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Prosecutor David Stein questions Daniel Liu about the video he took and his reaction to the shooting on Jan 1, 2009 at the Fruitvale Bart Station during the preliminary trial for Johannes Mehserle at Renee C. Davidson Courthouse in Oakland, Calif., on the second day of testimony Tuesday, May 19, 2009. (Sketch by Joan Lynch)

OAKLAND — BART police Officer Jon Woffinden said the situation he faced the night his former partner Johannes Mehserle shot an unarmed passenger at the Fruitvale station was one of the scariest he has ever been involved in during his 10 years as a peace officer.

Yet, when questioned by the prosecution, he admitted that he never pushed a button on his radio to signal an emergency.

Woffinden also said that the initial call he received over his radio to respond to the Fruitvale station, which included sounds of people screaming in the background, made his heart pump as he thought of his wife and children.

Yet, Woffinden admitted that the call was for a misdemeanor battery with no mention of weapons.

Similar inconsistencies were pointed out throughout Woffinden's testimony Wednesday by deputy district attorney David Stein, who compared the differences in what the officer wrote in his police report about the incident with videos of it recorded by passengers.

Woffinden took the stand Wednesday morning as a defense witness and proceeded to describe the night his partner killed Oscar Grant III as one filled with chaos and uncertainty.

"It's a busy and chaotic night systemwide," Woffinden said under questioning from Mehserle's attorney Michael Rains. "There were several fights that came over the radio at several locations."

Woffinden, who partnered with Mehserle that evening and morning, said both were at the West Oakland station responding to a call about a man seen with a gun when Woffinden got the call about a fight at the Fruitvale station.

Woffinden said he could hear commotion in the background of the call and, as Mehserle drove them to the station, he thought of his family because he was "extremely" scared.

Once at the station, Woffinden said he saw Grant, of Hayward, and his friends sitting against the wall and another group of about four to five people approaching from his left.

Woffinden said he immediately turned around and formed a "one-man skirmish" line to block the "crowd" from advancing.

"We were severely outnumbered. It was "... an evolving situation," he said.

It was soon after that Woffinden said he heard a "sound."

The former Moraga and Pleasant Hill police officer refused to say the sound was that of a gunshot and instead said it sounded like a "loud Taser."

"It did not sound to me like a shot," he said. "It sounded to me like a loud Taser."

Woffinden said he did not know his partner had shot Grant but eventually Mehserle walked next to him as Woffinden was arresting another passenger.

Woffinden said Mehserle never said a word but looked troubled.

"His forehead was extremely sweaty. His face was flush. His eyes were big," Woffinden said. "I told him that he needed to take a walk."

Though Woffinden talked with what seemed like absolute certainty as he described the events the morning of Jan. 1 to Rains, he began to stumble and "not recall" details when he was questioned by Stein.

Using a video of the event recorded by a passenger, Stein showed how Woffinden never raised his baton toward a crowd of people as he said he did in a police report. The video also showed that, initially, Woffinden ran toward Grant and his friends. In testimony and in his police report, Woffinden said he did not run toward the group and instead stopped immediately when he reached the platform.

"I believed that I turned around but you can see in the video that I took a couple of steps," Woffinden said.

Woffinden will not be the only BART officer to testify when the preliminary hearing continues Tuesday.

Before the hearing began, Rains said he intended to call two other officers who were at the scene and show enhanced video of the shooting. Rains said that his client should not be charged with murder because Mehserle did not have malice in killing Grant.

"There is no malice because Mr. Mehserle did not intend to shoot Mr. Grant. Mr. Mehserle intended to use his Taser," Rains said. "When Mr. Mehserle intended to use his Taser "... Mr. Grant was actively, actively resisting arrest."

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Sketch by Joan Lynch
Defense attorney Michael Rains, left, standing
next to Johannes Mehserle, questions BART police Officer Jon Woffinden on the third day of the preliminary trial
to determine if Mehserle should stand trial for murder.