Police lose audio tape of arrest

Jace Radke

Friday, July 30, 2004 | 11:02 a.m.

An audio tape that could contain evidence into why an 84-year-old suffered broken ribs and a broken hip during his arrest by a Henderson Police officer two years ago is missing.

Henderson Police officers gave conflicting testimony about the tape Thursday during a motion hearing in the now 86-year-old Charles Walker's federal civil rights lawsuit alleging that police assaulted him.

One officer said that the tape was unintelligible, while the officer who recorded the tape said he listened to it and could clearly hear Walker and Officer David Tomlinson on the tape that police have not been able to find for nearly two years.

Walker's attorney believes that the tape probably contained Tomlinson, who is charged as a defendant in the case along with the Henderson Police Department, verbally explaining what happened between him and Walker during a traffic stop on July 21, 2002.

"What this says to me is that the tape was purposely destroyed," Walker's attorney Leo Flangas said. "They (Henderson Police) could have been up front with us and told us about the existence of this tape, but instead we only find out about it through discovery."

Walt Cannon, who is representing the police department, said that the missing tape does not contain any kind of bombshell information.

"The only importance of the tape is that we lost it, which is something we shouldn't have done," Cannon said. "The tape's not there and now they (Walker's attorneys) are trying to make something sinister out of it.

"By losing it we turned something that was of minute importance into something they want to make a big deal of."

A Henderson Police spokesman referred all questions about the case to Cannon's office because it is department policy not to comment on pending litigation.

The tape was recorded by Officer Jesse Lujan, who was the third Henderson officer to arrive near the corner of Army and Market Streets after a struggle between Walker and Tomlinson. Lujan helped to escort a handcuffed Walker to the front of a patrol car and hit record on a micro-cassette recorder he carried with him.

Lujan testified that he recorded for about five minutes, and that when he later played the tape back he remembered hearing Walker complaining that his arm hurt and Tomlinson asking Walker why he had failed to cooperate.

"I don't remember if I had the recorder on when Officer Tomlinson told me what had happened," said Lujan, who also said he had no recollection of hearing Tomlinson offer an explanation when he listened to the tape two years ago.

Lujan turned the tape over to Lt. Eric Denison two days after the incident, but what happened to the tape after that is not known.

Denison, who said he didn't listen to the tape, but was told by someone whose identity he couldn't remember that the tape was unintelligible, told U.S. District Judge Philip Pro Thursday that he didn't know who he passed the tape on to.

Denison said that he took the tape to the office of Capt. Michael Garner, commander of Henderson's investigations division, but didn't know what happened to it after that.

In April of this year, when Flangas asked for a copy of the tape, Henderson Police Chief Michael Mayberry asked Sgt. Howard Scow, of the department's Internal Affairs Bureau, to find the tape, but Scow could not locate it.

"I assume that the tape was destroyed," Scow said. "My conclusion is that the tape did not come to the Internal Affairs Bureau."

According to Henderson Police policy officers are required to process property and evidence in a timely manner. Evidence ends up in the department's evidence vault.

When asked by Peter Angulo, another attorney for the department, why the cassette was not placed in the evidence vault immediately after the incident, Lujan said he didn't consider the tape evidence.

"There was nothing on the tape to warrant it being held as evidence," Lujan said.

Walker's lawsuit asking for unspecified damages is set to go to trial on Sept. 27, but Pro said that another evidentiary hearing will be held to question Garner about the tape.

Tomlinson faces allegations of excessive force, assault and battery and negligence in the case.

The struggle between Walker and police took place when Tomlinson questioned Walker after spotting traffic having to maneuver around Walker's car in downtown Henderson.

After pulling into a parking lot, Walker refused to stay in his car, and refused to follow Tomlinson's directions during the incident, police said.

Police maintain that Walker yelled and swore at the officer, and attempted to get back in his car, so Tomlinson used pepper-spray on the senior citizen. When Tomlinson tried to arrest Walker, Walker struggled and Tomlinson had to take him to the ground to control him, police said.

Flangas maintains that his client never moved to get back into his car and was leaning on the back of his car when Tomlinson attacked him.