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Witness Changes Story In Fatal Ice Cream Crash Trial

Hernandez's Girlfriend: Second Person Was In Suburban During Fatal Crash

POSTED: 10:17 am MST February 11, 2010
UPDATED: 7:34 pm MST February 11, 2010

Trial began this week for a Guatemalan citizen charged in a 2008 two-vehicle crash in Aurora that killed three people, including a 3-year-old boy.

The three were killed when a Chevrolet Suburban slammed into a pickup truck carrying two women, Patricia Guntharp and Debra Serecky, sending it smashing into a Baskin-Robbins ice cream shop. The impact killed 3-year-old Marten Kudlis as he sat at a table waiting for his mother to bring him an ice cream cone.

Francis Hernandez faces multiple charges of vehicular homicide, vehicular assault, third-degree assault and leaving the scene of an accident.

7NEWS content producer Alan Gathright is covering the trial and filed this update from the courthouse:

4:30 p.m. Thursday

A former jail cellmate of Hernandez said Hernandez admitted that he was driving in the crash and that he'd been drinking and was "pretty buzzed."

Raymond Breer testified he met Hernandez a day after the deadly crash when they shared a holding cell at the Arapahoe County jail

Hernandez after first denied he was driving the SUV authorities say caused the deadly chain-reaction accident, said Breer, who was in jail on a child-support issue.

But Hernandez eventually admitted driving and said he had been drinking, Breer said.

Breer characterized that Hernandez was "pretty buzzed" and it's unclear if the defendant used those words.

However, Aurora police officer Erick Ortiz testified earlier Thursday that he smelled no alcohol on Hernandez and detected no other signs that he’d been drinking when he searched and questioned the suspect about two hours after the crash.

3:15 p.m. Thursday

Just hours after the deadly crash, Hernandez’s girlfriend said: “He started crying, because he thought he had just killed four people,’’ Aurora police officer Erick Ortiz testified on the second day of the trial.

Hernandez said he’d run from the crash scene that killed three people, including a 3-year-old boy, Ortiz recounted the girlfriend saying.

But Hernandez insisted that the accident want not his fault, Ortiz said the girlfriend, Brenda Aleman, told him this about two hours after the accident.

“He said a white truck had pulled out in front of him,” Aleman recounted according to the officer, who interviewed her for about 15 minutes outside the couple’s Denver apartment the night of the crash.

Ortiz said Aleman made the revelation after twice denying that Hernandez was driving the Chevrolet Suburban that slammed into a white pickup, killing the two women inside.

Ortiz said Aleman acknowledged her boyfriend was driving the SUV after the office told her that people had been killed in the crash and she could be charged as an accessory to the crime if she withheld information.

She began crying.

“She said that she didn’t want Hernandez to get in trouble and not see his kids,” Ortiz recounted.

Because Aleman testified early that officers pressured her to talk and threatened her with “jail time,” prosecutor Karen Pearson began asking Oritz and other officers testifying to describe the tone they used in questioning her and Hernandez.

“Just like I am now, calm. We were having a conversation,” Ortiz said.

Ortiz also asked Hernandez who drove the Suburban.

“He said his cousin was the one who had been driving it. He hadn’t seen him in a week,” Ortiz testified.

The cousin’s name, Christian Hernandez, surfaced Thursday morning when Aleman changed her story and said the cousin had also been in the SUV during the accident. She had previously testified – and long told police – that only Francis Hernandez was in the SUV.

Christian Hernandez was one of two men shot dead June 22 in an unrelated crime at the Denver apartment complex where Francis Hernandez and Aleman shared an apartment with the cousin. Denver police arrested two juveniles in the double slaying.

At the request of police, Hernandez remove his t-shirt to reveal a 4-inch scratch on his shoulder and abrasions on his stomach, arms and hands, Ortiz said. He also had bloody scratch on his ear and a bruise on his cheek.

When officers asked how he got hurt, “He said some of the injuries came from his girlfriend. They had been in a domestic dispute,” Ortiz said.

Officer Candice Hanson testified Hernandez said some of the scrapes occurred when he was carrying tiles all day on his construction job.

Hanson, who had been an officer for about 8 months before the crash investigation, said she noted the abrasions on Hernandez’s forearms, because she’d learned that driver’s gripping a steering wheel often get such scrapes when an airbag deploys in a crash.

“If the air bag deploys on the driver’s side, there are usually burns on the person if their forearms aren’t under clothing,” Hanson said. Such marks aren’t found on passengers if their air bags deploy, she added.

When defense attorney Chris Baumann asked Hanson if she’s used the term “burns” or “abrasions” in her police report, she stated she hadn’t called them burns.

“It’s more like abrasions,” she said.

11:13 a.m. Thursday

An eyewitness to the deadly crash said he is “100 percent” certain that he saw defendant Hernandez climb through a side window of the crashed SUV, which had rolled on its side, and run from the crash scene.

Brandon Hickerson testified that he had driven up to the accident on Havana Street when he and Hernandez made eye contact after the suspect leap from the wrecked SUV.

“He ran directly behind my car, within arm's length,” the witness said.

After police tracked down Hernandez at his Denver apartment, they took Hickerson to a parking lot there and had the suspect stand in front of spotlights.

Hickerson identified Hernandez as the man he saw fleeing from the overturned SUV.

“I’ve been 100 percent sure since the beginning,” Hickerson testified.

Judge John Wheeler is allowing jurors to offer written questions for witnesses that the judge pre-screens.

One juror asked if Hickerson had seen anyone near the overturned SUV, helping people get out.

“No, all of the people were focused around the white truck and the little boy,” Hickerson said. He was referring to the pickup containing the bodies of two women victims and 3-year-old Marten Kudlis, who was killed when crash debris slammed into the ice cream shop where he was waiting to have ice cream with his mother and a family friend.

The juror question is a possible reference to defense attorney David Lipka’s opening statement where he said the defense will present a witness who "told police that he helped two people out of the Suburban.”

Lipka accused Aurora police investigators of spending 18 months on "a careless assumption that Mr. Hernandez was the sole occupant of the Suburban.”

Hickerson’s account contradicted the changing testimony of Hernandez’s girlfriend, Brenda Aleman, earlier Thursday morning. For the first time she said that the defendant’s cousin, Christian Hernandez, was also in the SUV when it crashed.

On Wednesday, she testified that Francis Hernandez was driving the Suburban -- without mentioning any other occupant.

She has consistently told the police that Francis Hernandez was the only one in the SUV and he fled the accident scene because he had no driver’s license or insurance and feared never seeing the couple’s two young daughters again if he went to jail. The defendant is a Guatemala national who was in the United Stated illegally.

11:25 a.m. Thursday

Aurora police officer Aleksander Graham testified about responding to the crash scene, making sure an ice cream shop customer with a badly bleeding leg wound was receiving proper care.

He then went with other officers to Hernandez and Aleman’s Aurora apartment where he asked the couple about the Chevrolet Suburban that was insured by a policy paid for by the girlfriend’s mother.

Aleman and Hernandez said the SUV belonged to a friend named “Luis” and they let him park it at their apartment complex. Aleman added that the Suburban was missing when she tried to get something for her children from it about 3:30 p.m. that day.

“(Hernandez) said since it wasn’t there that Luis probably came and got it,” Graham recounted.

The name Christian Hernandez was again raiseed when Graham mentioned that another officer who retrieved insurance documents and other paper work from the Suburban had given him papers with Christian Hernandez’s name on it. Graham made brief mention of someone’s “parole” papers being found in the SUV, but it wasn’t clear whose name was on those documents.

11:43 a.m. Thursday

Aurora police officer Marc Paulino testified that police asked Francis Hernandez to remove his shirt at the apartment and they saw his chest and abdomen were covered with red marks and bruises. He also had a mark on his left forehead.

Officers asked Hernandez how he received the injuries and “he stated that it has something to do with his work as a construction worker,” Paulino said.

At one point, Aleman asked: “How long Frank was going to be in jail for,” the officer recounted.

Paulino said he didn’t know how long, but he added that Hernandez had made things difficult for himself because “it appeared he had fled the scene.”

“She said he was scared because he had killed some people and he was crying when he said it,” the officer recounted.

11 a.m. Thursday

In a stunning revelation, Hernandez's girlfriend changed her story Wednesday and said for the first time that there was another man in the Chevrolet Suburban that authorities say caused the crash.

This plays to the defense attorneys' argument that Aurora police "turned a blind eye" to the possibility that there were two men in the SUV that night. It could cast doubt in the jury's mind on who was driving in the accident.

While testifying Wednesday as a prosecution witness about what Hernandez told her the night after he fled the crash scene, Brenda Aleman said, "He just told me he had a car accident. He just didn't see the truck coming."

She was referring to the white Mazda pickup carrying two female victims that the SUV broadsided on Havana Street.

However, when defense attorney Chris Baumann cross-examined Aleman Thursday morning, the young girlfriend said she withheld from police that Francis Hernandez had confided to her that his cousin, Christian Hernandez, was also in the car and they both fled the scene.

"I didn't really know who was driving, because there was two people in that Suburban," she said.

"Francis told me they were both in there. They both left the scene," Aleman said. She added that the cousin, who was the couple's roommate, had also confirmed that he was in the SUV during the crash.

She noted that Christian Hernandez, 22, died last summer.

Christian Hernandez was one of two men shot dead June 22 in an unrelated crime at the Denver apartment complex where Francis Hernandez and Aleman shared an apartment with the cousin. Denver police arrested two juveniles in the double slaying.

Aleman's shifting accounts didn't make clear who drove the SUV in the accident. It may not undermine prosecutors' proof that Francis Hernandez was behind the wheel, recklessly speeding up to 81 mph in a 40 mph zone when the crash occurred.

Prosecutors said they will present DNA evidence confirming that only Hernandez's blood was found on the Suburban's driver-side airbag. No other person's blood was found in the SUV.

Aleman admitted that she had initially denied to police that anyone besides Francis Hernandez was in the SUV.

"I told (Aurora Officer Erick) Ortiz that I thought (Francis Hernandez) was the one driving, but I'm not sure about that," Aleman said, referring to one of the officers who questioned her just hours after the accident.

She acknowledged that Ortiz asked her if anyone else was in the Suburban, "but I didn't tell him that (there was another person in the SUV)."

Aleman said Ortiz at first loudly and aggressively questioned her outside the couple's apartment as she held her 6-month-old daughter. She said Ortiz warned her that two people had died in the wreck and a little boy was badly hurt. He said she could be jailed as an "accomplice" if she didn't cooperate.

"He kept telling me, ‘Oh my God, if you don't tell me, you're going to go to jail,' " she recounted.

But Ortiz also told her "just be honest, just be honest," Aleman said.

Prosecutor Karen Pearson sharply questioned Aleman about whether a written statement she gave police was the truth.

"Is it accurate with what you recall happening on Sept. 4?" the prosecutor asked.

"Yes it is," Aleman replied.

"Do you remember telling the police that the defendant ran because he crashed the truck and he was afraid of being arrested?" Pearson said referring to Aleman's statement.

"Yes," Aleman replied.

The girlfriend also acknowledged that she had initially made up a story that the SUV had been stolen.

Under questioning by defense attorney Baumann, Aleman confirmed telling police that Hernandez ran because if he was arrested "he would not see his daughters again."

Baumann cautioned Aleman that if she was lying in changing her account, she could face perjury charges.

"You understand that if it's not the truth and you're lying to this jury, that you can go to jail?" the defense attorney asked.

"I'm not lying. I'm telling the truth. They were both in there," Aleman said.

The tragic death of the boy and the two women outraged the public, in part because Hernandez is an illegal immigrant from Guatemala. He had no driver's license and a long history of Colorado arrests -- including assault, theft, fraud, forgery, resisting police and driving without a license – but he never was deported.

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