According to the defense attorney, Cody Christopher wasn’t driving at the time of a deadly rollover crash in Rifle on 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 a Garfield County Sheriff’s Office deputy, which was not in any filings provided to the defense.
According to prosecutors, 9th 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 the 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.
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 a 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 was 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.