Brian Puerta told police he was bedded down at a truck stop in rural Huerfano County, snuggled up in a sleeping bag in the front passenger seat of his blue Buick when a stranger banged on the passenger window in the middle of the day and demanded that Puerta follow him.
The stranger, whom Puerta later described as looking like Charles Manson, with several dogs in tow, aimed a handgun at Puerta, who reached for his cellphone to call 911. Four shots rang out, blasting through the window and into Puerta’s right wrist, right hip, abdomen and cellphone.
An air ambulance flew Puerta, who was homeless, to Parkview Medical Center in Pueblo that March 30 day. Puerta woke later from anesthesia to find surgical staples embedded across his stomach. The surgeons had removed part of Puerta’s lower intestine, but they recovered one of the bullets that had torn into Puerta, 3 inches below his belly button.
When authorities apprehended a suspect later that day after a high-speed chase, they thought they had a lock on a conviction and lengthy prison sentence. Puerta picked out the suspect from a photo lineup. Police had seized a Sig Sauer .22 caliber handgun from the suspect's car. Prosecutors waited for the ballistics report that would match the bullet found deep in Puerta's gut with the handgun seized from the suspect's car — the final piece of evidence they felt they needed to persuade a jury to convict the suspect of attempted murder.
But that ballistics report would never come. And the suspect John William Wilson, now 40, might never see a day in prison.
The Huerfano County Sheriff’s Department was not timely enough in sending the gun that was seized from Wilson’s car, or the bullet recovered from Puerta's body, to the Colorado Bureau of Investigation’s crime lab, emails from prosecutors to the Sheriff’s Office and crime lab show. By the time the crime lab was ready to process the evidence, discovery deadlines had passed, the emails show.
The lack of a timely ballistics report isn’t an isolated incident in Huerfano County, according to a lawsuit filed on June 22 by the top prosecutor there, Third Judicial District Attorney Henry Solano. Solano, who was the top federal prosecutor in Colorado when he was U.S. attorney from 1994 to 1995 and has taught at Harvard University’s John F. Kennedy School of Government, is asking a judge to fix what he calls persistent failures in basic law enforcement by the Huerfano County Sheriff’s Office and Sheriff Bruce Newman. The lawsuit lists 43 felony cases and 20 misdemeanor cases in the past three years, including Puerta’s shooting, that Solano alleges the Sheriff’s Office provided “no discovery” or failed to provide “timely” discovery.
In court documents Solano has filed in connection with that lawsuit, he alleges that Newman and the Sheriff’s Office only provided timely evidence to the District Attorney’s Office in 62.6% of the cases they initiated in the past three years.
“In elementary school that is a D grade,” Solano’s court filing stated. “It might just barely be passing in elementary school, but that is clearly not acceptable here where we are dealing with due process protections to a defendant” and the need “to support prosecutions for the protection of the public. Remedial action is necessary.”
The problems have become so severe, according to Solano’s lawsuit, that prosecutors had to dismiss at least 30 felony cases because of the failure by the Sheriff’s Office “to preserve or send evidence for testing.”
In one case, 27 grams of heroin were not sent for crime lab processing, causing the dismissal of drug distribution charges pending against a habitual offender who faced up to 32 years in prison, the lawsuit contends. In another, prosecutors could not proceed with criminal charges against an inmate accused of assaulting a sheriff’s deputy because surveillance footage was not preserved, according to the lawsuit.
In a homicide case, the sentencing judge remarked on the troubled history of evidentiary and discovery problems in Huerfano County.
“It’s been made clear to me in the four plus years that this case has been going on that there’s been a lot of problems with the evidence procurement initially by law enforcement,” a transcript attached as an exhibit to the lawsuit shows the judge said at the sentencing hearing. The lawsuit contends the prosecution of that homicide case was saved only by the intervention of the Colorado Attorney General’s Office and the work of investigators there.
Solano wants a judge to order Newman and the Sheriff’s Office to start complying with evidentiary and discovery deadlines. Prosecutors are required to provide critical information about their cases to defense lawyers within 21 days after a defendant's first appearance in court, according to the rules of evidence guiding criminal cases.
Additional information must be provided to the defense 35 days prior to trial, according to those rules. Typically, most law enforcement agencies forward the information to the defense within 48 hours of an arrest.
Providing evidence in a timely manner to the defense is a core tenet of the judicial system, meant to ensure defendants can prepare and receive a fair trial. Violations of those evidentiary rules can lead to dismissals of cases, which Solano said has regularly happened in Huerfano County.
Solano said that if he succeeds in getting a judicial order against the sheriff, he’ll be able to seek contempt of court against the sheriff if the violations continue, which he said could lead to monetary penalties and even jail time.
“It would give them added incentive to do their jobs, which they shouldn’t have to have,” Solano said.
Sheriff Newman said he’s not to blame and that he welcomes Solano’s lawsuit and believes he and his office will be absolved of wrongdoing.
“He blames everyone else for his problems,” Newman said. “Mr. Solano points fingers at everybody.” Court filings filed on behalf of the sheriff further assert the litigation is a waste of time. "This litigation has consumed the time and resources of this court, the District Attorney's Office, including District Attorney staff, in addition to the District Attorney himself, and one Assistant District Attorney, the Sheriff's Office, including the Sheriff himself and the Sheriff's Office staff, in addition to the time and resources of the county in order to provide four days of testimony," that filing states.
The case against Wilson, accused of randomly shooting a homeless man, wasn’t dismissed, but Solano said a lack of timely evidence processing by the Sheriff’s Office still compromised the case. Wilson originally faced six felony charges, the most serious of which was attempted murder, which carried up to 28 years in prison. He pleaded to a lesser charge that could allow him to escape prison.
Solano said the lack of timely processing of the evidence by the Sheriff’s Office eventually left the prosecution with nothing but Puerta’s eyewitness account and circumstantial evidence.
“We could not use that evidence to definitively establish that the defendant had used and shot the firearm in an attempt to kill or injure the victim,” Solano said.
“In this case, critical, important information — that is, the firearm alleged to be used and the projectile recovered from the victim — was not immediately sent to the crime lab and not sent after several emails from the prosecution. When it was sent, it was sent too late to use in trial. The defense counsel was going to be able to exclude all of the evidence related to the firearm in the case.”
Puerta said he's left bewildered as he wonders how what he thought was a solid case could develop evidentiary issues. He said he was relieved to learn the authorities had a suspect when he woke after his surgery. Pueblo County deputies had confronted the suspect, Wilson, about an hour after Puerta’s shooting when they responded to a complaint of shots fired at an abandoned building near where Puerta had been shot.
Wilson fled, speeding away in a green car, the same color of car Puerta reported seeing his assailant flee in. After a high-speed chase, Wilson wrecked the car, ramming it through a barbed wire fence. He surrendered after a standoff with deputies on a dirt road.
Puerta, now 47, expected an open and shut case. In addition to Wilson's photo lineup identification, police also had other solid indications of Wilson's complicity. They found inside the Hyundai that Wilson had been driving four German Shepherd-type dogs, closely matching Puerta’s description of what he had seen. And they seized from the crashed vehicle a Sig Sauer .22 caliber handgun. At the abandoned building where Wilson had been shooting, they found an air rifle.
“I can’t do better as a victim,” Puerta said. “It has got to be impossible to prevent a guy who is going around shooting people randomly. Once you catch a guy shooting people randomly, you’ve got to keep him, and you can’t just let him back out on the street. I am very upset about it.”
Sheriff Newman defended his office’s handling of the evidence. He said that once his office finally did send the gun and bullets off to the state crime lab for testing, Solano’s office asked that the evidence not be processed.
But emails from the Third Judicial District Attorney’s Office confirm that the Huerfano Sheriff’s Office was slow to act.
Rex Delmas, then a prosecutor working for Solano, in emails on Aug. 25 and Aug. 31, asked Huerfano County sheriff’s officer Roman Hijar and his superiors, Undersheriff Milan Rapo and Captain Craig Lessar, to send the gun seized from the defendant’s car and the round found in Puerta’s body to the crime lab for prints, DNA testing and to see if the bullet matched the gun.
“It needs to go ASAP with a rush request to CBI,” he said in the Aug. 31 email.
Stefanie Trahey, lab director of the state crime lab in Pueblo, in an email to the prosecutor on Oct. 15 said the crime lab had received the evidence on Sept. 30 — six months after Puerta's shooting. She wanted to know if a trial continuance was possible to allow for processing of the crucial evidence. The trial at that point was scheduled for Nov. 8. The crime lab still had not received prints from the suspect or swabs of DNA from the suspect for comparison on the gun.
“It is doubtful we can get a continuance,” Delmas said in an email back to the crime lab director. “Frankly, the deadline for discovery passed on [Oct. 6] .”
Solano said he had to extend a plea agreement due to the evidentiary concerns. In exchange for dismissal of the more serious felony charges, including attempted murder, Wilson agreed to plead guilty to the lesser charge of vehicular eluding. Wilson’s defense lawyer did not return telephone messages seeking comment.
Hijar, the Huerfano County Sheriff's officer who responded to Puerta's shooting, declined comment and referred questions to the sheriff. Investigators with the Colorado Bureau of Investigation who assisted in taking a statement from Puerta declined comment.
When he’s sentenced Jan. 6, Wilson could get probation, allowing him to escape prison. If the judge opts for a prison sentence, it could be as little as six months.
Puerta is left with scars across his abdomen. A bullet remains lodged in his right wrist.
Puerta predicted his alleged assailant will turn violent when he's out on the streets.
“He’s going to get back out there, and he’s going to shoot someone else,” Puerta said. “There’s no doubt in my mind.”