Agren Blando Court Reporting & Video Inc

AGREN BLANDO COURT REPORTING & VIDEO INC
1
DISTRICT COURT, COUNTY OF FREMONT, STATE COLORADO Case No. 07-CR-105 ________________________________________________________ REPORTER'S TRANSCRIPT (SENTENCING HEARING) ________________________________________________________ PEOPLE OF THE STATE OF COLORADO, Plaintiff, v. EVAN EBEL, Defendant. ________________________________________________________ The above-entitled matter came on for hearing on Wednesday, June 11, 2008, at 3:09 p.m., before the HONORABLE DAVID MORRIS THORSON.
APPEARANCES: FOR THE PLAINTIFF: FOR THE DEFENDANT: DDA BRYAN HUNT SAMUEL MCCLURE
Court Reporting Videography Digital Reporting Transcription Scanning Copying

Denver (303) 296-0017 Boulder (303) 443-0433 Colorado Springs (719) 635-8328 Greeley (970) 356-3306
2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
four. MR. MCCLURE: Right, right. And I just want P R O C E E D I N G S THE COURT: (Asides) THE COURT: Mr. McClure. Mr. Ebel appears in custody with This 07-CR-105, People vs. Evan Ebel.
Mr. Hunt is here for the People.
case is set for sentencing today.
Mr. McClure, did you
get a copy of the presentence report? MR. MCCLURE: THE COURT: MR. MCCLURE: Yes, we did, Judge. Any changes or corrections? No changes or corrections. I
just want to make sure that since I understand that this report was prepared as an addendum by Ms. Trujillo and I know that she did not actually have an opportunity to go to DOC and check in and see Mr. Ebel, I just want to make sure that the Court recalls that this is actually a range of sentence, no less than two and no more than four. I don't think that was -THE COURT: I think she says it's a cap of
to remind the Court that that cap includes a range that can go down to two. THE COURT: MR. MCCLURE: So that's -- those are -That's what a cap usually does. Right. So that -- those are
the numbers the Court's working with.

3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
statement. Mr. Hunt? MR. HUNT: THE COURT: Mr. McClure? MR. MCCLURE: I have no -- I have no I do have No, Your Honor. Do you have any evidence, THE COURT: MR. MCCLURE: that's clear. THE COURT: MR. HUNT: THE COURT: MR. HUNT: THE COURT: Did you get a copy, Mr. Hunt? I did, Your Honor. Any changes or corrections? No, sir. Do you have any evidence, All right. I just wanted to make sure
evidence that I wish to present pre-argument.
-- I do have my client's father here, and I know he wants to make a statement, so perhaps that -THE COURT: Yeah, if he wants to make a
What do you have, Mr. Hunt? MR. HUNT: I just have a letter that was
confiscated by DOC from Mr. Ebel. THE COURT: Is this the letter that's
referred to in the presentence report? MR. HUNT: THE COURT: MR. HUNT: I think it is. All right. But I would just have that.

4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Jack Ebel. Mr. Hunt -MR. HUNT: THE COURT: MR. HUNT: THE COURT: No. No -THE COURT: MR. MCCLURE: MR. HUNT: -- People's Exhibit 1. THE COURT: All right. Anything else, Any objection, Mr. McClure? No.
And I would mark it Plaintiff's
-- in terms of evidence? Just argument, Your Honor. All right. Mr. McClure, if
Mr. Jack Ebel wants to make a statement, he can just do it from the podium, unless Mr. Hunt has an objection. MR. HUNT: No, sir. Thank you, Your Honor. I'm
MR. JACK EBEL:
I'm Evan's father, and I appreciate the
opportunity to talk to the Court this morning or afternoon on behalf of my son. And I hope that -- my
purpose is just to maybe shed some light on his character, more than you get off seeing him in a jumpsuit and here in the court. You know, I have two children. I have a
daughter Miranda who we lost in a traffic accident 4-1/2 years ago. As a result of that, I mean, I went into my He's
own personal hell, and, obviously, Evan did, too. paying for it.
We understand that and -- but I support

5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
him, and I'm going to support him in life. I come down to visit him every two weeks, because we find every two weeks is a good time frame and we have a lot to talk about, as opposed to sooner, and I support him financially. My understanding is that a lot
of prisoners don't have family support. And I don't have to support him either financially or emotionally, but I choose to do that, and the reason I choose to do that is because we have developed a very close personal relationship beyond what you could typically have -- beyond probably what I had with my father. Evan is extremely well-read. He's read a
lot more literature than I will ever read in my lifetime, unfortunately, and so he spends a lot of time telling me about the literature I should have read. We
share a lot in common in terms of our music and in terms of, in terms of entertainment, in terms of movies that we've watched. father/son bond. So my intent is to support him and to support him when he gets out of prison and to support him while he's in prison. So I would ask you today to So we have developed a tremendous
just, to understand that there is more here than somebody in a jumpsuit, that he's got a good soul. He's

6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
got -- he's a very intelligent young man, and I have hope for his future. And I would hope that you'd just
take that into consideration in your sentencing, and, hopefully, give us something that we can, that my son can hope for and that I can, too. And I guess the last thing I wanted to say is as I look at this whole thing, and he's 24 years old in August, he's got six more years in his current sentence and whatever additional time that you give him today. I mean, I'd like something to work with. I'm
willing to do it.
I think he can become -- I think he
can change his life as he gets older and as he matures, and I'd like something to work with and some time to work with him. And I think society is really benefited
by that, as opposed to just continually stacking time on him and locking him away for an extended period of time. So that's what I wanted to say today, Your Honor.
Thank you. THE COURT: evidence, Mr. McClure? MR. MCCLURE: THE COURT: MR. HUNT: No. Your argument, Mr. Hunt. Thank you, Your Honor. I'll try Thank you, sir. Any other
to be brief and to the point.
There isn't any doubt He's
that Mr. Ebel, Senior, is a good and decent man.

7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
not the one in trouble here, though. The trouble, the
problem has been that Mr. Ebel, the defendant here, Mr. Ebel, the younger, has been in trouble with the law since, gosh, 90 -- the late '90s in any event. And I had assembled, at one point, before we went forward with our disposition, a motion to ask the Court about admitting evidence of similar transactions. He's got, basically, fighting, menacing, robbery, weapons charges -- 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 -in his past. Now, I don't doubt that the good offices of his father will assist him a lot at some point. I also
capped my offer to Mr. McClure at four years, which is considerably less than what is possible for Mr. Ebel to be sentenced to if he lost at trial. But the four
years, I think, is absolutely mandatory. If nothing else, if you look at the circumstances of this offense, it's the same stuff all over again as before. He gets angry. He tricks a
corrections officer into loosening his restraints so that he can punch the officer in the face. What I've offered the Court as People's Exhibit 1 for sentencing is a letter that was soon thereafter taken from Mr. Ebel by the Department of Corrections, which, frankly, is almost proof positive

8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
that in all this time, after all these cases, he hasn't changed his mind in any way. Now, I do think that four years seems to me, given what I know about the circumstances of the offense, to be a realistic time in which to work on whatever emotional, mental changes, which he would have to make, and with the help of his father, I'm convinced that possibly he could, but I think it's going to take four years anyway. I'm in agreement with the presentence investigation report, Your Honor, and I urge the Court to follow it and sentence Mr. Ebel to four years consecutive to any sentences he's now serving. THE COURT: MR. MCCLURE: Mr. McClure. Well, I certainly -- just as
Jack Ebel recognizes that Evan has led a pretty tortured adult life, mostly since the death of his younger sister in that car accident, I can't argue with Mr. Hunt's assertions regarding his prior history. But I guess what I want to refocus, the way I would like to refocus the Court or ask the Court to refocus itself before moving forward with sentencing is in this following way: the Court recalls during the
course of the proceedings, we did have several pretrial motions hearings.

9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
One of those motions hearings was the one that Mr. Hunt referred to, which had to do with similar transactions. And the other was the one that I filed
asking that the Court dismiss the case based on destruction of evidence. And the Court had an
opportunity to view what could have been the best evidence, the best direct evidence in this case during that motions hearing. And the Court saw, and I'm sure the Court recalls, that the videotape, for whatever reason, be it malfunction, be it the fact that it was an older tape, be it the fact that there was some hanky panky, whatever it was -- and we're not alleging any one of those specific things at this point in time. beyond that. But for whatever it was, we were clearly, all parties -- the prosecution, us, the Court, potentially the jury, everyone was denied an opportunity to see, visually, what really had occurred in those seven or so seconds that were erased from the tape. saw Mr. Ebel leave his pod. We saw three officers We We're well
heavily fortified around him, and then the next thing we saw were the officers on the floor on top of Mr. Ebel. We also had a Martinelli hearing, and in the course of that Martinelli hearing, the Court sealed a

10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
number of documents in the file, and the Court did, however, give to us one performance documentation form that I thought was appropriately given to us under Martinelli and that I think stands to this day as the potential reality of what occurred in this case. And if the Court will recall -- and I don't know if the Court kept a copy in its own file, but I have my copy that the Court disseminated right here -what had occurred was that the named victim in this case, Officer Medina, was brought before a performance board and was reprimanded for having made negative remarks to an offender. That's the way -- and, of That's the way it's rather
course, that being Mr. Ebel. gingerly put in the report.
Basically, what is clear from this document occurred is that there were words exchanged and that Officer Medina, clearly, was using profanities towards Mr. Ebel, and in our opinion, from where we sat in this case, baiting him. Then we got the various pictures And since they're part of
that showed the injuries.
discovery -- 27 and 28, Bryan. And we didn't really -- since we never actually got into trial, the blowups that we made we aren't using today, but I just wanted the Court to have these three documents as well. I'm not marking them. I

11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
just want the Court to have them to show the nature of the injuries to Officer Medina and to show his demeanor as it appears with regard to what occurred here, to show the nature of the injuries to my client, and to remind the Court of the Martinelli evidence that the Court was given as a result of our motion. The reality is that Evan was injured pretty substantially. He had to have stitches. He didn't come
out of this without suffering some pretty severe physical injuries himself, however he went into it. We clearly were on a trial track in this case, and I think the reason we were on the trial track was because there was evidence, not just from the Martinelli hearing, but other evidence that supported the claim of self-defense. of provocation. And we detoured from that, of course, when the habitual criminal charges were filed against us by Mr. Hunt. That's just pragmatics. The Court It also supported the claim
understands that.
The Court understands that an
individual of Evan's age can't risk that kind of time in the Department of Corrections. And so we entered the plea that we entered, but I was always unhappy about that, because I recognized that had the jury had made a finding of

12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
provocation in this case, that under that particular statute, Evan's outside potential range of sentence would only be up to three years, and the Court would be sentencing him somewhere between 15 months and three years, which is a sentence that I think is more appropriate in this case. His father speaks eloquently to his reasons that he's asking that the Court allow us to have some hope in the future. solid reasons. And I think that those are good,
And I think that whether the Court
sentences to two years or to three years or to four years, I would think that the Court would recognize that it's adding an additional amount of time to Evan's sentence. It is going to cause Evan to suffer
additional loss of freedom, incarcerated in the Department of Corrections. And, I guess, bringing us full circle here to what I was saying at first about asking the Court to refocus, I would ask that the Court refocus, Jack Ebel asks the Court to refocus, to look at this as a situation in which we have a young man who clearly is already serving a lengthy sentence, who will have additional time added to his sentence, no matter how the Court sentences in this particular case, who likely, by virtue of the evidence that we have here, was indeed

13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
provoked in an unprofessional manner -- that doesn't excuse the reaction, but nonetheless, I submit stands as a mitigating factor -- and who has hope for the future because he is so intelligent, who is so well-read, and because he does have a father who is standing by him all the way through this case. I was preparing a child abuse case in front of Judge Marshall a couple months ago, and the doctor that I was working with, a psychiatrist out of Pueblo, brought to me a concept that's being recognized in the literature that I really hadn't considered before in my practice. resilience. And the whole idea is that some people react to trauma in different ways. Some people are better And the concept is called psychological
able to hold themselves together, and some people fall apart. And it really has no, nothing to do with It really is
character or logical considerations.
just a -- as the term implies, it has to do with psychological resilience. I think that the death of Evan's sister sent him in a spiral downward a number of years ago. And I
think what Jack Ebel is asking the Court to allow today, and what I accentuate in his, with his request, is that the Court allow a process of upward movement to begin

14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
for Evan, that there be hope, that there be some light at the end of the tunnel, that the Court sentence him and punish him as the Court must, but that the Court not do it in the way that Mr. Hunt requests, rather that the Court sentence him to a term of two years in the Department of Corrections. THE COURT: Mr. Ebel, you have a right to
make a statement before I impose sentence. THE DEFENDANT: pretty much summed it up. THE COURT: Mr. Ebel, you use your drugs, I think Sam and my dad
drug use, as an excuse in each of these presentence reports for your previous behavior. That's not
available to you this time -- not that I would regard drug abuse as a mitigating factor, even in terms of alcohol. Forty years ago it was, it might have been a Now it's But you
mitigating, considered a mitigating factor. not.
If anything, it's an aggravating factor.
don't even have that available this time. I don't know if the corrections officer said something to you -- as Mr. McClure put it, provoked you. If he did, I suppose that would be a mitigating If I were to have to use one
factor, but not very much.
word to characterize, in the best possible light, the actions that you took in this case, it would be stupid.

15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
day. THE DEFENDANT: THE COURT: consequences would be. I'd agree with that.
I mean, you knew what the It might not have been
absolutely clear whether it's going to be 12 years or two years or what exact loss of privileges you're going to have, but -- but that's being charitable to call it stupid. And where that gets belied is when I look at
your record. I have people parading into my court every Every Wednesday, I have literally dozens of them They have drug
that are addicted to methamphetamine.
charges, and maybe they have theft charges or criminal mischief charges. I look at your history -- and it's
not a long history, it's only over a couple of years. THE DEFENDANT: THE COURT: Yeah.
And it's violent offenses,
pulling guns on people, robbing people, pistol whipping people. That takes you -- that takes you out of that Maybe there is some sort
category of just being stupid.
of good-sense inhibitor or something up in your head, but most of the people that I see with drug problems don't deal with their drug problems by hurting other people. Partly I say this to you because -- I'm not telling you anything you don't know, for the most part,

16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
but your history already is to the point it's going to follow you. When you commit a violent offense in the
future, if you commit a violent offense in the future, the next judge is going to be looking at your history and looking at the same thing I am. And it's getting worse. It's getting worse
because now you've got one more conviction for a violent offense. I have, at any given time, a half dozen cases
on my docket that are second-degree assault on a corrections officer. broad charge. And you know that that's a pretty
Most of them are shoving, throwing bodily
fluids -- not to minimize the seriousness of those things. You hauled off and hit a corrections officer
the first chance you got. Had I had the full range of sentencing for your offense available to me, I don't know where I would have come down. years. But I don't. I've got a cap of fours
With that cap of four years, what I do know is
if I had that full, that whole range of sentencing available to me, it would be at least four years that you were getting. And that's based primarily -- well, it's based on two things: the seriousness of the offense itself and your history. a history. I realize everybody in DOC has
They don't all have a history as violent as

17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
yours, and especially not one that was accumulated in such a short period of time. You're sentenced to serve four years in the Department of Corrections, followed by three years mandatory parole. I -- I guess I also have -- I mean, It certainly is that. It's,
this is partly punishment.
even less so, intended to be a deterrent to, not you, but the others, but I hope it's a deterrent to you as well. THE DEFENDANT: I mean, you don't -- you
don't feel that them applying physical force to me was punishment enough? THE COURT: Well -You know, I mean, I
THE DEFENDANT: understand -THE COURT:
You know what, if you get out in
the real world, you're going to have people telling you what to do all the time, and you might even have people that use physical force to tell you what to do. But you
are going to be in a position inferior to those people most of the time. personally. And I'm not just talking about you, No, it
We're all in that same situation.
doesn't justify what you did, especially -THE DEFENDANT: use it as a justification. I'm not -- I'm not trying to I just think four years is a

18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
little stiff, you know. 33. By the time I get out, I'll be
And if you look at the situation, yeah, you don't
know that he might have said something to me, but then at the same time, you don't know that I asked him to loosen my cuffs, because that's not how it went down. didn't ask him to loosen my cuffs. THE COURT: What I do know -This was a provoked I
THE DEFENDANT: incident, you know. THE COURT:
What I do know is you hit him. I did do that. You know,
THE DEFENDANT:
I'm not contesting that fact.
I'm just saying that -- I
mean, taking into -- taking into consideration, you know, how they dealt with it and what could have happened that led up to it, and what did happen, but, I mean, you know, like you said, you don't know that, that it happened -THE COURT: What you're doing, Mr. Ebel, is
you're convincing me that I'm doing the right thing. THE DEFENDANT: then, I guess. THE COURT: Because you're trying to, Okay. I'll just shut up
essentially, justify what you did, and there just isn't any justification for it. THE DEFENDANT: I'm really not trying to

19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
justify it. I'm just saying that four years is a little
stiff, you know. THE COURT: It could have been 12. It could have been life. Do
THE DEFENDANT: you think that's fair? THE COURT:
I think the way you need to look
at this is if you hadn't done this, you'd be out when you're 29. And if you do this again, you probably won't It's not too late for you to
get out until your 40.
have a productive life, but you're never going to make it on the outside with the attitude that you still have with you on the inside. Defendant is remanded to the custody of the Department of Corrections. (The proceedings concluded at 3:39 p.m., June 11, 2008.)

20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
_________________________________________ Mary L. Henderson 216-16th Street, Suite 650 Denver, Colorado 80202 COUNTY OF DENVER STATE OF COLORADO ) ) ) ss. REPORTER'S CERTIFICATE
I, MARY L. HENDERSON, do hereby certify that I am a Certified Shorthand Reporter and Notary Public within the State of Colorado. I further certify that the foregoing is a correct transcription from the digital recording of the proceedings in the above-entitled matter. I further certify that I am not related to, employed by, nor of counsel for any of the parties or attorneys herein, nor otherwise interested in the result of the within action. In witness whereof, I have affixed my signature and seal this 1st day of April, 2013. My commission expires September 4, 2013.


Agren Blando Court Reporting & Video Inc

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Agren Blando Court Reporting & Video Inc

Uploaded by

Copyright:

Available Formats

AGREN BLANDO COURT REPORTING & VIDEO INC

Court Reporting Videography Digital Reporting Transcription Scanning Copying