Officer-involved shooting report on San Bernardino police officer

7/28/2019 Officer-involved shooting report on San Bernardino police officer

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I N T E R O F F I C E M E M O R A N D U M

DATE: June 14, 2013 PHONE: (909) 387-6898

FROM: Robert BullochSupervising Deputy District Attorney

TO: Gary Roth

Michael FerminAssistant District Attorneys

Clark Hansen IIIChief Deputy District Attorney

SUBJECT: Officer Involved Death

Location of Incident:204 South Golden, San Bernardino

Date and Time of Incident: January 30, 2011, at appox. 8:00pmInvolved Officers: (San Bernardino Police Department) Joey Zink

and Nicole Lindsey

Deceased Subject: Richard Matus

Investigating Agency: San Bernardino Police Department

Case Agent: Detective William R. FlesherSBPD DR#: 11-3151DA Case Number: 2011-23618

Preliminary Statement

The purpose of this memo is to outline from all the available materialsthe circumstances and applicable law related to the officer involved death ofsuspect Richard Matus on January 30, 2011. Based on my review of therelevant materials and law, I conclude that Officer Joey Zinks use of deadlyforce was in response to an apparent and immediate threat of great bodily


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Summary of Investigation and Evidence

9-1-1 Calls to SBPD Dispatch

At approximately 19:50 hours on January 30, 2011, San Bernardino PoliceDepartment dispatch received two related calls for service from a male voice.On each call, the voice sounded confused, was muffled, and whispered into thephone that someone was trying to kill him. When the dispatcher asked theaddress, the male voice hesitated and then whispered an almost inaudible faintnumber and street name. This communication struggle continued on the firstcall for a minute or two, then again after the caller hung up on a second call.

During the first call the caller whispered a numberthe dispatcher heard

214and Golden Avenue. On the second call, the caller whispered hisname as Richard and sometime later his last name as Natus. [sic] Thedispatcher kept the caller on the line for almost ten minutes attempting in vainto get the caller to clarify his location, who was trying to kill him, or anythingabout what was going on. At one point, the caller whispered he was at Peteshouse but did not give an audible response as to Petes last name.

Involved Officer #1Officer Lindsey

Officer Lindsey was on patrol on January 30, 2011 at approximately 19:56

when she received a call dispatching her to 214 South Golden Avenue in SanBernardino in reference to the male voice call to 9-1-1 indicating someone wastrying to kill him. She was the first officer on scene followed by approximatelya minute thereafter by Officer Blackwell.

Initially Lindseys attention was drawn to an older white car at the intersectionof Belleview and Golden (about 2-3 houses down from 214 South Golden). AHispanic female was backing up the car while a Hispanic male was walkingalong side of it. The car appeared to have right front tire damage. Four to fivepeople were trying to direct Officer Lindsey to the car and told her that theHispanic male was drunk.

Lindsey, however, responded to the dispatched location first and contacted theoccupants of the residence at 214 South Golden. The occupants told Lindseythere was no problems and they did not call 9-1-1. Lindsey asked to see theoccupants cell phones and confirmed those phones did not have the samenumber as the one which called 9-1-1.


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After leaving 214 South Golden, Lindsey responded to 167 South Goldenbecause on a different day in an unrelated matter she had been dispatched tothat location for a man with a gun call. (167 south Golden was across thestreet and about 2-3 houses down from 214 South Golden). Lindsey foundneither problems nor anyone who claimed to have called 9-1-1 at 167 South

Golden.

Lindsey then returned to the area where the group of people had gatheredaround the older white car adjacent to the intersection of Belleview and GoldenAvenue. By this time Officer Blackwell arrived on scene also and asked thegroup if anyone had called 9-1-1. No one replied they made the call.

Officer Lindsey and Blackwell then made their way over to 204 South Goldenwhere they noticed that the Hispanic male was in the driveway that theyinitially saw walking alongside the white car. Bystanders identified him ashaving caused the car accident and that he was drunk and arguing with the

female driving. (204 South Golden is immediately south of, and next door to,214 South Golden).

While Officer Blackwell contacted the Hispanic male, Lindsey knocked on theresidence door to determine if they had called 9-1-1. By this time, Officer Zinkarrived at the location and stayed with Blackwell to talk to the Hispanic male.A Hispanic female answered the door for Officer Lindsey but initially deniedthat there was any disturbance. The females tone was argumentative andunhelpful. Lindsey pressed further and asked if there was anyone else in thehome. After she was told there were others within the home, Lindsey soughtand obtained permission to enter to check on them.

Officer Lindsey found several children in the house that began to funnel outthe front door as Lindsey entered. As Lindsey walked down the main hallway,she heard muffled noises and the sound of someone behind the closedbathroom door. Lindsey identified herself as a police officer twice and askedthe occupant to open the door. A male voice inside replied, Hold on a minute.Another muffled male voice from the bathroom said, Please,please. No.Lindsey then knocked again and requested to door to be opened. A voice insidesaid, Open the door. Its the police. Yet no one opened the door.

Lindsey went outside and explained her concern about what she observed to

Officer Zink. Officers Zink and Lindsey returned inside and Zink then knockedon the bathroom door and announced himself as a police officer. Zink thentold the occupants through the door he was going to force entry into thebathroom unless they opened the door by the count of three.

After no one responded to Zinks demands, Officer Zink counted out loud one-two-three, then kicked the bottom half of the door. The door splintered inhalf, with the top portion of the door remaining intact. According to Lindsey,


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Zink then entered the bathroom with his gun drawn by stooping through thehole he created in the bottom portion of the door. Within seconds, Lindseyheard two gun shots.

Lindsey initially thought Zink was shot so she began to enter the bathroom

through the broken door. As she attempted to enter, she saw an olderHispanic male moving towards the door and she hurriedly removed him fromthe small bathroom. At that moment, one of the adult females in the homerushed towards the bathroom as the elderly man was removed and stated thathe was her father. As Lindsey entered the bathroom she saw suspect Matuslying on his back with a knife clenched in his hand.

Involved Officer #2Officer Zink

Officer Joey Zink was interviewed by Detective Flesher about this incident onJanuary 31, 2011 at approximately 1:30 am with his counsel present at the

San Bernardino Police Department.

Zink explained that he had been assigned to the Southeast district of the cityas a patrol and K-9 officer from 1600 to 0100. At about 1950 hours he wasdispatched via his mobile computer to assist officers in a possible domesticdisturbance to 214 South Golden Avenue. The text of his dispatch indicated tohim that a male caller told police he was going to get shot or someone wasgoing to shoot him, but that the information was sketchy because the callerabruptly hung up.

Zink arrived at the South Golden address and saw that three units were

already present. He exited his patrol car and walked up a driveway where aHispanic male was standing near a vehicle backed into the driveway. TheHispanic male could not speak English so Zink stood by as another officerspoke to the male. Meanwhile, Zink says he saw Officers Lindsey and D.Martinez approach the front door of the adjacent residence.

Zink heard Officer Lindsey speaking loud with a female at the door but couldnot understand exactly what was being said. Moments later, Zink noticed thatboth Officers Lindsey and Martinez disappeared apparently into the house asthe front door remained opened.

Officer Lindsey then reappeared from the house and requested Zinksassistance. Zink followed her into the house and was directed to the bathroomdoor. He could hear what sounded like a muffled argument about opening thedoor between two people in the bathroom. Then Zink heard one of the voicessay Help me.

Based on all the information and circumstances as they were presented at thatmoment, Zink thought that someones life might be in danger and he had to


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gain access to the bathroom. He told the bathroom occupants through thedoor that they had until the count of three until he kicked in the door.

After counting to three with no response, Zink kicked the door near the handle.The door splintered at the lower half. Zink then stooped to enter the bathroom

and as he entered an elderly Hispanic male tried to reach for him but as hereached another man had his hand wrapped around the elderly mans headand was holding a knife to the elderly mans throat.

As this situation unfolded, Zink thought that the suspect with the knife waspushing the elderly man towards the door in order to force Zink back out thedoor. Zink reached out and grabbed the elderly man to pull him away fromthe suspect. When that did not work, Zink reached for the suspects knife inorder to prevent the suspect from injuring either the elderly man or Zinkhimself. Zink feared for both his and the elderly mans life.

Zink could not control the suspects hand with the knife and in the smallclosed quarters of the bathroom had little choice but to draw his serviceweapon1, reach around the elderly man, and shoot the suspect with the knifetwice in the back. The suspect immediately went down still clasping the knife.

Zink ushered the elderly man out of the bathroom and immediately broadcastshots fired in his radio. He also requested medical aide and additional unitsto the location.

Involved Party (Victim)-Peter Salazar Z.

It should be noted at the onset that after the incident, Z. was transported tothe police station by Officer Vazquez. As Officer Vazquez escorted Z. out of thepolice car, he noticed two items underneath Z.s buttocks. First was a bluestriped screw driver. And secondly, next to the screwdriver was a syringe withan orange cap. Z. immediately denied either of these items was his along withanother second syringe found on the floorboard near his feet.

Z. has an extensive criminal record which includes numerous theft-relatedarrests and convictions, multiple arrests for being under the influence, and atleast three different prison commitments over the last 20 years.

Z. was interviewed at the San Bernardino Police station at 10:55 pm. Z.indicated that he resided at 204 South Golden Avenue along with his twodaughters, one son-in-law, and three grandchildren.

1 Zink carried an H&K .45 Caliber semiautomatic handgun with tactical light rail attached. The gun held 12 rounds;

11 in the magazine and one in the barrel. When Officers checked the weapon after the incident it contained 10rounds; 9 in the magazine and one in the barrel.


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Z. said that he had known Richard for approximately 6 months at the time ofthe incident. He met him at a liquor store and he had come over to Z.s home acouple of times in the past. Z. said he did not know much about Richard otherthan he lived in the area of 3rd Street and Tippecanoe in San Bernardino.

Z. said he was watching TV at home with his family on the evening of January30th, 2011 between 7:30 and 8:00 pm when he got up to get a cup of coffee. Atabout this same time he heard a knock on the door and saw his daughterNatalie answer the door. Moments later Natalie told Z. that the person at thedoor wanted to speak with him.

Z. recognized the man at the door as a man he knew as Richard. When hewalked towards him, Richard asked if he could come in because it was rainingoutside. Notwithstanding his daughter Natalies objections, Z. permittedRichard to enter the house.

Richard immediately asked to use the bathroom and Z. escorted him down thehallway because he says he did not trust Richard. When Z. and Richardentered the bathroom together, Z. said that Richard quickly locked thebathroom door behind them and then mentioned that someone was followinghim and trying to kill him. According to Z., Richard would not explain or gointo detail about how or why he felt he was being followed or how his life was indanger. According to Z., Richard also would not say who it was that was afterhim.

Richard then displayed a knife to Z.. Z. said that Richard continued actingscared and sweating profusely. Richard pleaded with Z. saying My life is in

danger, and Help me. Help me. Richards conduct and comments made Z.nervous so he tried to open the bathroom door to leave. But Richard stoppedhim and said No. Dont. They struggled over unlocking the door andpositioning in the doorway.

After a few minutes in the bathroom, Z. said that his daughter Natalie came tothe bathroom door and told them to open it. Richard prevented Z. fromopening the door. His daughter Natalie then said through the door that if theydid not unlock the door and come out she was going to call the police.

After a few more minutes, Z. heard the police come to the bathroom door.

Some officer commanded through the door, Police. Open the door. Again Z.pleaded with Richard to open the door, but he refused. The officer then said,Ill give you three seconds to open the door, or he would kick in the door.

After the officer made that statement, Z. started physically struggling withRichard as he tried to get to the door. Z. then saw Richard come at him withthe knife and instinctively Z. grabbed Richards right hand with the knife toprevent him from accidentally stabbing him.


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Z. heard the officer count down from three and then the bathroom doorshattered. The officer entered and immediately grabbed Z. and pulled him tothe ground then he heard three gun shots. Z. did not hear the officer sayanything once the door shattered and he entered.

Z. later explained that while he had been in the bathroom with Richard made acall on his cell phone. But because Richard spoke softly Z. couldnt hearexactly what was being said other than Richard claiming someone was trying tokill him. Z. also overheard Richard tell the person on the phone the address as214 South Golden. Z. tried to correct Richard but he refused to listen.

Z. denied that he had been physically injured during the entire incident despitethe fact that Officer Valdivia noticed he was bleeding from his right knuckle.When asked, Z. claimed that he bruised easy and then showed the officerredness to his wrists. Z. said that Richard caused the redness to both wrists.2

Autopsy of Suspect Richard Matus

On February 2, 2011, Dr. Frank Sheridan, M.D., with the San BernardinoCounty Sheriffs DepartmentCoroners Division, performed an autopsy ofRichard Matus.

Dr. Sheridan noted that the decedent appeared to be his stated age at 43 yearsold. Other than a total of 4 observed wounds; two on the front of the torso, andtwo on the back of the torso, there were no other noted abnormalities.

The wounds on the back of the torso were adjacent to each other and thesurrounding area of abrasion was embedded with gunpowder particles. Basedon the internal and external observations, Dr. Sheridan opined that the twowounds on the back of the torso were entry wounds and the two on the front ofthe torso were exit wounds with corresponding internal crossing paths oftravel.

As part of the autopsy, the Coroners Division submitted a blood sample takenfrom Richard Matus to the San Diego County Office of the Medical Examiner.Their report indicated a presumptive positive presence of both Amphetaminesand Opiates in Richard Matus system at the time of death.

2 Z. was not drug-tested after the incident.


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Applicable Law

Penal Code 835aUse of Reasonable Force To Effect Arrest

Any peace officer who has reasonable cause to believe that the person to be

arrested has committed a public offense may use reasonable force to effect thearrest, to prevent escape or to overcome resistance. A peace officer whomakes or attempts to make an arrest need not retreat or desist from his effortsby reason of resistance of threatened resistance of the person being arrested;nor shall such officer be deemed an aggressor or lose his right of self-defenseby the use of reasonable force to effect the arrest or to prevent escape orovercome resistance.

CalCrim 3470: Self-Defense or Defense of Others (Excerpts)

The defendant acted in lawful self-defense or defense of others if: (1) The

defendant reasonably believed that he or another person was in imminentdanger of suffering bodily injury or was in imminent danger of being touchedunlawfully; (2) the defendant reasonably believed that the immediate use offorce was necessary to defend against that danger; and (3) the defendant usedno more force than was reasonably necessary to defend against that danger. The defendants belief that he or someone else was threatened may bereasonable even if he relied on information that was not true. However, thedefendant must actually and reasonably have believed that the information wastrue. A defendant is not required to retreat. He or she is entitled to stand hisor her ground and defend himself or herself and, if reasonably necessary, topursue an assailant until the danger of bodily injury has passed. This is so

even if safety could have been achieved by retreating.

Penal Code 197Use of Deadly Force

Homicide is justifiable when committed by any person when resisting anyattempt to murder any person, or to commit a felony, or to do some greatbodily injury upon any person.

Analysis and Conclusion

While under the influence of a combination of Amphetamines and Opiates,

Richard Matus attempted to falsely imprison and assault Peter Z. with a knifeto his throat. Officer Joey Zink acted within the course and scope of hisauthority as a San Bernardino Police Officer in attempting to save victim Z. andhimself by taking lethal action against Richard Matus. Zinks actions werelawful and justified.

An officers conduct cannot be judged in hindsight. Whether an action isreasonable is judged on the information available at the moment the action is


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taken. Matus death was unfortunate, however, each officer, including Zink,acted reasonably and within their lawful authority.

Officer Zink responded to a call, along with several other officers, of someoneclaiming another party or parties was trying to kill them. When Zink entered

the home and made contact with bathroom occupants he was presented with asituation where someone was in obvious distress when they called for help.Then as he lawfully entered the tight quarters of a small enclosed residentialbathroom, Zink was thrust into the position of being pushed out by the suspectwho had a knife to the throat of his victim. In that situation, with theinformation he had, Zink acted reasonably in using lethal force to stop thethreat to himself and the other victim.

_________________________________ _________________Robert Bulloch Date

Supervising Deputy District Attorney

_________________________________ _________________Clark Hansen III DateChief Deputy District Attorney

__________________________________ _________________Gary Roth DateAssistant District Attorney

For Criminal Operations

Officer-involved shooting report on San Bernardino police officer

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