going to let you decide what that shows. That's

5 argument.

6 So the question here today is whether the

7 conduct of Officer Padilla on the evening in question

8 demonstrated a lack of moral character required by an

9 officer to perform the duties of a certified law

10 enforcement officer.

11 And I think it's important to look at the

12 events of that evening not simply in the question of

13 whether excessive force was being used, because that's

14 not the central issue; the central issue is moral

15 character.

16 And I think that one of the things that, you

17 know, the evidence is going to show is that it was the

18 actions of Officer Padilla that led to this, his need

19 to dominate the suspects in this case and the

20 passengers, which resulted in the relatively mild

21 resistance being offered by the suspect and escalating

22 that into serious personal injury to the suspect,

23 Jeremy Martin.

24 HEARING OFFICER: Mr. D'Amato.

25 MR. D'AMATO: Yes, thank you. Mr. Hart has

1 given a summary of the evidence he expects to show.

2 But he fails to identify certain facts that I think

3 this Hearing Officer will hear.

4 On the day in question, at about 20 after

5 midnight, in the Nob Hill area of Albuquerque, Officer

6 Padilla observed a vehicle failing to maintain its

7 traffic lane, which is a key indication of potential

8 driving while intoxicated.

9 After he observed that traffic violation, he

10 effected a lawful stop. He engaged the traffic stop

11 using his emergency equipment and came to the truck

12 and made contact with the driver.

13 Upon making contact with the driver, he

14 smelled an odor of alcohol and also observed a front

15 passenger in the compartment as well as two other male

16 individuals in the rear. The driver admitted having

17 alcoholic drinks from the Nob Hill area in

18 Albuquerque.

19 While trying to conduct in cabin a horizontal

20 gaze nystagmus, he was distracted -- he being the

21 driver as well as the officer was distracted by all

22 three of the passengers talking during the initial

23 contact.

24 One of the passengers attempted to ask

25 questions. One of the passengers attempted to make

1 telephone calls during Officer Padilla's initial

2 contact, despite having heard orders by Officer

3 Padilla not to use their cell phones while he was

4 conducting an investigation.

5 So initially what we have is the evidence

6 will show an officer lawfully engaged in doing his

7 duty as a police officer, trying to stop a driver who

8 appeared to be intoxicated but required further

9 investigation.

10 The evidence will also show that the driver,

11 Martin, in further inquiry by Officer Padilla gave a

12 conflicting statement that now he had three drinks.

13 And then later on in the stop, Martin indicated he had

14 no alcoholic drinks at all.

15 So the evidence will also show that once he

16 was removed from the vehicle, Martin was asked by

17 Officer Padilla to have a seat on the curb for both

18 Martin's safety as well as Padilla's safety.

19 Now, it's easy for someone to say we're here

20 because of Padilla's actions. But I want you to focus

21 on the testimony and the evidence that show the

22 driver's actions.

23 The evidence will show that the driver

24 continued to communicate with -- disregarded Padilla's

25 initial request to stay seated on the curb, stood up,

1 began to walk into a traffic lane, which is not a safe

2 area.

3 Officer Padilla exited his vehicle and

4 advised Martin a second time in a loud command voice

5 to remain seated. Again the driver, Martin, refused

6 to sit down and asked Pablo if he could just call

7 someone to pick him up because he didn't want to be

8 there.

9 Officer Padilla ordered Martin to stay

10 seated, which all verbal attempts to have Martin

11 comply with were failing. He just refused completely

12 to comply with Officer Padilla's verbal requests.

13 Martin's actions and verbal statements not to comply

14 with Officer Padilla's lawful requests showed a

15 complete refusal to comply.

16 Now, it didn't stop there. The evidence is

17 going to show that Officer Padilla approached and gave

18 an announcement finally to Martin, after numerous

19 attempts to have him sit down, that if he didn't

20 comply now, he would deploy his OC spray, his

21 oleoresin capsicum spray, to which Martin's response

22 was not compliance but a further challenge; quote,

23 mace me, please, I would love for you to mace me, that

24 would be fantastic, close quote.

25 That's on the lapel camera. You'll see all

1 of this on the lapel camera of Officer Padilla. From

2 the moment Officer Padilla started until the close of

3 this case, Officer Padilla's lapel camera was

4 capturing everything.

5 At this point again, Martin, the driver,

6 asked if he could just have someone come and pick him

7 up. Unbeknownst to Officer Padilla at this time was

8 that Martin was on probation for driving while

9 intoxicated.

10 MR. HART: Is there any evidence you have and

11 can you produce that?

12 MR. D'AMATO: We'll see what the evidence

13 shows.

14 MR. HART: I mean I haven't seen any

15 documents indicating that.

16 MR. D'AMATO: The evidence will also show

17 that the driver, Martin, is not going to testify

18 today. No one is going to testify who was on the

19 scene that night except Officer Padilla.

20 At this point, after noncompliance by Martin,

21 Pablo Padilla, Officer Padilla, displayed his ERD, his

22 taser so to speak. Both displays of Pablo Padilla

23 failed to have an effect on the driver and his

24 compliance. Martin's refusals continually aggravated

25 the incident and escalated the incident.

1 When Officer Padilla attempted to place

2 Martin into custody, Martin spun towards Officer

3 Padilla. And due to the totality of the

4 circumstances, I think Pablo struck the driver to

5 effectuate the arrest. Taught at the academy, leg

6 strikes.

7 Not only will we have the lieutenant testify

8 this morning, we'll have James Gonzales on behalf of

9 the Respondent testify as to the training and the

10 experience in leg strikes.

11 Martin was taken to the ground due to his

12 active resistance. Martin refused to get in the

13 patrol car. It took two officers to get the driver to

14 get into the back of the vehicle.

15 Now, what the evidence is going to show

16 basically is that Pablo Padilla asked the driver of

17 the vehicle four times to sit down and an additional

18 24 times to sit down. Twenty-four times plus four.

19 Close to 30 times. Verbal commands with noncompliance

20 by the driver prior to taking Martin into custody.

21 Injuries all could have been avoided had the

22 driver complied initially. The evidence is going to

23 show a leg strike that was taught that may or may not

24 have had its desired effect. And the target was

25 apparently missed.

1 That injury will be shown by Mr. Hart in the

2 sense that a testicle was removed the following day at

3 the UNM Hospital. Evidence will be admitted at some

4 point, we don't know when, of abrasions on the face

5 and legs of the driver.

6 After this entire series of events had

7 lapsed, Officer Padilla out of frustration deleted the

8 video on the civilian's cell phone. He will tell you

9 what was going through his mind. There was no attempt

10 or intent in his mind at that point in time to destroy

11 evidence or hide evidence.

12 Everything was on the lapel camera. And the

13 underscored fact there is his lapel camera shows him

14 and records him deleting the video. It was done as a

15 mistake, in a fit of frustration, and that's all there

16 was to it.

17 Anyone who will testify today including the

18 lieutenant we think will tell you that, after 14 years

19 in the department, Officer Padilla is an exemplary

20 officer; that he has no other instance of moral

21 conduct that would cause this Hearing Officer concern;

22 that the actions that Martin now complains of are

23 directly related to his inability to comply with an

24 officer. Bottom line.

25 This Hearing Officer may hear evidence that,

1 well, in today's society, with the young kids and

2 their cell phones, there is a degree of noncompliance

3 that an officer has to take. I would assert just the

4 opposite.

5 The evidence will show that in today's

6 society now more than ever these young kids, these

7 young people who are stopped by law enforcement, must

8 comply more than ever.

9 And the argument there will be made in

10 findings of facts and conclusions of law. We'll

11 request those from you at the close of the hearing to

12 have ample time to explore and expand on that concept.

13 We believe the evidence will show that

14 Officer Padilla, if he is guilty of anything before

15 this Board, it's for that one moment and lapse in time

16 deleting the video. Conduct that should not be

17 tolerated by the Law Enforcement Academy Board.

18 But that any suspension that this Hearing

19 Officer may recommend must be taken in light of the

20 driver's actions and knowing that Padilla, throughout

21 the substantial part of this arrest process, was by

22 himself during the investigation up to a point before

23 responding officers assisted him.

24 We submit to you that the actions of Officer

25 Padilla will support possibly a suspension but

1 certainly within the guidelines of less than six

2 months and not a revocation, because it's divided into

3 two parts. One is the actions of Padilla and the

4 camera and the second is the actions of the driver in

5 causing the claim for damages.

6 You'll also hear that a civil complaint was

7 filed. And that's all you'll hear. That has not been

8 litigated. You'll hear from Officer Padilla. You'll

9 hear from Officer Gonzales, retired James Gonzales,

10 which Exhibit R-1 shows his curriculum vitae.

11 You'll also hear from Lieutenant Gabe Mares,

12 I believe that Mr. Hart is calling Mr. Mares, who was

13 a supervisor who reviewed the Internal Affairs

14 investigation, all of which were sustained.

15 I'm sorry. One more piece of evidence you'll

16 hear is that Officer Padilla was disciplined by his

17 department. I believe it was initially a 240-hour

18 suspension. That was reduced or cut in half. I think

19 it was 120 hours 160 hours total of his suspension

20 time which he served and completed.

21 The remaining hours will remain in abeyance

22 until I believe September of this year, after which he

23 will not be responsible for the remaining 120 hours

24 that was held in abeyance. Thank you.

25 HEARING OFFICER: Call your first witness.

1 MR. HART: I would actually like to start

2 with Officer Padilla. And I would like to use the

3 video facilities.

4 (Discussion off the record.)

5 PABLO PADILLA,

6 after having been first duly sworn under oath,

7 was questioned and testified as follows:

8 EXAMINATION

9 BY MR. HART:

10 Q. Could you state your full name for the

11 record, please.

12 A. Pablo Padilla.

13 Q. And what is your occupation, sir?

14 A. I'm employed with the City of Albuquerque

15 Police Department since 2001.

16 Q. Are you currently employed there?

17 A. Yes, sir.

18 Q. And what is your position now?

19 A. I am a detective in the white collar crime

20 unit.

21 Q. And is that a promotion from the position

22 that you had when the incident in question here

23 occurred?

24 A. No. Officers and detectives are the same

25 rank.

1 Q. Okay. And are there any pending criminal

2 charges against you arising out of the incidents in

3 this case?

4 A. Possible. There's information being reviewed

5 right now.

6 Q. Okay. Is it supposed to go to the grand jury

7 or something?

8 A. It's set for a preliminary hearing in

9 September. But I don't know if it's going.

10 Q. And you were certified in 2001?

11 A. Yes, sir.

12 Q. And have you always worked for the

13 Albuquerque Police Department since you've been

14 certified?

15 A. Yes, sir.

16 Q. And have you principally been a patrol

17 officer?

18 A. Yes, sir.

19 Q. And you had a pretty high DWI arrest rate; is

20 that correct?

21 A. I did. I arrested a lot. Five to seven a

22 month is what I usually got.

23 Q. All right. Since you're in white collar

24 crime now, is that a redeployment based on the events

25 at issue in this case?

1 A. Yes.

2 Q. Okay. What were you doing on the evening

3 of -- I guess we're talking about April 25th. This is

4 just after midnight; is that correct?

5 A. Yes, sir. Actually the stop was like ten

6 minutes before midnight and then it rolled into the

7 25th.

8 Q. All right. What time did you go on duty on

9 that shift?

10 A. I work graveyard. I went ten p.m.

11 Q. So you normally sleep from what time to what

12 time when you're on graveyard?

13 A. You know, it just depends. I have court

14 during the day. So it just depends if I have morning

15 or afternoon court.

16 Q. Do you remember on that day if you had had

17 court on the 24th?

18 A. I don't recall, sir.

19 Q. Was there anything going on at that time that

20 would have caused you any kind of stress in your life?

21 A. No, sir.

22 Q. Prior to stopping Jeremy Martin, had anything

23 emotional occurred?

24 A. No, sir.

25 Q. All right. Had you made a stop prior to that

1 time, shortly before?

2 A. No. That was my first stop of the night.

3 Q. Okay. I want to review the videos. And I

4 think there's really less than ten minutes to go

5 through. But I want to ask you questions as we go

6 through it.

7 We have up on the screen a file that comes

8 from Exhibit 73. And the exhibit that I've marked

9 includes eight separate subcategories. And under

10 subcategory 1, it says Pablo Padilla lapel videos.

11 Have you had occasion yourself to review those lapel

12 videos?

13 A. Yes, sir.

14 Q. Now, there are numerous other lapel videos

15 from other officers on the scene. Do you know how

16 many separate files of lapel videos came from your

17 camera?

18 A. Two or three.

19 Q. Okay. So three would be --

20 A. I thought it was two or three.

21 Q. Okay. So what we have up here is the first I

22 think chronologically of three of your videos. Do you

23 recognize the still shot that's up there as being the

24 first of your lapel videos?

25 A. Yes, sir.

1 Q. Okay. I'm going to go back to the beginning.

2 Let's see.

3 (Video played.)

4 Q. Okay. That's a scene from within your car;

5 is that correct?

6 A. Yes, sir.

7 Q. What do they call that you're looking at?

8 A. A KDT.

9 Q. Okay. At this time you had stopped. Why had

10 you stopped Jeremy Martin's vehicle?

11 A. I was parked at Monte Vista and Campus

12 monitoring traffic. That's like my -- that area is my

13 beat, the Nob Hill area. That's just where I watch

14 for speeders. I run the radar there and I watch for

15 stop signs, people running stop signs at Wellesley,

16 Campus, and Richmond.

17 I'm parked -- Monte Vista runs sort of north

18 and south and east and west. So I'm parked on the

19 west side of Monte Vista facing west. I guess I'm

20 just there observing traffic. No vehicles.

21 I see a vehicle coming northbound on

22 Wellesley. At Wellesley and Campus, there's a stop

23 sign. It just runs right through the stop sign

24 without stopping or slowing down. It proceeds to go

25 eastbound on Campus.

1 At that time I get behind the vehicle. As

2 we're both going eastbound on Campus, the red pickup

3 can't maintain its lane, two times to the right it

4 crossed over. He swerves twice to the right, at which

5 time I engage my emergency equipment.

6 The vehicle then proceeds to go north on

7 Berkeley and stops -- Berkeley and Grand is where the

8 traffic stop was conducted at.

9 Q. Okay. So is it correct to summarize to say

10 he ran a stop sign?

11 A. Yes, sir.

12 Q. And then he failed to maintain his lane

13 twice?

14 A. Yes, sir.

15 Q. Did he take an unreasonable amount of time to

16 stop after you engaged your lights?

17 A. Not unreasonable.

18 Q. All right. And so the scene we're looking

19 at, he came to a stop where?

20 A. Berkeley and Grand.

21 Q. And what kind of roadway is that?

22 A. It's a residential area. The roadway is

23 asphalt.

24 Q. Was there any traffic at the time of the

25 evening on that road where you stopped him?

1 A. Not when I stopped him, no, sir.

2 Q. And while you were there, did any vehicles go

3 by?

4 A. Maybe one or two.

5 Q. How long were you at that scene after the

6 stop total?

7 A. The total stop?

8 Q. Through everything, until you were able to

9 clear the scene.

10 A. Maybe an hour.

11 Q. All right. Okay. Let's go back to the

12 video.

13 (Video played.)

14 Q. All right. Did you have any initial reaction

15 to the people that you saw in this vehicle?

16 A. You mean like at this point right here?

17 Q. Did you make any assessment of a potential

18 threat or, you know, what you were about ready to

19 face?

20 A. Right here, no. I mean at this point, no,

21 sir. I mean I was just going to get his driver's

22 license and registration.

23 (Video played.)

24 Q. And was that Mr. Martin that we just saw

25 point to the glove compartment?

1 A. Yes, sir.

2 Q. And what did you understand from that

3 pointing to the glove compartment?

4 A. From watching the video -- I mean I hate to

5 assume. But I mean I'm assuming he's telling the

6 passenger get my registration.

7 Q. Is that a typical response from a driver who

8 has been stopped?

9 A. To point to the glovebox?

10 Q. And ask the passenger to get the registration

11 and paperwork?

12 A. I guess sometimes.

13 Q. Did you find that in any way indicative of

14 danger to yourself?

15 A. No, no, sir.

16 Q. Okay.

17 (Video played.)

18 Q. Now, he said downtown at first and then he

19 said Nob Hill. Did you find that to be concerning to

20 you?

21 A. Well, at this point, when I'm making contact,

22 I can smell marijuana emitting from the vehicle and I

23 can smell some sort of alcohol. So I'm starting to

24 think, you know, someone has been drinking in the

25 vehicle and also smoking marijuana. So I'm just, you

1 know, trying to interact so I can see if it's coming

2 from the driver or who is it coming from.

3 Q. Did that figure into any concern you had of a

4 threat to yourself?

5 A. Not at that time.

6 Q. Okay. How did you feel about it when you

7 approached them?

8 A. I mean as an officer you're always -- you're

9 always on high alert. I mean I don't know Mr. Martin,

10 I don't know the occupants. I mean how many times has

11 a cop come up on a routine stop and gotten killed. So

12 I mean I'm always -- as an officer you're always

13 thinking safety first and you're always -- you're

14 always on high alert. I mean you're not -- you know,

15 I mean it's always -- you know.

16 Q. It's always a possibility?

17 A. It's always a possibility. And it's always,

18 you know, safety, you want to make sure you're safe

19 and everybody else is safe.

20 (Video played.)

21 Q. So you asked him where he was going. And he

22 said he was going to somebody's apartment?

23 A. I really couldn't -- I really couldn't

24 understand from the video, it was a little low. He

25 said he was going like to a friend's. I think that's

1 what I understood.

2 Q. Is there anything at this point that you

3 believe Mr. Martin is doing improperly or incorrectly

4 in terms of his responses to you?

5 A. Well, I notice he doesn't engage me when I'm

6 talking to him, he's looking away, not -- you know, I

7 can't -- no. He doesn't want to engage, he's talking

8 down. He's just looking away, not engaging me

9 face-to-face.

10 Q. He's not looking at you in the face?

11 A. Yes, sir.

12 (Video played.)

13 Q. Let's go back and listen to that. I have a

14 question based on that. Did you just see that? What

15 just happened right there?

16 A. I asked if he had been drinking. He started

17 to -- he didn't want to answer the question.

18 Q. Did he say something? What did he say?

19 A. I thought he said no. But if you want to

20 rewind it, I can tell you exactly what he said.

21 Q. All right.

22 (Video played.)

23 Q. You asked him who has been drinking in the

24 car?

25 A. Yes.

1 Q. And are you able to tell what he said in

2 response?

3 A. He wouldn't answer. And again like I said, I

4 can smell a strong odor of alcohol and marijuana. So

5 I knew someone had been drinking in the vehicle and,

6 you know, a strong odor of marijuana also.

7 Q. And in response to his answer to your

8 question, you chuckled; is that correct?

9 A. Yes. I chuckled because like I said I knew

10 they had been drinking. And I was like, I mean, you

11 guys are lying to me.

12 Q. But you're not able to say exactly what he

13 said. But you felt like he was lying to you at that

14 point?

15 A. When I asked him who has been drinking and he

16 didn't --

17 Q. He didn't answer?

18 A. At this time he doesn't answer. And then, in

19 a few minutes here, he'll say I had a couple drinks.

20 (Video played.)

21 Q. Now, you told him to turn off his car. And

22 he was in the process of reaching, and then you yelled

23 at him turn your car off. Why did you say it twice?

24 A. Why I said it twice? The reason I told him

25 to turn his car off was because I knew someone had

1 been drinking and I didn't want -- I just wanted the

2 car turned off for -- I mean I didn't know if he was

3 going to take off on me.

4 Q. That's reasonable. I understand that. I'm

5 just asking, why, when he's in the process of doing

6 it, did you yell at him to do it again? I'll run it

7 back.

8 A. I just told him twice. I mean I don't know

9 why.

10 (Video played.)

11 Q. Now, at this point had he said anything to

12 actually lie to you?

13 A. Well, when I asked him who had been drinking

14 in the vehicle.

15 Q. He didn't answer?

16 A. Well, he didn't answer.

17 Q. Were you angry at that point?

18 A. No, sir.

19 Q. How would you describe the tone that you used

20 when you told him I smell weed in the vehicle and I

21 smell alcohol?

22 A. Just -- I mean just a strong tone. I mean I

23 wasn't --

24 Q. All right.

25 (Video played.)

1 Q. So you asked him how much he had drunk that

2 night and he said a couple beers?

3 A. Yes, sir.

4 Q. And you asked him how much he had smoked; is

5 that correct?

6 A. Yes, sir.

7 Q. And he said none?

8 A. Yes, sir.

9 (Video played.)

10 Q. Now, why did you ask him to take his glasses

11 off at that point?

12 A. Again it all goes back, I just want to see if

13 he is impaired. I smell the alcohol. He's admitted

14 to drinking. So now I just want to see if I see any

15 HGN to see if he has been drinking or possibly -- also

16 you have HGN when you're also smoking marijuana -- to

17 determine if I need to call for a DWI officer.

18 Q. So he complies and takes his glasses off?

19 A. Yes, sir.

20 (Video played.)

21 Q. Okay. Now, you're talking to the front seat

22 passenger at this point?

23 A. Yes, sir.

24 Q. And what did you observe that front seat

25 passenger doing?

1 A. I observed him on his phone trying to make a

2 phone call or I just saw him on his phone.

3 Q. He had it in his hands, he did not have it up

4 to his ear. He could have been texting?

5 A. You know what, I saw him using the phone. So

6 I mean he wasn't I mean up to his ear making a phone

7 call. But he was on his cell phone.

8 Q. All right. I want to observe the interaction

9 and get your reaction to the passenger.

10 (Video played.)

11 Q. Now, did he ask you why you wanted him to

12 turn his phone off?

13 A. Yes.

14 Q. And you told him officer safety?

15 A. Yes, sir.

16 Q. And what did he do after that?

17 A. I thought he stopped using his phone.

18 Q. Now, was there anybody else in the car using

19 their phone at that point?

20 A. I don't know.

21 Q. Okay. So the passenger complied also?

22 A. What I recall at that time.

23 Q. Okay.

24 (Video played.)

25 Q. Now, at this point why did you ask him to get

1 out of the car?

2 A. I was interacting with the passenger. I was

3 trying to focus on the driver. I mean I possibly have

4 a drunk driver here. So I just thought it would be

5 better to pull the driver out, get him away from those

6 passengers; and then, when I get him outside, I can,

7 you know, interact -- I can make sure if it's him I'm

8 smelling the alcohol from. And then I can do an HGN

9 with no distraction outside.

10 Q. At that point were you angry with the

11 passenger?

12 A. No.

13 (Video played.)

14 Q. Now, why did you say you guys are not

15 listening?

16 A. Well, I asked him to shut off his phone. I

17 had told him a couple times. And so I just -- you

18 know, I just said, hey, man, you guys aren't

19 listening.

20 Q. All right.

21 (Video played.)

22 Q. Had they said anything after you had asked

23 Mr. Martin to get out of the car, I mean you said stop

24 talking?

25 A. The front passenger, he just kept

1 interrupting, you know. They all wanted to leave,

2 they didn't want to be there. He kept, you know, why

3 are you stopping us. I mean I don't remember exactly

4 what he was saying. But he just kept just

5 interacting, interrupting my investigation.

6 Q. All right.

7 (Video played.)

8 Q. Up to this point, did you have any complaints

9 with the compliance of Jeremy Martin to your

10 instructions?

11 A. Any complaints?

12 Q. I mean did he do anything unreasonable do you

13 think that was out of the ordinary or disrespectful?

14 A. No. He just kept asking if he could leave.

15 He didn't want to be there, if he could leave.

16 Q. So he started off by asking if he could

17 leave?

18 A. Yes.

19 Q. And he definitely wanted to talk his way out

20 of this?

21 A. Yes.

22 Q. All right.

23 (Video played.)

24 Q. That's the end of the first one.

25 (Video played.)

1 Q. Do you recognize this as the second video

2 that you took?

3 A. Yes, sir.

4 Q. And this shows you again in your car looking

5 at the KDT?

6 A. I was actually on my radio.

7 Q. What caused you to re-engage your lapel

8 camera?

9 A. When Mr. Martin started walking into the

10 street.

11 Q. So this is at the beginning of that video.

12 And it shows him standing rather than seated; is that

13 correct?

14 A. Yes, sir.

15 Q. And what is he doing at this point?

16 (Video played.)

17 Q. Initially he just started standing in place

18 and then you saw him walking towards the street; is

19 that correct?

20 A. Yes, sir.

21 Q. And what was your concern at that time?

22 A. Safety. I mean I know he's impaired already.

23 I don't want him -- right now he's my responsibility.

24 The safest place at that time was for him to sit on

25 the curb for his safety and also for my safety. And

1 once he started going into the street, I needed to

2 stop that.

3 Q. Now, by this time in your investigation, had

4 you developed any opinion about the kind of people

5 that you had stopped or what kind of danger they might

6 pose?

7 A. That's always an unknown situation. Like I

8 said I always want to be safe for myself and whoever I

9 have contact with. And my main concern was -- I mean

10 at this point he's -- you know, he stood up. I told

11 him to sit down. He just stood there.

12 I was on the radio communicating with

13 dispatch. And that's when he started walking to the

14 street. And again that's just a safety issue. He

15 can't -- I mean if a car comes, he gets ran over, I

16 mean that can't happen.

17 Q. All right.

18 (Video played.)

19 Q. Now, you got a little bit angry with him; is

20 that correct?

21 A. I think that's just a commanding tone. I

22 wasn't angry. I'm just, you know, using a stern tone.

23 He was very intoxicated. It's hard to deal with. You

24 can't -- you can't reason when someone is intoxicated.

25 I was just trying to have him sit down on the curb

1 until the DWI officer came on scene to do a DWI

2 investigation.

3 Q. All right. Now, did you at this point feel

4 any threat to yourself from Jeremy Martin?

5 A. A threat? No. I just wanted him to sit

6 down. That was my main concern.

7 Q. All right.

8 (Video played.)

9 Q. What was he asking you at that point?

10 A. He wanted to leave. He just wanted to leave.

11 He just wanted -- he wanted to leave, wanted a friend

12 to come pick him up, if he could just leave.

13 Q. Can you tell that from this point in the

14 video, though? I know he said that earlier on. But I

15 don't think he actually finished saying what he was

16 trying to ask you, did he?

17 A. If you try to rewind it, we can listen to it

18 again.

19 (Video played.)

20 Q. He said something about letting his friend

21 drive?

22 A. Yes. He wanted to leave.

23 (Video played.)

24 Q. Now, why did you engage him by saying you're

25 drinking and driving at that point?

1 A. Well, he says -- when he says I'm not trying

2 to do anything, I'm not breaking the law, that's when

3 I tell him, hey, you're drinking and driving. You're

4 putting innocent people at risk on the streets.

5 Q. Was that a good way to address the situation

6 do you think?

7 A. Looking at it now, I mean anything could be

8 questioned in 20/20 hindsight. You know, looking at

9 it now, if I would have just left him in the vehicle,

10 I mean everything would have been avoided.

11 But again I'm trying to control the situation

12 here. He's heavily intoxicated. And I just -- I just

13 want to close the situation and have him just sit

14 down.

15 Q. Now, you said that he was heavily

16 intoxicated. Were there ever any breathalyzer or

17 blood test results?

18 A. No. He refused to take a breath test.

19 Q. So you're saying that his level of

20 intoxication derives from what?

21 A. Just my training and experience.

22 (Video played.)

23 Q. Now, he's seated at this point. He doesn't

24 seem to be making any movements. Why did you threaten

25 him with handcuffs?

1 A. Just so he wouldn't get up. I mean he's

2 already gotten up twice and walked away from me.

3 Q. Now, you said he got up twice, he's already

4 gotten up twice. He sat down once and then got up.

5 Was there another time?

6 A. He got up. And that's when I -- when there

7 was no sound, that's when I told him have a seat. He

8 didn't sit down. He got up one time. Sorry. I

9 misspoke. He stood there. And then that's when, you

10 know, I told him to sit down. And he didn't listen to

11 me at that time.

12 Q. And then you engaged your --

13 A. And then when he came out is when I engaged

14 my lapel.

15 (Video played.)

16 Q. By that time had you actually lost your

17 patience with him?

18 A. No. I mean I'm still there trying to control

19 the situation and telling him to sit down. Okay.

20 Because in my mind at this time the DOJ had just came

21 in. I don't want to use no force on this guy, I don't

22 want to get no hands on.

23 That's why when I -- I'm trying to just

24 verbally get control of the situation. I don't want

25 to use mace, I don't want to use my taser. I just

1 want him to comply with me just having to use verbal

2 commands.

3 That's all I'm trying here. I don't want

4 to -- I don't want to use force on this -- on

5 Mr. Martin or any subject.

6 Q. So during this entire encounter, were you

7 angry or not angry, how would you describe your

8 emotions?

9 A. I wasn't angry. Maybe I got a little excited

10 I'm thinking. But I wasn't -- in my mind I was in

11 full control, I wasn't out of control. I was just

12 trying to use a commanding tone to get control of the

13 situation so -- for him to just sit down and listen to

14 me.

15 Q. Was there anything about Jeremy Martin that

16 personally offended you?

17 A. No. Nothing offended me. But like what did

18 concern me was, when I'm talking to him there, he's

19 saying I don't want to be here, I just want to go.

20 He's putting his hands together. I don't know if you

21 can make that bigger, but he does put his head down.

22 Q. You want me to run it back?

23 A. When he puts his hands together, he goes down

24 like -- you know, in my mind he's thinking like,

25 hey -- I mean he's already asked me -- he's already

1 told me I don't want to be here, I don't want to be

2 here, let my friends drive, I don't want to be here.

3 Now he's putting his hands in his pocket.

4 You know, I haven't patted him down yet. He's putting

5 his hands together, he's putting his head down. I'm

6 like what's this guy thinking, is he going to bolt on

7 me.

8 You know, I don't know what he's thinking

9 right now. Again I just want to get control of the

10 situation. And he's making all these gestures by his

11 body language. I'm thinking he's going to try to take

12 off on me in this situation.

13 Q. As of this time, in the course of your

14 interaction with Mr. Martin, did you know anything

15 about him at all?

16 A. No. I never met him in my life before.

17 Q. All right. So you didn't have any reason to

18 suspect any particular danger other than what you

19 observed in these videos that we've seen?

20 MR. D'AMATO: Object to the form of the

21 question. Danger? You mean physical danger or danger

22 of flight?

23 BY MR. HART:

24 Q. You had no preconceived ideas about

25 Mr. Martin, did you, or preknowledge of anything about

1 him?

2 A. No. But again all that goes back to -- I

3 mean officer safety. It's an unknown situation. I

4 don't know Mr. Martin. Just because he's clean

5 dressed -- you can't assume just because, you know, he

6 looks -- I mean.

7 Q. He's wearing a tie and a suit?

8 A. Yeah. He looks -- I mean, you know, he

9 doesn't look like a gang-banger or he's not all tatted

10 up. You can't assume that this guy can't hurt you. I

11 mean you always -- as an officer you're always

12 thinking officer safety. So it's -- I mean like I

13 said you're always on high alert. I mean even -- you

14 know.

15 Q. And you had no knowledge whether or not

16 Mr. Martin had a prior criminal record?

17 A. No. I had no knowledge.

18 Q. Or any prior DWI record?

19 A. At that time I did not.

20 (Video played.)

21 Q. Is it against training to engage in a

22 discussion of the kind that he was asking about?

23 HEARING OFFICER: What?

24 BY MR. HART:

25 Q. He said he wanted to talk to you; is that

1 correct?

2 A. I told him that this wasn't a debate. You

3 know, he needs to sit down. And then he says, you

4 know, let's have a debate.

5 Q. But before that he said he wanted to tell you

6 something or he wanted to talk to you about something?

7 A. Yeah. He wanted to leave.

8 Q. Right. But I mean you didn't actually allow

9 him to say everything that he wanted to say, did you?

10 A. Well, like I told him, this isn't a debate.

11 MR. D'AMATO: Just listen to the question and

12 answer the question.

13 THE WITNESS: I'm sorry.

14 BY MR. HART:

15 Q. I mean he told you that he wanted to tell you

16 something; is that correct?

17 A. Yes, sir.

18 Q. And you didn't allow him to tell you whatever

19 it was?

20 A. Yes, sir.

21 Q. Okay.

22 (Video played.)

23 Q. Now, what was it that prompted the escalation

24 to physical contact at that point?

25 A. When I went to arrest him -- again I had my

1 taser out trying to gain compliance, told him to sit

2 down. He goes, no, I'm not, no, I'm not, no, I'm not.

3 He told me he's not going to sit down. So we're real

4 close.

5 So I need to holster my taser. So what I do

6 is I put my left hand on his chest. Just in case

7 something happens, I can push him away. And I holster

8 my taser. So once I holster my taser, I get him in an

9 escort position to escort him away from the curb,

10 because I don't want him pushing up on the curb.

11 You always want to have the advantage as the

12 officer. So I escort him to the -- in between our

13 vehicles away from the curb. And as I'm escorting

14 him, he physically breaks my grab and he spins towards

15 me. And at this time we're face-to-face in an

16 altercation.

17 Q. Now, other than you wanted him to sit down,

18 was there any other alternative to require him to sit

19 down?

20 A. Just for safety. I mean he's impaired at

21 this time. He's already walked into the street one

22 time, he had already walked into the street one time

23 already. Like I said right now he's my

24 responsibility.

25 I can't have him walking in the street. So

1 my main focus was to have him the best -- at this

2 point in time, I believed the best place, safest place

3 was to have him to sit on the curb at this time.

4 Q. All right. I mean is it correct to say that

5 by this time it had become sort of a war of wills, his

6 will against yours?

7 A. Well, like I said, everything, his body

8 language, the way he was -- you know, he kept -- you

9 know, he said it several times. He didn't want to be

10 here, he doesn't want -- let his friend drive, let him

11 go, I'm not going to sit down.

12 And then his gestures, when he's putting his

13 hands together, looking down. I'm thinking his wheels

14 are turning, this guy is going to possibly bolt on me.

15 So I'm thinking he's already refusing to obey me.

16 I'm just going to put him in handcuffs until

17 the officer gets here, because I mean I'm not sure

18 what he's going do. I mean he's giving me all these

19 indicators of his disobedience, I'm not listening, and

20 just not listening and telling me, you know, he

21 doesn't want to be there.

22 So at this time I go to put him in handcuffs.

23 And again I escort him away from the curb. And within

24 two steps is when he just breaks my hold, spins on me,

25 and that's when we're face-to-face.

1 Q. So you grab him. What hand do you grab him

2 with?

3 A. When I first walked up, when I first got up

4 to him, I put my hands on my taser, I found my taser,

5 so I can have some control with him. So then I

6 holster my taser. My taser is on my left side. So

7 then, as I go around with my right hand, I grab his

8 left wrist. Would you like me to demonstrate it, I

9 mean would it be easier?

10 MR. D'AMATO: I would like the record to

11 reflect the physical movements of Mr. Padilla. His

12 left hand is held out open-palmed, he's cross drawing

13 or reholstering his taser.

14 BY MR. HART:

15 Q. Right. He used his right hand with the taser

16 in it to reach across the front of his body and put it

17 in the holster, which is on the left front of your

18 body?

19 A. Yes, sir.

20 Q. All right. So after you holster the taser

21 with your right hand, you use your right hand to grab

22 Jeremy Martin's left wrist; is that correct?

23 A. Yes, sir.

24 Q. And while your hand is on his left wrist,

25 what happens then?

1 A. I escort him away from the curb. Within two

2 or three steps is when he breaks my hold and he spins.

3 Q. He breaks free of your right hand?

4 A. Yes. He breaks free because at this time his

5 back is to my chest.

6 Q. Okay. So you have his left hand with your

7 right hand. And what are you doing?

8 A. Escorting him. He's in front of me and I'm

9 escorting him away from the curb.

10 Q. All right. Maybe we should show it I guess.

11 Let's see.

12 MR. WORD: I'll be Mr. Martin.

13 BY MR. HART:

14 Q. Start from touching his chest or whatever.

15 A. Okay. At this point I have my taser out.

16 And I'm going to holster it because I'm going to

17 effect my arrest. So I just put my hand out just

18 so -- you know, because I only have one arm available.

19 So I'm holstering my taser as I had my arm

20 out just, you know, to protect myself in case I've got

21 to push him back. So once I holster my taser, I then

22 come over here and I take Mr. Martin like this and

23 escort him away from the curb, again I didn't want him

24 on the curb.

25 Q. You kind of spin him to walk away?

1 A. I spin him away from me. So I spin

2 Mr. Martin away from me in escort position. And we

3 start to walk away from the curb.

4 Q. Towards the back of the truck?

5 A. And at that time is when he -- on his own he

6 spins towards me. And then we're face-to-face.

7 Q. He turns back to you?

8 A. He faces like that. So that's when -- do you

9 want me to go on?

10 Q. Yeah. Keep going.

11 A. At which time --

12 MR. WORD: Can you see, John?

13 MR. D'AMATO: Yeah. I have just one question

14 while you're standing there, Mr. Word.

15 Would you say that the suspect on this night

16 in question is the same approximate height as

17 Mr. Word?

18 THE WITNESS: No, sir.

19 MR. D'AMATO: Taller or much shorter?

20 THE WITNESS: Shorter.

21 MR. D'AMATO: Shorter. How much shorter?

22 THE WITNESS: Mr. Martin was only a couple

23 inches taller than me.

24 MR. D'AMATO: Okay. Thank you.

25 THE WITNESS: At this time, if you play the

1 video, it's this quick. So once Mr. Martin turns, I

2 mean --

3 BY MR. HART:

4 Q. You all are face-to-face?

5 A. We're face-to-face. I've got to control this

6 guy, man.

7 Q. Do you still have your hand on his left

8 wrist?

9 A. No. I don't have any control. So at which

10 time I don't have control of him. So I grab him. And

11 again my training, just training that I was taught,

12 you know, I'm thinking, you know, I've got to get him

13 on the ground, control this guy. So I grab him.

14 I thought I gave him two knee strikes. My

15 target area -- I was aiming for his -- his inner thigh

16 was my target area. When I watch the video, it looks

17 like I only give him one knee strike. But I thought I

18 gave him two. I mean I did not intend to hurt this

19 guy or miss my target. Sorry.

20 MR. D'AMATO: Let's take a break. Was your

21 question answered?

22 MR. HART: Yes. I think we've gotten a good

23 description. We can take a little break.

24 HEARING OFFICER: Okay. You all want to go

25 to lunch now? It's already 12. Let's go ahead and

1 break for lunch and be back around one o'clock. The

2 time is 11:56 a.m.

3 (Recess from 11:56 a.m. to 1:08 p.m.)

4 HEARING OFFICER: We are back on record. The

5 time is 1:08 p.m.

6 BY MR. HART:

7 Q. Okay. We left off I think on the video. And

8 I'm going to pull it back up. I don't know if I can

9 find it. Let's see. There it is. I'm going to back

10 up a little bit and then we can figure out where we

11 are.

12 (Video played.)

13 Q. Is that where he went down to the ground

14 again the second time?

15 A. That's when I had him in cuffs and he was

16 trying to take off from me and when I took him down on

17 the ground.

18 Q. Okay.

19 (Video played.)

20 Q. Did you say the subject is bleeding from the

21 face?

22 A. Yes. That's why I called rescue.

23 Q. And you called rescue at the time?

24 A. Yeah. As soon as my first transmission was

25 getting made for the scratch on his face.

1 MR. D'AMATO: What's the ten code for rescue?

2 THE WITNESS: 4355.

3 (Video played.)

4 BY MR. HART:

5 Q. Now, you grabbed the phone away from him?

6 A. Yes, sir.

7 Q. Was that within standard operating procedure?

8 A. No, sir.

9 Q. Did he have a right at that time to be

10 videotaping?

11 MR. D'AMATO: Objection, calls for a legal

12 conclusion and a lack of foundation of this witness.

13 BY MR. HART:

14 Q. Under your understanding of standard

15 operating procedure today, did he have a right to be

16 videotaping?

17 A. Yes, sir.

18 Q. Did you know that at the time you took the

19 phone from him?

20 A. Yes, sir.

21 Q. Why did you take the phone away from him?

22 A. It was bad judgment. I just -- you know, I

23 got a little hot-headed and made a poor judgment.

24 Q. Did you do anything with that phone?

25 A. I placed it on my push bumper on my patrol

1 unit.

2 Q. Did you make any attempt to erase any

3 information on that phone?

4 A. No, sir.

5 Q. Okay.

6 (Video played.)

7 Q. Okay. What are you doing at this point in

8 the video?

9 A. I found a cell phone on the outside window,

10 which I obtained. And I deleted the video from the

11 phone.

12 Q. And did you know at the time that that was

13 not proper?

14 A. You know what, I just did it. It was -- I

15 wasn't thinking. It was poor judgment. I wasn't -- I

16 mean I didn't have -- I wasn't intending -- I

17 wasn't -- you know, like I wasn't trying to destroy

18 anything. You know, it was heat of the moment. It

19 was a very bad decision on my part.

20 Q. You knew your own lapel camera was still

21 recording; is that correct?

22 A. Yes, sir.

23 Q. Can you tell us anything about what your

24 motivation was in doing that?

25 A. You know what, I just don't want to be

1 recorded. I wasn't trying to hide nothing, I

2 wasn't -- it wasn't a malicious act. You know, it was

3 a bad judgment on my part. It was a reaction.

4 You know, I regret it. I mean I wish I could

5 take it back. But I was not trying to -- I wasn't

6 trying to hide anything like that. I was fully aware

7 I was recording the whole time. It was just poor

8 judgment on my part.

9 Q. Would it be correct to say by this time you

10 were pretty much angry with all the people that were

11 in the truck?

12 A. I got -- I lost my cool a little bit there.

13 (Video played.)

14 Q. I don't know if there's anything more to be

15 seen on this video. Is there anything else for

16 completeness that you want to see?

17 MR. D'AMATO: No. That's correct.

18 BY MR. HART:

19 Q. Okay. The only other thing I think I would

20 want to do with the video is just to identify the last

21 one. Okay. I'm going to click the third file in this

22 series. Is this the third lapel video that you took

23 of this matter?

24 A. Yes, sir.

25 Q. Okay. Is there anything you want to see in

1 this?

2 A. No.

3 Q. Okay. I think we're done with the videos

4 then at this point.

5 HEARING OFFICER: Let me ask you a question.

6 When you were trying to arrest him, you said

7 you called in the radio and said 10-80 or 80?

8 MR. D'AMATO: Eighty-two.

9 THE WITNESS: Eighty-two.

10 HEARING OFFICER: Eighty-two?

11 THE WITNESS: Yes, sir.

12 HEARING OFFICER: And what does that mean?

13 THE WITNESS: Backup assistance.

14 HEARING OFFICER: You needed backup?

15 THE WITNESS: I already had the one unit

16 coming. But then when I was on the ground, I called

17 for more units. And I called for 82.

18 HEARING OFFICER: And that means?

19 THE WITNESS: That means cover, assistance

20 needed.

21 BY MR. HART:

22 Q. How many officers actually responded to the

23 scene?

24 A. I'm not sure. It was about six or seven.

25 Q. Okay. And were you photographed on the

1 scene?

2 A. Yes, sir.

3 Q. Who took the photographs?

4 A. It was a female. She was an FET. She was a

5 civilian, not a sworn personnel.

6 Q. Okay. Let's see.

7 HEARING OFFICER: She was a what?

8 THE WITNESS: She was a civilian. She wasn't

9 a police officer.

10 HEARING OFFICER: What are the initials you

11 used, FET?

12 THE WITNESS: Yes.

13 MR. D'AMATO: Field evidence technician.

14 BY MR. HART:

15 Q. I'm going to open up a file. It's

16 photographs. It's titled M Maestas with a bunch of

17 numbers before it.

18 MR. WORD: Is this in the same exhibit?

19 BY MR. HART:

20 Q. Exhibit 73, yes. Are these the photographs

21 that were taken by the civilian, Maestas, at the

22 scene?

23 A. Yes, sir.

24 Q. And that shows you in the first one?

25 A. Yes, sir.

1 Q. Did you sustain any injuries in this

2 altercation?

3 A. No, sir.

4 Q. Okay. And I'm going to go through a number

5 of photographs showing you, apparently you. And then

6 towards the end I think we're going to get to some

7 showing -- is that a scuff mark on your pants?

8 A. Yes, sir.

9 Q. Is this a photograph of Jeremy Martin at the

10 scene?

11 A. Yes, sir.

12 Q. Okay. And he had a tear in the left knee of

13 his suit pants?

14 A. Yes, sir.

15 Q. And does this show the injuries to his face?

16 A. No, sir.

17 Q. Okay. Let's see. Does that show Jeremy

18 Martin and the injury to his face?

19 A. Yes, sir. The scratch above his left eye.

20 Q. Okay. And this also shows injuries to his

21 face?

22 A. Yes, sir.

23 Q. All right. And were these taken while you

24 were present?

25 A. I didn't observe her take the pictures. But

1 I mean I was on scene.

2 Q. Okay. Do you know what that is a photograph

3 of?

4 A. I'm not sure.

5 Q. Okay. All right. Did the photographs that

6 we just looked at that depicted Jeremy Martin, did

7 they fairly and accurately depict what you saw that

8 night?

9 A. Yes, sir.

10 Q. Have you ever been involved in any other

11 Internal Affairs investigations?

12 A. Yes.

13 Q. And were you at one time on the early warning

14 watch?

15 A. Yes, sir.

16 Q. And that was because complaints had been made

17 about excessive use of force?

18 A. Just use of force, not excessive use of

19 force.

20 Q. Okay. Use of force. How many times was a

21 complaint made against you regarding your use of

22 force?

23 A. I think this is the first one -- second one.

24 I had one prior complaint of use of force.

25 Q. There was one occasion where a lady alleged

1 that you broke her arm?

2 A. Yes.

3 Q. Okay. Was that part of an Internal Affairs

4 investigation?

5 A. No. I went to the Independent Review Office.

6 It was never -- Internal Affairs never did that

7 investigation.

8 Q. Okay. So let me revise my question.

9 How many times have you been investigated for

10 use of force issues by either the Internal Affairs

11 Department or by the Independent Review Office?

12 A. Just two times, that prior and this case now.

13 HEARING OFFICER: Okay. It was two times

14 total or this is the second one?

15 MR. D'AMATO: This is three. This is the

16 third one?

17 THE WITNESS: The lady with her arm.

18 MR. D'AMATO: Did you have a prior IA?

19 THE WITNESS: For excessive use of force?

20 MR. D'AMATO: No. For use of force.

21 THE WITNESS: There may have been one going.

22 I haven't been in IA that much.

23 BY MR. HART:

24 Q. Do you remember a CPC investigation

25 involving -- let me make sure I get this right.

1 Involving Heath White? Who is Heath White?

2 A. He is a police officer.

3 Q. Do you remember a complainant by the name of

4 Patrick Williams?

5 A. Patrick Williams? No, sir.

6 Q. This goes back to 2003, when you arrested him

7 for disorderly conduct. And he alleged that several

8 officers beat him and called him names while he was

9 trying to watch a fight at Summerfest?

10 A. I do recall that.

11 Q. There was a CPC investigation. And you were

12 exonerated for unnecessary force?

13 A. Yes, sir.

14 HEARING OFFICER: What is CPC?

15 BY MR. HART:

16 Q. What does CPC stand for?

17 A. I'm not sure, sir.

18 HEARING OFFICER: CPC?

19 MR. D'AMATO: Civilian police complaint.

20 BY MR. HART:

21 Q. Do you remember a CPC complaint made by a man

22 by the name of -- that's not it.

23 A. Sylvester Stanley?

24 MR. D'AMATO: Sylvester Stanley.

25 BY MR. HART:

1 Q. Yes. Do you remember a complaint made by

2 Sylvester Stanley?

3 A. Yes.

4 Q. Was there an investigation conducted

5 regarding that?

6 A. Yes, there was.

7 Q. And what was the result of that

8 investigation?

9 A. On that one I was riding two-man. And it was

10 the other officer who was -- who they alleged was the

11 target.

12 Q. So you weren't alleged in that case in terms

13 of use of force?

14 A. Correct.

15 Q. Do you remember a complaint by a Mia Swagger?

16 A. She's the one with the broken arm. That was

17 the one she alleged.

18 Q. And it was determined that the claims were

19 exonerated or unfounded; is that right?

20 A. Yes, sir.

21 Q. Was there also a civil case involving that?

22 A. Yes, sir.

23 Q. And how did that case conclude?

24 A. I was found not guilty of any damages.

25 MR. WORD: Excuse me. While he's looking,

1 are we going to have more video, do we need this on?

2 MR. HART: Will you be needing it?

3 MR. D'AMATO: I don't think so.

4 MR. HART: I don't think I'll need it

5 anymore. All right. I don't have any more questions.

6 HEARING OFFICER: This happened April 24th or

7 25th of what year?

8 MR. D'AMATO: 2014.

9 HEARING OFFICER: Okay. Go ahead,

10 Mr. D'Amato.

11 MR. D'AMATO: Thank you.

12 EXAMINATION

13 BY MR. D'AMATO:

14 Q. Let me follow up with the most recent line of

15 questioning that Mr. Hart had for you. The early

16 warning system, you're familiar with that through

17 department policy?

18 A. Yes, sir.

19 Q. And one of the keys or criteria for having an

20 employee placed on the early warning system is simply

21 the number of use-of-force incidents; is that correct?

22 A. Yes, sir.

23 Q. The early warning system does not in and of

24 itself substantiate the use of force, does it?

25 A. Correct.

1 Q. And those allegations of use-of-force

2 incidents can be unfounded completely and still remain

3 on an early warning system?

4 A. Yes, sir.

5 Q. And the early warning system, as it's

6 designed by the Albuquerque Police Department, is

7 skewed against special units; for example, there used

8 to be a ROPE unit, a physical takedown unit. Those

9 individuals were more likely to wind up on the early

10 warning system than a supervisor who laid back during

11 his or her shift, correct?

12 A. Yes, sir.

13 Q. So it's the function of the aggressiveness or

14 lack of aggressiveness of an officer that is one of

15 the factors in the algorithm setting up the early

16 warning system?

17 A. Yes, sir.

18 Q. And the fact that an officer is on the early

19 warning system is not disparaging in any way?

20 A. Correct.

21 Q. Okay. Fair enough. How many times have you

22 been disciplined, aside from this case before this

23 Hearing Officer, for an excessive use of discipline?

24 A. Never.

25 Q. Okay. Now, we saw the video in two parts.

1 It's a three-part video. And working our way

2 backwards again -- well, let me back up.

3 Detective Maestas took photographs of the

4 alleged victim's facial injuries, right?

5 A. Yes, sir.

6 Q. If a person suffers no injuries, no injuries,

7 an officer still can be held accountable for an

8 excessive use of force, correct?

9 A. Yes, sir.

10 Q. And conversely, if an officer uses reasonable

11 force, that which is reasonable given the totality of

12 the circumstances, a suspect can suffer injuries?

13 A. Yes, sir.

14 Q. All right. So the fact that one is shown

15 photographs of injuries or underwent certain surgeries

16 is not a fair or accurate factor in deciding whether

17 an officer used excessive force, correct?

18 A. Correct.

19 Q. Okay. Fair enough. Now, you had the two

20 civilians or three civilians exit the vehicle, the red

21 pickup truck, correct?

22 A. Yes, sir.

23 Q. You ordered them to sit down, right?

24 A. Yes, sir.

25 Q. You used verbal commands only?

1 A. Yes, sir.

2 Q. You did not have to resort to OC spray, a

3 threat of OC spray?

4 A. Correct.

5 Q. You did not have to resort to a threat of a

6 taser?

7 A. Correct.

8 Q. You did not have to use any aspect of a

9 physical force, correct?

10 A. Correct.

11 Q. As a matter of fact, aside from the uniform,

12 you had no reason to use a show of force with these

13 three passengers, correct?

14 A. Correct.

15 Q. All right. Had the suspect engaged like his

16 passengers, would you had to have escalated from a

17 verbal command to the show of force with the OC spray?

18 A. No, sir.

19 Q. Or the taser?

20 A. No, sir.

21 Q. Or the physical hands on?

22 A. No, sir.

23 Q. Okay. Now, we heard you call out for 82, and

24 82 is the backup you explained, and the rescue, 55,

25 right?

1 A. 4355.

2 Q. 4355. Did your voice sound upset or angry or

3 unnerved in any way in those dispatches?

4 A. No, sir.

5 Q. Okay. The video also shows in part you

6 unlocking your door. Did you have a problem inserting

7 the key into the door?

8 A. No.

9 Q. Were you shaking a lot, where you had to have

10 somebody else or you had to calm your nerves?

11 A. Well, I mean we just got into a little

12 altercation there so I was probably shaken up. I was

13 a little out of breath. I mean you can hear me

14 breathing heavy.

15 Q. Just so we eliminate this as a possibility,

16 you weren't shaking because of your degree of anger?

17 You know how some people get so angry they start to

18 shake uncontrollably?

19 A. Yes.

20 Q. That wasn't you that night?

21 A. No. Oh, no, sir.

22 Q. Did you deploy your knee strike in the

23 fashion that you were trained?

24 A. Yes, sir.

25 Q. Where did you receive your training?

1 A. 2001 in the Albuquerque Police Department

2 Police Academy.

3 Q. And you were trained in the use of force at

4 that academy?

5 A. Yes, sir.

6 Q. And you since that date received your

7 biennium training?

8 A. Yes, sir.

9 Q. And that's what, 40 hours every two years?

10 A. Yes, sir.

11 Q. And a component part of that training is the

12 use of force?

13 A. Yes, sir.

14 Q. Okay. So now we can go back to the beginning

15 of your testimony. You had a reasonable suspicion

16 that a traffic law was violated?

17 A. Yes, sir.

18 Q. And that was running a stop sign, a traffic

19 control device?

20 A. Running a stop sign, yes, sir.

21 Q. And then failing to maintain a traffic lane?

22 A. Yes, sir.

23 Q. Okay. And then you spoke about an HGN.

24 Could you tell us what an HGN is based on your

25 understanding.

1 A. HGN stands for horizontal gaze nystagmus.

2 You have involuntary eye movement if you have been

3 drinking or smoking marijuana. So what I was doing --

4 well, what I was taught and trained in the academy, to

5 check for eye movement to see if he had a nystagmus,

6 to see if he was impaired.

7 Q. Now, you search for clues in that test, the

8 horizontal gaze nystagmus test. That in and of itself

9 does not define the degree of impairment, correct?

10 A. Correct.

11 Q. What clues are you looking for?

12 A. Lack of smooth pursuit. Prior movement to a

13 45-degree angle. And then if he has eye movement at

14 maximum deviation in both eyes, the right and left.

15 Q. Now, the first attempt to conduct a

16 horizontal gaze nystagmus test was made by you while

17 the driver was still in the cabin of the vehicle,

18 correct?

19 A. Yes, sir.

20 Q. And at that point you were distracted by the

21 right-front passenger?

22 A. Yes, sir.

23 Q. And you advised him to stop using the phone

24 or stop making calls?

25 A. Yes.

1 Q. You were aware that the rear passenger was

2 videotaping with that white light; were you aware of

3 that?

4 A. No, sir.

5 Q. Okay. Would that have been an instruction

6 just to the passenger or to all the occupants?

7 A. All the occupants.

8 Q. And why did you do that?

9 A. Again for officer safety reasons. I mean I

10 don't know, it's always an unknown situation. I don't

11 want these guys on the phone. It's possibly -- I mean

12 I don't know who they are. They may be calling people

13 in. I mean I just -- you know, it's officer safety

14 reasons. That's the most important thing. And that's

15 why I didn't want them on the phone.

16 Q. And when you said you smelled marijuana, did

17 you smell the odor of burnt marijuana or the odor of

18 raw marijuana?

19 A. It would be burnt marijuana.

20 Q. What did that lead you to believe?

21 A. That somebody in the vehicle was smoking

22 marijuana.

23 Q. And that's a crime in New Mexico?

24 A. Yes, sir.

25 Q. Okay. Let's focus on your training with

1 respect to confrontation of a suspect and verbal clues

2 that an officer is trained to perceive. You indicated

3 in your testimony on direct examination that his eyes

4 averted your eye contact; is that right?

5 A. Yes.

6 Q. Is that a sign of deception?

7 A. It can be a sign.

8 Q. Is it a sign of potentially preventing you

9 from evaluating his degree of impairment?

10 A. Yes, sir.

11 Q. When a person diverts their eye gaze to an

12 investigating officer, is the investigating officer

13 able to reasonably and accurately depict bloodshot

14 watery eyes?

15 A. Yes, sir.

16 Q. And did he prevent you from doing that?

17 A. When I first made contact, yes, sir.

18 Q. And you had to get him out of the vehicle

19 before you could make that observation?

20 A. Yes, sir.

21 Q. Okay. And then later on -- and I'm going to

22 jump around a little bit, forgive me. Later on you

23 gave some importance to the suspect in a praying

24 position while standing with his head down towards his

25 hands. What significance are we to derive from that?

1 A. Well, again, you know, he's already asked me

2 several times he doesn't want to be here, can I leave,

3 I don't want to be here. He's not listening to me.

4 And now he's putting his hands together, he's

5 putting his head down. I mean in my mind I'm thinking

6 this guy is going to -- he's going to bolt. His

7 wheels are turning in his head and he's going to do

8 something, because he does not want to be there. I

9 mean he's made that very clear, he doesn't want to be

10 there.

11 Q. In fact, when you got back into your unit

12 after ordering him to sit on the curb, while you were

13 in your unit, you observed him again disobeying an

14 order in an attempt to walk away from your unit into

15 the street, correct?

16 A. Yes, sir.

17 Q. Did that reinforce your earlier belief of a

18 potential flight risk?

19 A. Yes, sir.

20 Q. I don't want to paint with a broad brush.

21 But can you generally tell us what you perceive the

22 intent of a suspect who resists you in the process of

23 being detained or arrested?

24 A. At that time my goal was to detain him,

25 because I mean he's -- I'm waiting for a DWI officer

1 to come. This guy is not listening to me. He's

2 saying he doesn't want to be there. He's pleading

3 with me, I don't want to be here, let me leave.

4 He's not listening to me. Then he's making

5 all these body gestures, body movements. Like I'm

6 thinking he's going to bolt on me or something, you

7 know, or something is going to happen.

8 So I needed to get control of the situation.

9 So that's why I was going to put him in handcuffs and

10 detain him until the DWI officer arrived on scene.

11 Q. And in looking at the video again today, the

12 two parts primarily, the substantial parts of the two

13 parts of the video, have you formed an opinion as to

14 whether the suspect that evening exercised clear

15 judgment?

16 A. No.

17 Q. Had he exercised clear judgment, he would

18 have complied with you in the beginning?

19 A. Yes, sir.

20 Q. All right. So when you were showing us with

21 Mr. Word, who graciously agreed to be the alleged

22 suspect, you said the suspect was a couple of inches

23 taller than you. How tall are you?

24 A. Five eight, five nine when I put my boots on.

25 Q. And during the break I've noticed, in one of

1 the reports, the prebooking sheet shows five 11. Does

2 that ring true to you?

3 A. Yes, sir.

4 Q. The very first time you got back into your

5 car while Mr. Martin was seated on the curb, you were

6 in the midst of dispatching to -- making a

7 communication dispatch?

8 A. Yes, sir.

9 Q. Was that interrupted by his abrupt standing

10 up?

11 A. Yes, sir.

12 Q. And that was also not only a threat to you,

13 but a threat to him as well?

14 A. Yes, sir.

15 Q. In dealing with Mr. Martin, were your actions

16 ever driven by anger as an emotion?

17 A. No, sir.

18 Q. Were your actions ever driven, in dealing

19 with Mr. Martin, by the product of a personal

20 attitude?

21 A. No, sir.

22 Q. Did you know at that time he was in law

23 school?

24 A. No, sir.

25 Q. You didn't know he was a law student?

1 A. No, sir.

2 Q. Did you happen to review the videos of other

3 officers in this case?

4 A. I've seen them in the past, yes, sir.

5 Q. During a portion of those videos, isn't it

6 true that Mr. Martin continues to challenge the

7 authority of officers; for example, have you reviewed

8 Officer Miller's video?

9 A. Yes, sir.

10 Q. And Mr. Martin objects to being charged with

11 an aggravated?

12 A. Correct.

13 Q. And Officer Miller had to explain to him why

14 he's being charged with an aggravated?

15 A. Yes, sir.

16 Q. And at some point Officer Miller says to

17 Mr. Martin that he's tired of repeating himself, you

18 know, it will all be in the paperwork, correct?

19 A. That's correct.

20 Q. During that same video, did Mr. Martin

21 challenge the certification of the breath testing

22 machine?

23 A. Yes, he did.

24 Q. And ultimately he refused to provide a

25 sample, correct, talking about Mr. Martin?

1 A. Yes, he did.

2 Q. Just to flavor additional verbal cues an

3 officer has, could you tell the Hearing Officer -- I

4 know the Hearing Officer. And I'll defer to his

5 experience in law enforcement.

6 But for the record what other verbal cues

7 does a police officer look for in assessing a safety

8 issue or someone who is ready to bolt or someone who

9 is ready to fight, what other cues does one look for?

10 A. Well, again his demeanor.

11 Q. Not in this particular case.

12 A. Oh.

13 Q. I'm talking in general terms.

14 A. Just in general? Target glancing, target

15 glancing.

16 Q. What does that mean?

17 A. Subjects who -- you know, they will be

18 looking around for -- it's called target glancing.

19 You know, that's an indication of someone who is going

20 to possibly take off.

21 They're, you know, looking for a getaway

22 or -- you know, putting your hands together, putting

23 your head down. I'm thinking like, you know,

24 sometimes it happens. Those are all cues to look for.

25 Hands in their pocket. People -- that's another

1 indicator or again another officer safety issue.

2 Q. Now, part of the video -- I'm sorry to cut

3 you off. Were there more?

4 A. No. I'm done.

5 Q. Now, if someone blades their body toward you,

6 what does that tell you or indicate to you?

7 A. If they blade, that could be considered a

8 fighting stance. That's how we're taught. We're

9 taught to -- officers are taught, you know, to be

10 bladed. And that's a fighting stance is what I was

11 taught in training.

12 Q. Now, at the close of the video, after

13 Mr. Martin was on the ground, we see an object, a

14 silver metal object within some vicinity of his head

15 or hands. Could you identify that?

16 A. No.

17 Q. And again I don't want to beat a dead horse,

18 but I will. And can that have been used as a weapon

19 against you by Mr. Martin?

20 MR. HART: Objection, speculation. We're

21 looking at the state of mind of the Respondent. He

22 didn't even know it was there.

23 MR. D'AMATO: We don't know, he's not here to

24 testify.

25 MR. HART: Well, no. I'm talking about

1 Officer Padilla. I mean the question is did he see

2 this and would he have concerns with that as a weapon.

3 BY MR. D'AMATO:

4 Q. We can bring it up on the video. You did see

5 on the video, correct?

6 MR. HART: I mean at the time, though. We're

7 trying to get into reasons for his actions.

8 MR. D'AMATO: I'll withdraw the question.

9 BY MR. D'AMATO:

10 Q. Can a pair of eyeglasses be used as a weapon?

11 A. Yes.

12 Q. And Mr. Martin was asking repeatedly for his

13 eyeglasses?

14 A. Yes, sir.

15 Q. And you refused to give him his eyeglasses,

16 correct?

17 A. Well, I didn't have his eyeglasses. They

18 were in the vehicle.

19 Q. If you did have his eyeglasses, would you

20 have given a suspect in custody or about to become in

21 custody waiting on the arrival for an DWI

22 investigator, would you have given him a potential

23 weapon?

24 A. No, sir.

25 Q. At some point he calls out for help from his

1 companions in the pickup truck. Do you remember

2 hearing him do that, help, help?

3 A. I don't remember if I recall it on --

4 exactly. But I mean watching the video, it refreshes

5 my memory.

6 Q. So the answer is yes, you do remember that,

7 your memory is refreshed?

8 A. Yes, sir.

9 Q. And that was a further level of concern you

10 had. I won't describe it as fear. But your level of

11 concern was heightened based on him calling for his

12 compatriots?

13 A. Yes. That's why I advised dispatch there was

14 four subjects.

15 Q. You complied with the taser policy with the

16 police department; in other words, you verbalized

17 prior to use?

18 A. Yes, sir.

19 Q. But you made the conscious decision not to

20 deploy a taser?

21 A. Yes, sir.

22 Q. Why?

23 A. I pulled the taser out -- the taser was for a

24 show of force. I just wanted to gain compliance. I

25 never intended to use the taser at that time. It was

1 just for a show of force to get compliance.

2 Q. In the majority of cases when you do show a

3 taser as a show of force, compliance follows?

4 A. Yes, sir.

5 Q. How many times have you deployed a taser from

6 your belt to a suspect who did not comply with your

7 commands, how many times, can you count them?

8 A. I think this is the second time.

9 Q. The second time in how many years?

10 A. Fourteen years.

11 Q. How many years have you had the taser? You

12 didn't have the taser for 14 years.

13 A. No. I've had it for about 11 or 12.

14 Q. Okay. Over 11 or 12 years, this is the

15 second time or first time?

16 A. The second time. We had another guy. It

17 wasn't my taser but another officer.

18 Q. Now, counsel asked you, Officer Padilla, this

19 was a war of the wills. Now, could it be accurately

20 described as a war between the suspect and you?

21 A. No, sir.

22 Q. Could it even have been categorized from your

23 perspective as a contest?

24 A. No, sir.

25 Q. I looked at a prebooking sheet. And I see

1 that ultimately the suspect was charged with city code

2 violations of failing to obey a police officer?

3 A. Yes, sir.

4 Q. And resisting, obstructing, or refusing to

5 obey a police officer are both under city codes?

6 A. Yes, sir.

7 Q. And you didn't complete that prebooking

8 sheet, did you?

9 A. No, sir.

10 Q. Could you tell the Hearing Officer again for

11 the record how many ways in which one person can be

12 guilty of driving while intoxicated? And I mean by

13 that a per se or a secondary standard.

14 A. Well, impairment is to the slightest degree.

15 But, of course, the legal limit is 0.08. So I mean

16 0.08 and above you can be arrested for DWI.

17 Q. Okay. And you had not determined whether

18 this individual driver was presumptively; that is,

19 over 0.08 or greater, you did not make that

20 conclusion, correct?

21 A. No, sir.

22 Q. And based on your dealings with him, did you

23 conclude that he was impaired to the slightest degree?

24 A. At least, yes. I knew he was.

25 Q. Impaired to the slightest degree?

1 A. At least, yes, sir.

2 Q. Either by alcohol, a schedule drug, or a

3 combination of both?

4 A. Correct.

5 Q. Okay. Now, let's say that you make contact

6 with him, you do the HGN, and you make the

7 determination that he's impaired to the slightest

8 degree. And he says please let me go and you do that.

9 What was your concern if you had complied with his

10 request?

11 A. Oh, you can't do that.

12 Q. Why?

13 A. Well, he was impaired. If I let him drive

14 away and he killed somebody, I mean that's -- I mean I

15 can't let someone who is impaired go.

16 Q. So it's a risk assessment on your part?

17 A. Yes, sir.

18 Q. As to a liability for not only for yourself,

19 but for the City of Albuquerque Police Department?

20 A. And also Mr. Martin if he's impaired.

21 Q. And potential victims?

22 A. Yes, sir.

23 Q. You immediately called out for rescue?

24 A. Yes, sir.

25 Q. And even despite the suspect telling you,

1 once he's on the ground, after you've asked him

2 repeatedly have you calmed down, are you calmed down,

3 he says yes, yes, I'm calm, I'm calm, you ask him to

4 get up. He wants to get up, you start to get him up,

5 and he refuses to get up again, right?

6 A. Yes, sir.

7 Q. Did you ever stop and count how many times

8 you told him to stay on the curb, sit on the curb, sit

9 down, sit down?

10 A. I know it was over 20 times. I haven't

11 counted. But I know it was over 20 times I told him

12 to sit down.

13 Q. Did he comply with one of those requests, at

14 least one?

15 A. The first time, when I first asked him to sit

16 down, he sat down.

17 Q. Then he got back up?

18 A. Yes, sir.

19 Q. We don't have lapel videos of you during the

20 process when Mr. Martin was being placed in the

21 vehicle. What can you tell us about him being placed

22 in a unit once other units arrived, what was his

23 demeanor?

24 A. He was upset. After he was seen by rescue,

25 we put him back in the car until --

1 Q. Let me stop you there. I'm sorry. You just

2 bring up another point. Did he refuse treatment from

3 rescue?

4 A. Yes, he did.

5 Q. And that's contained in the exhibits here?

6 A. Yes, sir.

7 Q. So the Hearing Officer can see that. Rescue

8 attended him and he refused treatment?

9 A. Yes, sir.

10 Q. I interrupted you. Go ahead.

11 A. Once he was done being seen by rescue, we

12 escort him back into the police unit. As he was

13 getting in, he sat down. But he wouldn't put his feet

14 in the door. And then he was pushing the door with

15 his feet.

16 And at that time Officer Jeremy Lujan, he

17 went to the driver's side, other side of the door, and

18 he actually had to physically pull in Mr. Martin

19 inside the police unit so we could close the doors.

20 Q. So you were not the only officer that this

21 individual refused to obey?

22 A. Correct.

23 Q. He was confrontational with other officers?

24 A. Yes, sir.

25 Q. Okay. At some point later on in the evening,

1 again not contained in your lapel video, you tried to

2 get it recorded, the statement that Mr. Martin made to

3 you. Tell us about that.

4 A. Well, he made two statements to me on the

5 first video. We didn't watch it. But he did

6 apologize. If you watch the whole video, at the end

7 he apologizes for his actions and tells me he's sorry.

8 And then on that last third video, when

9 they're taking -- when Martinez -- or Maestas was

10 taking his picture, he again said all this was all his

11 fault.

12 And that's when I turned my camera on, but I

13 didn't catch it. And on the video I ask him, what was

14 that that you just said? And then -- but he doesn't

15 repeat it. But he was saying, hey, this is all my

16 fault. I'm sorry.

17 Q. Do you know if Detective Maestas -- and I

18 don't think detectives are required. But was he

19 operating a lapel video at the time he was taking

20 photographs?

21 A. I'm not sure. But it was myself, Officer

22 Miller, and Detective Maestas who were all right

23 there. And they all heard him say that apology.

24 Q. Not only do you show yourself deleting the

25 civilian's videos on the cell phone -- correct?

1 A. Yes, sir.

2 Q. -- you verbalize it too. You're saying out

3 loud deleting video, or delete video, delete video.

4 You weren't trying to hide anything, were you?

5 A. No, sir.

6 Q. And the evidence of everything that the

7 suspect did or did not do and everything that you did

8 in relationship to the suspect is captured completely

9 entirely on your video?

10 A. Yes, sir.

11 Q. With the exceptions that you just noted;

12 i.e., his statements of apology?

13 A. Yes, sir.

14 Q. You went to Internal Affairs and gave a

15 complete and truthful statement I take it?

16 A. Yes, sir.

17 Q. And you were subject to what type of

18 discipline at the close of that investigation?

19 A. I was given 240 hours. And I served 160.

20 Q. So was the 240 hours a proposed discipline

21 and then you served 160 after meeting with Chief Eden?

22 A. Yes, sir.

23 Q. Okay. How did that happen, I mean why did he

24 come off the hours? Did he look at your history?

25 A. Yes. When we met with him, I mean he -- he

1 told me I was a good officer. I mean he was -- you

2 know, I was -- I really didn't talk that much. He

3 came up to me, you know, hi, he was really friendly.

4 Hey, Officer Padilla, I know you're a really

5 good officer. And as long as you don't get another

6 sustained excessive use of force, these last 80 hours

7 will be gone in a year.

8 Q. Okay. Counsel may or may not move to admit

9 an IRO file. Did you ever have personal contact with

10 any of the alleged -- and we're doing this piecemeal.

11 I don't know, am I premature? You can

12 object.

13 MR. HART: Go ahead.

14 BY MR. D'AMATO:

15 Q. Okay. First of all, were you aware of any

16 civilian complaint made to the Independent Review

17 Office prior to the Law Enforcement Academy Board?

18 A. Yes, sir.

19 Q. And did you have any personal contact in the

20 field, privately as a police officer, or as a

21 civilian, contact with any of the complaining

22 civilians?

23 A. No, sir.

24 Q. Ever?

25 A. Never.

1 Q. And were you ever interviewed by the

2 Independent Review Office?

3 A. No, sir.

4 Q. Paul Skotchdopole did not interview you?

5 A. No, sir.

6 Q. And neither did the Director of the

7 Independent Review Office?

8 A. I was never --

9 Q. Robin Hammer?

10 A. Correct.

11 Q. Nor any other investigator with the IRO?

12 A. No, sir, correct.

13 Q. And you've had in the past, as Mr. Hart

14 pointed out, dealings with this office before,

15 correct?

16 A. Yes, sir.

17 Q. And during those earlier dealings, you were

18 invited in to give an interview?

19 A. Yes, sir.

20 Q. And those interviews were tape-recorded,

21 correct?

22 A. Yes, sir.

23 Q. You never got a chance to do any of that in

24 the case file that the Independent Review Officer

25 submitted to Mr. Hart?

1 A. Correct.

2 Q. Now, part of the SOP investigation made a

3 conclusion that there were no training issues

4 identified?

5 A. Correct.

6 Q. Since this incident has anyone directed you

7 to any type of training?

8 A. No, sir.

9 Q. Use-of-force training?

10 A. No, sir.

11 Q. Lapel camera video training?

12 A. No, sir.

13 Q. Civilian rights at a crime scene training?

14 A. No, sir.

15 Q. Were you directed by anyone, your supervisor,

16 the department, psych services, for anger management

17 classes?

18 A. No, sir.

19 Q. Were you ever put on a performance

20 improvement plan or a PIP after this incident?

21 A. No, sir.

22 Q. Have you ever had any other allegation of

23 misconduct since this incident?

24 A. No, sir.

25 Q. I'm going to show you what's been marked as

1 Exhibit 75. Take a minute and go through those. Can

2 you identify those?

3 A. Yes, sir.

4 Q. What are they?

5 A. Letters of commendations for myself.

6 Q. Exhibit 75 for the record is a multiple page

7 exhibit consisting of 16 pages. What's the first

8 date?

9 A. January 2, 2002.

10 Q. And that was less than a year about after you

11 started?

12 A. Yes, sir.

13 Q. And have you received any commendations or

14 letters of commendation or any type of praise, whether

15 by a civilian or a coemployee or your agency, after

16 December 10, 2013?

17 A. I'm not sure.

18 Q. Okay. The last entry in this case is

19 December 2013.

20 A. Okay.

21 Q. Is that right?

22 A. Yes, sir.

23 Q. And that was your supervisor at the time,

24 Steve Koehnke?

25 A. Yes, sir.

1 Q. Who is your supervisor at this time?

2 A. Sergeant Trish Hoffman.

3 Q. And your lieutenant?

4 A. Sorry. Chris Capone.

5 Q. Was Lieutenant Gabe Mares ever in your chain

6 of command?

7 A. Yes, sir.

8 Q. Was he in your chain of command the night

9 this incident happened, April 24-25, 2014?

10 A. Yes, sir.

11 Q. He was?

12 A. Yes, sir.

13 Q. So he had an opportunity to review this. I

14 may have asked this in general terms. But has he ever

15 directed you or your sergeant at that time for other

16 training or other type of counseling or any type of

17 concerns?

18 A. Not to me.

19 Q. Did this, this incident that we're here on,

20 trigger you going back on the early warning system?

21 A. No, sir.

22 Q. Is there anything that either Mr. Hart or I

23 have failed to ask you that you think this Hearing

24 Officer should know?

25 A. The only thing is I mean on the knee strike

1 my intention was for the inner thigh. I never

2 intended to hurt this guy. I didn't know he was hurt.

3 When I called rescue, I called rescue for his eye

4 abrasion.

5 I didn't know he was hurt until the next

6 night. Like 28 hours later is when they said, hey,

7 he's at the hospital and he had a testicle removed.

8 So I didn't -- you know, I never intended to -- my

9 target area was his inner thigh.

10 I mean I feel bad that he's hurt. That was

11 not my intention at all to hurt anybody, Mr. Martin or

12 anybody like I said. That was not my intent.

13 Q. Now, is there anything else before I ask the

14 follow-up question to that?

15 A. No.

16 Q. Now, you did a police report which is

17 identified as Exhibit 3 in this case; is that right?

18 A. Yes, sir.

19 Q. Who told you that Mr. Martin had surgery?

20 A. Brian Archibeque.

21 Q. And did he tell you this after you completed

22 your police report?

23 A. Yes.

24 Q. Now, let's explain how the police reports are

25 drafted and published in the Albuquerque Police

1 Department. Could you describe what Copperfire is.

2 A. Copperfire is our system. It has all of our

3 reports in there, criminal complaints, prebooker. So

4 what you do is you fill out your -- it's all

5 electronic.

6 You do your report on the computer. And when

7 you're finished, you just hit submit. And it gets

8 sent electronically to your sergeant. And then he

9 okays it. Then it gets sent into report review.

10 Q. And your sergeant at that time was Steve

11 Koehnke?

12 A. Yes, sir.

13 Q. And he received what appears to be a two-page

14 report through the Copperfire system?

15 A. Yes, sir.

16 Q. And the Copperfire system permits

17 communication to the subordinate by a supervisor; for

18 example, resubmit, correct, or supplement; is that

19 right?

20 A. Yes, sir.

21 Q. Did you ever receive those instructions from

22 either Sergeant Koehnke or any other supervisor?

23 A. No, sir.

24 Q. To supplement this response with the

25 injuries, purported injuries that were received at

1 your hands?

2 A. No, sir.

3 Q. By Mr. Martin?

4 A. No, sir.

5 Q. Had you known of the extent of the injury

6 Mr. Martin complained of the following day, had you

7 learned of that that evening prior to finalizing your

8 report, would you have included that information in

9 your report?

10 A. Yes, sir.

11 Q. Did you intentionally leave anything out of

12 this report that this Hearing Officer should have

13 known about?

14 A. No, sir.

15 Q. Did you accurately and fairly summarize what

16 happened that night with Mr. Martin in your report?

17 A. Yes, sir.

18 Q. Has anyone ever come up to you, while an

19 Albuquerque Police officer, beginning at the cadet

20 academy as a cadet, complaining to you directly or

21 indirectly to a third party of your bad moral conduct?

22 A. Never, sir.

23 Q. You never even heard rumors of it?

24 A. No, sir.

25 MR. D'AMATO: Okay. I'll pass the witness.

1 Thank you.

2 HEARING OFFICER: Do you have any more

3 questions?

4 MR. HART: I don't have any more questions.

5 EXAMINATION

6 BY THE HEARING OFFICER:

7 Q. Who was the DWI officer that responded to

8 help you?

9 A. Charles Miller.

10 Q. And Officer Miller, do we have his lapel

11 camera?

12 MR. D'AMATO: We do.

13 MR. HART: Yes. It's on Exhibit 73. It's

14 labeled as No. 5 in there.


16 Q. And were you there when he was talking to

17 Mr. Martin?

18 MR. D'AMATO: Objection. Officer Miller,

19 Charles Miller, spoke with Mr. Martin at two separate

20 locations. One was at the scene and one was at the

21 booking area, when he was taking the breath test or

22 refusing the breath test.

23 HEARING OFFICER: I'm asking him if he was

24 there.

25 MR. D'AMATO: At either location?

1 THE WITNESS: I wasn't at -- only at the

2 scene I was there. I wasn't at the prisoner transport

3 center.


5 Q. And at the scene Martin refused the test, you

6 heard that?

7 A. No, sir.

8 Q. Okay. Tell me what an early warning system

9 is that you all were talking about.

10 A. The early warning system, that's just

11 whenever you get use of force, it doesn't have to be

12 sustained, it's just if you use force, after so many

13 times, they put you on the early warning system. Even

14 if they're all exonerated, you're still on the early

15 warning system.

16 Q. And then what happens to you?

17 A. It just -- it just stays on there. I mean

18 it's -- it's just like the -- to monitor. Because

19 they don't want -- you know, they don't want people

20 using, you know, excessive force on people. So if

21 it -- if it -- if they're not founded, then you get

22 disciplined.

23 But I mean if they're exonerated, then I mean

24 they're exonerated and nothing happens. You're just

25 on the early warning system and you stay like that

1 for -- I'm not sure if it's like for a year. But if

2 you have like so many within the year, they put you on

3 the early warning system.

4 Q. Is that something that APD has done for a

5 long time or is that part of the Department of

6 Justice?

7 A. No. That was -- that was back like '03 or

8 '04 when I was on the early. '06.

9 MR. D'AMATO: '06.


11 Q. And were you put on the early warning system

12 for this incident?

13 A. No, sir.

14 Q. Tell me what shift you were working the night

15 this happened?

16 A. Graveyard.

17 Q. And what time is that, from when to when?

18 A. Graveyard, I worked Monday night through

19 Thursday nights. I went in at ten p.m. and got off at

20 eight a.m.

21 Q. And this was your first contact of your

22 shift, with Mr. Martin?

23 A. I had calls before. This is my first traffic

24 stop.

25 Q. Okay. Now, I've seen the photograph where

1 he's got the injuries to his face, but I haven't heard

2 how he got those injuries. How did he get those

3 facial injuries and his suit torn?

4 A. After the knee strikes is when -- when I

5 threw him to the ground is when he hit his head. You

6 can see him, he hit his head on the asphalt. And

7 that's how he got those injuries.

8 Q. So you didn't punch him?

9 A. Oh, no, sir, no. No, sir.

10 Q. And what did you charge him with?

11 A. I didn't do the paperwork. Miller, Officer

12 Miller -- the charges were aggravated DWI, stop sign

13 violation, refusing to obey, resisting, marijuana. We

14 also found marijuana in the car. I forgot to mention

15 that. And then just failure to maintain a traffic

16 lane.

17 Q. And even though you were the officer that

18 stopped him, you weren't the officer who charged him?

19 A. No. Officer Miller came and took over the

20 investigation. Officer Miller. He came over and took

21 over the investigation. And he was -- he ended up

22 being the arresting officer.

23 Q. Because of the DWI?

24 A. Yes, sir.

25 Q. Okay. And what has happened to those

1 charges?

2 A. I got suppressed during the -- in the Metro

3 Court case. My testimony got suppressed. So the case

4 ended up being dismissed.

5 Q. Does APD have a use-of-force continuum?

6 A. Yes, sir.

7 Q. Tell me how that works.

8 A. It's our color chart. I mean force, you

9 know, what dictates the use of force is the subject.

10 I mean, you know, there's the low end, you know, where

11 there's command presence, and then your tone, and then

12 it just escalates.

13 I mean in determining how the subject

14 escalates, that's how you escalate. You react to the

15 subject. So when they step up, like -- he's not --

16 when he kept refusing to me -- not listen to me,

17 that's when I pulled my mace out for a show of force

18 to try to get compliance.

19 Q. Was it your intent to use that spray?

20 A. No. No, sir. My intent was just as I said,

21 just a show of force. You know, like I said earlier,

22 I don't want to use force. Like I said I've never --

23 I've never been in trouble before.

24 This is the first time I've ever been

25 disciplined. I don't -- I don't like to use force. I

1 don't want to use force. I was just trying to -- I

2 just wanted him to sit down and just listen. That's

3 all I wanted him to do.

4 I didn't want to mace him. That's why I said

5 sit down, because I mean nobody wants to get maced.

6 I've been maced, we all have been maced.

7 I can't think of a person who I've told, you

8 know, sit down or I'll mace you and they listened. So

9 once he didn't listen and then he's challenging me,

10 mace me, mace me, I mean I just wanted him to sit down

11 and gain compliance.

12 Q. So when that didn't work, you went to the

13 taser?

14 A. Yes, sir.

15 Q. That didn't work either?

16 A. No, sir. Again I told him sit the F down.

17 And that's when he -- you can hear him shout no, no,

18 I'm not going to sit down, I'm not going to sit down.

19 Again I mean I've only seen one other time when a guy

20 didn't respond to a tase when he was high on meth and

21 he attacked the officers.

22 Every other time you pull a taser out, I mean

23 it's -- that's like they instantly listen. Because I

24 mean who wants to be tased. I mean that's like -- I

25 mean I thought for sure he would sit down. He didn't

1 comply to that.

2 So once he didn't comply to that, that's when

3 I was like all, you know what, all the indications

4 he's given me, this guy, I'm thinking he's a flight

5 risk, he's not listening to me, I need to control the

6 situation. I thought I'm going to detain him until

7 Officer Miller gets here and that's it. And it went

8 from there.

9 Q. And at any time during this incident, were

10 you in fear of being hurt?

11 A. When he spun on me, you know, that's when my

12 training kicked in. I don't know what he's going to

13 do. I mean I haven't patted him down, you know. That

14 was a mistake on my part, I didn't pat him down.

15 You know, he has his hand in his pocket. Now

16 I'm trying to get him in handcuffs and he spins on me.

17 So I'm not sure. What's the guy going to do. I mean

18 I don't know what he's going to do.

19 MR. HART: Nonresponsive, objection. He

20 didn't answer the question.

21 MR. D'AMATO: Can I hear the question.


23 Q. Were you in fear of being hurt?

24 A. Yes, sir.

25 Q. Okay. And at what point did you knee him?

1 You said you kneed him. You said once.

2 A. In my mind I thought it was two knee strikes.

3 I thought I gave him two knee strikes. That's what I

4 thought. When I reviewed the video, it looks like

5 just one knee strike.

6 Q. And your intent was what again?

7 A. My intent was his inner thigh, what we were

8 taught; a fatty muscle area, what we were taught to

9 give a knee strike. So when he spun on me, my target

10 area, my target area, sir, I was aiming for his inner

11 thigh right here.

12 Q. And you obviously missed. And he says don't

13 hit me in the nuts or words to that effect; is that

14 correct?

15 A. I don't recall him saying that at that time.

16 But when I watched the video, he said that.

17 Q. After he said that, did he ever complain

18 about that injury the rest of the night?

19 A. Not to me. He didn't complain. I do recall

20 him -- I recall him saying he couldn't sit down one

21 time is what I recall.

22 But I mean he never -- he never told me like,

23 you know, oh, my groin is hurting or I need -- you

24 know, I need the ambulance here for me or you hurt me.

25 He never told me that.

1 Q. Okay. And then you said, when rescue got

2 there, he refused any treatment at all?

3 A. Correct, sir. As soon as we walked to the

4 car, I got on my radio, I called rescue. And our

5 procedure is, whenever you call rescue, you've got to

6 tell them their age and then why they're needed.

7 So that's why I told them, you know, he's

8 25 -- I think I forgot to tell -- I think I forgot the

9 age at first because dispatch asked me. But then I

10 told them, you know, for a laceration over his left

11 eye or his forehead.

12 Q. Do you recall how many times you told him

13 stop resisting?

14 A. Several times. It was ten times.

15 HEARING OFFICER: I don't have any more

16 questions.

17 MR. D'AMATO: May I follow-up.

18 HEARING OFFICER: Yes, sir.

19 FURTHER EXAMINATION

20 BY MR. D'AMATO:

21 Q. Thank you. I'm going to go through just real

22 quickly. And I want you to agree with me or disagree

23 with me, if you can, if you're able to. You completed

24 a use-of-force report that evening?

25 A. My sergeant did.

1 Q. And did you get a chance to review that?

2 A. Yes, sir.

3 Q. Okay. And it was accurate?

4 A. Yes, sir.

5 Q. At the time it was completed?

6 A. Yes, sir.

7 Q. Okay. Now, the Hearing Officer, Mr. Medina,

8 requested information about Albuquerque Police

9 Department's use-of-force policy. You are familiar

10 with the use-of-force policy?

11 A. Yes, sir.

12 Q. And I'll provide that policy in our findings.

13 But under the rules and procedures, 2-52-2,

14 are you familiar with that?

15 A. Yes, sir.

16 Q. Okay. I'm going to ask you a series of

17 questions. I'm going to quote it and then I'm going

18 to ask you whether you did it or not.

19 Subsection A, "Where force is warranted,

20 officers should assess the incident in order to

21 determine which technique or weapon will reasonably

22 de-escalate the incident and bring it under control

23 safely. Officers shall use only that force which is

24 reasonably necessary to effect lawful objectives."

25 Did you do that?

1 A. Yes, sir.

2 Q. "Officers are permitted to use those

3 defensive tactics and nondeadly weapons with which

4 they are trained, qualified, and certified with as

5 determined by the department training procedures for

6 the resolution of incidents." Did you do that?

7 A. Yes, sir.

8 Q. And were you trained and qualified on the

9 taser?

10 A. Yes, sir.

11 Q. Were you trained and qualified, if you have

12 to be, on the OC spray?

13 A. Yes, sir.

14 Q. And were you trained and qualified on the

15 knee strike?

16 A. Yes, sir.

17 Q. Subsection C, "Every officer is expected to

18 consider the use of departmental approved options

19 ranging from verbal techniques and control procedures

20 and nonlethal equipment, which includes but not

21 limited to chemical agents and a baton." Did you do

22 that?

23 A. Yes, sir.

24 Q. On your Sam Brown belt, do you carry a baton?

25 A. No, sir, I do not.

1 Q. Subsection D, "When a confrontation escalates

2 suddenly, an officer may use any means or device at

3 hand to defend him or herself as long as the force is

4 reasonable given the existing circumstances." When

5 the suspect spun on you while you had hands on him,

6 control of his arm, did you believe that escalated

7 suddenly?

8 A. Yes, sir.

9 Q. And did you believe you were authorized,

10 under use of nondeadly force Albuquerque Police

11 Department policy, to use any force as long as it's

12 reasonable?

13 A. Yes, sir.

14 Q. And did you get a chance to review the run

15 sheet from the department that responded for rescue?

16 A. Yes, I did.

17 Q. And that's contained in the exhibits?

18 A. Yes, sir.

19 Q. For the Hearing Officer's review?

20 A. Yes, sir.

21 MR. D'AMATO: That's all I have. Thank you.

22 MR. HART: I had a couple follow-ups.


24 BY MR. HART:

25 Q. Mr. Martin did allow the rescue people to

1 wipe the cuts on his face, did he not?

2 A. I tried not to be there. I mean I don't want

3 to -- when they're asking him questions. I don't

4 recall.

5 Q. I mean you did give a recorded statement to

6 the Internal Affairs investigator. It appears you did

7 mention that Martin refused treatment except for

8 wiping his cuts?

9 MR. D'AMATO: Who testified to that?

10 BY MR. HART:

11 Q. It was Officer Padilla in his IA.

12 A. Then that's what happened, sir.

13 Q. Approximately 51 minutes in. And it's

14 possible that the cuts to his face occurred the second

15 time when he was in his handcuffs; is that correct?

16 A. I mean it's possible. But I mean I thought

17 they happened when I first -- took him to the ground

18 the first time.

19 MR. D'AMATO: Objection, speculation.

20 BY MR. HART:

21 Q. Well, I mean again this is from 48 minutes

22 into the IA interview. You acknowledge that it might

23 have been the second time he went to the ground that

24 he got those cuts?

25 A. I said yeah, it could have been.

1 Q. And did Mr. Martin complain about pain

2 sitting down at the time he was being required to sit

3 in the police car and he had to be pulled into the car

4 by the other officer?

5 A. Not at that time.

6 Q. When did he complain about that?

7 A. It was when he was outside, when he was asked

8 to sit on the curb.

9 MR. HART: Okay. I don't have any more.



12 Q. During the IA investigation on this incident,

13 what charges were sustained against you?

14 A. It was conduct for bad language. I said the

15 F word. For cussing.

16 Q. Conduct unbecoming an officer?

17 A. Yes, sir.

18 Q. And what else?

19 A. Can I read them to you.

20 Q. Sure.

21 MR. D'AMATO: I'm going to refer the witness

22 to Exhibit 17, which is contained in the packet. I

23 think it's 17.

24 THE WITNESS: The first one was enforcement

25 of laws, ordinances, and police regulations;

1 compliance with laws, rules, and regulations; conduct

2 while on duty; general requirements and expectations

3 of all officers with regard to use of force; after

4 action requirements use of force; bystander filming of

5 officer-suspect contacts.

6 HEARING OFFICER: What exhibit is that?

7 MR. D'AMATO: That's Exhibit 17. And there

8 is an accompanying 18. Is that what you want him to

9 refer to?

10 MR. HART: Well, there are several places

11 where it was sustained. I think everything in the

12 investigation was sustained.

13 MR. D'AMATO: Yes, that's true.

14 HEARING OFFICER: All right, sir. Thank you.

15 (Witness excused.)

16 MR. HART: All right. I would like to call

17 Lieutenant Mares.

18 MR. D'AMATO: Can we take five.

19 HEARING OFFICER: Let's take a five-minute

20 break. We'll go off record at 2:24 p.m.

21 (Recess.)

22 HEARING OFFICER: Let's go back on the record

23 at 2:34 p.m.

24 GABRIEL MARES,



2 EXAMINATION

3 BY MR. HART:

4 Q. Would you state your name for the record,

5 please.

6 A. Gabriel Mares.


8 A. I'm a lieutenant with the Albuquerque Police

9 Department in the Southwest Area Command.

10 Q. And how long have you been a certified police

11 officer in New Mexico?

12 A. Just a little bit over 22 years.

13 Q. And has it always been with the APD?

14 A. Yes.

15 Q. And what ranks have you held?

16 A. Just the -- well, just the rank of sergeant

17 and lieutenant for -- well, sergeant for seven years.

18 And a lieutenant for about three and a half years.

19 Q. And before that you were just a patrol

20 officer?

21 A. Uh-huh.

22 Q. You have to say yes or no for the record.

23 A. Yes, sir.

24 Q. And this matter concerns an incident that

25 occurred April 25, 2014. At that time were you in the

1 chain of command for Officer Padilla?

2 A. Yes.

3 Q. And how did that chain of command run, who

4 was under you and how did it get to Officer Padilla?

5 A. Sergeant Koehnke, Steve Koehnke, was a

6 sergeant assigned to me, one of the four -- or three

7 actually that were assigned to me. And the commander

8 at the time actually was a new commander, Mike -- I

9 don't know if the -- if I can spell the last name

10 correctly.

11 Q. Whisonant?

12 A. Whisonant.

13 Q. It's W-h-i-s-o-n-a-n-t. John?


15 Q. So he was directly above you?

16 A. Yes.

17 Q. Okay. And have you had any specialized

18 training in the use of force?

19 A. Specialized training?

20 Q. Yes.

21 A. No. Not beyond what I've had in the academy

22 and other than what I've done the last ten years in

23 reviewing them.

24 Q. So for the last ten years, you've had a duty

25 of reviewing officer use of force?

1 A. Yes, sir.

2 Q. Okay. And in this case you were asked by

3 Commander Whisonant to perform a use-of-force review?

4 A. Yes.

5 Q. This is Exhibit 34. I'm going to show you a

6 copy of the report that you prepared.

7 A. This is my report.

8 Q. In the scheme of how things get investigated

9 at APD, is that something that came before a decision

10 to institute an Internal Affairs investigation?

11 A. That comes prior. And it's written in our

12 SOP that we are to review all use of forces. So that

13 typically would be handled by the sergeant.

14 The sergeant is tasked with looking at their

15 use of force, looking at lapel video, interviewing

16 witnesses, and then sending that up through the chain

17 of command, to myself and then to the commander.

18 Q. And then through that process the decision

19 will be made whether an IA investigation will actually

20 be undertaken?

21 A. Yes, sir.

22 Q. And in preparing what's been marked as

23 Exhibit 34, what type of review did you make of the

24 circumstances?

25 A. What type? Can you specify a little bit

1 more.

2 Q. Did you review Officer Padilla's lapel

3 videos?

4 A. I did.

5 Q. Did you review any of the lapel videos of any

6 of the other officers?

7 A. I did.

8 Q. What other materials did you look at, if any?

9 A. I looked at the use-of-force -- original

10 use-of-force form that was submitted by Sergeant

11 Koehnke.

12 Q. Let me see if I have a copy of that. So what

13 you're talking about -- let's see. Is that what's

14 been marked as Exhibit 32?

15 A. Yes, sir.

16 Q. What does Exhibit 32 tell you by the way?

17 A. It's a basic form of person information or

18 the subject that is involved in the use of force. It

19 gives the sergeant's name, whether or not it's

20 reasonable.

21 It indicates whether -- you know, what kinds

22 of action the officer took, whether it was words,

23 physical, use of force such as a taser or mace or a

24 hands-on type of use of force, indicating injuries and

25 things like that.

1 Q. Okay. Let me go through some of the things

2 that happened according to the video that we looked

3 at. And I'm going to ask you if any of those things

4 were concerning to you. Do you have any recollection

5 of the manner in which Officer Padilla interacted with

6 the people in the vehicle at the outset, did you have

7 any concerns about that?

8 A. Yes, I did.

9 Q. And what kind of concerns did you have?

10 A. From looking at the video?

11 Q. Yes.

12 A. The concerns I had were some tactical

13 concerns as far as Officer Padilla making contact.

14 Calling in for backup was initially a concern of mine.

15 I would say also a concern was him

16 interacting with the passenger as opposed to the

17 driver, his reaction to -- and again this is my

18 opinion here. The back passenger and him having his

19 cell phone on. But along with the passenger to --

20 next to the driver text messaging on his cell phone.

21 And his response to those two individuals.

22 Q. And did you find anything wrong with his

23 response to, let's say, the front passenger?

24 A. Not necessarily wrong. I believe that he

25 told the passenger that -- to get off his cell phone

1 because it was an officer safety issue. There's two

2 views on that.

3 So I mean I really -- it's hard for me to be

4 I guess subjective or fair to give one view or the

5 other. I don't -- I don't have any initial problems

6 with what Officer Padilla told the passenger.

7 Q. Okay. Did you have any concern with the

8 attitude that Officer Padilla brought to his initial

9 interactions with the driver and the people who were

10 actually passengers in the vehicle?

11 A. Can you restate that.

12 Q. I don't want to put words in your mouth.

13 A. Are you asking for demeanor?

14 Q. Demeanor, yes.

15 A. The issue at hand there with the demeanor is

16 that Officer Padilla was talking very fast and seemed

17 to be excited about the issue of the cell phones.

18 He seemed to be rushing maybe a little too

19 much, being quick in interacting with the driver and

20 the passenger. And so I felt that his initial contact

21 may be not aggressive but on the assertive end of

22 where I like it to be.

23 Q. Do you recall in the video Officer Padilla

24 chuckling about a response made by the driver,

25 laughing?

1 MR. D'AMATO: Objection, mischaracterizes the

2 testimony.

3 MR. HART: I'm asking if he remembers that.

4 BY MR. HART:

5 Q. All right. Let me ask this. We've seen the

6 video. Would it be appropriate for an officer to

7 laugh or chuckle in response --

8 MR. D'AMATO: Objection, again

9 mischaracterizing testimony. The video speaks for

10 itself.

11 BY MR. HART:

12 Q. I'm asking about his opinion about the

13 reaction of an officer.

14 A. I really couldn't even answer that even -- I

15 couldn't even try to answer that, because I think I

16 would be inferring something that may be mistaken

17 here.

18 Just the fact that there was a lot of

19 interaction in my experience of officers laughing and

20 chuckling in video. It's just -- it's too hard for me

21 to give you a pinpoint opinion of any laughing that

22 went on.

23 Q. All right. Now, in Officer Padilla's

24 testimony, he stated that he was unaware of any

25 passenger in the back seat using their phone in

1 contradiction to his instructions. Do you believe

2 that the front seat passenger was disobedient or slow

3 to respond to Officer Padilla's instructions for him

4 not to be on the phone?

5 A. Disobedient, I don't believe he was really --

6 I don't believe he was disobedient. He was quiet.

7 And so it's really hard for me to make an analysis of

8 what was going through the young man's mind. I think

9 he understood what Officer Padilla was asking of them.

10 But I don't necessarily see it as

11 disobedience, although I do see it as a refusal to

12 really -- I mean I think it's probably in his mind

13 that he's not doing anything wrong by texting. So

14 disobedient is a strong word. You may want to

15 redefine that maybe.

16 Q. Okay. Did you develop an opinion, watching

17 those initial portions of the interaction, whether

18 Officer Padilla appeared angry?

19 A. Yes.

20 Q. What was your opinion?

21 A. My opinion was that he became angry. At some

22 point in the car stop and in his interaction with the

23 driver and the limited interaction he had with the

24 passenger, I believe that he got angry.

25 Q. Did you see anything in the video to justify

1 that anger?

2 A. I would say that the time that -- well, the

3 fact that he told the driver to get out right away

4 told me that he could have used more patience.

5 And I could just tell by the demeanor in how

6 he was talking to them in a kind of a forceful way,

7 you know, something that I'm not used to doing on my

8 own when I'm talking with individuals, even if they

9 are being not compliant.

10 They're sitting, they aren't really moving

11 around a whole lot. So just the fact that the way

12 he's talking, maybe his tone of voice seemed to -- it

13 showed me that he was not happy.

14 Q. When Jeremy Martin is shown getting out of

15 the vehicle and is behind the truck, did you find

16 anything in Jeremy Martin's behavior at that point to

17 be uncooperative or disrespectful to Officer Padilla?

18 A. So can I ask you this. Are you asking me

19 initially, when he was put behind the truck and he was

20 sitting down?

21 Q. No. Before he sat down. This is when

22 Officer Padilla wants to do a horizontal gaze

23 nystagmus test. Did you see anything in Mr. Martin's

24 demeanor or behavior to indicate disrespect or

25 uncooperativeness?

1 A. I didn't see any disrespect.

2 Q. Okay. It's clear that Mr. Martin wanted to

3 talk to Officer Padilla about potentially letting him

4 go. Did you get that sense?

5 A. Uh-huh.

6 Q. Okay.

7 MR. D'AMATO: Was that a yes?

8 THE WITNESS: Yes, sir. I'm sorry about

9 that.

10 BY MR. HART:

11 Q. All right. Is it usual and customary for an

12 officer in that situation to cut off the statements

13 and questions of a suspect before they finish their

14 sentence or question?

15 MR. D'AMATO: Objection, relevance. And what

16 usual and customary practice is changes from officer

17 to officer. I think the form of the question is the

18 basis for my objection.

19 HEARING OFFICER: Sustained.

20 BY MR. HART:

21 Q. Okay. In your opinion did Officer Padilla's

22 repeated cutting off of Jeremy Martin's questions and

23 statements heighten the confrontational nature of the

24 interaction?

25 MR. D'AMATO: Objection, lack of foundation.

1 How can --


3 BY MR. HART:

4 Q. Were the questions that Jeremy Martin was

5 asking unreasonable? I mean is his asking or trying

6 to ask questions unreasonable in that circumstance?

7 A. That's too hard of a question to answer only

8 because I would say it's unreasonable to -- it's most

9 likely unreasonable to Officer Padilla because of what

10 he sees and smells and knows what he's going to be

11 doing in an investigation.

12 So in his mind I can only draw a conclusion

13 that the questions that this young man was asking were

14 unreasonable in the sense of what Officer Padilla had

15 already observed.

16 Q. Okay.

17 A. In respect to, you know, asking him if he

18 could just leave, stuff like that.

19 Q. All right. I'll ask some more general

20 questions.

21 What about the entire interaction between

22 Officer Padilla and Jeremy Martin, if anything, caused

23 you concern for the way that Officer Padilla handled

24 the situation?

25 A. The entire discussion?

1 Q. What do you think he did wrong in their

2 interaction?

3 MR. D'AMATO: Objection, overbroad, vague.

4 BY MR. HART:

5 Q. I can go from time frame to time frame.

6 Did you recommend this to go to IA?

7 A. Yes, I did.

8 Q. Why?

9 A. Well, I mean I didn't make that determination

10 on my own. That was along with me and the commander

11 viewing the video together and making that decision

12 together. So I just want to state that for the

13 record. But yes, I did.

14 Q. All right. And why did you think the IA

15 should investigate this?

16 A. Because after looking at the overall totality

17 of the circumstances of this particular use-of-force

18 incident, there was some conduct that could have been

19 handled better, some tactical issues that were made.

20 Q. So what particular conduct did you have

21 concerns about?

22 A. My concern was, as far as conduct, was maybe

23 he didn't -- he rushed through the incident a little

24 too quickly. Also removing the driver from the car

25 because of the fact that he had called for a DWI

1 officer, I had issues with that.

2 Being that there was a DWI officer on their

3 way, I think it would have been safer that the subject

4 stay in the car just for officer safety reasons just

5 so he doesn't have to concentrate on the people in the

6 car and a subject sitting on the sidewalk.

7 Q. Let me clarify that. So it was your

8 understanding, in reviewing the materials, that

9 Officer Padilla had already called for a DWI officer

10 to come to investigate before --

11 A. Well, no, no. No, no, no. Looking at the

12 video, you can tell, you know, that he went back to

13 his car and made the decision to go ahead and call for

14 a DWI officer. But from what he smelled and could

15 see, I would have placed that subject back in the

16 vehicle.

17 Q. Until the DWI officer arrived?

18 A. Right.

19 Q. All right. Did you have any concerns about

20 the knee strike that was delivered by Officer Padilla

21 to Jeremy Martin?

22 A. I didn't have concerns about that.

23 Q. You didn't?

24 A. No.

25 Q. Did you have any concerns about the handling

1 of Jeremy Martin after he was placed in handcuffs?

2 A. Yes, I did.

3 Q. Tell us about that.

4 A. The concerns that I had with that was that

5 the subject was handcuffed. And so being that Officer

6 Padilla had a call for backup -- during that incident

7 there was another major incident going on.

8 So the air was considered unable to be

9 transmitted on. In other words, Officer Padilla

10 couldn't get on the air and call for backup. And so I

11 realized that. But eventually he was able to. And he

12 did.

13 He was able to get the individual into

14 handcuffs and stand him up. The subject, although

15 verbally combative and asking for his glasses at that

16 point, at first, you know, refused to comply with

17 Officer Padilla's commands to stop resisting.

18 And then, when he got him into custody and

19 then him looking for his glasses, Officer Padilla was

20 able to stand him up. When he was walking him to the

21 car, the subject -- and again this is something that

22 you all have been able to look at the video and make

23 your own opinions about it.

24 But he was thrown to the ground while

25 handcuffed. And so there was no opportunity for him

1 to break his fall.

2 MR. D'AMATO: Say the last part. I'm sorry.

3 THE WITNESS: There was no opportunity for

4 the individual, for the suspect, to break his fall.

5 And so he fell face forward. And that was a major

6 concern of mine.

7 BY MR. HART:

8 Q. All right. With respect to Officer Padilla

9 and his handling of the passengers and their phones,

10 do you have any opinions in that regard?

11 A. My opinion is he may not have known -- you

12 know, and you have to ask him that. But he may not

13 have known what the policy is with APD as far as cell

14 phones.

15 My issue with the way he handled that was

16 that he took a phone from the individual sitting on

17 the sidewalk while the subject was asking him what his

18 rights were as far as onlookers. And Officer Padilla

19 grabbed the phone from him in an angry manner and took

20 it and put it on the hood of a car.

21 And then the other issue was walking up to

22 the truck and grabbing the back passenger's phone and

23 deleting the video from the phone.

24 Q. Did you develop an opinion as to what

25 motivated Officer Padilla in deleting those videos?

1 A. I think he just got caught up in the moment.

2 I think he -- I think just in that moment he got -- he

3 was angry. And he let anger get the best of him in

4 that situation.

5 Q. Based on your review of the videos, did you

6 at any point see the actions of Jeremy Martin as

7 causing a physical threat to Officer Padilla?

8 A. The only thing that I saw is when he was

9 sitting on the sidewalk and then he got up and walked

10 to the middle kind of towards the vehicle, almost

11 towards the middle of the street.

12 Now, I didn't see any aggressive stance by

13 his part as noted in my use of force. So Officer

14 Padilla got out of the vehicle and did the right thing

15 by getting out quickly because, you know, he's got two

16 other passengers.

17 But I did not see any -- anything wrong with

18 what he was I believe trying to accomplish, which was

19 still trying to talk when Officer Padilla was done

20 talking. And so you have a big problem there with him

21 trying to talk to Officer Padilla.

22 What his motive was I believe was set from

23 the beginning of asking Officer Padilla just to let

24 him go. But Officer Padilla was, at the same time,

25 telling him to sit back down. And he's a tall kid.

1 He's bigger than Officer Padilla.

2 So I did have some issues with him not

3 sitting down immediately. That was something that

4 caused problems for Officer Padilla in his mind-set in

5 getting the subject to sit back down due to officer

6 safety.

7 Q. Okay. Now, Mr. Martin was taller than

8 Officer Padilla, but he weighed perhaps 20 to

9 30 pounds less than Officer Padilla; is that correct?

10 A. I don't know. I would have to look at the

11 descriptions again on the report. I don't even know

12 what Officer Padilla weighs. I know he's short like

13 me. But I mean I don't know if there's really a big

14 weight difference other than that. He's a lot taller.

15 Q. Before the knee strike, did you see anything

16 in Mr. Martin's demeanor or actions to indicate he was

17 threatening physical violence against the officer,

18 Officer Padilla?

19 A. I didn't see him threaten physical violence.

20 He was -- he was passive aggressive is what we would

21 call it, refusing to comply with Officer Padilla's

22 commands. I believe he stated go ahead, tase me, that

23 would be fantastic.

24 To me that tells me that he's not going to

25 comply with anything that Officer Padilla tells him to

1 do from that point on. And I think that he made a

2 determination in his mind from that point that he

3 wasn't going to listen.

4 But I did not see anything that was any kind

5 of physical threat as far as verbal or even -- even,

6 you know, as far as making an assault or anything

7 towards Officer Padilla. I didn't see that.

8 Q. All right. Isn't an arrestable offense or

9 misconduct for a suspect to refuse to sit down?

10 A. It depends on the situation. I mean if

11 you're referring to a disorderly conduct, it can. It

12 can be an arrestable offense. I mean if you're -- it

13 depends on if you're reacting or how -- the situation

14 is being handled with the officer concerning, you

15 know, the color of law.

16 I think that in this situation it's a refusal

17 to obey. So it is an arrestable offense. And I can

18 draw on that experience a little bit more just because

19 of me overseeing -- let me give an example.

20 The downtown area of Albuquerque is what we

21 deal with a lot of. When I was down there dealing

22 with intoxicated subjects and subjects who may have --

23 are already under the investigation of a crime and

24 refusing to comply with officers, whether it be a DWI

25 or a disorderly conduct arrest, at that point a

1 refusal to obey is an arrestable offense.

2 Q. In this case involving a DWI situation, was

3 it a reasonable order on the part of Officer Padilla

4 to require Jeremy Martin to remain seated?

5 A. Yes. It's reasonable.

6 Q. Okay. Do you know whether Jeremy Martin had

7 any reasonable objection to remaining seated?

8 A. I don't.

9 Q. Did you have any other concerns with the way

10 that Officer Padilla handled his interaction with

11 Jeremy Martin or any other passengers in the vehicle?

12 A. No, sir, I don't.

13 MR. HART: All right. I don't have any more.

14 HEARING OFFICER: Go ahead, sir.


16 EXAMINATION

17 BY MR. D'AMATO:

18 Q. Does height or weight difference in a suspect

19 matter?

20 A. Yes.

21 Q. So if you encounter someone built like me,

22 five seven, 130 pounds, and you let your guard down a

23 little bit more than someone built like Mr. Word who

24 is probably at 160, six two, six one? Close?

25 MR. WORD: Way off.

1 THE WITNESS: The disparity in size should

2 always be considered when dealing with a noncompliant

3 subject or even compliant. I mean you always play

4 those things out in your mind, as we all do, as we

5 size up each other.

6 BY MR. D'AMATO:

7 Q. So I don't want to misunderstand your

8 testimony on direct. You're not saying that someone

9 built like me, five seven, 130, 132, can't hurt you or

10 use deadly force on you, correct, as a police officer?

11 A. Yes.

12 Q. I have that same capacity as someone that's

13 overweight and big?

14 A. Yes.

15 Q. So I mean, in assessing a threat situation,

16 of course, you factor that in. But someone small can

17 do just as much harm or damage or flee just as

18 effectively as someone bigger?

19 A. Right. Yes, sir. You don't know the

20 capabilities of -- from one person to the next.

21 Q. Okay. And you would also agree with me that

22 Officer Padilla, as you concluded in an angry manner

23 in which he deleted the video on the phone, can also

24 be the subject of not anger but frustration?

25 A. Absolutely, yes.

1 Q. I mean that would fit with what you saw, a

2 level of frustration, not anger, not in any way

3 evidencing a degree of -- I don't know what a synonym

4 is for anger. But certainly a level of frustration

5 that would lead to a mistake in the field, correct?

6 A. Yes.

7 Q. You indicated that there were two other

8 passengers. There were, in fact, three, correct?

9 A. There were -- the one left that I saw on

10 lapel, the far left, and then the one on the right.

11 I'm not sure if there was one on the right.

12 Q. Do you remember seeing any seated at the

13 curb?

14 A. Yes, yes. There were I believe three sitting

15 on the curb.

16 Q. All right. Now, in response to the question

17 of anything that indicated a physical threat to

18 Padilla, any officer under your command should be

19 concerned with not only a physical threat, but the

20 integrity of a potential crime scene, correct?

21 A. Yes, sir.

22 Q. And a suspect who is able to flee into the

23 neighborhood should be avoided, correct?

24 A. Yes.

25 Q. And one of the things that you saw on the

1 video was the suspect with his hands, both hands, in

2 his pants pockets; is that right?

3 A. Yes.

4 Q. Does that cause you concern? If you're

5 training cadets, one of the telltale signs of a

6 potential problem is suspect hands in pockets, right?

7 A. Always.

8 Q. And that was present with Officer Padilla?

9 A. Yes, sir.

10 Q. And the other thing was just not only a

11 verbal refusal to comply, but initially, when Officer

12 Padilla approached the cabin of the truck, there

13 was -- I won't say a lack of cooperation. But the

14 driver failed to answer questions that Officer Padilla

15 was posing to him, correct?

16 A. Yes.

17 Q. One of the concerns that you voiced today was

18 that Mr. Martin refused to stand up, asking for his

19 eyeglasses. He was verbally combative and refused to

20 comply. But nothing justified in your mind or

21 supported the conclusion of being thrown to the ground

22 while handcuffed; is that accurately summarized?

23 A. That's accurate.

24 Q. How many times did this suspect fail to

25 comply with orders of Officer Padilla? Did you run up

1 a count?

2 A. I didn't. But I mean, just off the top of my

3 head, I mean he asked him to sit down I would say

4 anywhere from five to seven times probably. And then

5 as -- the first time after he had delivered a knee

6 strike and then the subject went to the ground, he

7 didn't comply on the ground, he kept his hands up

8 here. And Officer Padilla was trying to handcuff him.

9 So there's more noncompliance at that point.

10 Q. Now, did you ever hear Officer Padilla give

11 this suspect what would be loosely described as a,

12 quote, unlawful order, close quote?

13 A. Unlawful order?

14 Q. An unlawful order.

15 A. I don't believe that he gave an unlawful

16 order.

17 Q. Okay. Fair enough. And I'll defer to the

18 video. But if you have -- can I ask the witness to

19 stand up.

20 HEARING OFFICER: Sure.

21 BY MR. D'AMATO:

22 Q. So you have me escorting as Officer Padilla

23 did?

24 A. Uh-huh.

25 Q. I'm in handcuffs, right?

1 A. Right.

2 Q. And your right hand is on my back, the middle

3 of my back, your left hand is on my left wrist,

4 correct?


6 Q. Pretty much like Officer Padilla did. And

7 you're escorting me. And I don't want to go, I'm

8 saying I'm not going, I'm not going, and then I turn

9 and face you. That was a gap that you failed to

10 describe.

11 MR. HART: Objection. I don't think that's

12 established. The turn occurred during the first

13 encounter.

14 BY MR. D'AMATO:

15 Q. And then what happened in the second

16 encounter that caused the noncompliance that you saw?

17 A. The only -- the best way I can describe it

18 is -- and it's hard for me to even describe it because

19 I'm not there feeling the weight of the individual.

20 Now, as you're escorting a subject, if they

21 pull away, your natural reaction and according to our

22 training -- we just even went through this training

23 again at the academy of escorts and take-downs and

24 handcuffing -- is to pull back and get control of the

25 subject.

1 So I really can't testify as to the amount of

2 force that this individual may have pulled away, but I

3 believe there was some there. And Officer Padilla

4 pulled back on him. Now, I don't know what force or

5 if it was too much or if he intentionally did it. But

6 he did it hard enough to throw the subject down on his

7 face.

8 Q. But there was some change in force from just

9 verbal to pulling away to some unknown degree known to

10 Officer Padilla?

11 A. Yes.

12 Q. And that would change your formula or your

13 view a little bit I think?

14 A. It's fair to say that, yes, sir.

15 Q. Now, what did you see in the cab that -- we

16 spoke about this earlier. Was there a third suspect

17 in the back videotaping?

18 A. Yes. What I saw is a light on. And you can

19 see the light, which naturally you can turn on a light

20 on a cell phone. I believe the individual had an

21 iPhone. And you can turn the light on and put your

22 camera on.

23 What I am familiar with seeing typically and

24 what he did there was he was videotaping. He turned

25 the light on and you can see the light coming through

1 the rear window. It was tinted, but you could still

2 see the light.

3 Q. You clearly testified that Officer Padilla

4 was not happy, correct?

5 A. No. He was not happy.

6 Q. He was not happy the way this suspect was not

7 complying?

8 MR. HART: Objection. The testimony was he

9 was unhappy from the beginning before anything was

10 done.

11 BY MR. D'AMATO:

12 Q. You indicated that through his tone of voice

13 he was not happy because of the passengers, is that

14 accurate, the passengers' noncompliance?

15 A. Yes.

16 Q. Now, not happy throughout the entire episode

17 would be a fair assessment also, not happy with the

18 suspect not complying, not happy with the passenger

19 videotaping or not complying with his orders not to

20 videotape?

21 A. I would say the word that you used earlier is

22 probably the best. He was frustrated from the

23 beginning.

24 Q. All right. At the close of this

25 investigation, it has been learned today -- we knew it

1 before. But it's been testified to in open court

2 today that all the violations were sustained, correct,

3 the SOP violations through Internal Affairs?

4 A. I don't know that.

5 Q. So you never learned that?

6 A. No.

7 Q. While you were in Officer Padilla's chain of

8 command, would you have been instructed that, hey, we

9 need to put this guy on an early warning system? You

10 never heard that, did you?

11 A. No.

12 Q. You never heard that we need to put this guy

13 on the PIP, performance improvement plan, correct?

14 A. No.

15 Q. And you never heard of any training issue

16 identified. You talked about some tactical approaches

17 by Officer Padilla that you would have probably said

18 we could have done it better this way. Was he, he

19 being Officer Padilla, ever referred to further

20 training on the tactics that you spoke about today?

21 A. Not that I'm aware of. That would have been

22 something that may -- had it gone to a performance

23 improvement plan or Internal Affairs making those

24 recommendations, they may have even done it on their

25 own.

1 But typically, if it's something that doesn't

2 go to Internal Affairs and it's a performance

3 improvement plan, then we will make some kind of

4 suggestions of tactical training, whether it be by

5 paper or physical tactical training at the academy

6 within the 90-day PIP period, sometimes 60 days. But

7 I wasn't aware of any type of tactical mandates.

8 Q. As you sit here today, you have not learned

9 of any?

10 A. I have not.

11 Q. Okay. Fair enough. Now, earlier someone

12 testified to the early warning system. You're

13 familiar pretty much with the early warning system.

14 And I'm not going to have you do it by memory. May I

15 show this witness the policy.

16 HEARING OFFICER: Yes.

17 BY MR. D'AMATO:

18 Q. Thank you. I would like you to tell the

19 Hearing Officer or testify to what triggers an early

20 warning incident. There are seven there.

21 A. Seven things.

22 Q. All right. Tell the Hearing Officer what

23 triggers an early warning referral.

24 A. Okay. Well, there are seven things that are

25 listed from A to G. The first one being use-of-force

1 incidents that are looked at; citizen complaints

2 regardless of the findings; internal investigations

3 regardless of the findings; firearm discharges; missed

4 court, range training, and physical assessment;

5 absences; preventable police vehicle accidents; and

6 tort claims.

7 Q. All right. So a lot of these, through no

8 fault of the officer, an officer can be placed on EWS,

9 early warning system, through the number of tort

10 claims filed, right?

11 A. Right.

12 Q. Whether it's a legitimate tort claim or a

13 frivolous tort claim?

14 A. Yes, sir.

15 Q. And likewise, you know, citizen complaints

16 regardless of findings. An officer could have done

17 everything by the book but still be placed on the EWS

18 based on the number of citizen complaints?

19 A. Right. And I would say again, drawing back

20 to my experience, I saw a number of those with

21 officers working downtown, working with a lot of

22 use-of-forces and hands-on stuff with individuals I

23 guess you could say that are intoxicated, which is

24 what I got used to. So I became quite familiar with

25 the EWS.

1 Q. Do you remember where this stop occurred, was

2 it downtown or close to it?

3 A. No. I don't know. I couldn't geographically

4 tell you exactly. Officer Padilla is probably -- I

5 mean, being that it's in his particular area, it's the

6 UNM area.

7 MR. D'AMATO: All right. I'll pass the

8 witness. Thank you.


10 BY MR. HART:

11 Q. Regarding the early warning system, I'm going

12 to show you a document and ask if you can tell me what

13 this type of document is.

14 MR. D'AMATO: Which exhibit is that?

15 MR. HART: It's not an exhibit. It's one

16 that was not included. I'll ask a more specific

17 question.

18 BY MR. HART:

19 Q. This document indicates that Officer Padilla

20 was placed in the early warning system in 2003 for

21 five instances of use of force; is that correct?

22 MR. D'AMATO: If you have knowledge of this.

23 MR. HART: If he can look at the document.

24 MR. D'AMATO: And I'll object to this

25 document or the testimony of a 2003 referral to an

1 early warning system as not relevant.

2 MR. HART: I'm just following up on the idea

3 that the early warning system can be given for various

4 types of early warning factors. And in this case

5 there has been testimony that Officer Padilla was on

6 the early warning system. And this document reflects

7 it was because of instances of use of force.

8 MR. D'AMATO: In 2003.

9 MR. HART: In 2003.

10 MR. D'AMATO: I'll withdraw my objection if

11 the Hearing Officer gives admission to this -- in this

12 hearing that testimony admission to the cheap seats.

13 Not much credibility should be given to this.

14 HEARING OFFICER: Let me see that document,

15 please.

16 MR. HART: I admit this is only two years

17 after Officer Padilla became a police officer.

18 MR. D'AMATO: Actually 11 years before the

19 action at issue.

20 HEARING OFFICER: Can you ask your question

21 without him looking at this.

22 BY MR. HART:

23 Q. Is this the type of document that you're

24 familiar with seeing?

25 A. That alone there, no. Typically I would get

1 a copy of -- an employee card would show -- we have

2 separate employee cards. So what we have on there is

3 usually discipline or -- and/or use-of-forces and

4 action. Action cards they call them. We would get a

5 copy of that.

6 Q. This page in particular, is that something

7 that you're familiar with?

8 A. Yeah. I mean as far as what's listed, yes.

9 But I don't know if I'm really familiar with this

10 actual document. It's changed. Maybe that's why I'm

11 not grasping it. But it clearly indicates that he had

12 five use-of-forces in 2003.

13 MR. HART: I don't have any more.

14 EXAMINATION


16 Q. You talked about maybe he wasn't familiar

17 with the cell phone policy of the department. What is

18 that policy?

19 A. The policy for cell phone? Well, onlookers

20 have a right to -- or bystanders have a right to be

21 onlookers. But there's a particular distance that

22 that is done in a safe area. In this particular

23 situation, I'm just actually thinking that Officer

24 Padilla may have not known what that policy is by

25 removing the cell phones.

1 MR. HART: I want to object, because there's

2 already been testimony by Officer Padilla that he did

3 know what the policy was and he did know that he had

4 violated it at the time he violated it.

5 HEARING OFFICER: Okay. Your objection is

6 sustained.


8 Q. I'm asking him what the policy is.

9 A. The policy is that officers are allowed to --

10 any bystanders to be within the vicinity of a crime

11 scene. And they can videotape. That's something

12 that's allowable.

13 HEARING OFFICER: Okay.

14 MR. D'AMATO: One question if I may,

15 Mr. Hearing Officer.



18 BY MR. D'AMATO:

19 Q. So let me just get a mental picture here. We

20 have a driver who is suspected of driving while

21 intoxicated, correct?

22 A. Uh-huh.

23 Q. We have two passengers or three passengers

24 based on your memory in the compartment of the

25 vehicle, correct?

1 A. Uh-huh.

2 Q. Who may or may not be in possession of

3 marijuana. That's a crime, correct?

4 A. Right.

5 Q. All right. Were they within the crime scene?

6 A. Yes.

7 Q. And were they bystanders or potential

8 suspects in a possession of marijuana charge?

9 A. They're witnesses/potential suspects.

10 Q. Not bystanders as your understanding of the

11 SOP with cameras is testified to?

12 A. Right, yes.

13 MR. D'AMATO: All right. Thank you. That's

14 all I have.

15 HEARING OFFICER: Mr. Hart.


17 BY MR. HART:

18 Q. Mr. D'Amato asked you in terms of the

19 classification of the passengers. Based on your

20 understanding of the SOP requirements, is it

21 appropriate to restrict either witnesses or potential

22 suspects from videotaping?

23 A. Is it appropriate to restrict them?

24 Q. Yes.

25 MR. D'AMATO: Potential suspects?

1 MR. HART: Potential suspects or witnesses.

2 BY MR. HART:

3 Q. Let me ask this. Is it okay to restrict a

4 potential suspect from videotaping?

5 MR. D'AMATO: Objection, assuming that the

6 SOP speaks of a potential suspect videotaping. Let's

7 establish that first and then maybe this witness can

8 answer. I don't believe the SOP talks about a

9 suspect's right to videotape.

10 BY MR. HART:

11 Q. Okay. Does it make any distinction?

12 A. No. And the thing is, when you have a

13 potential suspect videotaping, then it is your

14 responsibility to maintain the integrity of a crime

15 scene.

16 So with regards to that, you cannot allow for

17 anybody to videotape. At that point you then can

18 seize property or stop that action so that nothing

19 is -- you know that the crime scene is not tarnished

20 in any way.

21 Q. And is a video that is taken, whether

22 properly by a bystander or by a potential suspect, if

23 it is destroyed, is that a destruction of evidence?

24 MR. D'AMATO: Objection, calls for a legal

25 conclusion, calls for a completely separate legal

1 analysis with respect to the element of intent to

2 destroy evidence under the State statute to avoid

3 prosecution, to avoid potential destruction of

4 evidence of a crime. That's not before this Hearing

5 Officer. And there's no -- elements have not been

6 established.

7 HEARING OFFICER: Under State statute it has

8 to be a felony anyway. So it's irrelevant in this

9 case. We're beating a dead horse. Move on.

10 MR. HART: Okay. I don't have any more

11 questions.


13 HEARING OFFICER: Call your next witness.

14 MR. D'AMATO: We're going to make this brief.

15 With the Hearing Officer's indulgence, we

16 have an order of witnesses that are going to

17 Respondent's side now. So James Gonzales can testify,

18 but he cannot return tomorrow. None of us can return

19 tomorrow.

20 JAMES ANTHONY GONZALES,



23 EXAMINATION

24 BY MR. D'AMATO:

25 Q. Could you state your full name, please.

1 A. James Anthony Gonzales.

2 Q. How are you employed?

3 A. I'm retired right now.

4 Q. Retired from which department?

5 A. The Bernalillo County Sheriff's Department.

6 Q. Do you still hold your certification as a law

7 enforcement officer?

8 A. I do not.

9 Q. When did that lapse?

10 A. It should have been actually about --

11 actually I do. I do for one more year. Sorry. I've

12 been retired four years. Sorry. I've done a few

13 other things since.

14 Q. You understand that your biennium training

15 and your cert is good for two years after you leave

16 the department?

17 A. Yes.

18 Q. And you worked for Bernalillo County Sheriff?

19 A. Yes.

20 Q. You retired as a lieutenant?

21 A. Yes, sir.

22 Q. When did you first start with the Bernalillo

23 County Sheriff's Department?

24 A. In January 1999.

25 Q. And when did you leave?

1 A. It was August -- on the books it was August

2 of 2011. And my last day of work was in July.

3 Q. Okay. Very good. What did you do as a

4 lieutenant retired?

5 A. You mean during -- you mean prior to?

6 Q. Yes.

7 A. I had several positions there. I was

8 assistant division commander inside of our CID,

9 Criminal Investigation Division. I was also the

10 assistant division commander inside of our South Area

11 Command, which was patrol.

12 I was also our assistant division commander

13 inside of our support services, which was just

14 basically our academy, our warrant, and that section.

15 I was also a commander for our special weapons and

16 tactics in addition to our emergency response team.

17 And I was a commander of our field training officer

18 program.

19 Q. In your capacity as a supervisor, had you

20 ever conducted or supervised training for use of

21 force?

22 A. Yes. I conducted training numerous times for

23 our department for -- we had a certified academy

24 through the State of New Mexico. I also did advanced

25 in-service training for our department.

1 I was also a guest lecturer for the Federal

2 Bureau of Investigation National Academy. I also

3 taught for about 17 years out at the Department of

4 Energy as an adjunct instructor in the areas of use of

5 force to include anything from presence all the way up

6 to deadly force.

7 So anything in between I was certified to

8 teach. I held certifications for all those. And I've

9 taught thousands of students in that realm.

10 Q. You also were certified at DOE as a ground

11 control instructor?

12 A. Ground control and intermediate control.

13 Q. Chemical weapons -- chemical agents I should

14 say?

15 A. I held two certifications from two different

16 companies for chemical agents as well as for

17 intermediate force from anything from personal impact

18 tools to -- which is your body basically, to a

19 side-handle baton, which also includes the expandable

20 baton. I've held certifications from that.

21 I also held a professional lecturer

22 certification through the State of New Mexico for

23 special weapons and tactics that did include the use

24 of force, obviously the special weapons and tactics.

25 In addition to that, it had chemical weapons and

1 impact tools.

2 Q. I have marked as Respondent's Exhibit 1 a

3 copy of a curriculum vitae that you provided me. Is

4 that a true and accurate copy?

5 A. Yes, sir.

6 Q. All right. Can I call you James?

7 A. Yes, sir.

8 Q. All right. James, how did you get involved

9 in this case?

10 A. I was approached by Erlinda Johnson. She

11 asked me if I would review the case.

12 Q. And did you, in fact, review the case?

13 A. Yes, sir.

14 Q. What did the case file consist of that you

15 reviewed?

16 A. She gave me copies of a CD that had lapel cam

17 information, basically the ones that you guys have, to

18 review. Prior to doing that, I met with her. She

19 basically gave me an outline of what had happened, a

20 rundown, and asked me if I would look at it and come

21 back with a conclusion, if I would take the case

22 basically.

23 Q. Have you testified before in the areas in

24 which you have shown in your resume?

25 A. Only for the department in cases that were

1 presented to federal court. Never as an independent

2 expert for an attorney or anybody else.

3 MR. D'AMATO: Notwithstanding, I would move

4 for the admission of Mr. Gonzales as an expert based

5 on his training and experience rather than his

6 education.

7 HEARING OFFICER: Okay. So done.


9 BY MR. D'AMATO:

10 Q. So tell us your conclusions.

11 A. Basically what I did is I reviewed all the

12 videos. And what I did is I put them into perspective

13 of what your average -- basically cadet, your officer

14 that comes into law enforcement, what -- their

15 requirements, where they're trained, how they're

16 trained, what they're accountable for.

17 I looked at the overall scenario of what went

18 on. And I looked at the actions of what Pablo Padilla

19 did as well as Jeremy Martin and seen what basically

20 happened to see what was justified and to see how

21 things transpired basically at the onset.

22 And what I did is I reviewed the tapes. What

23 I came to -- my conclusions were is that obviously

24 Mr. Padilla observed a couple of violations which

25 caused the traffic stop. He made an approach.

1 And as was testified before, he asked for the

2 information. There are several things that we have to

3 look at when we look at these cases as far as

4 analyzing them.

5 One is you've got to look at the totality of

6 the circumstances that are going on. In this incident

7 I had to look at if it wasn't one officer with one

8 occupant. I had to look that there was one officer

9 with three -- I'm sorry. With four additional people

10 in the vehicle.

11 These things cause communication barriers and

12 problems sometimes. Mr. Padilla asked the gentleman

13 for his driver's license and insurance and

14 registration automatically. As he attempted to fumble

15 and tried to get them, what I noticed is that there

16 was some communication barriers there.

17 Basically those were generated not just by

18 Jeremy Martin, but by the other occupants inside the

19 vehicle. The other occupants attempted to make phone

20 calls, they attempted to ask questions, they attempted

21 to distract -- what I perceived as distracting the

22 investigation.

23 What I taught when we were in the academy is

24 that our job is to go from point A to point B as

25 quickly as possible and as efficiently as possible to

1 keep us safe. And that's officer safety.

2 The sooner we can get from where we're at to

3 where we're going, the quicker we can get out of there

4 and get everybody where they need to be, whether it's

5 back on the road and safely on that traffic stop and

6 back into traffic. That's our obligation. In that

7 situation, that's fine.

8 If it's something more intense, like a DWI

9 investigation, a homicide investigation, yes, they

10 take longer. But our goal is always the same, to

11 finish up those investigations as efficiently as

12 possible.

13 When you look at it and what we taught from

14 the opposite side, and this is what we learn from our

15 experience as being law enforcement officers, if you

16 have someone that you're dealing with on a stop, what

17 you would like to see is them going from point A to

18 point B as quickly as possible.

19 And that actually accommodates us to be able

20 to complete our portion of what we need to get done on

21 the call. What we look for -- and these are

22 indicators, what we teach as indicators -- is somebody

23 that's starting to sidetrack.

24 So if we're asking for a driver's license,

25 insurance, and registration and somebody starts to,

1 for example, ask questions and they're not giving you

2 the information, that should be an indicator to you

3 that this may take a little longer. Things just have

4 got to start to arise.

5 I started to pick up on indicators

6 immediately. As soon as he asked for the information

7 that he needed to conduct his investigation, I noticed

8 that these indicators were starting to arise.

9 Basically what happened is -- and we've

10 already covered this and we've already discussed it.

11 But the other occupants inside the vehicle start

12 asking questions and they started causing

13 communication barriers between Jeremy Martin and Pablo

14 Padilla.

15 Pablo Padilla had to make a conscious

16 effort -- and we have an obligation to try to make a

17 communication bond with whoever we're dealing with as

18 quickly as possible. Because it's so hard to get that

19 back if we miss it initially.

20 Pablo Padilla attempted to try to do his HGN

21 inside the vehicle, leaving the suspect inside the

22 vehicle, which is consistent with training. That's

23 the safest place. As the other earlier lieutenant

24 prior to me has testified, he's absolutely right.

25 We try to leave the suspect in the vehicle as

1 much as possible. But we've got to remember the as

2 much as possible part. Sometimes there's exigent

3 circumstances or outside influences that cause us to

4 deviate from that. And we've got to be able to see if

5 those are reasonable.

6 In this situation, because of everything that

7 was going on, Pablo Padilla was trying to do the HGN.

8 And because of the obstructions that were going on

9 there, basically what happened is Pablo Padilla made a

10 conscious decision to take Jeremy Martin out of that

11 vehicle and put him in the back behind his own vehicle

12 to continue the investigation.

13 This is totally acceptable for the fact that

14 he wanted one-on-one interaction and communication to

15 be able to complete his investigation. He pulled the

16 occupant out of the vehicle. He began to do the HGN.

17 He had already had an admission from the driver,

18 Mr. Martin, that he had been drinking.

19 When he asked him I think it was three or

20 four more times about drinking, Mr. Martin changed his

21 response. This is critical. Because no longer was it

22 only a couple beers, it turned into three beers; and

23 then it also turned into he wasn't drinking at all.

24 This to me starts to show deception. Okay.

25 As Pablo Padilla decided to go back to his patrol car

1 to do some administrative actions, you know, do things

2 that we're obligated to do, run subjects through NCIC,

3 perhaps call for backup, whatever you have to do

4 administratively, Pablo Padilla went back to his

5 patrol car.

6 He asked Jeremy Martin to sit on the

7 sidewalk. He asked him to sit on the sidewalk in the

8 safest place possible when you review the tape, which

9 is a good decision from the situation that he had.

10 He didn't ask him to sit on the bumper, on

11 the left side, whereas, if a vehicle was coming by and

12 swerved, it could have hit him. He didn't ask him to

13 stand in front of the vehicle where he couldn't keep

14 an eye on him.

15 He ask him to sit on the sidewalk off to the

16 right rear of the vehicle on the ground, which allowed

17 Pablo Padilla to keep an eye on him and keep the

18 suspect in the safest place possible during that

19 investigation.

20 Pablo Padilla was trying to administer his

21 investigation or conduct his investigation when Jeremy

22 Martin stood up and walked into the traffic lanes.

23 This is another serious indicator. This is something

24 in law enforcement that we've got to recognize.

25 What we look at in these situations and what

1 we train is, under these indicators, when they're in

2 an indicator, you're looking at a flight or fight

3 syndrome that a person is getting into. They're going

4 to decide if they're going to run or they're going to

5 fight with you.

6 Because of his body gestures and his actions,

7 I perceived this one to be more of a flight syndrome

8 based on he did not want to stay contained where the

9 officer had told him to stay.

10 Pablo exited his vehicle, went back up to him

11 quickly, and asked him to sit back on the ground.

12 Now, I reviewed these tapes. And audibly, what I can

13 recognize audibly and I can consciously state this

14 happened, he asked him 24 times to sit down.

15 Yes, some were quick and some were rapid. I

16 understand that. But they were 24 short commands.

17 What we teach in the academy is to give short

18 directives to people. It's very simple for them to

19 understand without them getting confused. So they

20 don't have to think of are you giving them different

21 commands, various commands.

22 What Pablo needed from him at that time was

23 just for him to sit down so Pablo could conduct his

24 investigation. Jeremy Martin refused those commands.

25 He sat down the first time, but after that continued

1 to refuse them.

2 Pablo Padilla continued to interact with him.

3 And at one point pulled out his mace and said I'll

4 mace you, which we all understand what Martin's

5 response was, which was basically go ahead and mace

6 me, I would love it if you would mace me.

7 That to me caused me some concern. We all

8 with law enforcement have been sprayed with mace. And

9 it is not a pleasurable experience by any means.

10 I was an instructor. Like I said, I've held

11 different certifications. I've sprayed hundreds of

12 students. Not one of the students after that, the

13 students that we've ever dealt with, has come back to

14 me after the class and said can I go back through that

15 or that was enjoyable.

16 We all understand that's not pleasurable. So

17 not only do we understand it from our side that that's

18 not pleasurable, but the public also understands to

19 the extent -- to a certain extent that they should,

20 that those things are not something you want to

21 challenge.

22 The thing that gets me on this is that I

23 understand the concerns of this. But there's a

24 different protocol of which you've got to look at.

25 Mr. Padilla did not use force there. He showed force.

1 And the show of force is not equivalent to the actual

2 application of force. Okay.

3 So let me tell you this. By Pablo Padilla

4 placing his hand on him, that's a greater use of force

5 in the use-of-force continuum than it is for him to

6 pull out his mace and say I'm going to mace you if you

7 don't do this. Okay. Because he never applied

8 anything. When he refused, he put it away.

9 Did he try with another tool? Yes, he did.

10 What this showed me is that maybe Pablo Padilla has

11 had success with these other options. Is it

12 acceptable? Yes. It's a show of force, it's not even

13 in the use of force yet.

14 He tried it again with the ERD. Once again

15 Jeremy Martin refused and would not comply with the

16 lawful orders. He put it away. At this time Pablo

17 Padilla decided to detain him. He turned him around,

18 placed his hands on him. That's the first time that

19 he uses force in this situation.

20 But I've got to look at this up until this

21 point. And one other thing that I analyzed was were

22 there any words of challenge coming from Pablo Padilla

23 to Mr. Martin. And what I mean by that, at any point

24 did he tell him I'm going to hit you or, if you don't

25 do this, I'm going to do this as far as physical

1 violence.

2 He never told him anything like that. All he

3 ever did was give him direction as to what he needed

4 to complete his investigation. There were no words to

5 challenge, to start a fight with Jeremy Martin.

6 All his orders were lawful orders that were

7 given to the suspect under the color of law and under

8 the umbrella of conducting the investigation to make

9 sure that the public was safe. And everything to that

10 point was totally acceptable.

11 What he did do as far as -- and I'm talking

12 about in the use of force. Okay. Not

13 administratively. The other officer spoke to that.

14 He placed him -- he placed his hands on him.

15 At that time it should be free -- I mean clear to

16 Mr. Martin that he was no longer free to do what he

17 wanted. He is being detained by a law enforcement

18 officer at that point. But yet Mr. Martin spun

19 rapidly. Okay.

20 One of the things they teach here at the

21 State, at the State curriculum is that there's

22 different distances. And this allows and attests to

23 the police officer. Just follow me for a second.

24 The ideal situation for a law enforcement

25 officer is that you have great distances with nobody

1 moving. It gives you the best time to plan for

2 something.

3 So if you're the guy I'm dealing with, the

4 best thing I could have is if you're on the other side

5 of the parking lot, because it gives me time to

6 formulate a plan and make a plan as we get closer and

7 things are happening. Do you follow me?

8 The next best thing that can happen is that

9 maybe we're in a foot chase and we're chasing a

10 suspect. We're not gaining ground, but we're not

11 going towards each other either. So it still gives me

12 time to plan.

13 We hold these officers at a higher level of

14 expectation to make a better plan at that time. The

15 worst thing that could happen to a law enforcement

16 officer is two things coming together, them and the

17 suspect. Okay.

18 And in this situation it was absolutely the

19 worst, because you're already at a zero interaction

20 space, which is defined by the State of New Mexico.

21 Anything under six feet you have no time to plan, you

22 have zero plan time. So what you basically do is you

23 revert to your training.

24 At this time, and Pablo attested to it, he

25 decided to give a knee strike to the inner part of the

1 thigh, which he did. Okay. And we're all in here

2 figuring out where it landed and where it didn't.

3 Let me just say this. I think we've all been

4 there. Okay. We've all watched professional sports,

5 whether you're talking boxing, where there's an

6 accidental low punch; the MMA, where somebody gives a

7 groin strike by accident; it could be baseball, when

8 somebody throws a fastball and the guy couldn't get

9 out of the way and it wasn't intentional.

10 And I think we were all even kids. And at

11 some point we're playing swords with our brothers or

12 friends and you catch the stick across the knuckles.

13 Under none of those circumstances, none of them, are

14 law enforcement called in to critique that. There's

15 accidents that happen.

16 I think basically what happened in this

17 situation is that he went to give a knee strike and it

18 just didn't land where he was intending to give it.

19 Okay. That happened. And that's how it transpired.

20 When we're in training, we teach these guys,

21 these are acceptable strike areas that you can hit.

22 Okay. But even in training, with law enforcement

23 officers, as much as we train and as much as we put

24 them through all this training, we have had accidents.

25 Things do happen.

1 And we don't have them going 100 percent. We

2 start them off usually at 30 percent, and we only let

3 them top off at 50 percent. And we still have to go

4 get bags of ice, we still have to deal with, you know,

5 separated fingers sometimes, dislocated joints, and an

6 ice bag here or there because things do happen.

7 And because of the circumstances and the

8 totality of the situation, I do believe that he

9 intended to give him a knee strike. I think he did

10 revert to his training. I just believe that the

11 actual strike landed in the wrong place.

12 From there he took him to the ground. From

13 what I could again audibly, what I could understand,

14 he gave him 14 more commands. Either to stop

15 resisting or to place his hands behind his back. Very

16 simple, very efficient commands.

17 Any time Jeremy Martin during any -- any time

18 during the 38 commands total given to him that I

19 could -- that I could hear -- and we have to

20 understand that at parts these lapel mikes were turned

21 off because of the way they work. You know, they're

22 turned off at times in between these situations. And

23 it takes time to pick back up things.

24 Those were just the ones we heard that I

25 could understand. Thirty-eight decisive commands to

1 Jeremy Martin. And at any time, preferably at the

2 first one, this whole situation would have turned out

3 or could have turned out completely different.

4 He took him to the ground, placed him in

5 custody. He picks him up. And you can see from the

6 cam, the lapel cam, that Mr. Martin does start to pull

7 away. It is hard.

8 I mean we don't have the selfie cam yet, the

9 one that stands off big enough to give us a big enough

10 view. These things are right on the lapel. They're

11 not wide enough to catch the entire thing. So all I

12 could attest to was you could see him pulling away.

13 You could see him go back down to the ground.

14 I can't say he threw him to the ground in the

15 fact that a throw is where you just either push or

16 trip and just let them go. To me, if you're at all

17 trying to take somebody down and escort them, whether

18 they're in cuffs or not, that's fine.

19 Because if he's pulling away and if he

20 perceived that this subject was still trying to get

21 away, the safest place to put somebody -- and we teach

22 this in the academy. The higher the threat, the lower

23 they go to the ground.

24 It shows a few things. It shows compliance.

25 And I'm just going to tell you this, throughout the

1 entire stop, one thing that Pablo should have been

2 doing is analyzing the suspect's action or

3 Mr. Martin's action by saying sit on the ground. If

4 he's not doing it, that should give you the perception

5 that he's not cooperative.

6 So what we teach in the academy is, if we're

7 doing a felony stop, which is just a high-risk traffic

8 stop -- you know, just say there was a bank robbery.

9 You catch somebody that matches the description. It

10 may not even be them. But you stop a car that matches

11 the description.

12 And I give clear orders for this person to

13 get out. Because of what's going on and the level

14 that's going on, I want to see how low I can get them

15 to the ground. Based off that, if they stay standing,

16 I understand that there's probably going to be some

17 type of confrontation.

18 If they go to their knees, I might have a

19 higher level of success. If I can get them to the

20 ground, I have them in the safest place that I could

21 put them for me and also for them.

22 It's the safest place for both of us, because

23 they're least likely to be successful in a struggle if

24 they're already on the ground and we're least likely

25 to get hurt if they're on the ground. So we're

1 trained to put people on the ground if things start to

2 happen.

3 If somebody is actively resisting -- and I

4 differ with what the lieutenant said earlier, that

5 passive resistance is somebody just verbal. When

6 somebody spins and pulls and starts tugging, that's

7 actively resisting, that's physical. There's a

8 difference there. That's a higher level on your

9 use-of-force continuum. It is.

10 And based off of that, officers can always go

11 just slightly higher. And what we teach at the

12 academy or when I taught at the academy is for us it's

13 like a race, guys. And what I mean by that is, if I'm

14 standing on the track and I'm right next to the bad

15 guy, the courts want us to finish that race ahead of

16 the bad guy.

17 They just don't want us to blow them away.

18 They don't want us to finish so far in front that it's

19 embarrassing. What the courts allow us to do is just

20 be slightly ahead of them with our force, just

21 slightly ahead of them, to make sure that we're

22 successful.

23 And what that means is that, when he pulled

24 around and turned around, he's absolutely okay to use

25 a little bit more force. So a knee strike is -- does

1 fall into that category. A knee strike is a personal

2 impact tool. And it does fall under that category

3 under this circumstance.

4 From there I looked at -- because I had to

5 look at intent. And I didn't see any intent to do it.

6 Were there multiple repetitive strikes out of anger?

7 I didn't even -- I didn't see that.

8 I agree. Once they clarified -- I think

9 earlier, from my perspective from sitting there, I

10 think it was clarified that it was more frustration.

11 It wasn't anger on Padilla's part.

12 And I could see that, yeah, everybody handles

13 stress different. So whereas one lieutenant could sit

14 here and say, well, I wouldn't have got so upset,

15 well, you may not have. I get that. But that's not

16 administratively wrong as long as you don't cross the

17 line with your use of force or anything else when it

18 comes to that.

19 And what I didn't see during this is that I

20 didn't see any repetitive or negligent strikes from

21 Pablo Padilla to Mr. Martin. I didn't see anything

22 that, after he was down on the ground, that he

23 continued to hit him once he was -- once he was placed

24 in cuffs, that he continued to give strikes.

25 I didn't see any of that. What I did see was

1 Jeremy Martin's statement of one thing. If we were

2 just to turn off the video and hear audible, it would

3 sound horrendous. It would, because Jeremy Martin

4 says all the right things. He really does.

5 He says just let me go. Why are you doing

6 this. Just give me a break, let somebody else pick up

7 my car. You know, why are you hitting me, why are you

8 doing this.

9 But when you look at the video and you're

10 seeing him turn around and pulling away and not

11 putting his hands behind his back, that's different.

12 His actions and his verbal do not match up. You've

13 got to take into consideration both on this.

14 And then basically what I looked at finally

15 is how did he handle the call overall after

16 completion. Pablo Padilla still called everything

17 that he needed to do medically. He called for rescue

18 to come and look at him.

19 Jeremy Martin was the one that chose not to

20 disclose the groin strike. You know, did he do it?

21 He had to. Yes, he did. At what point does he come

22 up to Jeremy Martin, because they're going to ask him,

23 do you have any injuries that we should know about, is

24 there anything that you should disclose.

25 It's up to him at some point to be turned

1 over. All he could do is bring him to rescue. He

2 can't tell them everything unless he knows about it.

3 And obviously he didn't know about that based off his

4 statement.

5 Then what I seen that was also right in

6 policy and procedure was that he called for basically

7 what's called a field investigator, somebody to come

8 and take photographs to document everything. Okay.

9 He recorded it by SOP on his lapel cam. Okay.

10 I'm in concurrence with what you said. I

11 mean, when you look at it, there's no felony charges

12 for the tampering with evidence. So that's a dead

13 horse, you know.

14 But one other thing that happens, and this is

15 something that we've got to realize, is that he wasn't

16 just afforded medical on scene. Prior to going into

17 intake at the detention center, he's got to pass a

18 full medical, which means he's got to go in there.

19 And he's given and afforded another

20 opportunity to sit there and say there's something

21 wrong. And even at that I don't know how long he was

22 in booking, whether it was four hours, six hours,

23 eight hours, whatever the time was, if anything ever

24 comes up, he could still notify one of the corrections

25 officers that he needs medical attention. And he's

1 afforded that opportunity also.

2 During that entire time -- and 20 hours later

3 is when he chose to disclose that at the hospital. I

4 can't attest to injuries, I'm not a doctor. But what

5 I can say is, when you look at the totality of

6 everything and how it transpired, Pablo Padilla

7 checked off what he had to do administratively on that

8 call.

9 And in law enforcement sometimes we do have

10 to do and deal with people that are -- and obviously

11 that are intoxicated, under drugs, or they have mental

12 disabilities that from our experience sometimes deaden

13 their response to what they feel.

14 Sometimes somebody that's been drinking or

15 been doing cocaine all night or somebody that's just

16 had psychological disorders don't feel those impacts

17 like we do when you're not drinking and when you're

18 not taking narcotics, because those do affect the

19 body.

20 And sometimes those incidents result and we

21 have to deal with them. And they actually basically

22 are deadened to the situation more so than anybody

23 else that you'll encounter.

24 Q. James, a couple questions. Thank you for

25 your testimony. I want to ask you, did you have an

1 opportunity to review any testimony or statement, tape

2 record, videotaped, or otherwise, of Jeremy Martin?

3 A. Basically the only thing that I was able to

4 review were the police reports from -- I'm just saying

5 from quotes from him. Nothing that was directly from

6 him.

7 Q. So to this day we don't have a statement from

8 Jeremy Martin?

9 A. No.

10 Q. And to your knowledge he didn't testify to

11 that, correct?

12 A. No, not that I know of.

13 Q. Should the degree of injury, based on a

14 missed leg strike, dictate whether the officer used

15 excessive force and has a bad moral outlook on life

16 with regard to a police officer? In other words, is

17 it relevant that he suffered any injury at all or

18 suffered injury or do we look at the officer's actions

19 and intent?

20 A. Basically what you've got to look at -- and

21 let me just answer this. Officer's action and intent

22 is what basically dictates that. Now, to prove

23 excessiveness, you've got to show intent. And you can

24 prove that in a variety of ways.

25 You can prove intent in a variety of ways.

1 Have there been numerous strikes, repetitive, out of

2 anger, you know, that you could sit there after

3 awhile -- sit there and say that's -- when it gets to

4 the point of unreasonableness, you draw the line.

5 By Pablo Padilla's statements -- which I

6 didn't get any of these. But just to give you an

7 example, a statement from Pablo Padilla saying, if you

8 don't stop, I'm going to knee you in the groin or I'm

9 going to kick your, you know, A or whatever, things

10 that start to show that he's going to do something

11 that falls out of policy and procedure, then you can

12 start to add that up. There was none of that here.

13 Q. But I mean the fact that we still don't have

14 a link between -- a causation link between the damages

15 purportedly suffered by Martin and the actions of

16 Padilla. But any Hearing Officer should not consider

17 the photographs of a lost testicle or anything like

18 that?

19 A. No.

20 MR. D'AMATO: Okay. I'll pass the witness.

21 EXAMINATION

22 BY MR. HART:

23 Q. I'll just start with that. Is the loss of a

24 testicle indicative of the amount of force applied?

25 Does it indicate whether the amount of force, in terms

1 of the actual knee strike, that it might be excessive

2 in terms of the power, you know, used in that strike?

3 MR. D'AMATO: Objection, lack of foundation,

4 because we don't know the amount of force used, what

5 it would take to lose a testicle or leave a bruise on

6 a leg. I don't think there's any evidence of bruising

7 on a leg.

8 HEARING OFFICER: He's testified that he's an

9 expert in the use of force. Why can't he try to

10 answer it?

11 MR. D'AMATO: I mean if he knows in this

12 particular case, I have no objection.

13 HEARING OFFICER: Okay. Ask him.

14 THE WITNESS: Can you repeat the question.

15 BY MR. HART:

16 Q. I mean does the fact that a doctor believes

17 it necessary to remove a testicle because of the

18 amount of force applied and as a result of that force,

19 does that indicate that the force might have been

20 excessive?

21 A. No.

22 Q. Okay. As an instructor in use of force, is

23 there any component of the training that you're aware

24 of that addresses the manner in which an officer

25 verbally communicates with subjects?

1 A. Yes.

2 Q. And does that part of the instruction

3 indicate that it's best not to provoke a subject?

4 A. Yes.

5 Q. And in this instance, starting from the

6 beginning of the encounter, Officer Padilla asked the

7 people in the car generally and Jeremy Martin in

8 particular, you know, who was drinking in the car. Do

9 you remember that?

10 A. Yes.

11 Q. And it wasn't that Jeremy Martin didn't say

12 anything. He said something very low in response to

13 that question. It's difficult to tell what he said,

14 but he did respond; isn't that correct?

15 A. Uh-huh, yes.

16 Q. You have to say yes or no.

17 A. Yes.

18 Q. And do you recall, in response to that

19 answer, that Officer Padilla chuckled?

20 A. Yes.

21 Q. Okay. Was that indicative of a lack of

22 respect on the part of Officer Padilla to Jeremy

23 Martin at that point?

24 MR. D'AMATO: If I may make my record and

25 object to this, because we're asking -- we're defining

1 a response with an undefined response and a chuckle.

2 So the response could have been funny, the

3 response could have been sarcastic, it could have been

4 obscene, it could have been nonresponsive. We don't

5 know what the response was to define whether the

6 chuckle was appropriate or not. Do you see the

7 objection?

8 BY MR. HART:

9 Q. Is it fair to describe that chuckle as a

10 derisive chuckle on the part of Officer Padilla of?

11 MR. D'AMATO: Again in context. We don't

12 know the context.

13 MR. HART: We've seen the video. We know

14 what the context is.

15 MR. D'AMATO: So what does Martin say in

16 response to that question? What does he say?

17 MR. HART: We have to listen real carefully.

18 MR. D'AMATO: Let's listen real carefully

19 before this witness can testify to that question.

20 MR. HART: If you want to, we can.

21 MR. D'AMATO: I don't think you're going to

22 be able to determine it.

23 BY MR. HART:

24 Q. I would prefer to allow the Hearing Officer

25 to try to listen to that.

1 But I guess what I'm suggesting is, if it's

2 not something funny, I mean is it appropriate for an

3 officer to laugh at a subject?

4 A. Well, I've conducted --

5 MR. D'AMATO: Objection. You're

6 mischaracterizing the testimony and the evidence. A

7 chuckle does not equate with a laugh.

8 BY MR. HART:

9 Q. I'll move on. So at that point isn't it

10 correct that Officer Padilla then asked Jeremy Martin

11 to turn off his car?

12 A. Yes.

13 Q. And isn't it correct that, as Jeremy Martin

14 is actually reaching for the key to turn the car off,

15 Officer Padilla yells at him, turn off your car?

16 A. I wouldn't say he yelled at him.

17 Q. But he's in the process of doing the very

18 thing that Officer Padilla had asked when he's told

19 again to turn his car off; isn't that correct?

20 A. Yes.

21 Q. Is that indicative of a lack of respect on

22 the part of Officer Padilla to Jeremy Martin?

23 A. No.

24 Q. Is that the kind of thing that might heighten

25 a subject's contrariness to an officer's instructions;

1 if he's doing something the officer has already told

2 him to do, and then the officer raises his voice and

3 tells him to do the exact same thing?

4 A. Could it, is that what you're asking?

5 Q. Yes.

6 A. Yeah, sure.

7 Q. And immediately after that, in a raised

8 voice, Officer Padilla says I smell weed in the

9 vehicle and I smell alcohol. And then he says so you

10 be honest to me or we can lie all night long. Up to

11 that point, had there been anything that had been said

12 by anyone in the car that was dishonest?

13 A. If I can answer this, I don't know if there

14 was anything said that was dishonest to that point, if

15 you were just to stop the tape. Now, hold on. If you

16 were to let that tape go and ask me now do I know if

17 there's something dishonest, I would have to say yes;

18 because when he asked about the alcohol, he changed

19 his answer three times.

20 Q. That hasn't happened yet.

21 A. Okay. So to that point, no.

22 Q. All right. Would telling a subject that he's

23 being dishonest be something that would cause a

24 subject to be provoked?

25 MR. D'AMATO: Objection, mischaracterizing

1 the testimony. Martin was never accused nor were any

2 of his passengers of being dishonest. It says we

3 could lie all night. We could lie. Not saying he has

4 lied.


6 MR. HART: So you be honest to me or we can

7 lie all night?

8 MR. D'AMATO: Right.

9 BY MR. HART:

10 Q. All right. And then Jeremy Martin responds I

11 totally understand. And in mid-sentence Officer

12 Padilla cuts him off and doesn't let him say anything

13 more. Is it appropriate, is it respectful, is it

14 conducive to cooperation for an officer to do that, to

15 cut somebody off in mid-sentence?

16 A. It could be depending on how he wants to

17 direct the investigation. He's obligated to direct

18 the investigation, seeing where it's going, and

19 determining if it's going in the direction that he

20 needs it to go to be efficient at that scene.

21 So sometimes he's got -- sometimes he's got

22 to use different tactics and techniques to make sure

23 that he can accelerate that investigation, because you

24 cannot let that thing go all night until Mr. Martin

25 sobers up or anything else happens that could be

1 detrimental to either Pablo Padilla or the public or

2 anything else.

3 We've got many things that we've got to

4 handle out there. And unfortunately we can't take one

5 call and spend all eight hours on it if --

6 Q. I think the response is -- I want to go on to

7 my question. So from that Officer Padilla says, in a

8 rather accusing manner, isn't it correct, how much

9 have you had to drink tonight?

10 A. I don't think that's an accusing manner. I

11 don't agree with that.

12 Q. You would have to interpret that.

13 A. You're asking me for my law enforcement. I

14 think that's a reasonable question.

15 Q. It's a reasonable question.

16 A. When you detect it -- and he's made it clear

17 at that point that he did detect an odor of an

18 intoxicating beverage. So I think it's a reasonable

19 question to ask him that.

20 Q. I'm not talking about the question. I asked

21 about the manner in which it was asked.

22 A. Yes. I think it's reasonable.

23 Q. And let me ask this question. So he said how

24 much have you had to drink tonight. And so that

25 meant -- this is like near twelve o'clock at night.

1 So it's been a long time; is that correct?

2 I mean we're looking at -- you know, if you

3 say the night starts at six p.m., you know, you've got

4 six hours to have a couple of beers. Reasonable?

5 A. Well, it depends, because now -- to me. And

6 this is me. I mean I worked graveyard for years. I

7 consider the night to end at midnight. The morning

8 starts at 12:01 to me.

9 Q. Well, I mean it doesn't say in what proximity

10 to the actual stop these beers have been drunk?

11 A. Yes. That hadn't been determined. Yes. It

12 hadn't been determined.

13 Q. And later on the question asked to Jeremy

14 Martin was more to the effect that you were drinking

15 and driving. And he said no. That's not

16 inconsistent. There were no beer bottles found in the

17 car, were there?

18 A. Not that I'm aware of.

19 Q. So not drinking and driving is consistent

20 with him saying that he had two or three beers?

21 A. No. If I could just say this. From a law

22 enforcement perspective, drinking and driving isn't an

23 open container drinking. What they're saying from our

24 perspective in law enforcement would be that are

25 you -- we're believing that you're under the

1 influence.

2 Q. Are you able to say what was in Jeremy

3 Martin's mind?

4 MR. D'AMATO: Objection. Allow the witness

5 to answer.

6 THE WITNESS: No. But I mean we're taught to

7 a reasonable law enforcement officer standard. And

8 from an investigative standard what I would believe a

9 law enforcement officer would perceive when he said

10 have you been drinking and driving.

11 BY MR. HART:

12 Q. And it could be a misperception on his part?

13 A. Perhaps.

14 Q. Jeremy Martin could have meant I was not

15 drinking and driving?

16 A. Perhaps.

17 Q. Okay. Is it a significant deviation to say a

18 couple of beers than to say three beers?

19 A. Yes.

20 Q. And why is that?

21 A. Because it's 33 percent more.

22 Q. Over a period of what time?

23 A. We haven't talked about time. You just asked

24 me. It's 33 percent more. That's a big difference.

25 It's changing your answer. And also it's the public's

1 common perception that a couple is two.

2 Not three, not one, a couple. If you're

3 talking about who you're with, I could not tell my

4 girlfriend where we're a couple and have another girl.

5 She would not agree to that. That's not three. So

6 just in perspective there's a huge difference.

7 Now, if you want to add time into it,

8 depending on when you had those drinks could change

9 it.

10 Q. And he could have misremembered two to three;

11 is that correct?

12 A. Absolutely.

13 Q. During this period of time, up until -- I

14 guess so far we're still in the car. Is it fair to

15 say that Officer Padilla's tone with Jeremy Martin was

16 confrontational and ridiculing?

17 A. No. I felt like his tone was one of

18 frustration due to the aggravation that was coming

19 with the communication barriers from within the

20 vehicle from the other subjects.

21 Q. Well, let's talk about the passenger in the

22 front seat.

23 A. Okay.

24 Q. Okay. The passenger in the front seat had

25 his phone in his lap?

1 A. Yes, sir.

2 Q. He didn't have it to his ear; is that

3 correct?

4 A. What I perceived is that -- and from the

5 statements, and you've got to remember, these are

6 utterances coming from an officer on scene, is that he

7 was trying to make a phone call or take photographs at

8 the scene.

9 Q. All right. And so Officer Padilla tells him

10 to stop doing that?

11 A. Yes.

12 Q. And he asks why.

13 A. And if you're asking my perspective, one of

14 the big things right now is social media. Pablo

15 Padilla has to go out to the public with his family,

16 his friends, his mother, his grandmother. And he

17 probably I mean would not want partial images or

18 sections of something on social media for his own

19 personal safety.

20 Q. Okay. But the passenger asks why. And

21 Officer Padilla responds for officer safety.

22 A. Okay.

23 Q. And at that point the passenger complies.

24 A. Okay.

25 Q. So has the passenger really done anything to

1 provoke Officer Padilla or to cause any kind of

2 disruption in the investigation?

3 A. Yes, because it's distracting from him being

4 able to -- after you've seen it, while he was trying

5 to do his horizontal gaze nystagmus because that was

6 at the same time, it was causing confusion because now

7 he has to stop, he has to redirect.

8 And also we have to write a clear, accurate,

9 efficient report that has -- has no room for

10 discrepancy in it that can be held up to ridicule by

11 everybody else.

12 So it is reasonable to make sure that, when

13 I'm talking with one person on an incident, that that

14 is clear and concise to me; because I've got to take

15 all that information and go put it back on a police

16 report as accurately as I can.

17 Now, if I'm speaking with one person and

18 somebody else interrupts me, it makes it very

19 difficult to do that; because then I either have to

20 start over my investigation to make sure he's clear on

21 it or I got to separate them from you to make sure I

22 can conduct that investigation accurately.

23 Q. But in this case it's clear that the

24 interruption was caused by Officer Padilla's concern

25 and not -- I'm asking a question.

1 MR. D'AMATO: Objection. It's not clear.

2 BY MR. HART:

3 Q. Did the passenger do anything inappropriate

4 in his conduct that he should have known not to do?

5 A. Yes.

6 Q. And what was that?

7 A. He should have complied with Mr. Padilla's

8 request --

9 Q. He did. When did he not?

10 A. -- to stop interrupting.

11 Q. When did he not comply?

12 A. When they kept continuing to talk and offer

13 barriers to the investigation, at which point

14 Mr. Padilla had Jeremy Martin step to the back.

15 Q. I would like to bring up the video, because I

16 didn't see that at this point.

17 MR. D'AMATO: Save it for argument.

18 HEARING OFFICER: You're beating a dead

19 horse. What does the passengers have to do with this

20 incident?

21 MR. HART: What this has to do with is this

22 entire incident. We can get to the use of force in

23 the knee strike. By that time Officer Padilla had so

24 provoked Jeremy Martin --

25 MR. D'AMATO: That's argument. There's no

1 testimony --

2 MR. HART: That's what this testimony is

3 about right now. We're building up -- this is

4 objectively observable. Everything that Officer

5 Padilla did led to this confrontation.

6 Sure. A reasonable officer and expert can

7 say the knee strike was justified under the

8 circumstances. But the knee strike never would have

9 been necessary had Officer Padilla treated these

10 people with respect. And he did not.

11 MR. D'AMATO: Respectfully there is no

12 evidence in record supporting that contention. That's

13 best left for argument.

14 MR. HART: And I'm going through the facts.

15 MR. D'AMATO: This witness will corroborate

16 this argument.

17 BY MR. HART:

18 Q. I'm just going through the facts. Did the

19 passenger actually do anything to provoke? He may

20 have been provoked. But did the passenger do

21 anything?

22 HEARING OFFICER: Are you objecting?

23 MR. D'AMATO: I am.


25 MR. HART: I have no further questions.

1 MR. D'AMATO: I have a follow-up real

2 quickly.

3 HEARING OFFICER: Go ahead.


5 BY MR. D'AMATO:

6 Q. James, let's assume this stop occurred

7 sometime before midnight, pick an arbitrary time, ten

8 minutes to midnight. And had the driver of this

9 vehicle complied with every one of Officer Padilla's

10 requests, how soon do you think -- based on what

11 you've heard and based on what you reviewed, how soon

12 do you think Officer Padilla would have been cleared

13 for another call?

14 A. Basically, and this is just from experience,

15 if an officer starts and ends the investigation on a

16 DWI and they're proficient on it and there's no extra

17 hindrances like busy jail or anything that you're

18 waiting on, you can probably complete one, it would be

19 reasonable to say, in about an hour and a half. But

20 that's you doing all the paperwork, that's you doing

21 everything before you go out on a call.

22 Q. Now, if Officer Padilla at ten of midnight

23 makes this stop, smells alcohol, calls for a DWI unit

24 to respond, Miller takes ten minutes to respond, takes

25 over the investigation, how much time would Padilla

1 have taken to clear the call from ten of midnight?

2 A. It would have probably taken about 20

3 additional minutes.

4 Q. Twenty-one minutes?

5 A. Yes, sir.

6 Q. How long did this from start to finish take,

7 this call, do you know?

8 A. I'm not sure how long the actual time was on

9 this one in its totality.

10 Q. All right. Were you present in this room

11 when the lieutenant recognized that Officer Padilla

12 could not get on the air because there was something

13 serious going on?

14 A. Yes.

15 Q. And that it took him some time?

16 A. Yes.

17 Q. How many officers ultimately appeared on the

18 scene on this call that were prevented or distracted

19 from going on that more significant call?

20 A. It was close to seven I believe.

21 Q. Okay. Have you formed an opinion as to

22 whether Pablo Padilla caused all of the aggravation

23 that the driver of that red pickup truck caused; was

24 Padilla the prompting of the noncompliance?

25 A. No.

1 Q. Okay. And then we do have an instruction by

2 Officer Padilla to turn your vehicle off?

3 A. Yes.

4 Q. The driver complies; is that right?

5 A. Yes.

6 Q. Was that the last time the driver complied

7 with Officer Padilla?

8 A. No. The last time he complied was when he

9 sat down. But then he quickly stood up. So he

10 complied, but it was a very short period.

11 Q. And by and large, there were more

12 noncompliances, outnumbered by let's say 17 to two?

13 A. It was like 38 directives that he didn't

14 comply.

15 MR. D'AMATO: I'll pass the witness.


17 BY MR. HART:

18 Q. I have one last question. Did you count how

19 many times that Officer Padilla cut off a sentence or

20 a question being asked by Jeremy Martin?

21 A. No.

22 MR. HART: Okay.

23 HEARING OFFICER: Are we done with this

24 witness?

25 MR. D'AMATO: Yes, sir, we are.

1 HEARING OFFICER: I don't have any questions.


3 HEARING OFFICER: Call your next witness,

4 Mr. Hart.

5 MR. HART: We have phone calls. Let's see.


7 PAUL DURAN,



10 EXAMINATION

11 BY MR. HART:

12 Q. Can you again state your full name for the

13 record, please.

14 A. I'm sorry. Say again.

15 Q. Your full name for the record.

16 A. Sure. It's Paul Duran.


18 A. I'm a police lieutenant with the Albuquerque

19 Police Department.

20 Q. And how long have you been a certified police

21 officer?

22 A. Nineteen years.

23 Q. And were you involved in the process of the

24 Internal Affairs investigation involving Pablo Padilla

25 for matters arising out of an incident on April 25,

1 2014?

2 A. Yes, I was.

3 Q. Were you in Officer Padilla's chain of

4 command at that time?

5 A. I was. I was acting commander at the time.

6 Q. So you were called upon to issue findings as

7 a result of the Internal Affairs investigation?


9 Q. And I'm looking at a document. We have it

10 marked as Exhibit 53. It's called a supervisor's

11 recommendation form. It appears to be signed by you.

12 It's three pages long. And it's an investigation

13 I-101-14. Does that sound like a document that you

14 prepared?

15 A. Yes, it does.

16 Q. Do you have a copy of that with you at this

17 time?

18 A. I do.

19 Q. Okay. All right. I'd like you to testify

20 from your recollection. But I don't think there's a

21 problem with you referring to that document to refresh

22 your recollection unless there's an objection made.

23 A. Okay.

24 Q. What process did you go through to review the

25 materials involved in the Internal Affairs

1 investigation?

2 A. I reviewed the findings from the

3 investigation, all the paperwork and documentation in

4 the case, the video of the incident.

5 Q. The video you said?

6 A. Correct.

7 Q. And I guess I would just like to go through

8 your findings and ask you about them. The first one

9 regarding SOP violation 1-02-2B2, what did that relate

10 to?

11 A. That I believe was in reference to searches

12 and seizures and arrests.

13 Q. Did it have something to do with cell phones?

14 A. It did.

15 Q. And did you conclude that Officer Padilla had

16 violated the policy regarding cell phones?

17 A. I did.

18 Q. Now, it says in this document that seizure of

19 cell phones from people not directly involved in this

20 investigation without any probable cause or warrant.

21 Would that have included the passengers in the vehicle

22 at the time?

23 A. Yes, it would have.

24 Q. All right. And during the investigation

25 Officer Padilla actually admitted that he knew that

1 taking the cell phone was wrong; is that correct?

2 A. Correct.

3 Q. The next violation regarded 1-4-1A. You also

4 sustained that, did you not?

5 A. I did.

6 Q. And what was that based on?

7 A. I believe that one was obeying rules and

8 regulations.

9 Q. And it says something in here about deleting

10 recorded videos on the cell phones?

11 A. Correct.

12 Q. All right. And then, in addition, you make a

13 statement, "Officer Padilla also forced Jeremy Martin

14 to the ground after he was handcuffed." Was that a

15 determination that you made based on your review of

16 the evidence?

17 A. Yes, it was.

18 Q. Okay. And in what way did that violate the

19 standard operating procedure?

20 A. At that point, when Officer Padilla had taken

21 him down, he had no possible way to break his fall.

22 Q. Did you make a determination whether Officer

23 Padilla's actions in that regard were intentional or

24 accidental?

25 A. He took him down intentionally. So yes.

1 Q. The next SOP violation was 1-04-1E and you

2 also sustained that. What did that pertain to, are

3 you able to say?

4 A. I think that one was pertaining to policy of

5 the department.

6 Q. Okay. So you would have to refer to the

7 actual policy to -- let's see. 1-04-1E, "Personnel

8 shall not commit or omit any acts which constitute a

9 violation of any of the rules, regulations,

10 directives, or orders of the department." Can you

11 recall at this time what particular actions or

12 omissions your conclusion related to?

13 A. I think in this case here I sustained it

14 based on the facts of the aforementioned violations.

15 Q. Okay. The ones we've already discussed?

16 A. Yes.

17 Q. All right. I'm going to skip over the next

18 one. All right. And I'm going to the second page,

19 SOP violation 2-52-3A, in which you state that,

20 "Officer Pablo Padilla used force when it was not

21 objectively reasonable based on the totality of the

22 circumstances." And then you say, "Officer Pablo

23 Padilla had Jeremy Martin in handcuffs and forced him

24 to the ground. As a result Jeremy Martin had no means

25 to break his fall."

1 Is there anything additional that that

2 finding related to or was it solely with respect to

3 the incident after Mr. Martin was in handcuffs?

4 A. It was solely with the fact that he was in

5 handcuffs.

6 Q. The next SOP violation regards 2-52-7B, which

7 was also sustained. You state here that, "Officer

8 Pablo Padilla did not report the incident fully and

9 accurately." And it states, "Officer Pablo Padilla

10 reported that he used an arm bar takedown, but later

11 recanted and stated he more or less grabbed Jeremy

12 Martin to take him to the ground. Officer Pablo

13 Padilla also did not document all the injuries in the

14 report." Can you elaborate on what caused you to

15 sustain that violation.

16 A. I believe, off the top of my recollection,

17 the report stated that he had used the arm bar

18 takedown. But then, during the Internal Affairs

19 investigation, that's when he changed his story and

20 stated that he had more or less taken him to the

21 ground.

22 Q. And that related again to after Jeremy Martin

23 was in handcuffs?

24 A. Correct.

25 Q. What is the violation referred to with

1 respect to failure to document all the injuries in the

2 report?

3 A. I'm sorry. Can you repeat that.

4 Q. What injuries did Jeremy Martin sustain that

5 were not included in Officer Padilla's report?

6 A. That I don't remember off the top of my head.

7 I would have to actually refer back to the actual

8 report itself and the whole investigation. But I know

9 there was discrepancies. From what I remember off the

10 top of my head, my recollection was that there were

11 discrepancies in the way the injuries were documented

12 in the report.

13 Q. Discrepancies in the way the injuries were

14 documented in the report?

15 A. Right.

16 Q. Okay. Did you develop any opinion, in

17 reviewing the evidence, the materials, the videos,

18 regarding the appropriateness of the demeanor and

19 attitude of Officer Padilla with respect to the

20 subject Jeremy Martin?

21 A. No. I don't believe I did. I mean I pretty

22 much stuck to violations, I didn't form an opinion.

23 MR. HART: All right. I don't have any more

24 questions.

25 EXAMINATION

1 BY MR. D'AMATO:

2 Q. Lieutenant, how are you today? LT, how are

3 you today? This is John D'Amato.

4 A. I'm doing well.

5 Q. Excellent. Thank you for appearing today.

6 In your review of the Internal Affairs file, did you

7 review the statement of any of the passengers?

8 A. I believe whatever statements were in the

9 file I did review.

10 Q. Do you understand that there is no statement

11 of a passenger given?

12 A. I don't remember off the top of my head. All

13 I have is that Supervisors Recommendation Form. I

14 don't have the Internal Affairs file. So I don't

15 remember off the top of my head.

16 Q. And as you close your eyes and think, do you

17 remember seeing any statement from Jeremy Martin?

18 A. I don't remember off the top of my head.

19 It's been over a year so I don't remember specifically

20 what I read.

21 Q. And in your years of knowing Pablo Padilla, I

22 take it you were in the department when he started in

23 2001?

24 A. Correct.

25 Q. Do you have any instances of moral misconduct

1 that this Hearing Officer should know about, moral

2 misconduct?

3 A. No, I sure don't.

4 MR. D'AMATO: Okay. That's all I have.

5 Thank you.

6 HEARING OFFICER: No questions.

7 MR. HART: Thank you, Lieutenant Duran. I

8 think you're free to go now.


10 MR. WORD: Off the record.


12 STEVEN KOEHNKE,



15 MR. D'AMATO: Walter, let me take one

16 question.

17 MR. HART: Mr. D'Amato, wants to say

18 something first.

19 MR. D'AMATO: Steve, how are you?

20 THE WITNESS: I'm doing good. And you?

21 MR. D'AMATO: Very well, thank you. Good to

22 hear your voice, man.

23 THE WITNESS: Thanks.

24 MR. D'AMATO: By way of disclosure, I have

25 represented you in the past, correct?

1 THE WITNESS: Yes, you have.

2 MR. D'AMATO: And my representation of you

3 will not impede or impair your ability to testify

4 truthfully today, will it?

5 THE WITNESS: No.

6 MR. D'AMATO: Okay. Very good. Thank you.

7 EXAMINATION

8 BY MR. HART:

9 Q. All right. You're retired now, are you not,

10 Sergeant Koehnke?

11 A. Yes, I am.

12 Q. When did you retire?

13 A. June of last year. Right at June 30th is my

14 official retirement date.

15 Q. And how long had you worked with the

16 Albuquerque Police Department?

17 A. A little over 26 years, almost 26 and a half

18 years.

19 Q. Was all your experience as a police officer

20 with the City of Albuquerque Police Department?

21 A. Yes, it was.

22 Q. Okay. And we're talking about an incident

23 that occurred on April 25, 2014. At that time were

24 you in the chain of command for Officer Padilla?

25 A. Yes, I was. I was his supervising sergeant.

1 Q. But on the evening in question, you were tied

2 up at another matter and couldn't be present on the

3 scene; is that correct?

4 A. That is correct.

5 Q. But subsequently you were asked to review

6 certain materials and to prepare a use-of-force

7 review?

8 A. Yes, I was.

9 Q. And I have a document before me that's titled

10 Exhibit 33 for our purposes. It's dated May 5, 2014.

11 Do you have a copy of that available to you?

12 A. I don't have one in front of me, no.

13 Q. All right. The only thing I wanted to ask

14 you about, in terms of your review of the materials,

15 is you had concern with the takedown of Mr. Martin

16 after he was in handcuffs; is that correct?

17 A. It was, yes, a concern.

18 Q. And tell us what your concern was with that.

19 A. The biggest concern I had was the fact that

20 he was handcuffed. However, I also understood the

21 circumstances and understood Officer Padilla's

22 position being alone at that time.

23 I felt that maybe he could have had a little

24 bit more control over him as he took him to the

25 ground. That was really the only thing, was possibly

1 a little more control of him as he took him to the

2 ground.

3 Q. Okay. And did you also have concerns

4 regarding Officer Padilla and his treatment of the

5 cell phones in the possession of the passengers of

6 that vehicle?

7 A. Yes, I did.

8 Q. Tell us about that.

9 A. Well, I felt, based upon our SOP and

10 instructions that we had been given, that he should

11 not have taken the cell phone away from the subject

12 and placed it on his car. Our SOP stated that people

13 are allowed to videotape us as long as they're not

14 impeding or blocking an investigation.

15 Q. Okay. In this case there's been a suggestion

16 raised that potentially those passengers might also

17 have been suspects in a possession of marijuana

18 charge.

19 A. That is a possibility, yes.

20 Q. Would that have changed your view of your

21 concern about somebody who might be such a suspect

22 videotaping?

23 A. No.

24 Q. So even a suspect should be permitted to

25 videotape?

1 A. Based on my understanding of the SOPs,

2 people, if they are choosing to videotape, are allowed

3 to videotape our interaction with citizens of

4 Albuquerque.

5 Q. Was there any other aspect of the events of

6 that evening or early morning hours that concerned you

7 regarding the conduct of Officer Padilla?

8 A. The only other thing that came to my

9 attention that was an issue was the fact that he

10 deleted stuff off another person's cell phone.

11 MR. HART: Okay. I don't have any other

12 questions.

13 EXAMINATION

14 BY MR. D'AMATO:

15 Q. Steve, if you stop an individual for

16 potential driving while intoxicated, a suspect, are

17 you saying that the SOP permits the suspect -- allows

18 the suspect to videotape the investigation?

19 A. You know, you're asking me to give an idea

20 based on -- I'm not completely sure what you're

21 asking.

22 Q. Well, I'm just trying to follow up with what

23 you provided on direct examination. If the passengers

24 were suspects in a possession of marijuana case, that

25 they would still, based on your understanding of the

1 SOP, nonetheless be permitted to videotape. Did I

2 misstate your understanding?

3 A. Yeah. I understand what you're saying. It's

4 hard for me to -- like I said I wasn't -- our SOP says

5 people are allowed to videotape. It was not my

6 understanding at the time that the passengers were

7 being treated as suspects of possible possession of

8 marijuana.

9 Q. Well, does the SOP speak of bystanders?

10 A. Yes. It speaks to bystanders.

11 Q. Do you know if it makes a distinction between

12 bystanders and suspects?

13 A. I do not believe it does. I could be wrong.

14 I don't believe it does. It's been years since I

15 looked at the SOP, well over a year.

16 Q. That's fine. I understand that. As a police

17 officer for 26 years, do you think it makes good

18 policy, officer safety issues, one of many factors, to

19 allow a suspect let's say for a DWI investigation to

20 videotape the DWI investigation?

21 A. I would have a problem with the actual

22 suspect who is being, you know, tested and everything

23 else videotaping, because obviously it would interfere

24 in his ability to perform the test, it would

25 interfere -- it could be a distraction on how I was --

1 and I'm only speaking of myself here.

2 Q. Sure.

3 A. How I would be able to interpret the clues

4 that I'm looking for during the DWI investigation,

5 yes.

6 MR. D'AMATO: Okay. Thank you. That's all I

7 have.

8 MR. HART: I don't have any more questions.

9 HEARING OFFICER: No questions.

10 MR. HART: Thank you. You can go now,

11 Sergeant.


13 MR. HART: I don't have any more witnesses.

14 The only thing I want to clear up I guess is

15 the exhibits that were disputed I suppose. I mean

16 there was an Exhibit 68, which is the report prepared

17 by Independent Review Officer Robin Hammer.

18 I think this report is important because it

19 clearly sets forth findings in a way that they're not

20 set forth in the documentation from the Internal

21 Affairs investigation, it sets forth additional

22 reasons for the findings, and I think that, you know,

23 it all pertains to the same matters.

24 This is a duly authorized body to investigate

25 these types of things. And there's essentially -- I

1 don't see any reason not to include this.

2 MR. D'AMATO: It's duplicative. Exhibits 68

3 and 69 have inherent end problems on their face.

4 Exhibit 69 indicates September 29, 2014, as a draft.

5 Exhibit 68 says it's received in IA not as a draft

6 seven days earlier from the IRO.

7 MR. HART: I would be glad to get rid of

8 Exhibit 69, if you want. Exhibit 68 is the final.

9 MR. D'AMATO: I object to both of them

10 because the IRO relied exclusively on IA's

11 investigation. They did not conduct an independent --

12 despite their title -- investigation. Had they

13 conducted an investigation, respectfully I would have

14 no objection to their admission. This is duplicative.

15 MR. HART: They have all of the same

16 materials and they reached their conclusion. The

17 conclusions are better stated in this report than

18 almost anywhere else.

19 MR. D'AMATO: Had they done an independent

20 investigation -- they're the same thing.

21 MR. HART: The investigator did not even, you

22 know, prepare --

23 MR. D'AMATO: I'll defer to the Hearing

24 Officer.

25 HEARING OFFICER: Okay. The document you're

1 talking about is a document taken by the IRO?

2 MR. D'AMATO: She looked at Exhibit 39.

3 MR. HART: No. She looked at the entire

4 file.

5 MR. D'AMATO: Well, I'm assuming the entire

6 file.

7 MR. HART: She looked at the videos,

8 everything.

9 HEARING OFFICER: What numbers are those?

10 MR. HART: Exhibit 68. I don't mind taking

11 out 69. It does say draft.

12 HEARING OFFICER: Okay. I'll look at the

13 Internal Affairs investigation. And Exhibit 68 is

14 out.

15 MR. HART: All right. And 69 also?

16 HEARING OFFICER: And 69 also.

17 MR. D'AMATO: If there's anything in the IA

18 file that you think is not here, Walter, I would be

19 most happy to have the Hearing Officer see it.

20 HEARING OFFICER: What about the photographs?

21 MR. D'AMATO: Not my intent. You know, the

22 photographs, I have another level of objections. I

23 think they're irrelevant to your inquiry because an

24 officer can be subject to the standard so artfully put

25 by Mr. Word with or without injuries.

1 MR. HART: It goes to the extent of the force

2 used. And you can obviously see the scrapes, the

3 cuts, the bleeding, and the bruising. I think, you

4 know, if we have a little paper cut, that's one thing.

5 But we have extensive cuts and injuries to this man

6 that are best detailed in these photographs in

7 Exhibit 74.

8 MR. D'AMATO: I'll refresh your memory as to

9 John Doyle. The alleged victim in that case had one

10 scrape on his head. John Doyle kicked the guy in the

11 head 15 times.

12 MR. HART: Well, of course. It's not always

13 going to show.

14 MR. D'AMATO: That's my point. So that's

15 irrelevant.

16 HEARING OFFICER: Is this the one you want

17 out because you're afraid they will get ahold of it?

18 MR. D'AMATO: No. That's the second part.

19 That's the testicle, the surgery, and stuff like that.

20 And I didn't think you wanted to admit those.

21 MR. HART: I don't even want to admit those.

22 These are the ones that show -- there are like 14

23 photos at the end of this that show pictures of the

24 scrotum with the incision. I don't want those in

25 there. But there are like 55 photographs showing the

1 injuries to the face, to the leg.

2 MR. D'AMATO: Walter, hold on a second.

3 Consistent with what I just said with regard to the IA

4 file, IA saw these photographs. This Hearing Officer

5 is going to see these photographs.

6 MR. HART: Can we cut out those pictures of

7 the testicle.

8 MR. D'AMATO: We're going to have to keep the

9 record open a little bit.

10 MR. WORD: May I propose just that, that we

11 keep the record open. And can counsel talk to someone

12 at APD and see if they can send out a new copy with

13 those -- or tell you how to cut up the PDF file so

14 that only those photographs showing the injuries to

15 the face and legs are left. And you can make a ruling

16 that, subject to that editing, you would admit it.

17 HEARING OFFICER: I'm going to go ahead and

18 let you edit the photographs and then you'll give me

19 the ones that I need.

20 MR. D'AMATO: With no objection.

21 HEARING OFFICER: After you both agree on the

22 photographs.

23 MR. D'AMATO: I'll tell you right now, I'm

24 not going to belabor this point. I will stipulate to

25 the admission of the facial, hand --

1 MR. HART: Well, let's just say everything

2 except for the pictures in the groin area.

3 MR. D'AMATO: Everything except for the

4 pictures below the waist.

5 MR. HART: Well, the groin area.

6 (AG Exhibit No. 74 admitted with specified

7 photographs redacted.)

8 HEARING OFFICER: Okay. And when are you

9 going to get this to me?

10 MR. WORD: How long do you think it would

11 take, Walter?

12 MR. HART: I can call this guy tomorrow I

13 mean and see what they say.

14 MR. D'AMATO: I can tell you, number one,

15 given their lack of resources, it's going to take at

16 least ten days.

17 MR. HART: Okay.

18 MR. D'AMATO: I can tell you that. I can

19 also tell you that it may require a subpoena.

20 MR. HART: Well, we've already got this

21 stuff.

22 MR. D'AMATO: But you need duces tecum

23 spelled out.

24 MR. HART: Okay. Do I have authority to

25 request that?

1 MR. D'AMATO: No objection.


3 MR. D'AMATO: And which brings us to how much

4 time you can give us once the record closes. Because

5 we're okay as long as the record is open, right, Rick?

6 MR. WORD: Right.

7 HEARING OFFICER: We have 30 days once the

8 record is closed.

9 MR. D'AMATO: Okay. So let's be very

10 careful.

11 HEARING OFFICER: Let's set a deadline. How

12 many days do you want?

13 MR. HART: I don't want to do anything more

14 in this case.

15 MR. D'AMATO: Oh, I want to work the shit out

16 of it. It's important.

17 HEARING OFFICER: So we'll leave the record

18 open for ten days.

19 MR. D'AMATO: Well, why don't we report back

20 to you. Let's leave the record open for ten days

21 subject to Mr. Hart getting back to you. If you can

22 get it sooner, great. If he needs more time, we'll

23 keep the record open for more time than that.

24 And then once the record closes, I would like

25 30 days to do findings of facts. And I'm going to

1 submit the SOPs in question and things like that as

2 argument, right?

3 HEARING OFFICER: Now, what? I have 30 days

4 once we close it.

5 MR. WORD: For his report.

6 MR. D'AMATO: Yes.

7 MR. WORD: So you're asking for time, if I

8 may, you want to submit proposed findings in addition

9 to closing?

10 MR. D'AMATO: Yes, sir. I would like 30 days

11 from the day the record closes to submit my proposed

12 findings of facts or closing arguments, not both, one

13 or the other.

14 MR. HART: Should we not call it that?

15 MR. WORD: Yes. Once the record is closed,

16 it's closed. There's no more proposed findings, no

17 more closing arguments.

18 MR. D'AMATO: Let's keep the record open 45

19 days. That gives you 15 days and me 30.

20 HEARING OFFICER: Okay. So what date is

21 that?

22 MR. D'AMATO: That will bring us to

23 August 15th. Let's check a date.

24 MR. HART: Right now I'm not anticipating

25 doing requested findings, but I may change my mind.

1 We'll see.

2 MR. D'AMATO: Okay. It looks like the 14th

3 of August, which is a Friday.

4 MR. WORD: I will note, Mr. D'Amato and

5 Mr. Hart, I have not seen -- I don't recall ever

6 seeing a party submit proposed findings in one of

7 these hearings. And I advised the Hearing Officer of

8 that.

9 So it's certainly common practice in other

10 administrative arenas, there's no prohibition against

11 it, and you might find it helpful, you might not. But

12 I just point that out.

13 MR. D'AMATO: Mr. Word, just for the record,

14 Mr. Parrish was the only hearing I had in which

15 proposed findings and conclusions were not submitted.

16 Every other hearing I had --

17 HEARING OFFICER: Well, you haven't submitted

18 it in any of the hearings I've had with you.

19 MR. D'AMATO: Well, we've only had one,

20 Parrish. And we did not submit one with Parrish. We

21 did submit one with Doyle, we submitted one with

22 Roberto, we submitted one with every other one.

23 MR. WORD: I may have misspoken. I don't

24 recall them in the format that we get. But I look at

25 everything you submit, John, I assure you.

1 HEARING OFFICER: On August 14th the record

2 will be closed. So I need that stuff as soon as you

3 can get it to me.

4 MR. WORD: If you can get it done earlier,

5 that's great.

6 MR. HART: I haven't taken out Exhibits 68

7 and 69 of this copy or that copy there.

8 HEARING OFFICER: We're off the record. It's

9 4:52 p.m.


11 HEARING OFFICER: We're back on record. It's

12 4:57 p.m.

13 This hearing will remain open until

14 August 14, 2015. And Mr. Hart will get the

15 photographs to me and you'll get your other documents

16 to me before those dates. Anything else?

17 MR. WORD: I stand corrected. Mr. D'Amato

18 has apparently submitted proposed findings in the past

19 and I was wrong.

20 THE HEARING OFFICER: We're off the record at

21 4:58 p.m.

22 (At 4:58 p.m. the hearing was concluded.)

23

24

25

1 BEFORE THE LAW ENFORCEMENT ACADEMY BOARD FOR THE STATE OF NEW MEXICO

2IN THE MATTER OF:

3 PABLO PADILLA,

4 Certification No. 01-0385-P,

5 Respondent.

6

7 REPORTER'S CERTIFICATE

8 I, JAN A. WILLIAMS, New Mexico CCR #14, DO

9 HEREBY CERTIFY that on June 30, 2015, the proceedings

10 in the above captioned matter were taken before me,

11 that I did report in stenographic shorthand the

12 proceedings set forth herein, and the foregoing pages

13 are a true and correct transcription to the best of my

14 ability.

15 I FURTHER CERTIFY that I am neither employed

16 by nor related to nor contracted with (unless excepted

17 by the rules) any of the parties or attorneys in this

18 case, and that I have no interest whatsoever in the

19 final disposition of this case in any court.

20

21

22 __________________________________ JAN A. WILLIAMS, RPR

23 New Mexico CCR #14 License Expires: 12/31/15

24

25

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