Brett Kelman

TDS

A second witness to the fatal shooting of Marine Cpl. Allan DeVillena II has said that a Palm Springs police officer opened fire on the Marine's vehicle as he tried to flee.

Jawanda Terry, a member of a bachelorette party that witnessed the shooting, said in a sworn deposition that a police officer fired at a Chrysler 300 from behind, shooting three or four bullets through the rear window of the black sedan.

An instant later, Terry saw a second officer, dangling halfway out of the sedan's front-passenger window, struggling with the driver inside. The Chrysler curved to the right, then struck a concrete pillar.

DeVillena, 22, died in the driver's seat of his car, six bullet holes in his upper body. He was killed on the lowest floor of the public parking garage in downtown Palm Springs in the early morning hours of Nov. 10, 2012, the birthday of the Marine Corps. A passenger, Marine Pfc. Clinton Harris, was unhurt.

The Police Department has said that two officers — Mike Heron and Chad Nordman — shot at DeVillena because he drove his car at Heron, striking him in the leg. At least one witness has disputed that an officer was struck.

The DeVillena shooting remains under investigation at the Riverside County District Attorney's Office. Prosecutors were sent the case one year ago, but have yet to decide if they will file any charges against the two officers involved. Meanwhile, a lawsuit by the DeVillena family flounders in federal court, unable to proceed until the DA's office makes a decision in the case.

Terry is one of several witnesses who have been questioned as part of the family's lawsuit. She was deposed in March, and portions of her deposition were filed in a Riverside courthouse on Monday.

Terry is the second witness to say that DeVillena's vehicle was driving away when police opened fire. Lesley Lynn Diggins, the designated driver for the bachelorette party, said in a separate deposition that Heron shot out the Chrysler's back-left window as the vehicle drove past the officer.

The policy of the Palm Springs Police Department discourages officers from shooting at a moving vehicle, which the policy manual says is "rarely effective." Officers are only supposed to fire at a vehicle if it is driving at them and there is no way to get out of the way, or if there is another threat of deadly force — like a gun pointed out the window — directed at police or others.

In the DeVillena shooting, the Police Department has said that both officers fired their guns because the Marine accelerated at one of the officers, Heron, striking him in the leg with his vehicle. Nordman had climbed into the window of the Chrysler in an effort to stop the vehicle, police have said.

However, Diggins said in her deposition that DeVillena never struck an officer with his car, nor was he driving at an officer when they opened fire.

"I just believe it was malicious," Diggins said in June, during a brief interview with The Desert Sun. "There was no need for self-defense. There was nothing they needed to defend themselves from."

It is unclear if Terry saw the Chrysler strike an officer or not. Only a few pages of her deposition are accessible to the public, and those pages do not make it clear if she saw a collision. However, Terry did say that Heron was standing when she saw him fire his gun into the back of the sedan.

There may have been as many as 10 people — all members of the bachelorette party — who witnessed the parking garage shooting. It is unclear how many of these witnesses have been deposed. The Desert Sun has attempted to contact three more witnesses who were named in court documents, but was unable to speak with them about the shooting. One witness, who would not consent to a full interview, said she felt the shooting was unjustified, but would not go into detail.

The Palm Springs Police Department declined to answer questions about the DeVillena shooting or Terry's deposition. Currently, the department is under a temporary court order not to release any information about any police shootings to any journalists. In July, the Palm Springs police union took the city of Palm Springs and The Desert Sun to court in an effort to halt the release of the names of officers who have fired their gun in police shootings, despite a California Supreme Court ruling in May that said such officers' names are public information. Riverside County Judge John Evans approved the union's request for a gag order.

An attorney for the DeVillena family, Benjamin Schonbrun, declined to comment.

Lawsuit delayed

Terry's deposition was filed in court as part of an effort to delay the DeVillena family's lawsuit.

Attorneys on both sides of the case were supposed to reveal their expert witnesses earlier this month. The Police Department has argued that the lawsuit shouldn't proceed until the DA's review of the shooting is complete.

Because prosecutors may still file charges. Officers Heron and Nordman have pleaded the Fifth Amendment — the right not to self-incriminate — when questioned in the lawsuit. The same is true for Harris, DeVillena's passenger, who presumably witnessed the whole event.

With these witness silent, there are just too many questions left unanswered, attorneys said.

"No witness has been able to describe how or why Officer Nordman entered DeVillena's car or why the officers were attempting to stop DeVillena and Harris," wrote Patrick Desmond, an attorney for the Police Department, in a motion to delay. "Similarly, no witness has been able to explain why DeVillena and Harris attempted to flee."

On Tuesday, a judge agreed to delay the lawsuit another six weeks. The new deadline to designate expert witnesses is Sept. 30. Trial is set for Dec. 9.

After the DeVillena shooting, the Palm Springs Police Department launched dual investigations — one criminal, one administrative — but the findings of neither have been made public.

Nordman fired his gun in another shooting on Jan. 9, 2013, less than two months later. In that incident, Nordman and two other officers shot at a burglary suspect as he fled in a vehicle on South Camino Real. Both the suspect and an innocent bystander were wounded by police bullets.

More witnesses

Terry's deposition is not the only witness account that was recently made available to the public in the DeVillena lawsuit.

New court documents include a few pages from the deposition of Terry's sister, Laquesha Hibbler, who also witnessed the shooting. Hibbler said in her deposition that no shots were fired until after Nordman climbed into the window of the Chrysler.

The new documents also include a few pages from the deposition of Joe Wilson, a man the two Marines allegedly robbed shortly before the shooting.

Police suspect that DeVillena took a bank card, an ID card, some cash and possibly a phone from Wilson, who was unconscious on a sidewalk near the parking garage, according to federal court documents. After the shooting, police recovered the bank card and the ID from DeVillena's pocket. The phone was found inside the Chrysler.

In his deposition, Wilson said he does not remember being pick-pocketed, but he remembers being awakened by police, who took him back to his hotel. Police told him later that they had found his belongings, but they could not return them because of a shooting investigation. As of January, Wilson's belongings had not been returned.

DeVillena, known to family members as "AJ," was originally from the San Jose area. He was assigned to the 1st Marines Logistics Group based in Camp Pendleton, but was stationed at the Marine base in Twentynine Palms. DeVillena had deployed to Afghanistan in 2011, and was planning to attend college when his enlistment ended in about two months. He had a passion for music, and hoped to pursue a career in audio recording, his family said.

Reporter Brett Kelman can be reached by phone at (760) 778-4642, by email at brett.kelman@desertsun.com, or on Twitter @TDSbrettkelman.