Officer sees struggle as partner confronted suspect, trooper on trial testifies
Colorado State Patrol Trooper Ivan “Gene” Lawyer said a knock on a door in a minor traffic accident case escalated when he heard his partner yelling out and saw him struggling with Jason Kemp at the front door of Kemp’s former Redlands home.
Lawyer testified that after knocking at the back door without receiving an answer at 103 Glade Park Road, Unit B, he heard a dog yelp, and his partner, Cpl. Kirk Firko, yell “get out of the house and get down.” Lawyer said he ran to the front door and saw Firko “engaged physically” with Kemp.
“Jason was pushing away from him ... he was a good step out of the house,” Lawyer testified.
District Attorney Pete Hautzinger questioned why Lawyer said nothing of the sort in his interview with Mesa County Sheriff’s Department investigators in the days after Kemp’s death, or when Lawyer testified before a Mesa County grand jury.
“I’ve had 21 months to recollect this ... I hadn’t remembered it yet,” Lawyer said.
Lawyer told jurors he was sure it was Firko who started kicking first at Kemp’s door, which ended with Kemp fatally shot.
“I honestly can’t remember what was going through my mind at the time,” he said.
Firko yelled, “he was outside the house,” Lawyer said.
The testimony was in conflict with at least one other witness in the case, neighbor Francisco Rodriguez, who told the jury last week Kemp never stepped outside during the confrontation. Rodriguez estimated he was standing 30 to 40 feet away watching the door.
Lawyer took the stand around 5 p.m. Monday, capping a contentious sixth day of testimony in Lawyer’s trial.
Eric Fenster, Lawyer’s attorney, asked only basic biographical questions of his client during direct examination.
“Mr. Lawyer wanted to answer the questions of the prosecution or the jury,” Fenster said, turning over his client for cross examination after only five questions.
Hautzinger’s cross examination is expected to continue this morning. The jury is expected to get the case today.
Lawyer testified Monday he and Firko, “didn’t hit it off real well.” Lawyer said he was taken aback by his superior’s “aggressive” approach to the job.
“I guess they do things differently in the metro area than we do here ... I guess that’s the best way to put it,” Lawyer told the jury.
Lawyer testified that Firko had been recently promoted and was transferred by the State Patrol from Denver and assigned to work with Lawyer, a probationary employee, before the shooting on July 20, 2010.
Firko had been assigned as Lawyer’s field training officer at the time of the incident, according to testimony. Lawyer had been recently re-hired by the State Patrol following three years of self-employment, preceded by nine years with State Patrol in Grand Junction, and before that, three years with the Mesa County Sheriff’s Department.
While subordinate to Firko, Lawyer had more law enforcement experience than the man responsible for his re-training, Hautzinger noted.
Lawyer testified he and Firko were “working together to break down the door,” after Kemp had briefly struggled with Firko. Kemp slammed the door in their faces, telling them to get a warrant.
While the door was briefly cracked open, Lawyer acknowledged spraying pepper spray inside.
“I hoped it would take the fight out of him,” he said.
Lawyer also said an incident several weeks prior to Kemp’s shooting — when the trooper said he was “scolded” by a superior for not using enough force — also factored in his decision to use pepper spray. Lawyer in a videotaped interview during the investigation said the informal reprimand came after a drunken-driving suspect kicked out two windows in the back of his patrol car.
“I was told I should have emptied my pepper-spray canister on him,” Lawyer said during the interview.
Lawyer said he “respectfully disagreed” with his boss.
“I felt it wouldn’t have helped the situation,” he said. “Besides, it’s in my car. That stuff’s not easy to get off.”
Lawyer testified he said his main concern with the canister suggestion was “more along the lines of excessive force.”
Capt. Ed Clark, head of the State Patrol’s 4A Troop based in Fruita, was the officer who suggested his pepper-spray canister be emptied, Lawyer testified.
Timely DUI tests
The defense’s case opened Monday with testimony from a series of law enforcement witnesses, who addressed policies, procedures and lawful entry into homes as allowed under exceptions to the Fourth Amendment to the U.S. Constitution.
State Patrol Sgt. Chad Dunlap, who was at the scene of Lawyer’s and Firko’s fateful confrontation, testified he had limited experience obtaining search warrants and that trooper training stresses the need to timely secure blood-alcohol evidence in DUI cases.
State law essentially sets a two-hour window when a valid test can be obtained because alcohol dissipates over time, he said. Admissibility of the evidence is regularly challenged by attorneys when tests happen outside the window, he said.
Citing federal and state court rulings, the prosecution argues warrantless entry into a home to get blood evidence in a misdemeanor traffic investigation is illegal.
Michael O’Neill, a retired 31-year veteran of the Denver Police Department, who was endorsed as a defense expert on use of force and police policies and procedures, said Lawyer’s and Firko’s handling of the incident was “reasonable” and the option of obtaining a search warrant before entering Kemp’s home was “not a practical consideration.”
“He did his duty as he understood it,” O’Neill said of Lawyer. Among other things, that included backing up his superior officer, he told the jury.
“There’s no time for constitutional hairsplitting,” O’Neill said.
Other witnesses in the case, including Mesa County Sheriff’s Department investigator Jim Hebenstreit, have testified there was no tactical reason why the troopers couldn’t have obtained a search warrant or arrest warrant within an hour to 90 minutes, or, pulled back and turned over the scene to the Mesa County Sheriff’s Department.
O’Neill and Hautzinger clashed on a host of topics regarding Fourth Amendment law and its application to Kemp’s case.
“You’ve really been training Denver police officers that it’s OK to kick in doors of non-felony traffic suspects?” Hautzinger asked.
O’Neill suggested the troopers had justification to enter the home after Firko’s reported physical encounter with Kemp at the front door.
Lawyer is charged with criminally negligent homicide, second-degree assault, illegal discharge of a firearm and first-degree criminal trespass, plus misdemeanor counts of prohibited use of a weapon and criminal mischief.