Deadly Ice Cream Shop Crash 'As If The World Exploded'

Trial Begins For Guatemalan Man Accused In Deaths Of 3 In Aurora

Trial began Wednesday for a Guatemalan citizen charged in a 2008 two-car 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 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.

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

3:30 p.m. Wednesday

A conflict arises as prosecutors tell Arapahoe County District Judge John Wheeler that defendant Francis Hernandez’s girlfriend is reluctant to testify about what he told her about the deadly crash.

Months before the trial began, defense attorneys raised whether the young girlfriend, Brenda Aleman, could invoke a “marital privilege” as a common-law wife against revealing what Hernandez told her in confidence.

Now the judge learns that Aleman had consulted an attorney Wednesday morning.

Prosecutors have disputed whether Aleman is legally the defendant’s common-law wife. Orman stressed that she hasn’t invoked marital privilege.

She may not be refusing to testify, the prosecutor said.

“She’s just saying she doesn’t want to,” Orman added.

The prosecutor says the only solution is to put her on the stand, without the jury in the room, and see what concerns she has.

But defense attorney Chris Baumann repeatedly urges the judge to appoint an attorney to advice Aleman of her legal rights. He warns that she could possibly face prosecution for forgery, noting that investigators found a Colorado driver’s license bearing the woman’s photo but another person’s name.

Baumann also said that police might have used pressure and coercion to get the girlfriend to make statements against Hernandez.

Judge Wheeler replies that even if Aleman has marital privilege, she effectively “waived” any protection when she shared confidential conversations she and Hernandez had with police.

The judge also didn’t buy the argument that prosecutors might start accusing Aleman of committing identity theft or any other crimes while she’s on the witness stand.

“The suggestion there is that the prosecution will impeach their own witness, when they are relying on her to testify,” Wheeler said. “That doesn’t make a lot of sense to me.”

But if Aleman refuses to answer questions, the judge said he will provide her with a court-appointed attorney before the issue escalates into contempt of court.

3:53 p.m. Wednesday

Aleman, a petite woman with long brown hair with blond streaks, quietly takes the stand to be sworn in.

Prosecutor Karen Pearson asks her to point our Hernandez in the courtroom. Aleman gestures to her boyfriend and describes the clothing he’s wearing.

Hernandez, a slim 25-year-old, is wearing a khaki sweater vest and pants with a brown checked shirt. His dark hair is shaved and he wears a cropped goatee.

He hasn’t reacted much to court testimony. Yet, once during a break, he rose and swung his arms to stretch, gazing briefly at reporters in the gallery.

Under questioning, Aleman said on the night of the car accident, a friend named “Veronica” had called her to say there had been a bad wreck and there was a SUV like the one Aleman and Hernandez drive rolled on its side.

Curious, Aleman had the friend pick her up and they drive by the accident where the girlfriend recognized the blue SUV. They even asked an official what happened and were told that two people had died.

Aleman and Veronica were driving home when she got a call on her cell phone from Hernandez about 9 p.m. He asked if she could pick him up at a Hooters restaurant at Havana and Parker roads.

She did and he seemed scared and didn’t want to talk much, Aleman testified.

“He just told me he had a car accident,” the girlfriend said. “He was driving.”

At their apartment, Hernandez elaborated that “he just didn’t see the truck coming,” Aleman said.

Prosecutor Pearson asked if Hernandez explained why he fled.

“He just told me he was shocked and scared,” she said.

Pearson asked if she recalled initially telling Officer Ortiz a “slightly different” account, that Hernandez wasn’t driving?

“Yes,” the girlfriend replied.

Did she remember later telling an officer that “Hernandez told you he thought he killed four people?” Pearson asked.

“No,” Aleman said.

The girlfriend acknowledged telling police that Hernandez had showered and changed his clothes before officers arrived at their apartment after the accident. But she said he really didn’t shower, just changed his t-shirt.

Pearson handed Aleman a written statement she gave police to jog her memory.

Aleman acknowledged that she wrote he fled “because he was afraid and because of my daughters.” Hernandez is the father of the little girls.

The arrest affidavit for Hernandez said he fled the scene because “he was afraid he would be taken to jail, because he had no insurance, no driver's license and that would prevent him from seeing his kids.”

Under cross-examination by defense attorney Baumann, Aleman said police “kept pressuring me so much.”

She said at one point that night, she was standing outside with her baby daughter in her arms.

Aleman said: An officer “kept telling me: 'a lot of people are dying.' You know, the baby,” she added, apparently referring to Marten Kudlis.

Suddenly, the girlfriend broke down crying on the stand. The judge handed her a box of tissues.

“I can’t do this right now,” she said.

The judge called a break and the jury left the courtroom.

4:45 p.m. Wednesday

Judge Wheeler decides to adjourn the trial for the day.

He calls Aleman back and tells her if she returns to court at 8 a.m. Thursday, he will have an attorney there to discuss her concerns about testifying.

The trial is set to resume at 8:30 a.m. with her on the stand.

1:30 p.m. Wednesday

There were several people in the Baskin Robbins that night, families and old friends enjoying some ice cream.

“All of them were about to intersect in the most horrible way,” prosecutor Rich Orman told the jury earlier.

“In a split second, it seemed as if the world exploded,” he said.

Several witnesses described those terrifying seconds as if a bomb had erupted.

Suddenly, there was loud boom and the lights flickered out and something crashed into the outer wall.

The window imploded, driving shards of glass into the customers inside.

Haley Tepe and Margaret Rains were sitting at a table next to the ice cream shop big window by the door.

“(It was) like an explosion. Glass was going everywhere,” Rains recalled.

“We heard a loud boom and it went dark,” Dawn Bouchard said. “My husband said, ‘Duck!’” and he pulled her head into his chest to shield her from the glass shrapnel, she said.

“I felt pelting against my back and legs,” Bouchard said.

People were screaming.

“A mother was yelling: ‘Where’s my son? My son. Where’s my son?’” Rains testified. The mother shoved past Rains in a frantic search for her boy.

In the dark, Bouchard looked under tables for the missing boy without success.

The impact bowed the wall into Tepe’s leg, but she didn’t feel any pain – at first.

“I smelled gas and I remembered saying, ‘I think it’s going to explode,’ ” Tepe said.

Bouchard found another boy, choked by the gas. “I can’t breath,” the child said.

Bouchard helped get the boy outside.

Tepe and Rains escaped outside, where they began checking each other for injuries. Rains’ face, arms and feet were bloody.

“I looked down and … my pants were all bloody,” Tepe calmly recalled.

Rains recalled looking at Tepe: “Her left thigh was gushing blood. It was turning her pants blood red.”

An ice cream shop employee took off her apron and Bouchard took it

“I made a tourniquet and put it on her leg,” Bouchard said. “It seemed to stop the bleeding.”

“Do you have any medical training?” prosecutor Orman asked.

“I’m a mom,” Bouchard said, adding that she didn’t know how to use a tourniquet.

She stayed with Tepe until the ambulance arrived to take her to the hospital.

“It seemed like an eternity,” Bouchard said.

12:37 p.m. Wednesday

In the chaos and confusion after a careening pickup slammed into the ice cream shop that night, knocking out the lights, sending debris flying and knocking customers to the floor, a mother’s voice cried out.

"Where is my son? Where is my son?" Enely Kudlis shouted as she desperately searched the debris-strewn darkness, a prosecutor recounted in a Centennial courtroom Wednesday morning.

Kudlis found her 3-year-old boy, Marten, lying on the ground outside the ice cream shop with a big metal electrical transformer box atop his head.

She climbed out the shop's shattered windows and other customers helped her lift the green box off her son.

There was "a huge slice on his neck," Kudlis said. "There was a lot of blood."

The mother began mouth-to-mouth resuscitation, trying to save the boy's life.

"I asked a (a woman customer) 'Is he breathing?' " the mother said during the first day of testimony. "At first, she said, 'Yes.' Later, she did not answer me when I asked again."

The mother dabbed away tears with a tissue -- as did a female juror -- as she recalled the nightmarish night, Sept. 4, 2008, that her little boy and two women in the pickup died.

Prosecutors said Francis Maudaniel Hernandez was speeding recklessly in a Chevrolet Suburban south on Havana Street, triggering the deadly chain-reaction collision.

Hernandez is accused of driving faster than 70 mph in a 40 mph zone, weaving through traffic, before he broadsided the white Mazda pickup carrying the other two victims, driver Patricia Guntharp, 49, and her passenger, Debra Serecky, 51. The pickup careened into the ice cream shop, shearing off the utility box that flew into the Baskin Robbins, killing Marten.

Then, Hernandez allegedly leaped from the wrecked SUV, lying on its side, "and ran into the night, into the darkness," lead prosecutor Rich Orman told jurors during opening statements in Arapahoe County District Court.

"He never went back … He didn't attempt to see if people who were hurt by the impact of that crash were OK," Orman said. "No. He ran."

So began the emotionally wrenching, two-week trial where the prosecutor asked jurors to find Hernandez guilty of vehicular homicide, vehicular assault, third-degree assault, and leaving the scene of an accident.

The tragic death of the small 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.

Prosecutors showed jurors a brief security video of the Baskin Robbins before the crash.

It showed tiny Marten and a 10-year-old girl, a family friend, sitting at a small round table while his mom went up to order their ice cream.

The mom had taken Marten and the older girl to get ice cream after a fun fall afternoon playing at the park.

“She did not suspect that this was would be the last time that she would be able to do anything with Marten Kudlis, that this would be the last time she would see her little boy alive,” Orman told the jury.

Marten never got his ice cream. Within seconds, the crash cut the power, sending an electrical shock through the mother, and the security video flickered to blackness.

Orman said prosecutors will present an exhaustive array of scientific evidence.

It will include a sophisticated airbag system data recorder that Orman said will show that Hernandez was speeding up to 81 mph with the "throttle on the floor," one second before the crash impact deployed the SUV's airbags. They also have DNA evidence confirming that only Hernandez's blood was found on the SUV's driver-side airbag, he added.

Yet, the defense team will strive to cast doubt on whether Hernandez was driving the SUV that night and also put Guntharp, the driver of the Mazda pickup that turned in front of the Suburban, on trial.

In his opening statement, defense attorney David Lipka accused Aurora police investigators of spending 18 months on "a careless assumption that Mr. Hernandez was the sole occupant of the Suburban."

He said police "have turned a blind eye" to witnesses who reported seeing two men fleeing the wrecked Suburban and to airbag system evidence suggesting that there were two passengers in the front seats.

They will call a witness who "told police that he helped two people out of the Suburban," Lipka said.

Lipka pointed to toxicology evidence showing that Guntharp was under the influenced of a "dangerous amount" of the illegal stimulant methamphetamine when she made a left turn across traffic into the driveway of a Good Times hamburger shop.

The defense will present a drug expert witness to testify that "people under the influence of methamphetamine have poor impulse control," Lipka told jurors. "They're more aggressive. They have something akin to tunnel vision. They can't multi-task."

Lipka asserted that Guntharp was driving erratically when she turned across Havana and that this grossly negligent action "resulted in having her car go across oncoming traffic."

“But for Miss Guntharp’s operation of her pickup under dangerously high levels of methamphetamine, this accident would not have happened,” Lipka insisted.

Yet the defense countered that Marten's parents agree that Guntharp bears some responsibility, by filing a civil lawsuit accusing Hernandez and the dead pickup driver of reckless driving that killed their son.

During a gentle cross-examination, co-defense attorney Chris Baumann asked Enely Kudlis if the lawsuit alleged that Guntharp "was negligent in the way that she was driving that night?"

"True," the mother replied.

Baumann asked if the lawsuit said Guntharp "failed to keep a proper lookout" as she drove and "failed to yield to oncoming traffic?"

"I guess," the mother responded.

Yet, when a prosecutor asked Enely Kudlis if the lawsuit said Hernandez was responsible for the accident, the mother said: "Yes."

"Mrs. Kudlis would you rather have money or your son?" asked prosecutor Karen Pearson.

"My son," the mother replied.