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Coleman Stewart

Other Menacing Exonerations
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At about 1 a.m. on May 30, 2014, 23-year-old Coleman Stewart, a University of Colorado student, was shot twice—in the knee and the arm—by police officers in Boulder, Colorado.

The officers said that a cab driver had flagged down officers claiming that Stewart had bolted from his cab without paying the $4.85 fare. The officers claimed that the cab driver told them Stewart went through a gate and entered an apartment at 1090 11th Street in Boulder. The officers said that when they saw Stewart pointing what appeared to be a pistol at them through the blinds on the door to the apartment, they opened fire.

A total of 10 shots were fired. Stewart remained inside for about two hours while a SWAT team was summoned, and officers finally crashed into the building. Stewart, who could be heard moaning in pain, had been shot in the back of one arm and in the knee. A BB pistol was found on the floor of the apartment.

By the time Stewart was released from the hospital in June, he had been charged with four counts of felony menacing, obstructing a peace officer, resisting arrest, and theft of less than $50.

In July 2014, Boulder County District Attorney Stan Garnett said the shooting was justified because the officers believed the BB gun was real and feared for their lives.

Stewart went to trial in February 2015. His defense lawyers contended that Stewart had been put in the cab by friends who thought he was too intoxicated to drive home. During the short drive, Stewart became concerned at the driver’s erratic driving. A block from his apartment, he jumped out. Stewart, the defense claimed, thought he was being pursued by the cab driver and was unaware police were involved. At the time, Stewart had credit cards and $26 in his wallet—more than enough to pay the fare.

After Stewart got out, the cab driver sped two blocks to a police annex with the back passenger side door still hanging open. The driver hailed an officer and then, without waiting for the officer, took off after Stewart.

The prosecution’s first witness was a woman who saw part of the chase, but had a vague recollection of the events. The prosecutor asked, “And if you told the officer at the time that you heard ‘Stop, police,’ would that be accurate?”

The defense objected to the leading question, but the judge overruled the objection. When the defense attorney asked to discuss the objection outside the presence of the jury, the judge refused. The witness then replied, “Yes, I think anything I said to him would have been accurate.”

During cross-examination, the defense was able to elicit testimony from the woman that in fact she never told a police officer that she heard anyone say, “Stop, police.” Nonetheless, the prosecutor, on multiple occasions, made statements that she had said she heard those words.

Three officers who fired their guns testified—Nicholas Frankenreiter, Erin Starks, and Jacob Vaporis. They said that they got to the building where the cab driver said he saw Stewart go through a gate (which was now locked) and enter the building.

One officer scaled the six-foot fence and the gate jostled open. The officers said they came to a garden apartment and saw Stewart point the gun through the blinds that covered the apartment door. Frankenreiter and Starks said they saw Stewart through a living room window. Vaporis said he was standing right outside the door and thought he was going to get shot in the chest.

A fourth officer, Andrew Kirschbaum, testified that he saw the gun briefly, but did not fire any shots. They all testified that they feared for their lives.

Kirshbaum was slightly injured by a piece of flying rock that was chipped off the building façade by a bullet. Starks suffered a slight injury from flying glass. At least one officer radioed, “Shots fired. Officer down!”

The defense sought a continuance in the trial to be able to subpoena the cab driver, who was living in Florida. The defense sought to establish that the driver was driving in a frenzied fashion and had refused to take Stewart where he wanted to go. That, the defense would claim, was why Stewart had bailed out of the cab and showed that he was fleeing the driver, not the police.

In an interview with police, the cab driver said he first took Stewart home and stopped in front of his apartment. The driver said that Stewart asked, “How do I do this?” The driver thought that statement was strange, and he said he interpreted it to mean that Stewart was intending to jump out without paying. The driver said he pulled an abrupt U-turn, and sped through stop signs as Stewart was shouting “Let me out!” The driver said he pulled up at a bank ATM, which happened to be next to a Boulder police annex about three blocks from Stewart’s apartment.

The driver said that’s when Stewart jumped out. During the interview with police, the driver, who had prior convictions of his own, asked if he could be in trouble for kidnapping. The officers assured him he was “good.”

The judge declined to delay the trial and the cab driver was not called to testify.

During closing arguments to the jury, the prosecutors suggested that Stewart had fired at the officers, although there was no testimony that he did. Prosecutor Nicole Mor, during her closing argument, said after the initial shots were fired by the officers, two of them were “barricaded to the side of the house by a brick wall, wondering if the gunfight was going to continue.”

And prosecutor Adrian Van Nice, who delivered the rebuttal closing argument, declared, “Did this defendant fire at these officers? The evidence would indicate that he did, probably he did.”

On February 20, 2015, the jury convicted Stewart of four felony counts of menacing and one misdemeanor count of obstructing a peace officer. He was sentenced to 45 days in jail and ordered to pay about $15,000 in costs and restitution for the damage to the fence surrounding the apartment as well as the damage to the apartment itself. Stewart was taken into custody immediately to serve his 45 days in the Boulder County Jail.

In July 2017, the Colorado Court of Appeals reversed the convictions and ordered a new trial. The court held that the prosecutor’s question to the witness about what she told police was improper and violated the rules of evidence.

The appeals court found that the judge erred in overruling the defense objection because the prosecutor not only asked a leading question, but also violated the rule of evidence relating to refreshing a witness's recollection. "Here, the prosecutor did not attempt to call the witness’s attention to a prior inconsistent statement,” the court said. “Instead, the prosecutor simply told the witness what the prosecutor wanted to prove."

The appeals court cited three other errors: the defense should have been allowed a delay to obtain the testimony of the cab driver, the judge gave an erroneous jury instruction, and the prosecution had been erroneously allowed to introduce evidence that years earlier, police had found Stewart hiding under a car when they were looking for him—evidence the prosecution claimed showed that Stewart had a propensity to flee from police. This collection of errors, the court held, required that Stewart be granted a new trial.

Prior to a retrial, defense attorney Iris Eytan retained John T. Wilson, a crime scene reconstruction expert. Wilson reviewed the police diagrams, reports, and photographs of the inside and outside of the apartment.

Wilson concluded that Stewart was not at the door when he was shot, but rather was several feet inside the apartment. The BB gun was on the floor several feet from the door, and was covered in plaster dust caused by bullets piercing the walls of the apartment. The safety was on and there was no evidence it had been fired, Wilson said.

“The absence of bloodstains on the BB gun in conjunction with the undisturbed plaster dust and debris proves the BB gun must be lying on the floor when Officer Vaporis begins firing,” the report said.

Studying the angles and points of entry of bullets, Wilson said that if Stewart had been standing at the door as the officers claimed, he would have been shot in the torso by one of Vaporis’s bullets. Moreover, Wilson said that if Stewart had been standing at the door, Frankenreiter and Starks would not have been able to see him through the living room window as they testified at the trial.

The officer’s testimony was “impossible to reconcile with the physical evidence,” Wilson reported. “There is no configuration that (Stewart) could be in that would allow being shot in the back of the right arm while holding a gun to the middle of the entry door window.”

On October 30, 2018, the prosecution, without notifying the defense, dismissed the charges. In addition, an order was entered that Stewart be refunded the $15,000 in restitution and costs.

Eytan, Stewart’s defense attorney, subsequently filed a motion seeking a public hearing, claiming the prosecution was attempting to “cover up a cover up.”

“The prosecution stunk and the way it closed the case worsened the stench,” the motion said. That motion was denied.

– Maurice Possley

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Posting Date: 2/4/2019
State:Colorado
County:Boulder
Most Serious Crime:Menacing
Additional Convictions:Misdemeanor
Reported Crime Date:2014
Convicted:2015
Exonerated:2018
Sentence:45 days
Race:White
Sex:Male
Age at the date of crime:23
Contributing Factors:Perjury or False Accusation, Official Misconduct
Did DNA evidence contribute to the exoneration?:No