The Bad Shoot
Miami-Dade Det. Kenny Veloz took a call from a buddy cop, Kendall District Sgt. Carlos Dominguez, in December of 2000. Dominguez's parents and grandparents lived in an apartment complex on SW 96th Street and SW 142nd Avenue in Veloz's own Hammocks District. Dominguez told Veloz that his folks didn't like the looks of the tenants downstairs. Too many ghetto-garbed rabble-rousers going in and out -- a definite bad sign. Veloz needed to do something for the officer's parents' sake. So he informed his partner, Sgt. Lazaro Picallo, that they'd check out the lead along with three other officers from their General Investigations Unit (GIU).
A stakeout on December 23rd led the cops to believe the apartment, belonging to one Travis Allen, was easy pickings. They stopped and arrested several drug buyers on their way out of the building, but the prize pop was a kid named Kevin Phillips. Philips had nothing but a couple of grams of reefer on him, but a whole lot to say, once he got a look at the concrete stares of the arresting police. Detective Veloz said in a deposition that Phillips told him there were drugs being dealt in Allen's pad (mainly by Allen, mainly weed), and there were guns in the apartment. The kid's eyewitness account might have been enough for a legal search warrant, but these were cops, not lawyers or judges, and somehow, they never attempted to get one. The officers later explained that Allen's impending eviction forced their hand.
In any case, the police planned on asking Allen for a "consent to search" -- the only legal way to get into the premises without a warrant. The logic was, if they saw something illegal through the open door, they'd have a right to enter. But they admit in statements that Phillips told them Allen wouldnotopen the door for them. He checked everyone out through the peephole. So the plan was to wait for someone to come out; then they'd have the opportunity to identify themselves, get a peek, and maybe go in.
The squad hunkered down in a nondescript white van in the building's parking lot around 11:30 that evening. A car pulled up during the surveillance, and Hector Torres stepped out. The 5-foot-4, 150-pound Hispanic youngster looked like a dealer -- shaved head, wife-beater tank top, "jailhouse" tats, and a "delinquent demeanor" that cops say they can read immediately. Torres opened his trunk and pulled out a duffel bag. The cops may have been thinking, 'Bingo! Drugs! Guns! Promotions!' Torres looked around "suspiciously," according to police reports, then entered the premises.
When Luis Castaneda arrived for a sack of weed, the squad of five GIU officers -- detectives Erick Gonzalez, William Sanchez, and Gabriel Suros had joined Veloz and Picallo -- the cops decided to act. The tagalong crew was positioned downstairs, and Veloz and Picallo crept up to the front door of Allen's second-floor apartment. It was time to take out some drug dealers.
According to court testimony and police depositions, as the front door opened, Veloz saw Torres, the "delinquent-looking one" with the duffel bag. He was sitting at the far right of the room picking up what looked like a "submachine gun and pistol." That's when the police say shots were fired. Torres was hit and crumpled to the floor. The first officer through the door, Veloz, wasn't the one who discharged his weapon, though. It was Picallo, second man in. He subsequently claimed he'd warned Torres to "drop the guns," and that Torres simply ignored him and continued "to lift the two weapons with an intent to kill." That's what the cops said.
Hector Torres remembers fooling around with a PlayStation at Allen's apartment before the cops busted in. The 26-year-old car audio installer says he was just hanging out, a little stoned from the blunt he'd smoked and tired from a long day of paintball. Torres and Allen began a roughhouse day of childish horseplay by shooting paint pellets inside the apartment. "We were just messing around," Torres says. By the end of the morning, neon pink and blue were splattered across the walls in retaliation for Allen's pending eviction notice. Later the mock spec-ops soldiers took their recon games to the forests near Krome Avenue, staining the woods with baby colors, blasting paint and running at each other with ten-year-olds' whoops, sliding and flailing through the sawgrass and mud. They stayed out until the sun went down.
After dark, Hector went home to his wife Patsy and their two daughters. He showered off the day's combat, ate some dinner, and after TVing it for a couple of hours, announced he was going over to Allen's place again, because Allen wanted him to help clean up their paintball artillery and equipment, which was "filthy." Patsy wanted Hector to stay home with her, because he'd been out all day, but he shrugged her off. A bad mistake.
It was close to 1:00 a.m. on the 24th when Torres sat slouched on the sofa with his paintball gun on his lap. A duffel bag full of paintball junk was on the floor near his feet. Carlos Campos, like Hector not a dealer, just a friend who needed a place to crash, sat across the living room from Torres. Allen was doing his penny-ante reefer biz as usual, but the traffic wasn't heavy. Allen kicked Luis Castaneda a nickel bag of funk in the kitchen while everyone else was chilling by the tube. Then Allen approached his front door, bolted by three heavy-duty locks. Campos remembers an eerie calm before Allen let Luis out (leaving the premises is always an elaborate, slow process in dope-dealing dens): "As Travis turned the last lock on the door, it suddenly slammed open and guys in T-shirts and jeans with guns in their hands came in screaming. They grabbed Luis by the face and threw him on the ground. I thought we were getting robbed and going to die."
Detective Veloz, the first man in, got a good look at everyone as he knocked Castaneda to the floor. His gun was drawn but no one threatened him and he didn't shoot, even after Torres says they made eye contact. To Campos, Veloz's focus seemed to be on securing the premises, apprehending this bunch, and locking them up. Campos states that the detective yelled: "Get down!"
Everybody else hit the floor without a word. Torres, who was sitting on a sofa at two o'clock from the door, immediately put his hands in the air. ThenPicallo spotted Hector. That's when thunder clapped three times. The sergeant, the second man in, was braced in the doorway like a movie cop, knees bent and both hands extended in the stiff-armed Hollywood stance -- Al Pacino in Heat. No warning, according to the four perps. Torres felt something like an electric bee sting under his left arm. He remembers losing feeling in his body from the shock, dropping to the floor with his back toward the shooter, and praying it wasn't the end for him.
He claims he immediately asked Picallo, "Why did you shoot me?" Realizing what might have led him to do so, Torres belatedly explained: "That's just a paintball gun!" The image that burned into Torres as he rolled on his side was Picallo's face: "He had the expression of someone who'd just seriously fucked up, he almost seemed as shocked as I was," Torres says of the frozen figure at the door. Detective Gonzalez rushed in and pushed past Picallo to see what had happened. "[Picallo] still had his gun drawn. He didn't come near me, Veloz and Gonzalez did. Gonzalez kept screaming at me to shut up, that I wasn't shot, calling me a pussy; but when I lifted my arm and the blood squirted, everyone went quiet. I could hear the talking outside the apartment because of how silent it was inside. They told me I'd be okay."
A lake of blood collecting from a gushing armpit didn't deter the cops from handcuffing Torres's hands behind his back. The resulting pain was so bad that his screams finally got to one of them, who switched the cuffs to the front.
A few seconds later the rest of the squad burst in and gutted the apartment. They found a little less than 180 grams of weed, not a mother lode by any heavy dealer measure, but plenty to charge Allen, the intended take-down, with selling felony weight (which is only 20 grams). They also confiscated two firearms, a 9 mm automatic and a .25-caliber Lorcin, along with the sticky, blood-covered paintball gun. It was turning out to be a worthwhile bust after all.
The smell of gunpowder in the air seemed to rev the cops: "I don't want to say [they] gave each other high-fives, but I think they actually did," Campos says.
The three unharmed suspects -- Allen, Castaneda, and Campos -- were lined up in cuffs along the outside wall of the apartment building. Then they were separated into different police cars for questioning.
Torres was airlifted to Jackson Memorial's Trauma Center fifteen minutes later. He was thinking of home. That's where he expected to be as soon as this nightmare was over. At the moment, though, he needed to be sewn up. But at least the worst was past.
It never crossed Hector's mind that the hospital would be a pit stop to jail. In fact his mind was elsewhere altogether. According to both medical and police reports, Det. Daniel Rivers showed up to take his statement a half-hour after Hector had been dosed with 50 mgs of Demerol and 25 mgs of Vistaril, heavyweight painkillers. Torres was enough on the nod by the time Rivers arrived to be fretting over his missing pants more than worrying about getting busted. He'd gone from crying that he was going to die, to insisting -- as you do in emergencies -- that someone PLEASE retrieve the Nautica khakis cut off him and thrown away. Most of his rent money was in the pockets, $300 cash. He was supposed to have given it to his wife Patsy, but it was impounded by the cops. Torres, stoned on serious pain-cap, still bleeding, and babbling about his pants, was hardly in shape to talk lucidly. Still that's how he made his statement.
The next morning Torres woke to the luminous sight of his two little girls. He tried to convince Patsy he was okay, but he was only speaking of his physical condition. When he was better, it was a police officer, not a nurse, who wheeled him out. Nothing was okay. It was his last day of freedom -- Christmas Eve, 2000. Ironically, Travis Allen, the unscathed drug dealer who was targeted by the GIU investigation in the first place, was out on bond two days later, though a subsequent arrest at Torres's bond hearing (where he was going to testify on Hector's behalf), landed him back in the slam for violating parole. Allen was ultimately convicted on a drug trafficking charge.
A public defense
The charge against Hector was aggravated assault on a law enforcement officer with a firearm. The circumstantial stuff looked bad, plus he had a bumpy record. Although he'd never been convicted of a felony before the shooting incident, he had fallen for burglary and "violating probation" -- he hadn't completed his "advocate" program of fines and public service before moving to Miami from Tampa. His choice of friends was also shady; Torres didn't deny that he'd hung around with dealers and guns before, which didn't help his credibility in the eyes of the court. Louis Vucci, one of two public defenders (the other was William Barzee) appointed to handle Torres, didn't try to excuse their client's befriending of a dealer, or hanging out at his pad during a narc bust, but said the physical evidence was all on Hector's side. They were relying on his statement: "I was sitting next to my paintball gun when they busted into my friend's crib." So then he caught a bullet in the dead center of his armpit. According to Torres, Dr. Stephen Cohn at Jackson Trauma, who treated Hector that night, said the location of the entry wound indicated his arms were raised, the normal "surrender" stance. "When the doctor examined me," Torres tells New Times, "he told me to get a good lawyer." (A hospital spokesperson, Lorraine Nelson, insists that Cohn is "not allowed" to comment on the "medical aspects" of the case because of "confidentiality clauses" at Jackson Memorial. Cohn did not repudiate the words attributed to him by Torres, faxed to him from New Times, but did not respond at all.)
Barzee and Vucci weren't exerting themselves much, however. But they were free, the only kind of lawyers a jailed car audio installer could afford. They both came with big-time confidence, though, like Bruce Cutler in the second John Gotti trial. Torres remembers: "They kept telling me: 'The state has no case,' every time I got anxious about their easygoing approach."
Torres had a left front row seat in Judge Victoria Sigler's Courtroom 7-4 at the Miami-Dade County Criminal Courthouse on NW 12th Street. During his trial he kept his hands in his lap, sitting quietly attentive. Barzee and Vucci, his flanking saviors, preferred that demeanor -- calm, confident, but at the court's mercy -- to mitigate what they considered Torres's hard-knock looks.
Prosecutor Stephanie Silver presented her case. The defendant and his counsel listened to the state's main witness, Sergeant Picallo, but of the three only Torres looked antsy. Twice in his career before running into Torres, Picallo had encountered gun-slinging crooks and made them pay. In cases SI-1989-0357 and SI-1994-0165, he was cleared in both instances. Now Picallo testified that Torres had brandished a paintball gun, which he confused with a "submachine gun," in one hand, and the .25 Lorcin in the other.
The officer sat on the stand showing how Torres threatened his life: "He's got guns in each of his hands and I start yelling, 'Police, put the guns down!' and he started raising them in my direction," Picallo explained. The officer stuck both index fingers out, thumbs pointed up at 90 degrees, extended his arms, and swung them on the jury.
Two hands, two guns, pointed at him from six feet away, that's why he shot Torres: "I feared for my life and the lives of my officers," Picallo testified, which is exactly what the book defines as a "good" or "justified" shoot.
As the prosecution went on with its side, Torres's attorneys offered no objections. With the same feckless ease, they gave up Hector's main defense right, completely yielding Picallo's cross-examination. Hector was horrified. He stopped writing notes to anxiously whisper to Barzee and Vucci: "What are you doing? Why don't you show Picallo's lying?"
The lawyers said lamely that "fidgety talking" doesn't look "confident" or "innocent." Barzee just kept telling Torres to "Relax, relax." The people's counsel believed they had "a sure thing." As a tactic, Barzee claimed, he'd decided against trying to make the cops look bad. "He told me: 'Let's not make this us against them; we're going to ask for a free pass!' But that's not how things worked out."
Hector was only struck by one cap. Picallo didn't kill the suspect. But it wasn't from not trying. He fired at Torresthree timesacross the length of a small apartment living room, approximately eight feet, according to crime scene diagrams. Two slugs were recovered: one from the wall behind where Hector was sitting, one from the sofa. (The third was inside Torres.) But Barzee and Vucci didn't want their defense to look "indiscreet" or "desperate" by working that angle, they repeated. Putting Picallo and the other officers on the spot wouldn't help Torres's case ...
During the trial, defense counsel had a stack of officer depositions documenting discrepancies, disregard for protocol, and violations of the defendant's civil liberties. There were 3000 pages of court files. The officers involved admitted they'd broken into a minor pot dealer's pad without a search warrant. During the bond hearing months before the trial, Picallo was asked about the department's search warrant policy. He responded: "What do you mean by a search warrant policy?" He wasn't sure about the rules for getting one. Picallo confessed his unit didn't even attempt it, despite the obvious dope buyers and Kevin Phillips's information. Apparently legal permission to invade someone's house was too ticky-tack for the steely blue GIU...
Further evidence of police heedlessness: The cops couldn't decide who'd secured the .25. Both Gonzalez and Veloz claimed credit. They'd offered no explanation for why Veloz didn't fire at the "dangerous" Torres, even though he'd entered the room first. The defense chose not to "point fingers" at wound-up officers who seemed to be expecting the O.K. Corral when they jumped a nickel-and-dhTorres the officers had to be "engaged in the lawful pursuit of their duties."
The night of the bust, the officers had had nearly an hour to get their stories straight before homicide detectives, who investigate police shootings whether or not someone dies, showed up. The bad shoot went off at approximately 1:05 a.m., and the officers involved weren't separated and questioned until 3:00 a.m., according to the deposition from their boss, Det. Tom Romagni. Somehow the officers' story became: Kid teams up with drug dealers and picks up fake gun because real one wasn't enough to fight cops(!).
According to Barzee and Vucci, the jury wasn't supposed to buy it, but they did. Torres got ten years. "When they read the verdict, I was stuck in the moment, I felt empty, like someone ripped out my heart," Torres says. His lawyers paid for the fact that they'd never cross-examined state witnesses, or called any of their own, although three people, Travis Allen, Carlos Campos, and Luis Castaneda, all gave prior statements supporting Torres's claim that he was not holding guns. Defense didn't think they were "credible"; Stephen Cohn, the doctor who treated Torres, wasn't even subpoenaed. Torres says he didn't take the stand in his own behalf, because his legal team thought he looked too thuggish. In hindsight, he believes the jury might have liked to hear him explain himself ...
"'Hector, you're as good as free.' That's what the public pretenders [had] said," Torres quips about his April 2001 trial. "Then it turned into 'Good luck on appeal' and 'We got a good appeal department'! [And] I never saw them again!"
The attorneys aren't saying much now. Barzee maintains he can't speak about a case going to appeal, but Vucci offered other reasons for his reluctance: "One of Torres's options now is to file a motion for ineffective assistance of counsel regarding his defense lawyers." He declined to elaborate out of concern Torres could sue for "malpractice," though he did not concede any negligence.
After their questionable defense, Torres was expecting at least one of his old lawyers to admit what had happened; when he found out they'd declined, the tough guy's eyes actually watered up as he sat behind the visitors' glass at MetroWest Detention Center. "I feel betrayed, abandoned," Torres said. He recalls how Vucci would make attempts at a more aggressive defense, but be "held back by Barzee's passive strategy." Hector expected Vucci would come forward to speak on his behalf, but burning a bridge with a convict client is easier than pissing off lawyers you've worked with before, and may again. (Barzee is now a federal public defender, and Vucci is in private practice with the Restani law firm of Miami.) As for Veloz, Picallo, and the other members of GIU, Miami-Dade Police Department spokesman Randy Rossman says they're "publicity shy" and don't want to comment, either. Picallo, however, is no longer with the elite GIU. He's a patrol sergeant in the pacific streets of Miami Lakes. Another spokesman stresses that Picallo was cleared in this case and that this is not a demotion.
La ley es igual para todos
(The law is equal for everyone) After all this, Torres could still have gotten out sooner rather than later. He passed on plea bargains that would have lowered his sentence from ten to three years with a credit for time served (setting him free this year). But the pleas included provisions that would prevent him from suing the county or state. He won't sign anything that says he's guilty, or keeps him from getting fair retribution. Torres remembers Barzee explaining to him "the way things really are," telling him that "it's not the truth that matters." But "the truth is all I have, and I can't give it up," Torres says now.
He says he doesn't want revenge, but won't speculate about the financial award he could eventually earn if he wins his appeal, about to go forward this month. (There is a statutory cap of $100,000 on cases like this.) "I don't hate these cops, or want to go after them," he says. "What I want is to go home and be with my family. If they told me, 'We made a mistake and you can go home,' I'd be fine."
About his two years in jail, Torres says, "Next time I speak to my travel agent, I'll make different arrangements. This is hell. I'm surrounded by degenerates and crackheads. It's hard to be innocent in [here]. But I've learned something -- I've learned to be humble. I believe something will come out of all of this, that's what keeps me going. And my wife has been with me every step."
So Hector is staking everything on his appeal. But before those preliminary motions begin, Torres must answer a new, separate charge -- possession of a firearm, which wasn't included in his case the first time around. (That hearing began March 26, and addresses his alleged possession of the Lorcin .25.) As for the appeal, Torres said his first request as sent to court by his new public defender, Valerie Jonas, had the wrong name on it -- "Mario Almanza" instead of "Hector Torres." Ms. Jonas said she can't comment before the case is resolved, but she explained to New Times that there might have been a typo, and that in any case, it's been corrected. The appeals process is moving forward.
Torres just shrugs: "Sometimes I feel like throwing my hands in the air and giving up," he says.
But he did that once, and look where it got him.
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