The retrial of a La Plata County man suspected of felony menacing – threatening a police officer with a baseball bat – opened Monday in 6th Judicial District Court, with Judge Suzanne Carlson presiding.
The earlier trial concerning events of Dec. 5, 2012, ended in July 2013 when jurors couldn’t decide the fate of Anthony Rudolfo Martinez.
Martinez was shot once in the back by Officer Patrick Backer with the Southern Ute Police Department.
He and two other Southern Ute police officers were approaching the house of the Martinez’ family at 189 County Road 320-B about 3:30 a.m. to check on the victim of an alleged domestic-violence incident there two hours earlier.
From the darkness, Martinez charged at them with a baseball bat raised over his shoulder. The officers identified themselves as law enforcement and ordered him to drop his weapon.
Only one officer’s flashlight illuminated the scene. When Martinez was 6 to 10 feet from him, Backer fired his .40-caliber Glock twice.
Backer is the son of Larry Backer, chief investigator with the District Attorney’s Office in Durango. Because of the close connection, the case is being prosecuted by the 7th Judicial District Attorney’s Office, which includes Telluride. Deputy District Attorney Keri Yoder and colleague Dan Hotsenpiller are prosecuting the case. Public defenders John Moran and Zak Brown represent Martinez.
In his opening statement, Hotsenpiller showed some flair.
“What’s up, (expletive)? Let’s do it,” he said in addressing the jury of seven men and six women, including an alternate.
Those were the words of Martinez as he burst from some bushes and charged full tilt toward the officers, he said.
Hotsenpiller said officers don’t shoot unless they believe they face great bodily harm or death. This was the case the morning of Dec. 5, 2012, no matter what the defense may say, he said.
Brown countered by saying Martinez was not guilty of menacing. He was defending the family home and himself from what he thought was yet another assault.
About 1:30 a.m., there had been a fight at the Martinez residence among his friends and individuals who were bent on retaliation for the alleged punching of a woman there earlier.
So, when Martinez was alerted to the arrival of a vehicle that put out its lights near his house, he anticipated more trouble, Brown said. Backer and an officer trainee arrived without lights and parked down the lonely country road from the Martinez residence. Martinez apparently saw the vehicle lights of a third officer.
“There was no reason for anyone to be there at 3:30 a.m.,” Brown said.
Yoder led Backer through his peace officer training, what training dictates in such intense moments and details of how Martinez came to be shot. Backer’s testimony emphasized Martinez straight-ahead charge at him and his refusal to obey commands.
In his cross-examination, Moran spent time setting a scene of uncertainty at the Martinez house: The house is isolated, there are no street lights and the light from the Martinez house didn’t help at all.
Backer and his trainee had no lights on, and all the officers were in dark clothing, Moran said. They were trying to sneak up on the house, he said.
“Martinez had reason to fear another attack,” Moran said.
Moran also kept coming back to Backer’s statements to investigators about a wound to Martinez’ left flank when the bullet struck him dead center in the back.
The trial will continue at 8:30 a.m. today, with Moran picking up his cross-examination.