Trooper takes stand in resisting arrest case

PALMER -- Alaska State Trooper Eric Dale Spitzer spent most of the day last Thursday on the witness stand at the trial of two people accused of resisting arrest who say their actions were in self defense, and that they were only trying to protect themselves from Spitzer.

Tammy Barile, 35, and Milt Peery, 34, are each being tried on three misdemeanor counts that stem from an incident in Palmer on the night of Feb. 26, 2001, around 9:20 p.m. Barile sustained injuries during the incident, including a head gash that was stitched up at the emergency room at Valley Hospital. The defendants are being tried together for disorderly conduct, resisting arrest and fourth-degree assault.

Their trial has been attracting more attention than one would expect when the defendants face only misdemeanor charges. Barile has filed a civil suit against the State of Alaska and Spitzer that alleges wrongful prosecution, false arrest, assault and battery and false imprisonment. Barile and Peery have supporters who come by to watch the trial, but attorneys who work at the Palmer courthouse also file in and out of the court room to watch.

Barile and Peery's attorneys have said they plan to prove Spitzer's actions during their arrest are part of a pattern. Barile's allegations have also been taken to the Federal Bureau of Investigation. That agency completed an investigation and forwarded a report to the U.S. Department of Justice, but an FBI spokesman has said the report only documents allegations and doesn't reach any conclusions.

Barile and Peery say that on the night in question they were searching the ground near Evergreen Avenue and Cobb Street for a lost watch when Spitzer pulled his car over and got out. Exactly what happened next is at issue in the trial. Because the charges against Barile and Peery are misdemeanors a jury of six people will decide whether or not they were resisting arrest and assaulting an officer.

Palmer Assistant District Attorney Bob Collins said in opening comments that he will prove Spitzer followed standard procedure in the

arrests.

The defense attornies, Nancy Driscoll representing Tammy Barile, and Lance Wells, representing Milt Peery, said they intend to show Spitzer's actions that night quickly escalated the situation.

In court last Thursday prosecution witness Devin Melton -- a former security guard who said he watched the incident and attempted to assist Spitzer -- said he saw Barile climb on the hood of Spitzer's patrol car and kick at him when he tried to get her off the car. He testified he saw Spitzer use pepper spray on both defendants but wasn't sure how many times. Melton also said he saw Barile throw herself to the ground while Spitzer was trying to get her into his patrol car.

"She would drop herself to the ground," Melton said.

During cross examination, Driscoll asked Melton if Barile was in a defensive posture while she was on the hood of the patrol car and if Spitzer used aggressive force to get her down.

"No, he asked her down off that hood many times," Melton said, "He used no aggressive force about it."

Driscoll also asked Melton if Barile seemed to be fighting to get away from Spitzer.

"Fighting to get loose and fighting at him is kind of the same thing to me. I mean if you want to get loose, you're going to have to fight him," Melton said.

The prosecution also called Dr. Roger Swingle, an emergency room doctor who talked about Barile's injuries and said she was yelling at Spitzer when the officer brought her to the hospital.

"While she was upset with the officer, I was glad to find that she wasn't upset with me. Sometimes people are upset with everyone," Swingle said.

When asked if Barile was intoxicated when he treated her, Swingle said he couldn't remember -- it's been 18 months since the incident.

"I looked at my documentation today and I used the word inebriated," Swingle said, adding that inebriated is sometimes a "vague" word.

When Spitzer took the stand for the prosecution he said he was returning to the Palmer trooper post in his patrol car that night when he saw two people in the middle of the road near Evergreen and Cobb, apparently arguing. Spitzer said he saw Peery grabbing at Barile's clothing.

"The male was grabbing her shirt and pulling at her and she was struggling to get away," Spitzer said, and testified that he believed a domestic-violence situation was in progress.

"[It was] possibly assault or something that may have escalated into an assault," Spitzer said. Spitzer also said Peery looked at the officer with a "menacing stare" before Spitzer got out of his car.

Collins also asked Spitzer to explain trooper policies regarding use of force. Spitzer described a "force continuum," with the lowest level being simply the officer's presence and using verbal commands, then going up from there through "soft hand techniques," to using pepper spray or a taser, up to hard-hand techniques such as elbow strikes or the use of a collapsible baton, and finally to using lethal force such as a gun or sometimes the trooper's vehicle.

According to Spitzer's testimony, the force continuum isn't approached bottom up like a ladder.

"You don't have to go through all the steps to get where they're at," Spitzer said. "If someone has a gun, you don't go through the baton and taser to get to the gun."

Spitzer faced the jury while he testified and often talked at length about the incident without much prompting from Collins.

"As soon as I got out [of the patrol car] I was hit with a wall of negativity," Spitzer said.

Spitzer told the jury the situation was complicated by Barile and Peery because they refused to cooperate, threatened him, told him to go away and physically resisted arrest. Occasionally Spitzer used analogies to describe the struggle.

"I don't know if you've ever tried to put a cat in a sack, but …" Spitzer said at one point and then changed subjects to describe trying to fasten Barile's seat belt once she was in the patrol car.

"If you wanted to put your hand in a blender, I suppose you could seat belt her," Spitzer said.

At some point after Barile was on the car hood, Spitzer got her handcuffed and kept her leaning against the car while he dealt with Peery and Melton, the bystander who was trying to assist the trooper. Spitzer said Barile continued to resist.

"She was leaning on the side of the car and then all of a sudden she falls down and, bam, hits her head on the curb," Spitzer said, slapping the witness stand. Spitzer said Barile fell to the curb twice after she was in handcuffs.

There is no audio or video recording of the incident, although Spitzer was wearing an audio tape recorder in his vest at the time. When Collins asked if he started the tape recorder Spitzer's answer was, "Yes and no."

"It just didn't happen. It's not something you just do automatically and I just didn't do it," Spitzer said.

He then said when he did try to turn on the tape recorder, he discovered it was smashed. He alleged the tape recorder was broken by Barile, probably by kicking at his chest when he was attempting to get her off the hood of the patrol car.

"Basically that was a state tape recorder and I never did charge her with criminal mischief. Looking back, I don't know why," Spitzer said. Later Collins prompted Spitzer to say why he didn't charge Barile with criminal mischief for damage to the tape recorder and the patrol car which also received minor damages.

"It was bad enough she had already got taken to jail and charged with three misdemeanors and [Peery] was charged with three misdemeanors," Spitzer said.

Cross-examination of Spitzer by Driscoll started Thursday. The trial will continue this week. Spitzer is expected to be on the stand again for further cross-examination this morning by both defense attorneys.