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Witness disputes police in 2012 shooting of Twentynine Palms Marine

Jun. 8, 2014 - 04:43PM   |  
Marines from Combat Logistic Batalion 7 who served with Cpl. Allan DeVillena II attend a Nov. 12, 2012, candlelight vigil for him at the parking garage where he was fatally shot by Palm Springs Police on Nov. 10, 2012.
Marines from Combat Logistic Batalion 7 who served with Cpl. Allan DeVillena II attend a Nov. 12, 2012, candlelight vigil for him at the parking garage where he was fatally shot by Palm Springs Police on Nov. 10, 2012. (Richard Lui / The (Palm Springs, Calif.) Desert Su)
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PALM SPRINGS — A woman who witnessed a deadly police shooting in 2012 has disputed the account of the Palm Springs Police Department, insisting two officers were not in harm’s way when they fired at a Marine’s car in a downtown parking garage.

Lesley Lynn Diggins, 42, a valley resident who was only a car-length away from the shooting, said in a federal court deposition that Cpl. Allan DeVillena II never struck a police officer with his car, nor was he driving at an officer when police opened fire.

Diggin’s deposition — obtained by The Desert Sun — says the witness believes police had no reason to shoot DeVillena. In the moments after the shooting, she screamed at officers that they were “murderers.” She stood by that statement in an exclusive interview with The Desert Sun.

“I just believe it was malicious,” Diggins said. “There was no need for self-defense. There was nothing they needed to defend themselves from.”

Patrick Desmond, an attorney for the police department, said the DeVillena shooting was “unfortunate,“ but that an ongoing lawsuit will eventually reveal the actions of police were “justified.” Desmond declined to comment further.

DeVillena, 22, was shot six times in the early morning hours of Nov. 10, 2012, the birthday of the Marine Corps. He and another Marine, Pfc. Clinton Harris, drove to Palm Springs from Twentynine Palms, then parked in the parking garage before heading to the string of bars along Palm Canyon Drive.

At some point during the night, DeVillena and Harris were kicked out of the Village Pub, a popular downtown bar, for vomiting. Outside the bar, the Marines were confronted by two police officers on bike patrol, Mike Heron and Chad Nordman, who were responding to a report of public drunkenness. This is a common crime in the downtown area, so the officers let the Marines go.

About 2 a.m., DeVillena and Harris returned to the garage to retrieve their car, where a second meeting with police turned deadly. According to a police press release issued a few days after the shooting, the officers were drawn to the garage by the sounds of yelling. Inside, they saw the two Marines from the public intoxication call about to drive off in a black Chrysler 300. The officers shouted for the Marines to stop, but the Marines ignored orders and shouted insults.

“One of the officers climbed partially through the passenger side window, attempting to stop the vehicle,” the police press release said. “The suspect accelerated directly toward the second officer, striking him and continued on with the initial officer suspended from the passenger side window. ... In the course of these events, fearing for their safety and the safety of others both officers discharged their weapons.”

Authorities have never said how many shots were fired or which officers hit their target. DeVillena died at the scene. Harris was unhurt. Both Marines were unarmed.

The police department launched dual investigations — one criminal, one administrative — but the findings of neither have been made public. In accordance with department policy, Nordman and Heron were placed on paid administrative leave. Within two months, both officers were back on active duty.

The criminal investigation was forwarded to the Riverside County District Attorney’s Office in August. Ten months later, the DA’s office has still not decided if anyone involved in the shooting will be charged.

Diggins’ deposition is part of a federal lawsuit that the De­Villena family filed against the police officers, police Chief Al Franz and the city of Palm Springs. Because the DA’s investigation remains open, Nordman, Heron and Harris have refused to cooperate with the lawsuit, each pleading the Fifth Amendment — the right not to self-incriminate — when questioned by attorneys.

But Diggins, who was just a bystander, has no reason to stay quiet. On Feb. 4, she sat with attorneys on both sides of the lawsuit and a court videographer, then gave a detailed account of the shooting. The transcript of her deposition spans more than 130 pages.

Witness account

On the night of a shooting, Diggins was the designated driver for a bachelorette party that began at a house in Whitewater and then moved to celebrate in Palm Springs. The group of women arrived downtown about 1:30 a.m. on Nov. 10, leaving two cars in the parking garage. Diggins drove a friend’s white Toyota Camry, parking it front-first in a westward-facing space on the bottom floor.

The group went to the Village Pub. After about 20 minutes, they left when the bartenders announced last call and returned to the garage to retrieve their vehicles.

Inside the garage, Diggins climbed into the front seat of the Camry while her friends stood outside the car, talking. She was trying to convince her friends to leave when a black Chrysler containing two young men drove down a ramp that led to the bottom floor of the garage and stopped perpendicular to the Camry but not in a parking space.

The men inside were DeVillena, the driver, and Harris, the passenger, but Diggins didn’t know their names at the time. Harris hopped out of the Chrysler and began chatting with the women in the bachelorette party. Diggins overheard him say he was a Marine.

A few minutes later, two men rounded the corner of the garage on foot, approaching the small group in the bottom floor of the garage. One of the women in the bachelorette party shouted that the police had arrived, but Diggins thought they were private security. They wore dark-colored windbreakers, and never announced themselves as officers, Diggins said in her deposition.

The men were in fact police — Officers Heron and Nordman, who had briefly confronted DeVillena and Harris earlier that night. The word “Police” was scrolled across the back of their windbreakers, but Diggins couldn’t see that until the shooting was over.

When the officers approached, everybody scattered. Harris walked briskly back to the Chrysler, climbing back into the passenger seat. The women jumped into their cars, urging Diggins to drive off. Instead, she opened the door to the Camry, standing out of the driver’s seat, giving herself an unobstructed view of what would happen next.

The police flanked each side of the Chrysler just as the vehicle started to move. One of the officers shouted “Stop!” but the Marines’ vehicle eased forward towards the dead end at the base of the garage. The police followed on foot, holding position on either side of the car, Diggins said.

After pulling forward, De­Villena turned the Chrysler left into a parking space, then backed up, attempting a three-point turn so he and Harris could leave the garage. At some point as the vehicle turned, Nordman climbed into the passenger side window, reaching across Harris in an attempt to stop the vehicle. Diggins said she didn’t see the officer leap inside, but she could see his feet sticking out of the window.

The other officer, Heron, stood near the left rear corner of her Camry, about a car-length from Diggins. His gun was drawn.

The Chrysler moved forward in a direction to exit the bottom floor of the parking garage. The standing officer was not in the path of the vehicle, Diggins said in her sworn deposition, and opened fire. One of his bullets shattered the rear-left window as the Chrysler drove past. The vehicle careened into a concrete wall on the north-side of the garage.

Diggins said friends urged her to leave after the shooting, but she insisted on staying. She explains why she wanted to stay during a critical moment in the deposition:

Attorney: “All three of the other occupants wanted to leave; is that correct?”

Diggins: “Yes.”

Q: “And you thought it was the right thing to do to stay?”

A: “Yes.”

Q: “Why?”

A: “Why did I think it was right to stay? Because we had just witnessed a crime.”

Q: “And what crime was that?”

A: “There was a shooting.”

Q: “And who committed that crime?”

A: “The police officers.”

DeVillena died right there, slumped in the driver’s seat of his crashed sedan. At some point after the shooting, the officers handcuffed his hands behind his back. He was declared dead at 2:08 a.m.

A toxicology report later revealed that DeVillena’s blood-alcohol content was .18, more than twice the legal limit to drive.

Diggin’s deposition reveals that there may have been as many as 10 people — all members of the bachelorette party — who witnessed the parking garage shooting. It is unclear if these witnesses have been deposed. The Desert Sun attempted to contact three witnesses who were named in Diggins’ deposition, 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.

Robbery suspects

After the shooting, police investigated the Marines in connection to a robbery of an unconscious man near the Village Pub. According to federal court documents, authorities suspect DeVillena and Harris pickpocketed a man who was lying on the sidewalk before returning to the parking garage.

Police suspect DeVillena took a bank card, an ID card, some cash and possibly an iPhone from the unconscious man. The theft was captured by a security camera behind Las Casuelas Terraza, 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.

Attorneys for the DeVillena family have denied the theft allegations.

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.

A few days after the shooting, the mourning family and fellow Marines gathered at the garage for a vigil. Numerous family members said they doubted the police’s version, insisting it was out of character for DeVillena, who was a responsible and religious young man.

“It’s heartbreaking the way they’re trying to portray him,” said Vivian de Villena-Gaoiran, an aunt, in 2012. “We know it’s not true. It’s not AJ. We know it and the Marine Corps knows it.”

The Palm Springs Police Department declined to comment. Benjamin Schonbrun, an attorney for the DeVillena family, also declined to comment. John Hall, a spokesman for the DA’s office, said prosecutors will review the shooting investigation in the “near future,” but could not provide a specific timeline. Hall said he could not provide any other comment because the shooting investigation is ongoing.

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