Jury finds Vail man not guilty of attempted murder

Jury acquits Robert Fergus-Jean of attempted murder, attempted manslaughter, assault, but convicts him on less severe charges

Robert Fergus-Jean, right, stands with his defense attorneys as Chief Judge Paul R. Dunkelman reads the jury’s verdict in his two-week-long trial.
Kelli Duncan/Vail Daily

The story of how Robert Fergus-Jean came to be charged with first-degree attempted murder, among other things, has been told and retold from various perspectives since his trial began last week.

It all began in the early morning hours of Dec. 30, 2020, when Fergus-Jean fired six shots at his roommate and friend Stephen Darley through Darley’s closed bedroom door at their apartment in Vail, which Fergus-Jean and his attorneys claim was an act of self-defense.

It all ended just after 6 p.m. Thursday when a jury found Fergus-Jean to be not guilty of first-degree attempted murder, attempted manslaughter and first-degree assault, but convicted him on a few other, less severe, charges.

On Thursday morning, the prosecution and the defense presented their closing arguments.

Deputy District Attorney Amy Padden of the 5th Judicial District began her closing argument in the same way her fellow Deputy District Attorney, Johnny Lombardi, began his opening statement a week prior.

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“Every gun tells a story, and what a story the two guns in this case have told,” Padden said.

“Guns don’t tell stories. People tell stories,” Fergus-Jean’s defense attorney, Jeffrey Pagliuca, shot back in his closing argument. “Mr. Darley is the king of storytellers in this case, and what a story he told.”

After hearing the stories of neighbors, alleged victims, police officers and forensic scientists, the prosecution rested its case against Fergus-Jean on Wednesday afternoon, paving the way for the defense to begin calling additional witnesses, if desired.

Fergus-Jean chose to exercise his constitutional right to remain silent and did not testify. With no other witnesses to call, the defense rested its case and the presentation of evidence concluded.

Last-minute changes

When the jury left the room Wednesday, Pagliuca filed a motion with Chief Judge Paul R. Dunkelman, asking him to acquit Fergus-Jean on all counts brought against him. Pagliuca said the prosecution had failed to present sufficient evidence to prove the charges brought against his client but pointed to a few in particular.

Chief Judge Dunkelman denied Pagliuca’s motions for acquittal on all charges except for part of a criminal mischief charge and, more importantly, the first-degree attempted murder charge brought against Fergus-Jean regarding Michael Piro.

When Fergus-Jean fired his gun at Darley back in December of 2020, one of the six bullets traveled through Darley’s bedroom wall and into an adjoining apartment where Piro lay sleeping in his bed. The bullet traveled just 3 feet to the left and 2 feet above Piro’s head, according to police testimony.

This led the District Attorney’s Office to charge Fergus-Jean with a second count of first-degree attempted murder on the basis of “extreme indifference” under Colorado state statute.

The elements of this charge stipulate that someone knowingly acted in a way that created a grave risk of death by showing extreme indifference to the value of human life, Dunkelman said. He agreed that the prosecution did not present sufficient evidence to prove, beyond a reasonable doubt, that Fergus-Jean knew there was someone in that room that he was endangering when he chose to fire his gun.

The final charges submitted to the jury Thursday morning included two misdemeanor counts of prohibited use of a weapon, illegal discharge of a firearm (a Class 5 felony) and misdemeanor criminal mischief.

The more severe charges presented to the jury regarding Darley as an alleged victim were first-degree assault (a Class 3 felony), criminal attempt to commit murder in the first degree “after deliberation” and with the “intent to kill” (a Class 2 felony) and criminal attempt to commit reckless manslaughter (a Class 4 felony).

Regarding Piro, the final charges presented to the jury were reckless endangerment, a misdemeanor, and a reduced charge of criminal attempt to commit reckless manslaughter.

This change represents a substantial reduction in Fergus-Jean’s maximum potential sentence as first-degree attempted murder can carry a sentence of up to 48 years in prison while attempted manslaughter carries a sentence of two to six years in prison.

Two other charges brought against Fergus-Jean — tampering with physical evidence and possession of a controlled substance, both Class 6 felonies — were severed from this particular case but can be tried separately if the District Attorney’s Office decides to do so.

Deputy District Attorney Amy Padden of the 5th Judicial District delivers her closing argument in the trial of Robert Fergus-Jean Thursday morning.
Kelli Duncan/Vail Daily

Closing arguments

“Every gun tells a story, and what a story the two guns in this case have told,” Padden said as she began her closing argument Thursday. “First is the story of this Smith and Weston. This gun was owned by Mr. Darley, one of the victims in this case. This gun was not aimed at anybody, it was never discharged.”

Darley used the gun as “an act of deterrence,” he said, to get Fergus-Jean to leave him alone when the two began to argue that night. Fergus-Jean was the “antagonizing aggressor,” punching, shoving and threatening Darley and refusing to leave Darley’s room until he pulled out the gun to protect himself, Padden said.

Fergus-Jean’s gun, on the other hand, “is a very different story to tell,” she said, holding up the gun. That .45-caliber Kimber 1911 semi-automatic handgun was fired six times after Fergus-Jean ran to his room to retrieve it and shot at Darley through his closed bedroom door.

Fergus-Jean showed no regard for Darley’s safety, she said. If he was only acting in self-defense, why didn’t he get to safety and then call 911 to get medical attention for Darley?

Whether Darley’s bedroom door was open or closed when Fergus-Jean fired those six shots doesn’t really matter, Pagliuca said. At the end of the day, it was Darley who brandished his pistol while he was drunk, high and angry, and Fergus-Jean had reason to fear for his life either way, he said.

Fergus-Jean did care about Darley’s safety, Pagliuca said, even going so far as to help him tend to his wounds once he was sure that both of their guns were down, according to his interview with police.

“Guns don’t tell stories,” Pagliuca said, but he speculated about what Darley’s gun might say if it could tell the story of that night.

Darley testified that, just before 12:30 a.m., he was so frightened by an increasing level of aggression coming from Fergus-Jean that he took two short videos of their interactions on his cellphone, which the prosecution played for the jury Monday. Darley told police that this led him to go to his room to remove himself, but Fergus-Jean refused to leave and that is when things took a turn for the worse.

Pagliuca suggested another version of this story. Darley failed to tell police that he took his dog outside for a walk at 12:47 a.m. that night, returning at 12:50 a.m. just minutes before the shooting, according to surveillance footage. Why didn’t Darley mention this to police?

“He’s not going out to the car to walk his dog; he’s going out to that car to get his gun,” Pagliuca said. Darley testified that he sometimes keeps his gun in his car, and Pagliuca said this would explain why he left this detail out, why Darley told Fergus-Jean they didn’t need to call the police and why he minimized the medical attention that he needed after being shot.

“He knows why this happened, he knows he instigated this, and he knows that he’s lucky he didn’t kill Mr. Fergus-Jean because he would be sitting over here,” Pagliuca said, pointing to where Fergus-Jean was sitting at the defense table.

Robert Fergus-Jean sits with one of his defense attorneys, Elizabeth Pagliuca, during his jury trial.
Kelli Duncan/Vail Daily

Padden argued that it was Fergus-Jean’s story that was not credible.

In multiple statements, Fergus-Jean said that Darley got his gun and pointed it upward before starting to “come around” toward Fergus-Jean, often demonstrating a predominately upwards motion for police. It wasn’t until the last statement Padden highlighted that Fergus-Jean said — and showed — that Darley had actually pointed the gun at him.

For the jury to find that Fergus-Jean acted in self-defense that night, the evidence would need to show that Fergus-Jean fired those shots to defend himself against what he “reasonably believed” to be unlawful use of force by another person, Padden said.

Darley took his dog outside and returned to the apartment just two minutes before the shooting, she said, using the defense’s argument against them.

“In less than two minutes, was it reasonable for this defendant to believe that there was an imminent use of force coming from Mr. Darley,” Padden asked, or is it more reasonable that Darley just wanted Fergus-Jean to get out of his room so he could go to sleep?

“If (Darley) was really going to shoot Mr. Fergus-Jean, why would he tell Mr. Fergus-Jean to get out of his room and then shut the door behind him?” she said.

“Nitpicking Robert’s statement is not proof beyond a reasonable doubt,” Pagliuca said. Reasonable doubt is legally defined as anything that would “cause reasonable people to hesitate.”

“Let’s talk about the reasons to hesitate in this case,” he said.

The Vail Police Department did not do what it should have done to check out Darley’s side of the story, even though Darley had “a serious credibility problem,” Pagliuca argued. Darley had a blood alcohol content of 0.195 and admitted to smoking marijuana and taking hallucinogenic mushrooms.

Police should have asked for all the surveillance footage of the Lion’s Ridge apartment building from that night to check up on what Darley was doing, Pagliuca said. Police did not search Darley’s phone or test his urine as they did with Fergus-Jean. Detectives only conducted two interviews with him.

In her closing statement, Padden played a video clip of Fergus-Jean’s Dec. 30 police interview in which he said, “I would have done everything the same.”

We don’t get do-overs in life, Padden said, but it is alarming that, if given one, Fergus-Jean said he would not run, he would not hide with his gun or perhaps fire a warning shot — he would do everything the same.

To convict Fergus-Jean on the first-degree attempted murder charge brought in relation to Darley, the prosecution had to show that Fergus-Jean had “an intent to kill,” she said.

So, what was Fergus-Jean’s intent? Padden played another video clip from the police interview in which Fergus-Jean responds to this question by saying “Yes, given the scenario, it was my intent to target (Darley).”

“That is not self-defense, that is attempted murder,” Padden said at the conclusion of her statement.

All of the choices that Fergus-Jean was faced with in that moment were bad, Pagliuca said. “The choice that Robert took here saved his life.”

With that, the case was turned over to a 12-member jury made up of Eagle County residents.

The verdict

After more than five hours of waiting, Fergus-Jean and his attorneys were notified that the jury had reached a verdict just after 6 p.m Thursday.

The jury found Fergus-Jean to be not guilty of the three most severe charges brought against him: first-degree attempted murder (a Class 2 felony), first-degree assault (a Class 3 felony) and attempt to commit reckless manslaughter (a Class 4 felony).

They found him guilty of two misdemeanor counts of prohibited use of a weapon, illegal discharge of a firearm (a Class 5 felony) and misdemeanor criminal mischief. The Class 5 felony, his only felony conviction, is punishable by one to three years in prison and $1,000 to $100,000 in fines.

Fergus-Jean’s sentence will be decided by Chief Judge Dunkelman in a hearing set for the afternoon of May 11.

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