Shooting victim testifies in trial of Vail man

Robert Fergus-Jean is charged with multiple counts of attempted murder, assault

Robert Fergus-Jean, a resident of Vail, faces two counts of attempted murder in the first degree as well as a slew of other charges. Fergus-Jean sits with one of his defense attorneys, Elizabeth Pagliuca, during his jury trial.
Kelli Duncan/Vail Daily

As the attempted murder trial of a Vail man continued this week, attorneys focused their attention on a few key inconsistencies between the stories of the defendant and his alleged victim.

Robert Fergus-Jean, who fired six bullets through the bedroom door of his roommate in the early morning hours of Dec. 30, 2020, is the only one on trial. Still, whether jury members choose to believe Fergus-Jean’s narrative over that of Stephen Darley, the roommate, will play an integral role in whether jurors accept Fergus-Jean’s claims that he fired his weapon in self-defense that night.

If you ask Darley, it was Fergus-Jean who got “very aggressive and started raising his voice.”

“It seemed like a Jekyll and Hyde thing where we had been friends having a good time one minute and all of a sudden, he was angry and yelling at me…” Darley testified in court Monday.

Fergus-Jean is currently facing two counts of attempted murder in the first degree as well as two counts of assault (both Class 3 felonies), illegal discharge of a firearm (a Class 5 felony), criminal mischief and tampering with physical evidence (both Class 6 felonies), possession of a controlled substance and two misdemeanor counts of prohibited use of a weapon/firearm. He pleaded not guilty to all of the above at the end of August 2021.

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In the early morning hours of Dec. 30, 2020, after a night of drinking and listening to music led to an argument, Darley reached into his nightstand and took out a pistol with “eyes dilated” like saucers, Fergus-Jean told police. Fergus-Jean panicked, quickly backed away into his bedroom and retrieved his own gun, which was tucked into the corner of his mattress, according to videos of police interviews played for the jury.

When Fergus-Jean returned to the hallway with his .45-caliber Kimber 1911 semi-automatic handgun, he said he could see Darley still holding the gun through his bedroom door, which he claimed was in the process of closing. It was this image that reinforced the idea that he needed to protect himself, by any means necessary.

By any means necessary, in this case, meant firing six rounds through Darley’s bedroom door . Two of those bullets struck Darley in the legs — one in his left thigh and the other near his right knee.

Another one of the bullets went through Darley’s bedroom wall into an adjoining apartment where Michael Piro lay sleeping in his bedroom. The bullet missed Piro by just a few feet, leading prosecutors to hit Fergus-Jean with the second attempted murder charge on the basis that his actions showed an “extreme indifference for the value of human life.”

Was the door closed or closing?

As they gathered more information in the hours after the shooting, which occurred just before 1 a.m., Vail Police Detective Greg Schwartz and former sergeant detective Justin Liffick began to question Fergus-Jean’s story.

“The biggest part we’re trying to figure out is how the door shut,” Liffick said to Fergus-Jean in a video of their interview played for the jury Monday.

If Fergus-Jean’s story was true, Darley could not have shut it because he was near the bed with the gun the whole time and Fergus-Jean did not shut it either. Fergus-Jean initially claimed the door swung shut on its own, but police checked the door and said this was not possible.

Fergus-Jean then said he could have bumped the door closed when fleeing Darley’s room but could not remember.

Darley testified that, after Fergus-Jean left his room, he closed the door and locked it.

Dave Yocem, a crime scene analyst with the Colorado Bureau of Investigations, testified that the bullet holes did not show any signs of trailing or “ellipses” to indicate that they hit the door on an angle as it was closing. Ultimately, Yocem said he could not reach a definite conclusion as to whether the door was shut but he did conclude that they hit the door straight on.

“With that door being shut when you fired those rounds, you couldn’t see what was going on behind that door…” Liffick said to Fergus-Jean during their interview. Fergus-Jean would have had no way of knowing whether Darley still posed an imminent threat.

Darley testified that he only ever brought out his pistol because he feared for his own life as an argument between him and Fergus-Jean escalated to the point where Fergus-Jean pushed him multiple times.

“I felt threatened, I felt antagonized, I felt endangered,” Darley said.

Stephen Darley looks on as Detective Greg Schwartz of the Vail Police Department presents the pair of pants Darley was wearing when he was shot twice in the legs by Robert Fergus-Jean in the early morning hours of Dec. 30, 2020.
Kelli Duncan/Vail Daily

Just before 12:30 a.m., Darley took two short videos on his phone because he was “petrified” by Fergus-Jean’s aggressive behavior. In one of the videos, Fergus-Jean can be heard raising his voice at Darley.

Darley said he tried to remove himself from the situation by walking to his bedroom but Fergus-Jean followed him and would not leave him alone, so he reached for his pistol.

“I was holding it in my left hand and had it pointed at the ground and told him to leave,” Darley testified Monday.

How did things escalate to the level of lethal force?

This narrative is inconsistent with surveillance footage that shows Darley taking his dog out at 12:47 a.m., Pagliuca pointed out. The video’s time stamp shows Darley walking back into the building at 12:50 a.m., just minutes before a neighbor said she was awakened by a loud “popping noise” and called the police.

Darley was outside for three full minutes after he said he had been at the point of feeling “petrified” by Fergus-Jean’s aggression 20 minutes earlier. So, Pagliuca asked, why didn’t he dial 911 or call someone to come pick him up?

“You could have gotten a weapon from that car and brought it back upstairs, couldn’t you have?” the attorney asked after Darley testified that he sometimes keeps his pistol in his car.

“Yes, I could have,” Darley responded.

The defense also called attention to an incident prior to the Dec. 30 shooting in which Darley pulled his pistol from his car at a Vail dog park, preparing to use it on a large Pitbull who he said was trying to kill his dog. He and the other owner had been trying to get the dog off of Darley’s dog but were unsuccessful. Darley got his gun, keeping it in its holster and pointed at the ground, but the Pitbull had released his dog by the time he returned, he said.

Pagliuca argued that this was relevant to the case at hand because Darley told Fergus-Jean about this incident after it happened, and this could have played into why Fergus-Jean felt so threatened when Darley pulled out his pistol that night.

Darley maintained that he only pulled the pistol out in “an act of deterrence.” He said he had already put down his gun and shut his door when “a volley of bullets” came ripping through his room.

Deputy District Attorney for the 5th Judicial District Amy Padden, left, and defense attorney Jeffrey Pagliuca watch video evidence played for the jury during the trial of Robert Fergus-Jean.
Kelli Duncan/Vail Daily

Whose story is more credible?

A urine sample collected from Fergus-Jean sometime between 6 a.m. and 6:30 a.m. on Dec. 30, 2020 was tested for alcohol, prescription drugs and “drugs of abuse,” a forensic scientist with the Colorado Bureau of Investigations said.

Fergus-Jean’s urine alcohol content came back as 0.13. The level of alcohol in urine is about 1.33 times the amount of alcohol in the blood, meaning that his blood alcohol content was around 0.1. This means Fergus-Jean’s blood alcohol content remained higher than the legal limit to operate a vehicle after at least five hours of not drinking.

There were no drugs found in his system, supporting his claim that he did not take psychedelic mushrooms that night. Darley told police the two took the mushrooms together.

However, the urine sample was not analyzed until about two weeks after the shooting and the forensic scientist said there “could be issues with the psilocin being tested later,” meaning “if it’s tested too late, you may not detect the drug.”

As for Darley, his own testimony coupled with testing conducted by Vail Health showed he was intoxicated with alcohol, marijuana, and psychedelic mushrooms. His blood alcohol content was 0.19, more than double the legal limit to drive a vehicle.

Darley said he has built up quite a tolerance to marijuana. He told police that he only ate about a gram of the mushrooms, which he called a “microdose,” but Pagliuca pointed out that he told police it was possible that he was hallucinating that evening.

Darley initially told Detective Schwartz that he “never produced a firearm,” Pagliuca highlighted. Upon further questioning, Darley told Schwartz that the drawer to his nightstand may have been open and perhaps that is how Fergus-Jean saw he had his gun. Darley later said it was “possible” that he had picked up his gun.

The next day, Darley told Schwartz that he had taken his loaded gun out of the nightstand drawer but kept it by his side, according to police reports.

Fergus-Jean made his own conflicting statements that night. He initially told police he had not taken any psychedelic mushrooms before admitting he had them in his mouth for “about 30 seconds” before going to the bathroom to spit them out.

He also told police he fled outside after firing off those six shots but then came back when he realized he did not have his dog or his phone. He failed to mention that he actually left and returned to the apartment twice before police showed up, according to surveillance footage.

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