Prosecutor tried to portray Ray Tensing as cold-blooded killer during testimony

Did Tensing's testimony change in his retrial?

CINCINNATI -- An assistant prosecutor attempted to portray Ray Tensing as a cold-blooded killer on the final day of testimony in Tensing's murder retrial Friday.

Not exactly in those words, but the message came through loud and clear.

Watch Tensing's entire testimony below (See highlights in the video player above):

 

You could see where this was going early in Seth Tieger’s cross-examination of the former University of Cincinnati police officer, on trial again for shooting Sam DuBose during a 2015 traffic stop. After just a few minutes, Tieger brought up the time Tensing shot at a dog charging at the officer. Tensing said it was the only other time he fired his gun on duty.

As it happened, the dog was 10 to 15 feet away from Tensing, and he missed.

Tieger asked if Tensing intended to kill the dog.

“It was not to kill the dog but to stop the threat the dog posed,” Tensing said.

Tieger pounced. He put Tensing on the spot, asking if it was easier to shoot a man or a dog.

“Is it easier to shoot and kill a human being who wasn’t moving, like Sam DuBose, who was trapped in a car with his seat belt on when you’re only 1 to 2 feet from his head?” Tieger asked.

“There’s nothing easy about this, about what happened,” Tensing replied.

Tieger pressed for an answer and Tensing said, “We were closer together, yes.”

“So it was easier to kill Sam DuBose than to kill the dog, right?”

“It's easier to stop threat as we're closer,” Tensing said.

If you want to know how Tensing’s testimony in his retrial compared to the first trial last November, he made only a few changes about the shooting and events around it.

With his very first question, Tieger challenged Tensing on his use of the word “perception” in the first trial. Tensing had qualified some of his testimony about events by saying it was his “perception.” Tensing said Friday that he had “misperceived” that his left arm was stuck in DuBose’s steering wheel.  He said he came to believe, after closely examining his body camera video, that DuBose’s left hand and arm were restraining his arm against the steering wheel facing the driver.

Tensing also said he is sure he was being “dragged” by DuBose’s car, even after Tieger reminded him that his defense attorney said that “dragged” might not be “the right choice of words.”

Otherwise, Tensing stood by his story. He said he was drawing on his training to “stop the threat” and it wasn’t his intention to kill DuBose on Rice Street on that Sunday evening on July 19. Tensing said his arm got caught in DuBose’s car after he reached through the open window to try to pull the key out of the ignition. He said he was stunned at how quickly DuBose restarted the car, put it in gear, “mashed” the accelerator and started to drive off.

Tensing said DuBose turned left into him while he was dangling from the car and he was worried that he would fall and be crushed under the left rear tire. He fired once to “stop the threat,” Tensing said.

It was interesting that neither Tieger nor Tensing’s attorney, Stew Mathews, played Tensing’s body camera video during Tensing’s testimony. Mathews might have thought he had already made his points when the first witness of the day, his use-of-force expert James Scanlon, analyzed many still images on a big screen facing the jury.

Scanlon concluded that Tensing’s actions were justified. He called them “objectively reasonable and in accordance with police training technique and best practice.” He said the fact that Tensing reached into the car didn't change his conclusion.

Tieger didn’t show any images and hardly mentioned the video except to refer to the testimony of the prosecution’s forensic video expert, Grant Fredericks. During his testimony, Fredericks said Tensing had made 10 false statements about being restrained and dragged, about the car moving, accelerating and turning toward Tensing, and when he shot DuBose.

“He was not in my head,” Tensing said about Fredericks, adding later: “The experts can sit there and evaluate and study the body camera video and break it down, but they weren’t in my mind.”

Tieger chose other targets to strike at Tensing. He tried early to bring race into the debate.

“You don't make any stops based on race at all?” Tieger asked. He then started to reference University of Cincinnati Police Department data that showed Tensing wrote 83.5 percent of his tickets to minority drivers – the highest rate on the force.

Mathews objected and Judge Leslie Ghiz immediately jumped in and stopped Tieger.

“Gentlemen, come up here now!” Ghiz barked to the attorneys, and after a short sidebar, the topic didn’t come up again.

In a major change from the first trial, Ghiz had thrown out the T-shirt with a Confederate flag emblem that Tensing, who is white, wore under his uniform shirt the day he killed DuBose, who was black. Tensing said it was a souvenir somebody brought him after a trip to Tennessee and he didn't give any thought to its possible racial implications.

Tieger was going to counter the defense’s depiction of Tensing as a good cop courteous to African American drivers. The defense had shown two videos of Tensing making traffic stops earlier that July 19 Sunday. In one, Tensing went above and beyond to assist a driver, his wife and four young kids. In both, Tensing was friendly and followed the book.

RELATED: Key moments in testimony on Day 7 of the Ray Tensing retrial.

After that, Tieger hammered on Tensing. Tieger referred to Tensing’s gun as “the murder weapon.”

"Would you agree that you killed Samuel DuBose, Mr. Tensing?" Tieger asked point-blank.

"Yes, Sir. I did it to stop the threat," Tensing answered.

"You killed Sam DuBose, didn’t you?"

"Yes."

"Was it your intent to kill him?"

"No, Sir. Stop the threat."

It looked like Tieger was trying to break Tensing’s composure. Tensing’s voice did break and he paused several times. Tensing pulled tissues from a box next to him three times during his two hours and seven minutes on the stand and occasionally dabbed his eyes.

PHOTOS: Day 7 of Tensing retrial

Tieger accused Tensing of lying to homicide investigators in his interview two days after the shooting. Tensing claimed he had advised DuBose he was going to detain him, when he didn’t. Tieger scoffed at Tensing for saying he wanted to be a police officer so he could “serve and protect.”

“How did you protect and serve Sam DuBose that evening, Mr. Tensing?” Tieger asked.

“I protected my life,” Tensing replied.

Tieger noted from previous testimony that Tensing had entered the Ohio State Highway Patrol training program after graduating from UC-Clermont’s police academy. He got Tensing to reveal reluctantly that he quit the Highway Patrol program after one day. Tensing said he didn’t want to work “in Cleveland or Chillicothe" so he came home and went back to his first police job in Greenhills.

Tieger argued that it was Tensing who set off the chain of tragic events that led to DuBose’s death. That was in contrast to Mathews’ opening statement, when he claimed DuBose "would not have ended up shot” if he had complied with Tensing’s orders to show his driver’s license and unbuckle his seat belt.

Tieger pointed to the videos of Tensing’s previous stops that day. One showed Tensing responding to another UC officer’s stop; in another, a UC officer arrived to back up Tensing. Noting that two other UC officers arrived to back Tensing at the DuBose stop, Tieger asked why Tensing didn’t “disengage” from the non-compliant DuBose and wait for backup. He asked if Tensing didn’t hear those officers say on the radio that they were on their way.

Tensing said all UC officers are on the same frequency and it's difficult to hear what everyone says.

Tieger also suggested that DuBose would not have ended up shot if Tensing hadn’t violated his training by reaching into DuBose’s car. A local police chief testified this week that he taught Tensing in one of his classes to “never, never, never, never” put your arm in a car.

Tieger said Tensing had remembered Part 2 of his training – “Stop the threat” – but not Part 1.

Tieger questioned Tensing about what he said and did after the shooting. He said Tensing never showed any concern for DuBose, only for Tensing’s own minor injuries.

Tensing asked two other UC others to “cover" him while he pulled the key out of DuBose’s car, Tieger said. The car went up the street for 300 feet – with the mortally wounded DuBose slumped behind the wheel – until it hit a wall at the corner of Rice and Valencia.

The engine was still running after it came to a stop.

“You were a lot more cautious with three officers there and somebody holding Mr. DuBose at gunpoint than you were when you were by yourself at the DuBose car,” Tieger said. "... He wasn't moving at all, was he?"

"Not that I saw, no," Tensing said.

Tieger asked Tensing what he saw inside DuBose’s car and Tensing appeared to lose his composure. Tensing turned his head away from the courtroom camera and paused a full eight seconds before answering.

“There was some blood around his head injury,” Tensing said in a cracking voice. Tensing said he didn’t know DuBose had died until officers took Tensing to the hospital to be examined. Tensing said he had minor injuries to his arm, knee and back.

Tieger asked why Tensing didn’t ask DuBose how he was.

“I was in shock.” Tensing said. That left Tieger in disbelief.

“You didn’t have any trouble telling anybody how much your arm and your knee hurt, did you, Mr. Tensing, even though you were allegedly in shock,” Tieger said.

Another officer had already called for the life squad, Tensing said.

“Did you ever try to feel for a pulse?” Tieger said.

"No, Sir," Tensing said.

"Did you ever check in any way to see if there was any sign of life to him?" Tieger said.

"No, Sir," Tensing said.

“In fact, the focus was on you and your extremely slight and minor injuries, and your comments about your  justification, how you were getting dragged,” Tieger said. "...You didn't say one word about the person you had just shot in the head."

"No, Sir," Tensing said.

Earlier, Tensing said he had thought about the shooting “a million times.” But he didn’t express any remorse for killing DuBose or sympathy for his family Friday, and he didn’t when he testified in the first trial, either.

Tieger also revealed that Tensing kept a bullet in the chamber of his service weapon. Tensing said he hadn’t needed to reload his guns for weeks, and that he kept it secure in his holster at all times.

The defense’s video analyst had pointed to two images of Tensing holding his gun with his finger on the slide, not the trigger. One image was taken as Tensing raised the gun outside DuBose’s window, the other after the shooting. Scanlon said that showed Tensing had proper control of his gun.

According to Fredericks’ testimony, the gun first appears in Tensing’s body camera video 1.7 seconds before the shooting. Tensing said he made “a split-second decision” to shoot DuBose, but Tieger suggested Tensing made up his mind to shoot DuBose before he raised the gun outside the window.

Tieger walked Tensing through the final, climactic moments.

"You knew your gun was loaded -- one bullet in the chamber. You know if you pulled the trigger it would fire a bullet. Your index finger went to the trigger, right? You pulled the trigger and meant to do it. You purposefully aimed for his head,” Tieger said.

"That's the only thing I could see," Tensing said.

"Your gun was between 1 and 2 feet from his head. And after all these purposeful acts, you told the jury you didn't mean to kill him?" Tieger asked.

“I meant to stop the threat. I didn’t shoot to kill him. I didn’t shoot to wound him. I shot to stop the threat,” Tensing said.

Tieger had one more question for Tensing before testimony in the trial ended:

“What did you think would happen after you shot him in the head? He would just walk away?”

“I never thought about that,” Tensing said.

Closing statements will be held Monday morning, and the case will go to the jury after that.

Tensing is charged with murder and voluntary manslaughter. The first trial ended in a hung jury when jurors couldn’t agree on a unanimous verdict.

The prosecution motioned Thursday to add a lesser included charge of reckless homicide, but Ghiz ruled against it.

For complete trial coverage, visit wcpo.com/TensingTrial.

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