Defense contends officer shot driver accidentally Victim's attempt to flee caused death, lawyer says

November 08, 1996|By Kate Shatzkin | Kate Shatzkin,SUN STAFF

Lawyers for a Baltimore police officer charged with manslaughter in the shooting death of a 22-year-old man will try to convince a jury that the victim caused his own demise -- by speeding away to avoid a police stop.

Henry L. Belsky, an attorney for Sgt. Stephen R. Pagotto, said yesterday in Baltimore Circuit Court that grand jury testimony indicates Preston E. Barnes had a plan to keep police from finding crack cocaine in his car on the night of Feb. 7.

"Our whole plan was, wait for the cop to get out of the car, and then we out" of there, Damian Jackson, a passenger in the car that night, testified before the grand jury, according to a transcript introduced in court yesterday. "Preston knew what to do."

Pagotto, a 15-year veteran of the force, and his partner stopped Barnes' car in the 2600 block of Kirk Ave. because it had no rear license plate, police said at the time. His gun drawn, Pagotto ordered Barnes and two passengers, Jackson and Ali Austin, to show their hands and get out of the car, police said.

But the vehicle moved forward, and the other officer reported hearing a grinding noise, police said. Police said, Pagotto tried to open the door. Barnes kept driving, and the sergeant fired a shot through the side window that hit Barnes in the left armpit.

His mother, Sylvia Smith, has said Barnes was on his way to the movies that night. But Belsky said Jackson told the grand jury that Barnes was on a drug-selling mission with 10 sandwich bags of "ready rock" cocaine -- and had a plan to elude authorities. Barnes was on five years of probation, court records show, stemming from a February 1995 conviction for possession of drugs with the intent to distribute. He also had a handgun conviction.

Belsky argued in pretrial motions yesterday that Barnes was speeding from the scene as planned with Jackson, causing Pagotto to shoot him accidentally.

How much of that testimony a jury will be allowed to hear was not clear yesterday. Judge John Carroll Byrnes, who is presiding over the case, said he would reserve judgment on what Jackson could tell the jury about any communications he had with Barnes.

Assistant state's attorney Lawrence Doan offered a preview of his case -- a web of broken police policies and improper actions by Pagotto that added up to the gross negligence required for a manslaughter conviction.

Pagotto's backup officer called in the shooting without mentioning that an officer was involved, delaying the influx of investigators who normally would have responded, Doan said. Pagotto left the scene, made phone calls and bought cigarettes before going to the homicide unit, Doan said.

The prosecutor called the testimony about Barnes' plan to elude police "very nebulous" and not necessarily relevant to the case. "If this plan had been executed properly, Sergeant Pagotto would never have gotten near the vehicle," Doan said.

If convicted, Pagotto could be sentenced to a maximum of 10 years in prison. A jury is expected to be selected to hear the case this month.

Pub Date: 11/08/96

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