by D.J. DeJong
Mail Staff Writer
Phil Graham, Chaffee County emergency management director, was found guilty Tuesday of charges of impersonating a peace officer, first-degree official misconduct and false reporting to authorities in a case involving a road rage incident from March 15, 2018.
A fourth charge, alleging failure to give way when overtaken, was dismissed by 11th Judicial District Chief Judge Patrick Murphy.
The second day of testimony began with the prosecution calling Sgt. Marshall Schwarz of Colorado State Patrol, who assisted investigator Richard Wren in executing a search warrant from the district attorney’s office.
Schwarz described the method of testing the toggle switch that activates lights and sirens on Graham’s emergency vehicle, using video taken at the time of investigation.
He said they could not activate the lights with a phone cord around the toggle switch from the driver’s seat, only from the passenger seat.
Randy Canney, Graham’s attorney, asked if the investigation recreated the conditions at the time of the incident, as seen in a photo taken at the time by Trooper Zak Trafton.
Schwarz said no.
Dr. Tracy Starling, an orthopedic surgeon from Lafayette, spoke about her experience in a separate incident April 30 on Trout Creek Pass.
The prosecution said her testimony was to illustrate that the Monarch Pass incident was not accidental.
Starling testified she passed a slower vehicle heading up Trout Creek Pass from Johnson Village. A dark Chevrolet Tahoe also passed the slower car and then Starling.
The Tahoe started driving slower so she dropped back, and when they reached another passing lane, she said she moved into the left lane to pass.
As she began to pass the Tahoe, it speeded up until she realized they were doing 80 mph.
At that point she said she heard a siren and slowed, wondering what was going on.
The Tahoe also slowed. When Starling sped up the siren sounded again.
She said she passed the Tahoe and sped up to pass more cars to put some distance between her and the Tahoe.
When she came off the pass into South Park, she was going 70 mph. She said she saw a law enforcement vehicle on one side of the road, then a CSP vehicle driven by Trooper Caroline Attaway on the other side of the road began to follow her almost to Fairplay and pulled her over.
Attaway informed Starling about a traffic complaint against her.
Starling said she explained what happened and admitted to speeding. Attaway said that since it was a citizen complaint it would go to court.
Starling said that after speaking with Attaway, the Tahoe, which she had not seen behind Attaway’s vehicle, drove away, slowing as it passed her. She said the driver scowled at her through his open passenger window.
Upon reaching home, she decided something about the encounter hadn’t seemed quite right, and friends told her she needed to call CSP.
She called Attaway’s senior officer and made a statement.
The ticket issued by Attaway was voided.
Canney asked Starling if she tried to call law enforcement about the Tahoe when she had cell service or tried to make contact with the law enforcement vehicles she saw upon leaving Trout Creek Pass. She said no.
A jury question asked why she didn’t report the incident.
She answered that she thought the person who ran the siren was a police officer.
The prosecution rested after Starling’s testimony, and the jury was given a break.
During the break, Canney asked for dismissal of counts against Graham, saying the people failed to set forth the proper elements as to the charge of impersonating a peace officer, and the charge of official misconduct was a catchall to censure public servants.
He said the failure to give way when overtaken charge did not have a complete recitation of the charge in the filed document.
Murphy denied the dismissal request for the other counts but agreed to dismiss the failure to give way when overtaken charge.
After the jury returned, Canney called former Chaffee County Commissioner Frank Holman and Shawna Martinez.
Holman was asked about the letter produced by Graham as his authorization to have red and blue lights on his vehicle, which he testified authorized the Office of Emergency Management director to operate an emergency response vehicle.
On cross-examination Deputy District Attorney Rex Kindall asked Holman what the purpose of the authorization was.
Holman replied that it was so Graham could respond to emergency events in the county.
Shawna Martinez, who has worked with the Office of Emergency Management, was a passenger in Graham’s vehicle on the day of the Monarch Pass incident.
She testified that Graham used his phone to get directions around Maysville before cell service cut out.
She saw the vehicle driven by Kent Russell pass them and told Graham she had seen so many accidents due to bad driving that it ticked her off.
Martinez said she saw no one else in Russell’s vehicle.
Kindall asked on cross if Martinez had paid attention to the speedometer in Graham’s vehicle during the incident, and she said no. She also said she had not seen Graham activate the lights.
The jury asked if Graham had seemed mad or upset as he was driving, and Martinez said no.
The defense rested.
Following closing statements by both attorneys, the jury deliberated for about two hours before delivering the guilty verdict.
Sentencing has been delayed until after a trial in a second case against Graham or until the attorneys reach an agreement.
Graham will appear in Chaffee County Court at 8:30 a.m. July 10 for a status conference or to begin the second trial on charges from the April 30, 2018, Trout Creek Pass incident.