Pomona SWAT Officer Shaun Diamond: Phone calls in prison between convicted killer and first jury foreman raise questions

POMONA, Calif. (KABC)– After more than eight years and two trials, the man who killed a Pomona police officer during a search warrant execution in San Gabriel was sentenced Tuesday to 10 years in prison.

David Martinez, a member of the Mongol gang, admits to shooting SWAT officer Shaun Diamond in the neck with a 12-gauge shotgun during a police raid on his family’s home in October 2014. The bullet severed his spine, but Diamond held on for another day.

“If anyone could get shot in the face and be okay, it would be him,” Diamond’s daughter, Margo Diamond Nelson, told the judge about her initial hope that her father would survive.

After doctors said Diamond’s brain had stopped working, the family made the decision to take him off life support so his organs could be donated.

“We huddled around him as they unplugged the devices and watched his heartbeat get quieter and quieter,” she recalled Tuesday’s sentencing. “I held his lifeless hand; he was so strong that it took him a long time to die.”

Margo Diamond Nelson said getting through Martinez’s two trials was “an act of real love for someone who isn’t here anymore,” adding that she never thought the jury would charge him for not her father’s murder would have been found guilty.

“I wish David no harm, but I hope what he has done haunts him,” she said through tears. “I don’t have to forgive David and I never will. He will always be the person who murdered my father. That will never change.”

Martinez testified in his own defense at both trials, alleging that SWAT officers failed to identify themselves properly, leading him to believe that other Mongols were breaking into his home and that his family’s life was in danger.

That argument made sense to juries in two trials. Martinez was found not guilty of first-degree murder at his first trial. When he was later tried for second-degree murder, the jury again found him not guilty.

“He acted in self-defense, he acted to defend his family,” said Martinez defense attorney Brady Sullivan. “And there was overwhelming evidence of that, which is why both juries acquitted him.”

When prosecutors announced last fall that they would try him a third time for first-degree manslaughter, Martinez pleaded no appeal to avoid a third trial. As part of the plea deal, Martinez admitted to shooting Diamond but denied knowing he was a police officer.

“My actions were not out of malice,” Martinez said in court shortly before his sentencing Tuesday. “My actions were not because I wanted to shoot a police officer. My actions were because I thought there was a threat to my family and that is the truth and always has been the truth.”

Los Angeles Assistant District Attorney Jack Garden asked the judge to sentence Martinez to the maximum possible sentence of 33 years to life in prison.

“The defendant armed himself with a shotgun loaded with slugs, the most dangerous and damaging type of ammunition — while high on meth — regardless of who was on that porch,” Garden said.

Judge Charlaine Olmedo said in the courtroom Diamond’s death “left a gaping hole in his community, his department, his family,” but said she had to hand down a 10-year interim sentence. She urged Martinez not to betray his family’s love and support.

“As for Officer Diamond’s family and friends, they’re going to have to learn to live with grief,” Olmedo said. “And for the rest of your life, know that you are responsible for it.”

“It’s shameful,” Los Angeles County Sheriff’s Homicide Detective Ray Lugo said of Martinez’s sentence. “I don’t think it’s enough time.”

Detective Lugo took this case personally and spoke at Tuesday’s sentencing hearing, raising questions about the jury chiefs in both trials.

“If we have ulterior motives or lonely women who fall in love with the defendant, we don’t stand much of a chance,” Lugo told Eyewitness News.

Lugo is referring to Janine Eiley, the foreman at Martinez’s first trial. She has developed a relationship with the admitted killer and has been at his second trial almost every day. Eiley, a nurse, spoke briefly to Eyewitness News after the sentencing.

“I love David and his family as friends, that’s it,” Eiley said.

But Eyewitness News received phone calls between Martinez and Eiley from Men’s Central Jail, where the two can express their love for each other.

“I love you Janine. Thank you,” says Martinez.

“You’re welcome,” Eiley replies.

“Thank you,” says Martinez. “You’re making me blush right now.”

“We have a bond and a relationship that you and I will always have,” Martinez also tells Eiley.

“I know, I know,” she replies. “I’ll wait for you a few centuries… you think I’m kidding, but I’m not.”

In other recorded calls, Eiley urges Martinez to “praise and love God” and treat the mother of his two children “like an (expletive) queen.”

“I love you very much no matter what, no matter who, no matter what and I’m here,” says Eiley. “Like I said, even if I never see you again for 10, 15, 20 years.”

Meanwhile, Melissa Armstrong, the foreman of Martinez’s second trial, told Eyewitness News that she is currently writing a screenplay on jury duty and plans to write a screenplay on the Martinez case in the future.

“Eventually, I’m going to capitalize on that,” Armstrong said in late November, adding that she revealed she was a screenwriter when the jury was selected.

Both Armstrong and Eiley support Martinez and voted against convictions at his two trials. In a recorded phone call with Martinez in November, Eiley discusses Armstrong’s plan for a screenplay and suggests that he cooperate because “things get done without or without your input.”

“Your own woes, your own suffering, being an innocent person,” Eiley told Martinez. “Let me just tell you that there are so many opportunities in the future … for you, maybe not even to have three jobs.”

Despite being sentenced to 10 years in prison, Martinez will soon be taking to the streets. The sentence covers the more than eight years he was imprisoned during the trials, and California law requires only 85% of the sentence to be served.

“We are very, very disappointed,” said Lugo. “He’ll be out in the next month or so, maybe even six weeks.”

Whenever Martinez is released, he will have the support of his family, including the mother of his two children, who all attended the two trials. He will also have Eiley’s support.

In other taped prison conversations, Eiley Martinez says she’s looking forward to hugging him and seems to acknowledge that she knows the phone calls are being recorded.

“Like you said, I can’t say too much here,” Eiley told Martinez. “Believe me when I tell you, and as soon as you get out I’ll tell you.”

“Your and I living together in each other’s lives is no coincidence — it was meant to be,” says Eiley. “God made me stay there and he made you choose me and he made me foreman.”

Do you have a tip? Email ABC7 Investigative Producer Lisa.Bartley@abc.com