Prosecutor contradicts
deputies' motives in arrest
[Dallas County, TX]

Tim Wyatt
December 16, 2000, Saturday Third Edition
Copyright 2000 The Dallas Morning News
The Dallas Morning News
December 16, 2000, Saturday Third Edition
(DALLAS COUNTY, Texas) -- A Dallas County prosecutor this week contradicted the motives cited by four Dallas police officers in reports and under oath for their arrest of an Old East Dallas man on drug charges in August.

Police say they arrested Jonathan Vargas, also known as "El Diablo," on three counts of drug possession after they saw him smoking marijuana through an apartment's open doorway and he invited them in.

But prosecutor Livia Liu testified Monday at a pretrial hearing that one officer told her that they went to the apartment on a domestic violence complaint prompted by a friend of one of the other officers.

Defense attorney Eric Smenner said Ms. Liu's testimony bolsters his client's claim that the four officers set up his client in an illegal drug raid, then lied in reports and in testimony before a judge. The reason for the raid, he said, was to gain revenge against Mr. Vargas for beating his girlfriend. He said the evidence obtained in the raid should be thrown out.

The prosecutor in the case said Ms. Liu's statements were hearsay and shouldn't be considered by the judge. The officers who have testified have denied the allegations.

The officers involved in Mr. Vargas' arrest are Officer Philip Musgrove, Senior Cpl. Sheldon Smythe, Officer David Beideck and Senior Cpl. Paul Park, all of whom are assigned to patrol in the Central Operations division. Among them, they have amassed more than 120 commendations.

Deputy Chief Ron Waldrop, a Dallas police spokesman, declined to comment on the allegations until the court decides whether the officers acted improperly during Mr. Vargas' arrest. No one, including Mr. Vargas, has filed a complaint with the department alleging misconduct by any of the officers involved in the arrest, he said.

Ms. Liu told visiting Judge Webb Biard that Cpl. Smythe or Officer Beideck told her Nov. 30 that the four officers went to the apartments on a domestic violence incident involving Mr. Vargas' girlfriend

"A friend of a friend of Officer Musgrove had asked [him] to look into a domestic situation with a girlfriend of the defendant," Ms. Liu testified.

That day, Ms. Liu passed the officer's remarks on to Mr. Smenner as part of rules requiring prosecutors to give evidence to defense attorneys.

During their testimony at a Dec. 1 hearing, however, both officers denied making such a statement to the prosecutor.

Officer Musgrove, who did not attend the November interview with Ms. Liu, later denied that the arrest was tied to domestic violence or that he knew the girlfriend of Mr. Vargas, known as "La Gera."

Prosecutor Tim Gallagher objected to Ms. Liu's testimony being allowed in the judge's decision, and argued it was "hearsay on hearsay," "totally unreliable" information. He said three officers had refuted the claim in their testimony the week before.

Mr. Smenner asked the judge to throw out the evidence collected in the charges against Mr. Vargas because police raided and ransacked the apartment without a search warrant.

"They kicked in a door, went in and did an illegal search," Mr. Smenner told Judge Biard Monday. "They set up my client and then they lied under oath. This is a very disturbing case. This was not a response to a drug call, but a personal vendetta."

If Judge Biard grants the request, authorities would be left with virtually no grounds on which to prosecute Mr. Vargas. If convicted, he faces a sentence of 25 years to life in prison because he has two felony convictions for drug possession and burglary.

Judge Biard said he would make his ruling by the end of the month.

Mr. Smenner said Ms. Liu's testimony backed testimony this month by neighbors, friends and the apartment complex owner that support his client's claim the arrest was based on revenge and not standard police procedure.

According to police reports, the officers were dispatched to the apartment on a drug call. After they detained a 20-year-old seen walking out the door of a second-floor apartment, Mr. Vargas invited them in as he sat smoking a marijuana cigarette in the kitchen. More than a pound of marijuana, 23 grams of crack and powder cocaine, a small stash of speed and almost $ 2,000 that could be seen from the doorway were confiscated, the reports said.

In court, Mr. Vargas testified he was asleep in the back bedroom of "La Gera's" apartment when was awakened by police breaking down the doors.

"They pointed a gun at me and told me not to move," Mr. Vargas said through a court-appointed interpreter. "The guy cursed at me and took me out. They were asking me about La Gera, my girlfriend asking me why I hit La Gera."

Mr. Smenner, a former Irving police officer and Dallas County prosecutor, said there were several inconsistencies in the officers' reports and testimony.

In the arrest report and drug seizure affidavits filed by Cpl. Smythe, and in testimony by Officer Musgrove during a September hearing, the officers were supposedly dispatched to the apartments. After Dallas police communications records showed no squad cars were sent to the apartments that night, Mr. Smenner said, Officer Musgrove changed his testimony.

Earlier this month, Cpl. Smythe said he made a mistake on the report and took responsibility for the error.

Officer Musgrove testified the same day that he was assigned to desk duty a few days before the arrest and received an anonymous phone tip from a woman who told him that drugs were being sold out of the apartment. Police records that show Officer Musgrove was not assigned to desk duty in August until almost two weeks after Mr. Vargas' arrest, the defense attorney said.

Mr. Smenner also said there were inconsistencies in the three officers' accounts about how they got permission to enter the apartment. One statement placed all four officers at the open front door, he said, but Officer Beideck testified that he and Cpl. Park covered a second outside door.

Two people who were trying to leave were detained by the officers, checked for warrants and then released without their names or addresses being written down, Officer Beideck testified. But both of them gave him permission to go inside, he said.

Cpl. Park, Officer Beideck's partner, has not testified in the case. He could not be reached for comment. The other officers are still under oath in the case and not allowed to comment, Chief Waldrop said.

After finding the drugs, cash and three weapons, the officers said the apartment was left in relatively the same condition as they found it.

But Joe Yarrito, co-owner of the complex, said that he had to repair the front door to lock it that night and that the apartment had been ransacked. A compact disc player was submerged in the bathtub, radios were in the kitchen sink under running water, a table was broken and the contents of the kitchen cabinets and a refrigerator were strewn on the floor, he said.

He also testified that the officers told him that they arrested Mr. Vargas because an undercover drug buy had occurred in the apartment sometime earlier, not because of a dispatch call or an anonymous tip.

The man detained with Mr. Vargas during the arrest, Charlie Ramirez, hasn't been located or responded to subpoenas. The officers testified that he was charged with public intoxication, but neighbors said he moved.

As for the elusive "La Gera," Mr. Smenner's investigator said she has been unable to find her. Mr. Vargas said he had not heard from her since a few hours before his arrest.

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