The trial of a Vail man charged with two counts of attempted murder began in Eagle County Thursday, over a year after the December 2020 night that started as a casual night of drinking and ended with six rounds being discharged from a semi-automatic handgun.
“Every gun tells a story. This gun will tell you a story,” Johnny Lombardi, deputy district attorney for the 5th Judicial District, said Thursday morning as he held up a Kimber .45 caliber 1911 semi-automatic handgun before the jury.
The story of Robert Fergus-Jean is much more complex than what can be summed up in a headline.
For starters: after shooting at his roommate six times through a closed bedroom door, Fergus-Jean allegedly helped bandage the man’s wounds and the two were seen exiting their Lion’s Ridge apartment together when police arrived in the early morning hours of Dec. 30, 2020.
“That gun is going to tell you the story … of a man who could not control his anger towards Stephen Darley and, without provocation, fired not one, not two, not three, not four, not five, but six shots through (a) closed door,” Lombardi said.
“And what did this defendant do after firing those six shots through that closed door?” Lombardi asked. Fergus-Jean did not call 911; he did not ask his roommate and close friend, Stephen Darley — who took two bullets to the legs — if he needed help.
In addition to the two bullets that struck Darley, another bullet traveled through the wall at the back of Darley’s bedroom and entered an adjoining apartment where a man named Michael Piro lived, Lombardi said. The bullet “went right over the bed Mr. Piro was sleeping in just avoiding striking Mr. Piro,” leaving a bullet hole that was “approximately three feet to the left and just two feet above the bed where Mr. Piro was sleeping,” Lombardi said.
As a result of the events of that night, 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. Fergus-Jean pleaded not guilty to all of the above at the end of August 2021.
Elizabeth Pagliuca, one of Fergus-Jean’s defense attorneys, told a very different story in her opening statement Thursday. She described a kind man who acted out of fear for his life in what quickly became the worst night of his life.
“Robert Fergus-Jean never wanted to fire his handgun” that night, said Pagliuca, who is representing Fergus-Jean along with her co-counsel and father Jeffrey Pagliuca. “He never wanted to fire a handgun at another human being, much less at his roommate and best friend.”
Fergus-Jean “never could have imagined that he would be faced with a situation like the one that unfolded” that day, in which he “found himself staring down the barrel of a handgun that was pointed directly at him” by Darley, “his best friend at the time,” she continued.
After a discussion about music became heated between the two men, it was Darley who sat on his bed, opened his nightstand drawer, pulled out his .38 handgun and turned it towards Fergus-Jean, Elizabeth Pagliuca argued. Darley was intoxicated with a mixture of alcohol, marijuana and psychedelic mushrooms, she said — a claim that was substantiated by testimony and toxicology reports from Darley’s time at Vail Health Hospital.
At that point, “it was kill or be killed — shoot or be shot,” Elizabeth Pagliuca said, looking straight at the jury. “Mr. Fergus-Jean acted on instinct and the actions he took next were done to save his own life.”
Details about the actions Mr. Fergus-Jean took and why he took them will continue to unfold as the trial progresses through its remaining five days. Based on testimony from law enforcement and videos of their interviews with Fergus-Jean, Fergus-Jean immediately stepped back into his bedroom, pulled his loaded gun that was tucked in the corner of his mattress, and fired six rounds into Darley’s closed bedroom door.
Two of those bullets hit Darley — one in his left thigh and the other near his right knee.
Darley was transported to Vail Health where he was deemed a “level one trauma” patient with serious and potentially life-threatening injuries, according to the medical professionals who treated him that night. He was released later that day and has since recovered.
Lombardi rejected the notion that those six shots were discharged in self-defense. Those six bullets, fired through a closed door, were not life-saving bullets, they were “life-threatening bullets,” he argued.
“The evidence will show the defendant was not in any imminent danger or fear of his life when he pulled that trigger six times,” Lombardi said.
“Mr. Fergus-Jean was forthcoming, cooperative and he recounted everything that happened in as much detail as he could over and over,” Elizabeth Pagliuca said. He “answered questions, drew diagrams, gave details and explanations.”
He did this voluntarily, on scene and later at the Vail Police Department, from just after 1 a.m. until 8 a.m. the next morning and his narrative remained consistent, she said.
Darley, on the other hand, was “vague” and gave conflicting statements, she said. He was intoxicated, had just been shot, “and, unfortunately, police relied on (Darley) and his recount of what happened.”
Witnesses take the stand
First up to take the witness stand Thursday after opening statements was the Vail woman who lives in the apartment directly above the unit where the shooting occurred. After being awakened by a loud “popping noise” just before 1 a.m., she said she went downstairs to the door of the apartment “to see what the disturbance was.”
“It sounded like someone was pleading, two men were pleading with one another,” she said. Then she heard someone say, “everybody makes mistakes, don’t worry about it.”
She chose not to knock on the door and, instead, went back upstairs and dialed 911.
Former Vail Police Officer Craig Westering, who now works with the Eagle Police Department, was one of the first officers to arrive on scene just after 1 a.m., he said in his testimony Thursday.
Of all the officers on scene, Westering spent the most time talking to Fergus-Jean that night, interviewing him as other officers got an ambulance for Darley and secured the crime scene. Ultimately, it was Westering who took Fergus-Jean and his dog to the Vail Police Department so Fergus-Jean could be interviewed by detectives.
Westering described Fergus-Jean as “talkative” and noted some signs of intoxication — bloodshot eyes, somewhat slurred speech, and a smell of some kind of alcohol.
“He mentioned that him and Darley had been friends for about five years, good friends, and had been roommates for about three years,” Westering said.
Fergus-Jean’s initial statements were “fairly out of sync” as he seemed panicked and kept “jumping around chronologically” while telling his side of the story, the officer said.
“We were like having a really good night and stuff like that… Things were going fairly well and then they kind of took like a little spiral…” Fergus-Jean can be heard telling Westering in a clip from the officer’s body-worn camera played for the jury. “I don’t normally like do this…”
From what Westering gathered, Fergus-Jean and Darley were hanging out at home around 8:30 p.m. when they began drinking together casually. They had a few drinks before Darley said he was going to take some psychedelic mushrooms or “psylocibin” and tried to get Fergus-Jean to take the mushrooms with him, which Fergus-Jean told Officer Westering that he did not do.
Fergus-Jean later told Vail Police Commander Justin Liffick that he did put the shrooms in his mouth at first, but then spat them out in the toilet. He said he really didn’t want to take them because he has a heart condition and “didn’t want to die,” but Darley was insistent.
“He basically forced me to eat them and then I kind of spit them out…I don’t know if that’s weird,” Fergus-Jean said in an interview with Liffick.
Fergus-Jean said he took about two mushrooms, chewed them a bit, but only had them in his mouth for “like 30 seconds” before he went to the bathroom and spat them out. He even went so far as to use a toothpick to get any extra pieces out of his teeth, he said. He maintained that he did not feel any effects from the mushrooms.
Shortly thereafter, the two men took their dogs for a walk along the river towards Cascade Village in Vail, according to testimony from Westering. It was cold out, so they returned home and kept drinking, having some beers and “a couple shots each” by Fergus-Jean’s estimation.
There was no direct testimony as to exactly how intoxicated Fergus-Jean was. However, in a video clip of his interview with detectives played for the jury, he could be heard saying that his blood alcohol content or “BAC” was taken at 0.15 — nearly twice the legal limit to operate a vehicle in Colorado.
At Vail Health Hospital, a toxicology report found Darley positive for marijuana and reported a level of alcohol that Emergency Physician Steven Hellerman said demonstrated a “fairly high range of intoxication.”
The night was going well, Fergus-Jean told Westering. Then, as they were listening to “The Chronic,” a 1992 album by rapper/producer Dr. Dre, things took a turn for the worse.
The two started talking about “what music was and what music wasn’t” and the discussion became heated, Westering recalled from his conversation with Fergus-Jean. In speaking with multiple police officers and with Liffick, Fergus-Jean was unable to explain why or how it became so heated so quickly.
At some point, Darley told Fergus-Jean that he was “feeling threatened” by Fergus-Jean and began taking a video of him on his cell phone, Westering testified.
“He felt aggressed …he felt like he was like pushed on the couch,” Fergus-Jean told Westering in a video from his body camera. Fergus-Jean recalled saying something along the lines of “man, if I were to like try to do something, I would do something.” He told the officer that he said this in trying to de-escalate the situation.
Fergus-Jean told police that he did not recall actually touching Darley physically. He would later tell Liffick and Detective Greg Schwartz of the Vail Police Department that Darley didn’t seem to understand his efforts to convey that he didn’t want to fight.
Ultimately, Fergus-Jean followed Darley into Darley’s bedroom where the argument continued. After further “dialogue,” Darley took out his handgun and lifted the gun above his head before turning it to Fergus-Jean with his “eyes dilated” from the drugs, Fergus-Jean told Westering in a video of their continued conversation at the Vail Police Department.
It was at this time that Fergus-Jean took about three steps back into his own bedroom, got his gun and fired six shots through Darley’s bedroom door, Fergus-Jean told multiple law enforcement officials. He told Liffick that the door had closed on its own, and that he wasn’t entirely sure whether it was fully closed or almost closed when he fired the shots as it “all happened so fast.”
A forensic scientist with the Colorado Bureau of Investigations confirmed that all six bullet casings and all “projectiles,” or spent bullets, recovered from the crime scene came from the .45 caliber Kimber 1911 semi-automatic handgun — Fergus-Jean’s gun.
“I’ve never had a gun pulled on me,” Fergus-Jean said repeatedly in every video played for the jury Thursday and Friday.
Darley “seemed very much like a threat … it would make sense for me to react in the way that I did,” Fergus-Jean told Westering in the interview room. “I mean, honestly, I don’t know what I could have done differently.”
Fergus-Jean described the whole night as a “really s—-situation between two people who care about each other quite a bit.” He also repeatedly asked police how Darley was doing throughout the interview process as he grew more and more panicked.
After firing the six shots, Fergus-Jean told Liffick that he immediately ran from the apartment with his gun still in his hand, according to the video of their interview. He got all the way outside before realizing that he did not have his dog or his phone to call the police.
He returned to the apartment, cautiously, and was looking for his phone when he heard Darley — who was still in his room with the door closed — say something like “dude, dude, dude” and “we’re good, we’re good.”
Darley came out of the room with his hands up to show Fergus-Jean that he did not have his gun, Fergus-Jean said. Fergus-Jean emptied the magazine from his own gun and left it in his room, entering the hallway to meet Darley.
“Why the f— would you point a gun at me?” Fergus-Jean recalled asking Darley, who he said responded with something along the lines of “I don’t know.”
Darley applied a tourniquet to his left leg and the two were seen exiting their unit together when police arrived, according to the testimony of various officers.
In the video from Westering’s body camera, Darley can be heard saying that he is in “absolute fine medical condition,” despite the two bullet holes in his legs. “I could use some medical attention,” the man added calmly.
Officer Eric Bonta was technically the first on scene and spent the first portion of the call speaking with Darley upstairs in the apartment. Officer Bonta said he called for an ambulance before they returned to the unit simply due to the blood on Darley’s shorts and the bloodied gauze hanging around his ankle.
Bonta confirmed that Darley told him “he has no personal ill will (against Fergus-Jean) or anything like that,” calling the incident “an unfortunate set of circumstances” that “genuinely saddened” him.
Hellerman attended to Darley’s health when he came in to Vail Health Hospital shortly before 2 a.m. on Dec. 30. He said he observed “two gunshot wounds to (Darley’s) lower extremities.” He described Darley as “alert and oriented, very calm for a gunshot wound…”
This is not to say that Darley’s wound was not serious, Hellerman said upon further questioning. Every patient presents differently and the level of alcohol in Darley’s system could have had a depressing impact on his state of mind, Hellerman said.
Jeffrey Pagliuca asked Hellerman a series of questions highlighting the relative health of Darley. The man’s vital signs remained stable and he was not given any pain medication at the hospital, although Hellerman said that Darley’s chart indicated he was sent home with Oxycodone when discharged later that day.
Darley’s chart showed that the wound near his right knee was categorized as a “through and through gunshot wound that appears very superficial in its track.” This just means that it did not penetrate much of Darley’s muscle and tissue, Hellerman explained.
After two hours, Darley was moved from the emergency room into the general hospital area for further observation as he did not require surgery.
Still, Hellerman maintained that the injury was quite serious and merited the “level one trauma” designation it was given, a designation that mobilizes on-call doctors across a number of specialties.
Jeffrey Pagliuca also highlighted the level of intoxication demonstrated in Darley’s toxicology report taken around 2 a.m., which did not include a screening for psylocibin as toxicology panels typically do not, Hellerman said.
“If I had just gone and hid in my room, maybe we wouldn’t even be here or maybe I’d be dead — I don’t know,” Fergus-Jean told Officer Lee Demarest at the Vail Police Department later that morning.
What Fergus-Jean did not know at the time was that one of his six shots went through the back wall of Darley’s bedroom into the bedroom of Piro, who was asleep in his bed at the time.
Demarest said he went to Piro’s apartment to make sure everyone was OK and saw a bullet hole in the wall “approximately three feet left of Mr. Piro’s bed.”
It was about “a foot and a half from my headboard on my side of the bed,” Piro said in court Friday.
“My heart dropped right to my stomach just knowing that if I woke up in the middle of the night to go to the bathroom, if I took a step, I wouldn’t be here right now,” Piro said.
When Liffick told Fergus-Jean this, Fergus Jean said “OK, OK. …What does that mean for me?”
Liffick said it was too soon to say.
“I don’t see any intent at this point but I’m still trying to figure out what’s happening,” Liffick told the man.
Email Kelli Duncan at firstname.lastname@example.org