The defense and prosecutors agreed on a few points Thursday: Matthew Burge, the Paonia man shot last year, was “very lucky” to have survived and the shooter was Henry Russell.

The critical question before jurors in Delta, however, was whether Russell had attempted first-degree murder or whether the evidence presented showed he acted in self-defense and without the necessary deliberation and intent to be found guilty.

Roughly four hours after receiving the case, jurors found Russell not guilty of attempted murder. They convicted him of the lesser charge he faced, reckless endangerment, a class-3 misdemeanor.

Public defenders Patrick Crane and Darren Struble declined for the time being to comment on the verdict.

During closing arguments that capped about six days of testimony, they contended prosecutors lacked proof of deliberation and intent, as well as pointed to Russell’s statement that Burge had a firearm during their roadside encounter last Oct. 5.

To be guilty of attempted murder, a person must, after deliberation, form the intent to commit murder and attempt to carry it out.

“It’s not here because it (deliberation) didn’t happen,” Crane said.

On the roadsideBurge and Russell have known each other most of their lives, but did not associate and per Burge’s testimony, did not particularly care for each other.

Several years prior to the shooting, Burge found Russell’s wallet in his home and kept it, along with between $1,000 and $1,300 in cash. After he was shot, he told police perhaps it was because Russell held a grudge over the wallet, although on the stand, Russell denied this.

Per testimony, Burge was walking home from the Paonia library on Oct. 5 last year and was approaching the bridge near Samuel Wade and Price roads. Russell drove by him in his pickup and Burge threw him a “rude” pointing gesture meant to convey contempt.

Russell continued driving a short distance before pulling into a parking lot, and, per surveillance video at the store, waiting 34 seconds before pulling back onto the road.

Deputy District Attorney Joshua Dougherty said Russell had a choice to make: turning one direction would take him home, while turning the other would take him back to Burge. Russell chose the latter, showing, prosecutors argued, that he’d spent those 34 seconds considering his options, then decided to go back and shoot Burge. That meant what Russell did next was done with deliberation, Dougherty and fellow DDA Sergio Renteria argued.

Burge testified that Russell had pulled alongside him, called his name and that when he approached the truck, Russell fired.

The shot struck Burge’s neck, knocking him to the ground. He scrambled to his feet, pressing his hand over the wound and ran to a passing van. The driver, Philip Jones, picked him up and drove him into Paonia, toward the police department building.

Russell followed, coming up alongside Jones before falling back in the face of oncoming traffic.

Jones and Burge felt they were being chased; Russell later testified that since he thought Burge had a gun, he wanted to make sure Jones was OK.

Jones testified that once he was in Paonia and attempting to assist Burge to the police department, he saw Russell driving toward them in the alley. Burge in his testimony — for the first time, per Crane’s statements — said Russell had again pointed a weapon at him before driving away.

Russell’s testimony did not make sense and was not supported by evidence, Dougherty argued. Neither Jones nor two other witnesses on the road that day had seen a gun or anything else in Burge’s hands and Burge said he was carrying only sunglasses.

Further, Paonia Police Officer Patrick Hinyard, Delta County Sheriff’s Sgt. Keith Sanders and Detective Steven Burris all testified that they had searched the area of the shooting and did not find a gun, bullets or casings.

None of three passing motorists who witnessed the event knew Russell or Burge and were disinterested parties, Dougherty said: “They have no reason to lie.”

Russell’s version of events was improbable, he also argued. Russell testified that as Burge moved toward him with a maniacal gait and a blank stare, he was partially paralyzed and could only move his right hand, which he used to pull a gun from the clutter under his seat, then aim for center mass.

“He pointed a gun at center mass and fired a bullet at center mass. … You know very well what the likely result will be,” Dougherty said, in making a case for intentional acts after deliberation.

It was not plausible to Dougherty that a person experiencing stress paralysis would have been able to turn his vehicle and follow after Jones’ van — and if Russell indeed feared for his life, it made no sense to follow after Burge, he argued.

Dougherty also disputed Russell’s explanation that he had waited in the parking lot to offer Burge a ride and when Burge did not appear, went back to find him on the road and offer a lift.

“That was not a good relationship. He could have continued on his way. There’s no reason for him to pull over,” Dougherty said.

Further, Russell’s conduct after the shooting was telling, he said. Russell wasn’t following the van to assure Jones’ safety, but rather, to finish the job, the DDA said. When it became clear that Burge was out of his reach, Russell took steps to leave the area, Dougherty also said: He told a friend to take care of his cat and dog and that he needed help getting a bus ticket out of the area. (Russell surrendered to authorities on Oct. 6, leaving the gun he had used under a peach tree in a field.)

“That’s someone who knew he was wrong,” Dougherty said.

‘No grand plan’

But there was no grand plan to harm Burge, Crane countered. His client had not spent those 34 seconds considering whether to kill the other man and then headed out to do it. Instead, Russell had a “split second” to react to what he believed was a man with a gun who was behaving erratically.

Had Russell really intended to take Burge’s life, he could have kept shooting and likely hit Burge as he fled to the van, Crane detailed. Further, it makes no sense to attempt murder in broad daylight on one of the busiest stretches of road into a small town, he also argued.

“His intent when he drove over there was not to kill Mr. Burge. … The gun isn’t pointed again. There are no more shots,” Crane said.

He focused on Burge’s trial testimony as to having seen Russell again point a gun at him when they made their way toward the police station. Crane reminded jurors that Burge hadn’t reported this before and that he had explained it as not being focused on small details in the immediate aftermath of being shot.

“That’s not a small detail. It didn’t happen,” said Crane.

The notion that Russell shot Burge over a wallet that was stolen some 13 years ago — after never having a violent encounter with him until Oct. 5 — is a thin motive, Crane also said.

Prosecutors later told the jury that for a man who wasn’t particularly bothered by having his wallet stolen, Russell had remembered the incident in great detail, even after more than a decade had passed.

The defense throughout its argument painted the investigation as rushed, incomplete and marked by “tunnel vision” rather than by an attempt to determine and confirm what happened.

“That is not reasonable,” said Crane.

Crane and Struble suggested the immediate searches had been cursory, were called off too soon and that further searches took place long enough after the scene had been released that anyone could have come along and removed evidence.

Although an investigator testified to having looked under the seat of Jones’ van, the body camera footage of another officer does not show that happening, Crane also said.

Investigators collected blood samples at the shooting scene, but failed to send them to a lab until about five days before trial, he noted. Previous testimony indicated this had been an oversight, but Crane said it meant the substance collected hadn’t even been forensically confirmed to be blood.

Crane further reiterated testimony from Russell’s initial bail hearing last year, in which Burge had said “I’m not saying this was unprovoked.” The attorney rejected the idea that this had referred to Burge stealing Russell’s wallet and asked jurors to consider what might really have prompted such a comment.

Crane said Burge might have gone back to the scene after being released from the hospital the next day: “Did he go back to the scene Oct. 6 through 8 and grab anything?”

Renteria strongly rebutted the notion.

“Henry Russell is guilty,” he said.

Lack of evidence is indeed important, Renteria said — “the lack of evidence that Mr. Burge was armed.”

Russell is the only person to claim that he was, the prosecutor said: “Mr. Burge didn’t have a gun.”

Further, the first officer to search the scene was specifically looking for bullets and casings, which meant that had there been a gun, he would have found it. The defense’s own investigator, who first searched on Oct. 27, 2020, had failed to find a gun, Renteria said.

“Henry Russell shot Mr. Burge. Mr. Burge was unarmed. And (Russell) tried to flee. … He intended to kill Mr. Burge,” the prosecutor said.

Prior to rebuttal, Crane reminded jurors about reasonable doubt. If the prosecution’s narrative, testimony, or evidence gives pause for thought, that is an indication of reasonable doubt, he said.

“Any hesitation means they have not proven it beyond reasonable doubt. … You have to find Mr. Russell not guilty of attempt to commit murder in the first-degree.”

(Editor’s note: Previous Montrose Daily Press reports stated Russell had also been charged with first-degree assault. Russell was initially charged with that, but prosecutors dismissed it before trial upon reviewing recent case law that adjusted the definition of serious bodily injury, a defining legal element of the charge of first-degree assault.)

Katharhynn Heidelberg is the Montrose Daily Press assistant editor and senior writer. Follow her on Twitter, @kathMDP.

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