Questions linger for Matthew Stewart defense team about deadly raid
Awakened by the sound of splintering wood and shattering glass, Matthew David Stewart assumed, he said all along, that his Ogden home was being invaded by bad guys and grabbed his gun.
Meanwhile, members of the Weber Morgan Narcotics Strike Force filed inside the night of Jan. 4, 2012, expecting to find an unoccupied home with marijuana growing in the basement.
Based on prior attempts to contact Stewart, police speculated no one was actually living at the untidy Jackson Avenue residence, according to documents recently obtained by The Salt Lake Tribune.
Strike force members were mostly dressed in blue jeans and dark-colored windbreakers or fleece vests bearing small police shield emblems one wore a Cheech and Chong shirt and some were not wearing bulletproof vests.
An officer later described the assumed risk level as "low."
But in the ensuing gunbattle, Strike Force Agent Jared Francom, 30, was killed and five other officers were wounded before Stewart was taken into custody. Stewart, 39, was charged in 2nd District Court with capital murder and other counts, and prosecutors planned to seek the death penalty.
At a trial scheduled for April 2014, defense attorneys were optimistic about beating the murder charge. They claim Stewart feared for his life and that police did not do enough to identify themselves.
But Stewart last month committed suicide at the Weber County jail, a day after a judge refused to hear defense claims that police lied to obtain the warrant to search Stewart's home. The criminal case against him was formally dismissed Tuesday.
Defense attorney Randall Richards said during an interview this week that the police documents released by his office back Stewart's claim that he had no idea the men inside his home that night were police officers.
Among hundreds of pictures taken by investigators of Stewart's blood-spattered, bullet-riddled home, are photos taken after the shootout of uninjured strike force agents, showing them dressed in jeans and dark tops. Some agents sport long hair and beards, and several are wearing hats.
"I look at those pictures, and they look like a bunch of thugs to me," Richards said. "And that's the problem. I think a jury would have looked at that and said there was reasonable doubt."
But the photos part of the evidence provided by prosecutors to Stewart's defense team may not accurately show how the men were dressed at the time of the raid. In an interview with Weber County investigators, Agent Tyler Hansen said crime scene investigators photographed him after he had removed soft body armor and a snow jacket that said "police" on it.
Every agent who testified during Stewart's November preliminary hearing said that consistent with their "knock-and-announce" warrant, they loudly announced "Police!" and "Search Warrant!" before breaking down the door of Stewart's home.
But the defense team questions whether Stewart could have heard, or deciphered, what police said. Richards points to several statements from neighbors who told police that the first sounds they heard that night were gunshots not police announcing themselves from outside the home.
The neighbor directly north of Stewart told officers that they heard gunshots, followed by voices yelling, "Put your hands up, put the gun down," and "F-, I've been shot." Three other nearby neighbors also told police they heard voices yelling only after shots were fired.
Among those interviewed was a group of women who walked into the middle of the shootout after a Relief Society meeting at a nearby Mormon church.
Richards said Stewart worked night shifts and was just waking up to go to work when the raid began. Stewart was naked, Richards said, and when he heard the door break Francom wielded the battering ram Stewart grabbed a bathrobe and his 9mm Beretta.
"I talked to him extensively," Richards said of Stewart. "He told me he had no idea who they were."
Richards pointed to preliminary hearing testimony in which officers inside the home said they never saw Stewart's face during the shootout. One agent saw a silhouette, another just a hand firing shots. If the agents never saw Stewart, Richards wondered, how was Stewart expected to see them and identify them as police, based on the small embroidered emblems on their chests?
The first agent to come into contact with Stewart was Agent Shawn Grogan who was dressed in jeans and a black coat with the word "police" printed on a flap on the left breast, according to Grogan's interview with Weber County investigators. Grogan said he was clearing the hallway and bedroom area of Stewart's home with Agent Derek Draper when a hand holding a gun reached around a door frame and began firing down the narrow hallway. Grogan, the first officer wounded in the shootout, emphasized that he didn't open fire until he was fired upon first.
Stewart was accused of shooting Grogan in the face and narrowly missing Draper. The two agents left the house, passing Francom and Agent Kasey Burrell on the way. Francom and Burrell then engaged Stewart in a gunbattle down a kitchen hallway, according to testimony, and both agents were wounded. Francom was hit seven times and later died; Burrell was struck in the head.
Shortly after, uniformed Ogden police Officer Michael Rounkles entered the home with a shotgun and was almost immediately shot in the face and arm. Weber County sheriff's Sgt. Nate Hutchinson told investigators he was then shot in the hip when he went to drag Francom and Burrell out of the kitchen, their bodies eventually piling up in the stairwell they had used to enter the home. Hutchinson told investigators he saw a hand with a gun reach around a corner and begin firing blind into the stairwell.
"I just knew all of a sudden that this guy wasn't just shooting to get us out of his home, he was shooting at us to try and kill us," Hutchinson told investigators. "What was so shocking to me throughout the entire ordeal was the aggressiveness of it."
Stewart exited the home through a window, then holed up in a backyard metal shed, which drew concentrated fire from a number of responding officers.
"I'm trying to shoot, packing good shots towards the shed, but not knowing that there's a guy there," Ogden police Officer Brandon Beck recalled to investigators. "It was a really tough decision to shoot, but I knew he was in the shed because they [other officers] were all lighting up [shooting] the shed."
A wounded Stewart finally crawled from the shed and surrendered.
After Stewart's jailhouse suicide, his family indicated he had "lost hope" when Judge Judge Noel Hyde refused to grant a hearing regarding the legality of the search warrant targeting marijuana cultivation. But Richards said the defense team had planned to forge ahead despite the setback.
"The only thing that would have done was throw out the drug charge [a misdemeanor]," Richards said of the search warrant challenge. "I mean, I'm very confident that if we went to trial, we would have won this thing."
Richards said he still wonders if, during the chaotic shootout, some officers were hit by friendly fire. Thirty-one 9mm shell casings fired by Stewart's gun were found at the scene, Richards said, and around 250 shots were fired by law enforcement.
Police officers suffered a total of 17 bullet wounds, while Stewart was shot twice.
"Will we ever know the answer?" Richards asked, regarding friendly fire. "Clearly, at this point, we won't because it's not going to get tried [in court.]"
Weber County Attorney Dee Smith said Tuesday there was "absolutely" no evidence suggesting friendly fire. He said all the officers were wounded by bullets from Stewart's gun. He said one unrecovered bullet still lodged in Rounkles' arm had to have come from Stewart's gun because there was no one between Rounkles and Stewart.
Richards said his office is still missing a large part of the evidence, including ballistics reports of shots fired by the police officers' .40-caliber Glocks. He said only 9mm bullets were analyzed in the ballistics reports he received.
"It's been a year and a half now, and we still don't have it," Richards said. "I can't fathom why."
Smith said they have given every report and piece of evidence to Stewart's attorneys as they have received them. He said some evidence, such as DNA analysis, was still being processed at the state's crime lab.
Richards said he hopes Stewart's case can help spur changes in the way search warrants are served. He said the main issues he had with the case deal largely with how police pursue drug offenses.
Is it necessary, he asks, for police to get a search warrant for a man who uses marijuana only for personal use? Stewart had a fairly sophisticated hydroponics system in his basement, but police found only 18 spindly pot plants growing there.
And Richards wonders: Do police need to serve the warrants "armed to the teeth?"
"I do honestly feel horrible for Francom and his family," Richards said. "I feel horrible for the officers that got shot. It was an unnecessary tragedy, and we have two people dead now. ... But why are we raiding this thing? Why not do it right? Why wear Levi's and Cheech and Chong shirts? If we are going to do it, let's do it right. My fight is over at this point with Matt it is and I feel horrible that this kind of stuff is going to continue."