Marine Clears Name of Assault Charge

Corporal Tyler Lopez, a helicopter technician in the U.S. Marine Corps, was arrested in February and charged with a felony assault he didn’t commit. Though he sat for interviews at the police station and ran through gauntlets in the justice system, a Santa Barbara judge last week found him factually innocent of any wrongdoing in the downtown weekend incident that left the victim with a skull fracture and a brain bleed. As a legal matter, that means the charges against 23-year-old Lopez were dismissed and the record of his arrest will be immediately sealed then destroyed in three years.

While he waited six months for the vindicating verdict, Lopez — a Dos Pueblos graduate with no prior criminal history — was forced to put his military career on hold. After four years of service, including a tour in Afghanistan, he couldn’t re-enlist in the Marine Corps and had to wait for a promised promotion. And his mugshot, immediately following his arrest, was published and broadcast by the media, including The Santa Barbara Independent.

“He’s frustrated because he explained himself to the police, yet he was charged,” said Lopez’s attorney, R. Thomas Griffith. Not out to cast blame or dwell on Lopez’s arrest — and complimenting the District Attorney’s Office for its due diligence on the case — Griffith nevertheless feels that, if arresting officers had followed proper protocol, Lopez would not have been implicated. “I think they could have done better with identification,” he said. “They need better training.”

Lopez was part of a line-up with three other men organized right after the assault, and he was mistakenly singled out. Based on witness statements and legal documents, it appears one of the other men was the real assailant.

For their part, police said in-field line-ups are used to eliminate and/or identify suspects. Before a witness sees the arrestees, said Lt. Paul McCaffrey, they are instructed that they don’t have to pick someone if they don’t recognize the offender or are generally unsure about an ID. “There’s no magic formula,” said McCaffrey of the best way to conduct an impromptu line-up. “You can scrutinize how officers do it, but they always try to make sure it’s done fairly.”

At 1:17 a.m. on February 5, officers responded to a reported battery in the News-Press parking lot on Anacapa Street. (The chain of events described here are taken from the SBPD’s original arrest report and press release, as well as the 17-page “Petition for Declaration of Factual Innocence” that Griffith drafted on behalf of Lopez.) According to witness Eric Foote, “a huge man,” whom he described as 6′ 2″ and 250 pounds and wearing a black jacket, confronted his friend Alex Milovich as they walked back to their car to retrieve a cell phone to call a cab. Milovich’s car and the suspect vehicle — a white Lexus — were parked next to each other.

“Mr. Foote believes Mr. Milovich may have said something to the assailant,” reads Griffith’s petition,” because he heard the assailant say something to Mr. Milovich to the effect of ‘say it again if you think it’s so funny.'” The suspect then got out of the Lexus and punched 26-year-old Milovich in the face. The blow broke his nose and knocked him to the ground, where he convulsed with a seizure. As the attacker got back into the Lexus and it sped away, Foote took down its license plate and called 911.

Police determined the Lexus was registered to an Olive Street home, which they staked out until the car arrived. Lopez, told by his friends to meet there, got in at 1:39 a.m., and shortly after police initiated a traffic stop. Officers had all four of the vehicle’s now-handcuffed occupants — all Hispanic males — sit on the curb while Foote was brought over to ID the attacker. According to Griffith, only Lopez was made to stand while officers trained lights on his face. Positioned about 50 yards away, Foote picked him out with 90 percent certainty, remarking Lopez was “not as big as I remember.”

In his filing, Griffith suggests Foote may have assumed police were showing him who they thought the assailant was. Lopez is 5′ 8″ and weighs 180 pounds. “It should be noted,” said Griffith in court documents, “that there was at least one person in the Lexus at the time it was stopped who was 6′ 2″ tall, 250 pounds, wearing a black jacket. This man was not asked to stand so that Foote could observe him.”

At the time of his arrest, and according to people he was with earlier in the evening, Lopez was wearing a plaid shirt. After he was taken into custody and read his Miranda rights, Lopez voluntarily spoke with detectives at the police station, explaining he knew nothing of the assault. He later passed a polygraph test that asked if he was present at the time of the incident.

In the weeks following, Griffith and Senior Deputy District Attorney Greg Boller interviewed the Lexus’s three other occupants who all stated the first time Lopez got into the car was at the Olive Street location more than 20 minutes after the assault. Phone records corroborate the accounts. They show Lopez trying to get in touch with the Lexus’s driver when they became separated between downtown bars.

The three other men didn’t cooperate with police right after the attack, and only spoke through attorneys in the interviews with Griffith and Boller. They were advised to comment only on Lopez’s whereabouts, not their own, so they wouldn’t implicate themselves in the crime. Griffith said it is unlikely anyone else will ever be charged in the case at this point. When police originally searched the Lexus, they discovered a .22 magnum revolver, nine rounds of ammunition, and one spent cartridge casing.

Lastly, in his petition, Griffith stated Foote was an unreliable witness. (Milovich couldn’t provide police with an initial statement and had a hard time recalling details even as he recovered.) Foote had around ten drinks that night, Griffith said, and he didn’t have a clear view of the actual punch as he was only able to see a profile of the assailant from the waste up. Foote reportedly admitted to police during the line-up that Lopez looked “familiar,” but he “couldn’t see his face that well.”

“Eyewitness identifications are always suspect, particularly when they’re brief,” explained Griffith, who said Lopez was upset no one in the car came to his defense and admitted their involvement. “I don’t think he’ll be hanging out with them much anymore,” he said.