Jury splits decision on Hernandez charges

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By Bobbi Mlynar (Contact)

Wednesday, September 10, 2008

A jury found Ferman Hernandez guilty of involuntary manslaughter late this afternoon in Lyon County District Court, after deliberating about two and a half hours.

Hernandez, whose trial began Monday morning, was accused of involuntary manslaughter and with hunting without a hunter education certificate. Jurors began deliberations about 3 p.m. today and, after posing one question for clarification, returned with a verdict shortly after 5:30 p.m.

The charges arose from the shooting death of Alfonso Barajas Sr., who was killed March 21 when he stood up as Hernandez fired a .22 rifle at a bird at 1231 E. Logan Ave.

The two men were among a group of seven who had been celebrating Good Friday with a fish fry at an area on the property that contained livestock pens.

According to testimony in the case, Barajas had been skinning and seasoning a rabbit that had been shot that evening. The victim apparently stood up from a bent-over position as Hernandez fired the gun at the bird. Barajas was shot in the head.

The circumstances of the shooting were the crux of the arguments. The prosecution contended that Hernandez had been reckless in his actions, though not intentional, and that he was hunting without a license. The defense contended that Hernandez was not hunting and the shooting was accidental. The defense also contended that a table key to establishing the proximity of the victim and the defendant had been moved before law enforcement began its investigation.

“This is a crime that does not require the state to prove that Ferman Hernandez intended that Alfonso Barajas die as a result of his action,” Aranda said, referring to the elements of the crime that the prosecution needed to meet for a conviction. “That leads you to Element No. 2, that it was done recklessly or in the commission of or attempting to commit hunting without a hunter education certificate.”

Aranda said that what the jury must decide is whether Hernandez was attempting to hunt in Kansas without a hunter education certificate.

“You can also consider whether that was done recklessly” as defined by state law, Aranda said. “... And that means that an individual acts recklessly when they commit an act under circumstances that show a realization of the eminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.”

Ample evidence was presented to show that the group of seven individuals present were in rather close proximity to each other, she said.

“The witnesses testified that Ferman Hernandez was approximately six to eight feet away from Alfonso Barajas when he picked up the rifle, and you heard that the defendant ... knew that the victim was in front of him.”

Defense and prosecution attorneys agreed that Barajas had been skinning and seasoning a rabbit just prior to the shooting.

“Witnesses testified that within a minute or approximately a minute prior to the shooting, the defendant was warned about shooting around, handling firearms and shooting it because they were all too close to each other,” she said. “There were people nearby and it was dangerous.”

Hernandez gave the victim no warning prior to shooting.

“He pulled that trigger regardless of that danger,” Aranda said. “... (B)ased on the evidence you have heard that the state has established beyond a reasonable doubt that Fernan Hernandez committed the crime of hunting without a hunter education certificate and that he committed the crime of involuntary manslaughter by unintentionally killing Alfonso Barajas both recklessly and while in the commission of hunting without a valid hunting education certificate.”

Krueger disagreed.

“At no time did Ferman Hernandez admit he was hunting,” Krueger said. “... He was shooting at a bird or birds. ... The fact of the matter is, no evidence has been provided to show that Mr. Hernandez was doing anything but perhaps target shooting at a bird, the type unknown. You don’t have to have a hunter’s safety certificate in the state of Kansas to fire a gun, and if you’re as old as I am, you don’t have to have one at all. ...

“In this instance, other than the vague testimony of Wildlife and Parks agent (Dave) Adams, not one other witness said that Mr. Hernandez was hunting. Not one witness.”

Krueger termed the shooting “a tragic accident,” and said the majority of witnesses confirmed that Barajas stood up and stepped into the line of fire.

Statements taken through an interpreter immediately after the shooting were consistent with the evidence, that the victim was not directly across from Hernandez.

“He was off to the right-hand side,” Krueger said.

“Now I wonder if we’d be here today if Ferman Hernandez had a hunter safety certificate,” Krueger said.

He reminded jurors that the burden of proof lies with the prosecution.

“All the evidence is consistent,” Krueger said. “He suddenly popped up and he moved into the line of fire. There’s not one witness who didn’t say he didn’t stand up. They all said from his bent-over position, he moved up and into the line of fire.”

Krueger also emphasized that the table at which Barajas was skinning the rabbit had been moved before the investigation and photographs were taken by law enforcement officers. He said it was troubling that no one attempted to “place the people exactly where they were” at the time of the incident.

“The testimony of Darrell Klumpe, EMT, was, he picked up the table, turned around and moved it four to six feet,” Krueger said. “That’s what Deputy (Jeff) Briggs used for his diagram to try to place those individuals.”

Hernandez testified that as he raised the rifle to fire, he looked to the left and right, and saw no one in his line of fire.

“He knew where the individuals were,” Krueger said.

“...Unfortunately, the deceased was not aware of his position and walked directly into the line of fire of the bullet that was fired by Mr. Hernandez.”

Aranda said that law enforcement and EMTs were not on trial.

“Whether they moved the table, didn’t move the table, how many inches or not, it’s the defendant’s actions that speak and give you the evidence you need to consider in rendering your verdict,” Aranda said.

She said that testimony had been presented to show that Hernandez was hunting.

“You can’t target wildlife and call it something else,” she said.

She said that an individual owes “a duty of care” in the way he handles and uses a firearm.

“That’s why those common-sense rules exist, so that things like this don’t happen,” Aranda said. “It’s unintentional. He didn’t mean to kill Alfonso Barajas Sr., but the legislature has established certain standards of conduct and certain conduct rises above that threshold of a pure accident. And that’s why they call it reckless conduct.”

Aranda said Hernandez gave no warning to the group that he planned to shoot and that he had been drinking alcohol.

“Those conditions created a risk of harm. He knew and disregarded that,” she said. “He disregarded common-sense rules of safe firearm handling and hunter safety regulations.”

The jury received the case shortly before 3 p.m.