Sailor Shot by Deputy Found Cards Stacked Against Him

David Tollerson thought he was getting mugged in the parking lot of a Santee bar last September when two husky men in blue jeans jumped him and shoved a gun in his face.

“I thought somebody was trying to kill me,” Tollerson said. “I couldn’t figure out who they were or where they came from.”

Tollerson was shot in the stomach, thrown to the ground and handcuffed before he realized that a pair of undercover San Diego County Sheriff’s Department vice officers had mistaken a squirt gun in his hand for a real weapon. The deputies apologized to Tollerson as he was being loaded into a Life Flight helicopter and whisked to UC San Diego Medical Center for emergency surgery.

Tollerson survived the shooting and the six-hour operation, but his ordeal was just beginning.

Chained to Hospital Bed

The clean-cut 34-year-old sailor was put under house arrest, chained to his hospital bed for six days and charged with two counts of attempted murder. Suddenly, the shooting victim was confronted with the possibility of serving 22 years in prison.

The charges were based on the vice officers’ claims that Tollerson, who had been drinking heavily that night, grabbed one of the deputies’ hands during a brief struggle and attempted to turn the deputy’s revolver toward them.

In March, a Superior Court jury acquitted Tollerson of all charges, including attempted murder and assault with a deadly weapon. Jurors said they concluded that Tollerson, a Navy aviation technician who had never been arrested before, acted in self-defense, never gained control of the weapon and had no intention of killing anyone.

The jurors did much more than simply acquit Tollerson, however. They said they could not imagine how any impartial review of the facts could have led senior Sheriff’s Department officers to recommend--and prosecutors to agree to pursue--any charges against Tollerson. They added that if anyone should have faced criminal prosecution, it was Sgt. Gordon Brooke, head of the vice squad and the man who shot Tollerson.

“In the sheriff’s office, one might hope this is not the way to do it, and they would figure out a way to compensate Tollerson for what was done,” said jury foreman Jon Lindstrom, a research scientist at the Salk Institute.

“Instead, what was done was to . . . charge the man because the best way to sweep this under the rug is to say this man is a felon for something. . . . These officers really ought to get down on their knees and beg this man for forgiveness for what they have done.”

Disturbing Questions

Six jurors said in interviews that the Tollerson case raised disturbing questions about the conduct of the vice officers, who admitted that they had been drinking that night, and the Sheriff’s Department homicide detectives who investigated the shooting.

According to courtroom testimony about the incident, which happened around 1 a.m. Sept. 13 outside Brannen’s Place, a small tavern on Mission Gorge Road in Santee, four undercover vice officers choked a man into unconsciousness, shot Tollerson and stuck a gun in his eye socket, kicked his fiancee in the stomach, pushed another woman, pointed a gun in a bartender’s face and punched a customer.

The four deputies gave conflicting accounts of the incident. Jurors who evaluated the testimony concluded that Brooke’s statements differed so much from those of other witnesses that the sergeant could not have been telling the truth.

After the incident, the deputies informed their superiors and investigators at the scene that they had been drinking that night. But no one in the Sheriff’s Department, including a friend of Brooke who took charge of the investigation, asked the officers for blood samples to determine whether they were intoxicated. The sheriff’s detectives also failed to document any injuries to bystanders or to interview witnesses in the bar.

“I’ve seen some bumbled investigations in my 31 years (of police work), but nothing of this serious nature,” said John Kennedy, a retired San Diego Police Department homicide sergeant who testified for Tollerson’s defense in the trial.

“This whole case bothers me a great deal. There’s so much here that does not ring true for veteran law enforcement officers. . . . It really incensed my sense of right and wrong. . . . This one, it stinks.”

Administrators in the Sheriff’s Department and the district attorney’s office said they had no reason to question the credibility of the vice officers or of the sheriff’s detectives involved in the case. Sheriff’s officials have shown no interest in investigating trial testimony that the deputies used excessive force or that the detectives assigned to the case protected their fellow officers.

‘Sloppy Police Work’

Sheriff John Duffy acknowledged in an interview that his homicide unit had probably done some “sloppy police work” in the case. He said he doubted, however, that anyone in his department had deliberately lied or concealed evidence.

“We have to be able to rely on the veracity of every deputy sheriff, not only in court but also in reports,” Duffy said. “If there is any accusation that any of our officers have lied, we’d like to look into it. I don’t know of any right now.”

The following is a chronology of the Tollerson shooting. It is based on court records, Sheriff’s Department documents obtained by The Times and numerous interviews with witnesses, jurors, prosecutors and Sheriff’s Department officials. The vice officers involved declined to be interviewed for this report. Brooke said he wanted to tell his side of the story, but that department officials have encouraged him not to talk because Tollerson has filed a claim seeking civil damages. Deputy Michael Moreno, whose attorney recommended that he not grant an interview, said the account he gave in court testimony is the “true side.”

Friday, Sept. 12, 1986, was a slow night for the vice team assigned to the Santee area. The deputies spent much of the evening in taverns, on the lookout for bartenders serving alcohol to minors or intoxicated customers. Shortly after midnight, Deputies Michael Moreno and Paul Roberts met Sgt. Gordon Brooke and Deputy Al Eyer at Brannen’s Place, a popular gathering spot for middle-aged neighborhood residents, construction workers and Navy employees.

Deputies Ordered Drinks

Dressed in Levi’s and sweat shirts and driving unmarked cars, the four men entered the bar--which had no history of law enforcement problems--and each ordered a beer. Around 1 a.m., the deputies followed two customers out of the bar to a side parking lot and arrested them for being drunk in public. According to Roberts, Eyer choked one of the men, Enrique Alba, as Moreno and Brooke held his arms.

“As I reached to grab his wrist to place handcuffs on (Alba), he turned into me (and) lowered his shoulder like he was going to throw a body block on me,” Eyer testified. “I spun him round, placed a standard police sleeper hold on him and rendered him unconscious.”

The deputies said they identified themselves before arresting the two men, but Alba testified that the officers “snuck up on me” and that he did not know who had choked him. No criminal charges were ever filed against Alba or his acquaintance.

After Alba had been subdued, Eyer mentioned to his partners that a man in front of the bar had a weapon that looked like a submachine gun. Brooke and Moreno said they did not see the weapon, but they decided to check it out.

Tollerson, who was about 50 feet away, was talking to his fiancee, Donna McKittrick, who worked as a daytime bartender at Brannen’s. He was holding a toy water gun that had been given to McKittrick earlier in the day. The night bartender, Donald Hord, had been spraying customers for several weeks and some friends in the bar decided to get even.

Brooke testified that Tollerson was leaning against the rear quarter panel on the driver’s side of McKittrick’s car and was facing the deputies as they approached. But Moreno, Tollerson and McKittrick all said Tollerson was standing near the driver’s door with his back to the deputies.

Toy Gun Held at His Side

At the trial, the deputies said that Tollerson did not point the weapon at them nor make any threatening gestures. Rather, he held the toy gun at his side and pointed it at the ground.

Brooke and Moreno, both of whom play for the department’s Cop’er Bowl football team, testified that they walked to within five feet of Tollerson, repeatedly announced that they were sheriff’s deputies in loud, commanding voices, and ordered Tollerson to drop the weapon.

Moreno said he flashed his badge in Tollerson’s face and repeatedly yelled, “We’re deputies! We’re deputies!” Brooke also said that he had his badge out and repeatedly shouted: “Sheriff’s vice!” and “Sheriff’s Department!”

Tollerson and McKittrick said, however, that the deputies never identified themselves. Deputies Roberts and Eyer testified that from where they were standing less than 20 yards away, they heard Moreno and Brooke identify themselves only once.

When he confronted Tollerson, Brooke said, he asked whether the toy gun was real. Brooke later told Lt. Dennis Runyen, head of the sheriff’s vice division, that Tollerson responded: “You’re damn right it is real.”

Several hours later, Brooke told sheriff’s homicide detectives that Tollerson responded: “Yeah, it’s real. Who wants to know and what do you want to do about it?”

Brooke was the only witness to report such a conversation. Moreno, Tollerson and McKittrick, all of whom were within several feet of Brooke, said that Brooke and Tollerson never discussed the squirt gun.

The jurors said they concluded that Brooke was not telling the truth.

‘Didn’t Believe Brooke’

“We just didn’t believe Brooke at all,” Lindstrom said. “Brooke’s testimony . . . didn’t agree with the semi-incriminating things that his men said about themselves and him. . . . The sad thing is he is the officer in charge here.”

Neither Brooke nor Moreno could explain what happened to his badge--which they said they had shown to Tollerson--after they began struggling with him. The badges were not found later on the pavement; they were in the deputies’ pockets.

The inability of Brooke and Moreno to account for the whereabouts of their badges bolstered the defense claim that the officers jumped Tollerson without any warning, said Tollerson’s defense attorney.

“Nobody could say they saw a badge on the ground,” Nelson Brav said. “They had no explanation how in the hell those badges got out of their pockets. I have. I don’t think their badges ever left their pockets.”

The vice officers said that Moreno confronted Tollerson by sticking his .38-caliber snub nose revolver in Tollerson’s face. Brooke testified that Tollerson dropped the squirt gun after being ordered to do so and “made an explosive move with both hands onto Moreno’s drawn revolver,” which Moreno had pointed in Tollerson’s face.

Moreno initially told detectives that he had rushed Tollerson when Tollerson “started to raise the weapon and it looked to me like he was going to point it toward Sergeant Brooke.” Moreno later changed his account during demonstrations in the courtroom to fall in line with those of other witnesses who said that Tollerson did not raise the weapon at any time.

As Moreno and Tollerson struggled momentarily with Moreno’s service revolver, Brooke put his Walther automatic pistol to Tollerson’s midsection and squeezed the trigger twice. The gun fired only once.

Claim ‘Ludicrous’

Brav said it was “ludicrous” for Brooke and Moreno to claim that they walked out in the open and pointed a gun in the face of a man they believed was armed with a submachine gun.

“This is the absolute lie,” Brav said. “You just want to scream . . . . Why would two experienced guys approach a guy with a submachine gun and say, ‘Yoo-hoo, come and shoot us.’ What they were saying was inherently stupid. . . . What they really did was rush Tollerson from behind.”

The approach the deputies said they used on Tollerson violates every officer-safety procedure taught by California law enforcement agencies, said Kennedy, the retired homicide sergeant. He said routine police practice dictates that the deputies should have taken cover at a safe distance behind a nearby building or car, drawn their weapons and ordered Tollerson to drop the gun.

“These officers in conducting themselves are not going to live to retire if they do not change their tactics,” Kennedy said.

Brooke explained in an interview with detectives several hours after the incident why he shot Tollerson: “He reached out and he grabbed Deputy Moreno’s gun. . . . And I knew that, uh, we’re gonna get killed. He’s gonna kill us, you know, he was gonna kill us. And the whole time we’re tellin’ him, ‘We’re sheriffs! We’re sheriffs!’ You know. ‘Let go of the gun. Let go of the gun,’ and he’s just fighting and fighting and fighting. So, uh . . . in my mind I knew that . . . we were going to get killed if he got that gun because there was no doubt in my mind that he was getting that gun ‘cause I couldn’t control him. . . . I knew we were going to die.”

As Tollerson and Moreno struggled with the weapon, Brooke testified, he first thought about shooting Tollerson in the head. But Brooke became concerned that he might wound his partner, so he put his handgun to Tollerson’s stomach and pulled the trigger twice.

“I was going to take a head shot,” Brooke said. “Mike Moreno’s head was right behind Mr. Tollerson’s. I took a kidney shot instead.”

‘Like Shooting Cans’

Said one juror: “They were talking about head shots and kidney shots like they were shooting at tin cans.”

Medical records show that the bullet passed through Tollerson’s stomach, intestine and colon and exited through his side. Had the gun not malfunctioned the second time Brooke pulled the trigger, Tollerson would probably not have survived, he said his doctors told him.

Kennedy and other police training experts said that Brooke could have tried a sleeper hold or some other defensive technique to disable Tollerson during the struggle with Moreno.

“I don’t like to classify it as excessive force, but it was,” Kennedy said of Brooke’s actions. “I feel that the shooting was entirely unnecessary.”

At first, Tollerson did not realize that he had been shot.

“I heard a pop,” Tollerson recalled in an interview. “I wasn’t sure if it was a gun or not. My feet were swept out from under me. I didn’t even feel the shot. I still had ahold of the gun. . . . Roberts came up and stuck a gun in my eye. He applied pressure, held down the gun in my eye and said: ‘Let go of the gun or I’ll blow your . . . brains out! We’re sheriffs!’

“That was the first time they said they were sheriffs. So I let go of the gun. I didn’t have much of a choice but to believe who they were. . . . I was more concerned about the gun right in my face. It scared the hell out of me. I thought he was going to blow my brains out. I really did. About 30 seconds after that, I felt my stomach knot up and burn.”

Roberts acknowledged in court testimony that he shoved his handgun in Tollerson’s eye, a maneuver that is not among the physical restraint techniques taught at the Sheriff’s Academy.

Roberts also admitted that he and Brooke each kicked McKittrick, who stands 5-foot-2 and weighs 104 pounds. Roberts is 5-foot-11 and 230 pounds and Brooke is 6-foot-4 and 200 pounds. Roberts said the use of physical force was necessary to keep McKittrick, who was arrested for interfering with the vice officers, from getting hurt.

Plea for Help

McKittrick said she ran toward the bar screaming for help when she saw that her fiance had been shot.

“I thought he was being mugged,” McKittrick recalled. “I didn’t know what was going on (or) why they had done this.”

McKittrick recently pleaded no contest to a disturbing the peace infraction.

“It makes me mad,” McKittrick said. “The only reason I’m pleading to this is because I can’t afford to fight them.”

After the shooting, Detective David Decker, a 17-year Sheriff’s Department veteran, took charge of the investigation. Decker and Brooke had worked together as patrol partners for the Sheriff’s Department.

When asked about their relationship, Decker testified: “He’s a friend and he’s a partner.”

Decker should have been removed from the case as soon as sheriff’s officials realized that the homicide investigator was a close friend and junior to Brooke in the department’s chain of command, Kennedy said.

The head of the Sheriff’s Department homicide detail said he never considered replacing Decker. “It is difficult on a department to find someone who has not at some point worked with, for, around, near or knows of someone else,” Lt. Bill Baxter said.

Several jurors said they were convinced that Decker tried to protect Brooke and the other vice officers.

“He had the scene meticulously photographed, even down to some small scratches on Deputy Moreno’s wrist,” Lindstrom, the jury foreman, wrote in a letter to The Times. “But he did not photograph (any of the five persons who were struck by the officers). Nor did he interview any of the bar patrons. He did surreptitiously tape an interview in Tollerson’s hospital room in which Tollerson said that he didn’t know that his assailants were sheriffs. But he made no mention of this tape in his reports and turned it over only upon court order.

“This sounds to me like a cover-up.”

Jurors Saw a Flaw

The investigation was flawed from the start, in the view of the jurors, by Decker’s failure to order blood tests for the vice officers.

After going on duty at 6 p.m., Moreno had a beer over dinner with Roberts at the Boll Weevil restaurant in Santee and each had a mixed drink during a bar check at Magnolia Mulvaney’s and a beer at Brannen’s, according to their testimony. Brooke and Eyer testified that they had only had one beer each that night.

No one in the Sheriff’s Department or the district attorney’s office made an effort to independently determine how much the vice officers had had to drink that night. Nor were the deputies asked to perform any of the standard tests to judge whether they were intoxicated.

Brooke and Roberts testified that they told their supervisors and sheriff’s detectives at the scene that they had been drinking. Decker and other department officials said in court that there was no reason to obtain a chemical sample because they did not observe any symptoms such as slurred speech or staggering that would indicate that the deputies were under the influence.

Alcohol Test Policy

Baxter said detectives are permitted to use their judgment when deciding whether to order blood alcohol tests. Many law enforcement agencies, including the San Diego Police Department, require investigators to order blood samples when officers who have been drinking are involved in criminal investigations.

Deputy Dist. Atty. Frank Brown, who was initially assigned to the case, conceded that the detectives should have asked the officers for blood samples immediately after learning that the deputies had consumed alcohol that evening.

“I suppose that is the one legitimate thing that could have been improved on in the investigation,” Brown said. “The fact they went in and drank and then made decisions like this is suspect. It’s clear that, if they have a negligent amount of alcohol in their system, we should know that.”

Brown said he recently told Baxter that the sheriff’s homicide unit should demand blood tests in the future whenever a criminal investigation involves deputies who have been drinking.

Brown disagreed, however, with the jurors who were skeptical of Decker’s investigation.

“All I can tell you is that Decker is a professional,” Brown said. “I assume Dave Decker is not out to do a cover-up. Maybe I’m wrong, but that is the way I start out unless I see something that would lead me to believe otherwise. Sure, I would have liked to see blood test results. Sure, I would have liked some FBI agent instead of Brooke’s pal. But Monday morning quarterbacking is easily done.”

The prosecution sought to portray Tollerson as a drunken sailor who used his military experience to overpower the deputies and turn their weapon against them.

A sample of Tollerson’s blood, which sheriff’s detectives obtained from UCSD Medical Center without a warrant, revealed a blood alcohol content of 0.19%, nearly twice the legal intoxication level of 0.10%. Brown called Tollerson “a trained killer,” although there was no evidence that he had taken any specialized combat training beyond boot camp.

Carrier Crewman

A petty officer 2nd class, Tollerson rejoined the aircraft carrier Constellation in the Indian Ocean earlier this month to resume his duties as a flight deck technician. He said in a recent interview that he still gets jitters and his stomach knots up when he discusses the shooting. He has a long scar on his stomach from the surgery and is unable to do sit-ups or any strenuous exercise without feeling pain.

Tollerson, whose boyish looks, warm smile and soft-spoken voice belie a strong build and a decade of military service, said that, at first, he did not intend to sue the Sheriff’s Department for civil damages.

“I would have taken an apology,” he said. “It would have been that simple.”

That was before he learned that the district attorney’s office was serious about putting him in prison.

As the trial neared, Tollerson recalled, he grew worried at times that he would be convicted and lose his Navy career. He said he had nightmares of being locked in a cell and defending himself against inmates.

“Every once in a while I would go through periods of doubt,” Tollerson said. “The only witness I had was Donna, and they’ve got four sheriffs and a team working together to cover everything up. You hear about people getting convicted and then years later they are found innocent. That was in the back of my mind.”

Still Bitter

Now that he has been declared innocent, Tollerson remains bitter. The case has left Tollerson and McKittrick in debt. Tollerson owes his attorney about $15,000 in legal fees and has ignored a a $5,000 hospital bill.

He said he often wonders how Brooke and his fellow deputies can look themselves in the mirror each morning.

“How can they get up there and tell out-and-out lies? What kind of law enforcement officers does that make them? If they don’t have a conscience that prohibits them from doing that, then what else are they capable of doing?” he asked.

“I wonder what goes through their heads. I really do. I remember not one of them could look me in the eye (in the courtroom). They couldn’t face me. They would look up, then look down. I could look them in the eye and face them.”