Delta jurors on Tuesday viewed four firearms — two handguns and two rifles — found in Henry’s Russell’s truck after a shooting near Panoia last year. But without any bullets or casings recovered from the scene, a ballistics match was not possible, per testimony the defense elicited.
Public defender Patrick Crane also had Delta County Sheriff’s Detective Steven Burris examine a photo of a grocery store receipt found in Russell’s vehicle, the time stamp of which would have given him roughly an hour to reach the intersection of Samuel Wade and Price roads, near Paonia, last Oct. 5 and open fire on pedestrian Matthew Burge, as prosecutors allege happened.
Russell was charged with attempted first-degree murder and reckless endangerment, which he denies.
Generally speaking, a measure of deliberation prior to the act is among the circumstances that must be proved to secure a conviction for attempted first-degree murder. “Deliberation” as it is legally defined does not necessarily have to take place over a lengthy period.
In previous days’ testimony, witnesses said they saw Burge walking near the intersection and bridge that takes people into Paonia on Oct. 5, 2020; that they heard a shot and that they saw Burge scramble to his feet, then yell for help. They also saw a silver pickup stop prior to the shot and some sort of interaction between its driver and Burge.
None of the witnesses had seen anything in Burge’s hands prior to the shooting and Burge testified he’d only had sunglasses.
After hearing the shot and seeing Burge rise and run, witness Philip Jones pulled over and gave him a ride to the Paonia town hall/police department building.
Jones testified that the silver pickup roared up beside him, then fell back because of oncoming traffic, but that he saw it again when he got Burge into town. It was coming down an alley, Jones said, and he recognized the driver as the defendant. He did not see a gun.
Burge testified that he’d seen Russell driving as he walked and because he knows — but doesn’t like Russell — he threw him a “rude” pointing gesture.
Russell then stopped, called his name, raised a gun and shot him, Burge testified previously.
The only motive he could think to tell Paonia police and other investigators was that he’d once taken Russell’s wallet and the money inside and Russell must have found out.
Russell was arrested Oct. 6. Separately, his truck was found parked near a church on I Road, Delta. Detective Sgt. Tyler Becker responded to that scene and viewed was in plain view from outside the truck. Its rear window was sealed with evidence tape.
Burris secured a search warrant for the truck and had it impounded for a more thorough search.
In cross-examining Burris midway through Tuesday afternoon’s testimony, Crane presented a copy of a Safeway receipt.
Although Burris said he could not tell from the photocopy whether the date said Oct. 5 or Oct. 6, 2020, he did say that if the date was indeed the fifth and the receipt was from the store’s Delta location, then the time stamp of 5:05 p.m. would have given Russell an hour to reach the scene.
Was that long enough, Crane asked, for Russell to plan a murder?
Burris said when he wrote affidavits for search warrants, he alleged attempted first-degree murder based on the evidence he had available; at the time, it did not constitute a formal charge and prosecutors could have made a different charging decision if they thought it was necessary.
Crane and co-counsel Darren Struble also asked Tuesday witnesses about how thoroughly they had searched at Samuel Wade and Price roads for bullets, casings or a gun.
Becker took another investigator’s personal metal detector to the scene on Oct. 8, but said he was unable to locate a projectile within “maybe 100 feet” in all directions, including in the brush, and within 50 feet or so of the river.
By the time of his search, the scene had been released and was no longer secured by authorities, per testimony.
Burris also said he came up empty in searching for bullets or casings. The only guns he located were those in Russell’s truck.
Crane pushed against admitting as evidence the four firearms recovered from the truck and placed into sealed evidence boxes. The signatures on those seals were not always the same as those of the person who had prepared the accompanying paperwork, per testimony Crane elicited; however, Burris said that this happens sometimes when multiple people are assisting.
Simple human error was to blame when it came to the date blood collected from the scene made its way to the lab, Burris also said.
At a hearing in February, he had testified that a swab of the blood had been sent to the lab, but it wasn’t sent until about two weeks ago, according to Crane’s question.
Burris said at the time of this testimony, he’d genuinely thought the blood was at the lab.
“That was an honest mistake,” he said.
Katharhynn Heidelberg is the Montrose Daily Press assistant editor and senior writer. Follow her on Twitter, @kathMDP.