Defense seeks dismissal of case against trucker in trooper’s death

No ruling from judge as case nears a retrial

Posted 11/16/18

A series of documents filed in Douglas County court last month give insight into the fallout after a mistrial was declared in the case of a man suspected of hitting and killing a state trooper with …

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Defense seeks dismissal of case against trucker in trooper’s death

No ruling from judge as case nears a retrial

Posted

A series of documents filed in Douglas County court last month give insight into the fallout after a mistrial was declared in the case of a man suspected of hitting and killing a state trooper with his truck.

Documents show Noe Gamez-Ruiz’s attorneys and the prosecution sparring over possible sanctions for the upended court proceeding, which could include dismissing the case altogether.

Gamez-Ruiz is charged with killing Colorado State Trooper Cody Donahue in 2016. Donahue, a husband and father from Parker, died while investigating a car accident along Interstate 25 south of Castle Rock on Nov. 25, 2016.

Gamez-Ruiz was driving a U.S. Foods truck when he passed the accident and hit Donahue, who was standing on the shoulder between the far-right lane and the crashed vehicle he was investigating. He is charged with criminally negligent homicide, careless driving resulting in death and careless driving, failure to yield to an emergency vehicle.

A mistrial was declared in the case on Sept. 13 by District Judge Shay Whitaker when the court learned of information prosecutors had not provided the defense. A new trial is expected in February.

Defense attorneys are the ones who want the case dismissed, or at least, the felony charge against their client thrown out as a sanction, or a penalty, against the prosecution.

In their argument for dismissal, they are relying on Colorado’s Double Jeopardy Clause, stating Gamez-Ruiz cannot be retried under the state Constitution.

Throughout their motion they accuse prosecutors of “gross negligence” in their handling of information before trial and argue the mistrial ultimately benefited the prosecution, allowing them more time to prepare for a second trial after already hearing the defense’s arguments and strategy for court.

Prosecutors say in a response to the motion that double jeopardy would not apply and call the argument to dismiss all or at least the felony charge “a strained reading of the law, and a distorted view of the prosecutors’ conduct...”

Harvey Steinberg, lead counsel for Gamez-Ruiz, did not return multiple requests for comment. The 18th Judicial District Attorney’s Office deferred to its responses filed in court.

Two more documents filed after the motion to dismiss and the district attorney’s response show the parties engaged in heated debate over their interpretations of the United States and Colorado Double Jeopardy clauses, accusations of a “systemic pattern of discovery violations” in cases the 18th Judicial District Attorney’s Office has prosecuted (a claim the office strongly refuted), and what level of sanctions, if any, are due following the mistrial.

While the defense called the mistrial a benefit to the prosecution, the district attorney’s office called it “a drastic remedy” and sanction enough.

District Judge Shay Whitaker canceled a hearing scheduled in late October to discuss possible court sanctions but had not ruled on the defense’s motion to dismiss as of Nov. 8. A court administrator said the judge was taking the issue under advisement.

Gamez-Ruiz initially faced a misdemeanor and minor traffic infraction until prosecutors added a felony charge of criminally negligent homicide. The case moved to trial on Sept. 11, 2018.

In trial, the defense argued the incident was a tragic accident, not a felony crime. Gamez-Ruiz was unable to change lanes and had slowed his speed, they said. The prosecution said Gamez-Ruiz’s truck drifted to the right just as he passed Donahue, and that officers’ lights should have been visible from a distance.

Two discovery violations spurred the judge to declare a mistrial on day three of trial, at the defense’s request, according to court documents and statements made by 18th Judicial District Attorney George Brauchler the day of the mistrial.

First, prosecutors did not tell the defense one of the eyewitnesses they called to testify had begun pursuing his commercial driver’s license (CDL) since the accident. The defense learned of the information after the witness took the stand on day three.

Later that same day an expert pathologist testifying for the prosecution gave an opinion about which part of the truck delivered Donahue’s fatal head injury, but the opinion was not included in her report provided to defense attornies prior to trial.

The documents filed in October offer two starkly different characterizations of those violations.

At best, the defense said, prosecutors failed to realize the information withheld from discovery could lead to a mistrial. At the worst, it was “intentionally suppressed.” In either scenario, the defense calls prosecutors “grossly negligent.”

The CDL studies would give their witness “significant insight into the events giving rise to this case,” the defense wrote, adding “his training may also skew his perception of the events surrounding the accident by causing him to impose what he would (have) done under the same or similar circumstances.”

According to the district attorney’s office response, the two prosecutors on the case said they did not have any recollection of the pathologist telling them of her opinion prior to her testimony.

They also argue prosecutors had not planned to ask the eyewitness for an expert opinion based on his training and did not while he testified. Thus, the response reads, they did not believe his CDL training needed disclosing. The district attorney’s response calls their decision an “unwitting violation” of discovery rules.

Gamez-Ruiz will appear in court next for a preliminary hearing in February before his next trial begins, unless the judge offers a ruling on the defense’s motion.

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