Trial underway for man shot by S. Ute police

Wounded Ignacio man faces felony menacing charge

Opening statements were made Monday in the trial of an Ignacio man suspected of charging police officers with a baseball bat raised over his head.

Southern Ute Police Officer Patrick Joseph Backer fired two gunshots and hit Anthony Rudolfo Martinez once in the back.

The incident occurred about 3:40 a.m. Dec. 5, 2012, in the 100 block of County Road 320B, just west of Ignacio.

Martinez, 24, who survived the gunshot, is charged with felony menacing.

The case is being prosecuted by the 7th Judicial District, which includes Telluride, because the district attorney’s office in Durango had a conflict of interest.

Backer is the son of Larry Backer, chief investigator for the 6th Judicial District Attorney’s Office in Durango.

According to court documents and testimony, several fights and an instance of domestic violence were reported the previous day at the residence.

Tribal officers checked on the house and planned to do a “knock and talk,” during which they go up to the house and try to make contact with anyone inside to make sure everything is OK.

They turned off their car lights and parked near the end of a dead-end street, away from the house.

In the prosecution’s opening statement, Kurt Beckenhauer, deputy district attorney in the 7th Judicial District, said Backer, accompanied by colleagues Matt Mitchell and Sheryl Herrera of the Southern Ute Police Department, approached the Martinez house with weapons drawn, Backer on the left, Herrera in the middle and Mitchell to the right.

The officers identified themselves, but Martinez continued charging them, bat raised, Beckenhauer said.

“He’s guilty of menacing as charged,” Beckenhauer said.

John Moran, defense attorney, along with Sean Murray, said Martinez had good reason to attack people he thought were part of a group that had a physical run-in with him earlier.

It was pitch black, the intruders were dressed in dark clothing and, with the glare of a flashlight blinding him, Martinez could only believe they had come back to attack him, Moran said.

“He had every reason to think they had sneaked up to get him,” Moran said.

Finally, Martinez may have heard “cops” or decided to turn back, only to catch a bullet, Moran said.

During a previous hearing, officer Backer testified that Martinez came at him “pretty close to a full sprint” and at no point did Martinez run away.

“After the shots were fired, the male stopped, basically just looked at me, stopped where he was, and fell back on the ground onto his back,” Backer testified.

Martinez was flown to St. Anthony Hospital in Denver.

A flight nurse who flew with Martinez said Martinez told her that all he could remember was seeing flashlights in his eyes and then getting shot as he was walking away, according to an arrest affidavit.

Agents with the Colorado Bureau of Investigation visited Martinez in the hospital following the shooting.

Martinez was unaware he had been shot by a police officer. He also was unaware that police were approaching the house. He thought people were coming to fight with him because of a separate incident that occurred earlier in the evening, according to the arrest affidavit.

“He stated he did not hear officers announcing themselves or telling him to drop the bat,” the affidavit says. “Martinez admitted that he had been drinking and was intoxicated at the time.”

He is not charged with menacing a police officer because officers snuck up on the house in the dark, and he was unaware they were police.

Assistant District Attorney Keri Yoder said her office reviewed the case and whether officer Backer acted appropriately, and decided not to file charges against the officer.

Backer indicated that he shot Martinez in the left abdomen. But medical records show he was shot in the right mid back area.

Pubic-defense lawyers filed a motion asking Judge Suzanne Carlson to compel prosecutors to charge Backer with perjury for his testimony during the preliminary hearing.

Backer said Martinez never turned to run away.

The motion was denied.

Defense lawyers have argued that Martinez was involved in previous fights, and he was defending himself from people whom he thought were sneaking up to the house to jump him. They have introduced an affirmative defense, which allows jurors to acquit him if he was acting in self-defense.

Martinez is free on $5,000 bail.

The jury is made up of six men and six woman. One juror was released from service Monday afternoon after he texted a woman who works in the public-defender’s office, letting her know he was selected to serve on the jury.

The session ended after Yoder led Backer through the events of the morning of the incident. Backer identified photos showing the relative positions of Martinez and the officers and related events leading to him firing his weapon twice.

The trial will continue this morning at 8 a.m.

An earlier version of the story misstated the name of one of the defense attorneys.

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