Huffpost Denver

Francis M. Hernandez Blames Other Driver In Fatal Ice Cream Store Accident

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CENTENNIAL, Colo. — Jurors saw surveillance video Wednesday showing the last moments of a 3-year-old boy's life that prosecutors said in opening statements was ended by the careless driving of an illegal immigrant.

Francis M. Hernandez, believed to be from Guatemala, is standing trial on vehicular homicide and other charges in the Sept. 4, 2008 crash that killed Marten Kudlis at an ice cream shop as his mother stood five feet away waiting to order

Also killed were Patricia Guntharp and her passenger Debra Serecky, who were in a pickup truck that turned left into the path of an oncoming SUV that authorities said was driven by Hernandez.

The impact killed the two women and ripped the steel casing from an electrical transformer box anchored to the ground and sent it flying into the ice cream shop, killing Marten, authorities said.

During opening statements, prosecutor Rich Orman said the reckless driving of Hernandez caused the crash after he floored the gas pedal of a Chevrolet Suburban and reached more than 80 mph in a 40 mph zone.

"He drove recklessly without a conscience," Orman told the jury.

Defense attorney David Lipka said police incorrectly assumed Hernandez was driving, citing eyewitnesses who said they saw two people run from the scene. Lipka also said Guntharp was high on methamphetamine when she turned in front of the Suburban.

"But for Miss Guntharp's operation of her pickup under dangerously high levels of meth, this accident would not have occurred," Lipka told the jury.

An autopsy report previously confirmed that Guntharp had methamphetamine in her system when she died.

Orman said drivers making left turns don't assume the oncoming vehicle is traveling more than twice the speed limit.

"What you will not hear is any evidence of bad driving on (Guntharp's) part," Orman said.

Enely Kudlis testified that she came home from work that day and had dinner before taking Marten and another child to a park then stopping at the ice cream shop.

On the witness stand, she briefly clutched a plastic bag containing the black tennis shoes her son was wearing that night. The bag was handed to her by prosecutor Karen Pearson during questioning.

Jurors also watched about a minute of surveillance video showing Kudlis, her son and the other child walking into the store. Marten sat down at a table and waited, while his mother and the other child stepped a few feet to the counter.

The other child then sat down at the table with Marten, who appeared to smile and lean forward when the video became distorted and the screen went dark.

"The electricity went out and then the rest of the chaos started ... I felt an electrical shock moving through me," Enely Kudlis testified.

"Everything was flying," she said. "I remember looking for (Marten), and he wasn't sitting there. There was nothing at all. The table wasn't even there."

She found her son outside the shop on the sidewalk, the steel casing of the transformer on top of him, blood coming from a deep gash across his neck. She said she lifted the casing and began resuscitation efforts when a female bystander took over.

"I kept asking, `Is he breathing?' At first she said yes. Then later, she wouldn't answer me when I asked," Kudlis testified, wiping away tears. The other child at the table was not seriously injured.

The Kudlises have filed a civil lawsuit alleging Hernandez and Guntharp were both negligent in their driving. Hernandez's lawyer noted the lawsuit during cross-examination.

Prosecutor Pearson later asked, "What would you rather have? The money or your son?"

"My son," Kudlis answered.

Hernandez's case sparked calls for immigration reforms after he avoided deportation despite a dozen prior arrests in Colorado. Authorities said he used 12 aliases and two dates of birth to slip under the radar of immigration officials.

Colorado is now working to give local police agencies access to federal immigration and criminal databases to more quickly identify illegal immigrants during jail bookings.