According to the defense attorney, Cody Christopher wasn\u2019t
\ndriving at the time of a deadly rollover crash in Rifle Dec. 28, 2017, and
\ndrank alcohol after the wreck, not during the drive.<\/p>\n
Christopher\u2019s attorney Lawson Wills stated those two aspects of the defense\u2019s 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<\/p>\n
Judge John Neiley scolded prosecutors for the late entry of the report, written by Garfield County Sheriff\u2019s Office deputy, which was not in any filings provided to the defense.<\/p>\n
According to prosecutors, Ninth District Attorney\u2019s Office
\nstaff were not aware of the report until after a witness in the trial Tuesday
\nmade a statement about showing her phone to a law enforcement officer. That
\nwasn\u2019t in any of the reports, and so staff searched the Garfield County
\nsheriff\u2019s database and found a report from a deputy.<\/p>\n
The district attorneys did not know to look for the report,
\naccording to prosecutors, because Garfield County Sheriff\u2019s Office was not the
\nprimary investigating agency.<\/p>\n
\u201cIt is incumbent upon our office to ask the agencies for
\ntheir reports, it\u2019s not automatic,\u201d deputy district attorney Sarah Nordgaard
\ntold the judge.<\/p>\n
\u201cOur office was not aware that Garfield County had written these reports,\u201d she added.<\/p>\n
The report was not favorable to the defense, the judge and
\nboth attorneys acknowledged, but prosecutors offered not to use any of the
\nmaterial from the report.<\/p>\n
The deputy who wrote the report said he noticed strong smell
\nof alcohol coming from Christopher. It\u2019s not clear from the report, Judge John
\nNeiley noted, that the officer advised Christopher of his Miranda rights before
\nthe interview.<\/p>\n
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.<\/p>\n
\u201cIt\u2019s shoddy workmanship that this comes out so late in the day,\u201d Neiley said, ordering that the report\u2019s contents and any mention of the report should not be mentioned during the trial.<\/p>\n
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.<\/p>\n
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. <\/p>\n
Christopher, 42, is charged with two counts of vehicular
\nhomicide for allegedly driving drunk when his Ford Excursion went off Puma Paw
\nRoad, a remote dirt track north of Rifle. Passengers Matt Smith, then 41, and
\nTrent Johnson, then 36, were killed. Christopher and Johnson\u2019s 10-year-old son
\nwere the only survivors.<\/p>\n
It\u2019s not clear whether the smell of alcohol would have been
\nfrom prolonged drinking, or from recent drinking.<\/p>\n
The defense\u2019s theory is that Christopher drank after walking
\nback to the ranch house. <\/p>\n
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.<\/p>\n<\/p>\n