D.A.’s office calls evidence in non-fatal Costa Mesa police shooting inconclusive

There is not enough evidence to conclude that a Costa Mesa police officer fired his weapon improperly when he shot and wounded a man suspected of prowling over the summer, according to a report the Orange County district attorney’s office made public Monday.

After seven months and six witness interviews, authorities closed the investigation into the Aug. 14 shooting of Bradley Montgomery, 49, by Officer Dana Potts.

Potts declined to voluntarily give a statement to investigators, leading them to conclude that there was “a lack of sufficient evidence to prove beyond a reasonable doubt criminal culpability on the part of Officer Potts.�

However, the district attorney’s office cautioned that a lack of testimony should not be interpreted as a sign that the officer acted improperly.

“Certainly, it would have been preferable if the OCDA were able to obtain a voluntary statement from Officer Potts regarding his observations and state of mind at the time of the shooting,� the report concluded. “However, Officer Potts’ decision to decline to give the OCDA a voluntary statement may not legally and ethically be used to draw negative evidentiary inferences regarding the conduct and the state of mind of Officer Potts.�

The Costa Mesa Police Department declined to comment on the report.

The shooting followed a 5 a.m. call to the 2000 block of Charle Street, where neighbors reported that a prowler tried to enter a residential patio. Potts arrived on the scene and, according to a Costa Mesa police report at the time, gave Montgomery instructions that Montgomery ignored.

Potts fired his handgun once, hitting Montgomery — who was near the entry of the residence — in the abdomen, the report found.

Testimony, as well as recordings from the officer’s digital audio recorder, revealed that Potts fired and then immediately said, “Oh, shoot,� according to the district attorney report.

While Montgomery lay face-up on the ground, Potts, according to the report, asked, “What did you have in your hands?�

Potts asked Montgomery if he had “a metal stick,� according to the report.

Montgomery denied having anything in his hand. However, the district attorney’s office found two objects that “fit the description of a ‘metal stick’� near the shooting scene, the report found.

Potts also told another officer, Ryan Novikoff, that it appeared Montgomery “had something in his hand,� Novikoff said in his account of the events, according to the report.

After the shooting, Potts and two other officers who were present but did not witness the shooting turned Montgomery onto his back and handcuffed him.

Montgomery suffered a non-life-threatening “through and through� gunshot wound to the right side of his abdomen. He was taken to a trauma center, where he was treated.

Montgomery pleaded guilty Feb. 19 to one count of prowling and was sentenced to 30 days in county jail, court records show.

A previous investigation determined that Potts acted reasonably when he fired into a pickup truck that crashed into his patrol car, apparently intentionally.

On July 5, 2012, Potts found two men in a stolen truck in a parking lot. The trucked backed up and rammed the patrol car twice, police said at the time. Potts fired multiple shots into the truck.

The driver, who was struck, survived the injury and ran from the vehicle and was arrested a week later, police said.

UPDATES:

This article was originally published at 9:20 p.m. March 25 and was later updated with additional information.