According to the defense attorney, Cody Christopher wasn’t
driving at the time of a deadly rollover crash in Rifle Dec. 28, 2017, and
drank alcohol after the wreck, not during the drive.
Christopher’s attorney Lawson Wills stated those two aspects of the defense’s theory Wednesday without the jury present, arguing a motion to dismiss the case after prosecutors filed a previously undisclosed law enforcement report. Wills did not give an opening argument at the start of the trial, but likely reserved it to present later in the trial
Judge John Neiley scolded prosecutors for the late entry of the report, written by Garfield County Sheriff’s Office deputy, which was not in any filings provided to the defense.
According to prosecutors, Ninth District Attorney’s Office
staff were not aware of the report until after a witness in the trial Tuesday
made a statement about showing her phone to a law enforcement officer. That
wasn’t in any of the reports, and so staff searched the Garfield County
sheriff’s database and found a report from a deputy.
The district attorneys did not know to look for the report,
according to prosecutors, because Garfield County Sheriff’s Office was not the
primary investigating agency.
“It is incumbent upon our office to ask the agencies for
their reports, it’s not automatic,” deputy district attorney Sarah Nordgaard
told the judge.
“Our office was not aware that Garfield County had written these reports,” she added.
Judge criticizes prosecution’s “shoddy workmanship”
The report was not favorable to the defense, the judge and
both attorneys acknowledged, but prosecutors offered not to use any of the
material from the report.
The deputy who wrote the report said he noticed strong smell
of alcohol coming from Christopher. It’s not clear from the report, Judge John
Neiley noted, that the officer advised Christopher of his Miranda rights before
the interview.
The fact that the report disclosed in the middle of the trial was an example of negligence, Neiley said, not “bad faith” as Wills argued.
“It’s shoddy workmanship that this comes out so late in the day,” Neiley said, ordering that the report’s contents and any mention of the report should not be mentioned during the trial.
It would be a different matter if the report contained evidence that favored the defense’s case, but the report was “very prejudicial to the defendant,” Neiley said.
Other law enforcement witnesses have testified they noted a strong smell of alcohol coming from Christopher when they met as Christopher was being treated in an ambulance after walking back to the ranch house from the scene of the crash, about a mile away.
Christopher, 42, is charged with two counts of vehicular
homicide for allegedly driving drunk when his Ford Excursion went off Puma Paw
Road, a remote dirt track north of Rifle. Passengers Matt Smith, then 41, and
Trent Johnson, then 36, were killed. Christopher and Johnson’s 10-year-old son
were the only survivors.
It’s not clear whether the smell of alcohol would have been
from prolonged drinking, or from recent drinking.
The defense’s theory is that Christopher drank after walking
back to the ranch house.
Lyndsay Smith, wife of Matt Smith, lived in a house in Puma Paw Ranch where Christopher and the 10-year-old came after the crash. She testified Tuesday that she did not see Christopher drinking alcohol while he was in the house, nor did she see him leave.