CENTENNIAL — A judge today denied a request by attorneys for Francis Hernandez to dismiss all charges against him, saying the fact that an Aurora police officer did not provide his notebook he used in the case to the court was not enough reason.
Hernandez is accused of causing a collision that caused the deaths of three people at an Aurora ice-cream shop on Sept. 4, 2008. He has been charged with 19 counts in the case, including vehicular homicide and child abuse resulting in death.
Hernandez was traveling more than 70 mph when he crashed into a small pickup driven by Patricia Guntharp, 49, sending the vehicle careening into a Baskin-Robbins on South Havana Street. Her passenger, Debra Serecky, 51, also died as did 3-year-old Marten Kudlis, who was inside the shop with his mother.
Defense attorneys learned of the notebook after Aurora police officer Erick Ortiz testified that he did not feel he needed to provide it. Prosecutors said he summarized the contents of the notebook in a police report that was admitted into evidence.
Among other things, written in the notebook, was the phrase, “I’ll take the blame,” reportedly said by Hernandez either to police or to his girlfriend, Brenda Aleman. That is key to his defense lawyers as their strategy throughout the week-long trial has been to suggest that someone else was behind the wheel.
However, Arapahoe County District Court Judge John Wheeler, while calling it a violation of the discovery process, decided against dropping the charges. He allowed jurors to hear what was in the notebook today in open court after Ortiz produced the notebook Thursday afternoon.
“I still do not feel it rises to the violation of dismissal of all charges,” Wheeler said. “It does not create a new theory of defense. It bolsters it.”
Hernandez, who is in the United States illegally, was 23 years old at the time of the crash. Before the ice-cream-shop collision, he had been arrested or cited 16 times for traffic offenses but was never deported.
The Kudlis family has filed a lawsuit against Hernandez, the Guntharp family and several agencies that did not move to deport Hernandez after citing or arresting him.
Investigators say Guntharp was high on methamphetamine and crossed a double yellow line turning from northbound Havana into the strip mall where the Baskin-Robbins is located.
The trial will resume on Tuesday. There is no court on Monday, Presidents Day.
Carlos Illescas: 303-954-1175 or cillescas@denverpost.com
