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'I almost got murdered that night,' injured officer testifies

Agents describe 'chaos' of January shootout

Published: Thursday, Nov. 1 2012 2:00 p.m. MDT

Matthew David Stewart sits at the defense table during the second day of the preliminary hearing Thursday, Nov. 1, 2012 in Ogden. (Nick Short, ) Matthew David Stewart sits at the defense table during the second day of the preliminary hearing Thursday, Nov. 1, 2012 in Ogden. (Nick Short, )

OGDEN — Five officers on Thursday recounted a night of fear and chaos when they were wounded by flying bullets or narrowly avoided them as they scrambled to rescue their injured comrades and escape.

The man charged with killing one officer and striking five others told an investigator that he was groggy that night when his military training "kicked in," and he tried to prevent the government intruders from killing him.

Ogden police officer Kasey Burrell had been assigned to clear the basement of Matthew Stewart's home, but testified Thursday that he ran upstairs when he heard gunshots.

"Basically as I go running up the stairs, obviously, I see blood all over the floor," Burrell said from the witness stand. "I then see agent Francom and he's in the hallway shooting at Mr. Stewart. I'm obviously yelling at him, asking him where (agents) Grogan, Nate (Hutchinson) are, because I thought one of my agents was hit and possibly murdered at that point. And (Francom) said, 'They're out, everyone's out.'"

Matthew David Stewart sits at the defense table during the second day of the preliminary hearing Thursday, Nov. 1, 2012 in Ogden. (Nick Short, ) Matthew David Stewart sits at the defense table during the second day of the preliminary hearing Thursday, Nov. 1, 2012 in Ogden. (Nick Short, )

His skull now held together with mesh and concrete, Burrell recounted Thursday the events of the Jan. 4 shootout while he and other members of the Weber-Morgan Narcotics Strike Force served a warrant at Stewart's Ogden home.

He answered the questions clearly in a matter-of-fact tone. But his voice shook and he had to pause to clear his throat when he spoke of his last memory of seeing Ogden police officer Jared Francom alive and the moment just before he himself was shot.

Francom was standing and returning fire. Burrell then saw Francom's body "recoil" before falling down to one knee.

"He takes a knee and he's shooting," Burrell recalled. "At one point, he turns his head back (toward Burrell) and he shakes it. Then he looks back and fires more. He then says, 'I'm out of ammo' and raises his gun up.

Matthew David Stewart, left, sits at the defense table during the second day of the preliminary hearing Thursday, Nov. 1, 2012 in Ogden. (Nick Short, ) Matthew David Stewart, left, sits at the defense table during the second day of the preliminary hearing Thursday, Nov. 1, 2012 in Ogden. (Nick Short, )

"I said, 'Get behind me … get behind me' and Mr. Stewart comes and shoots me and I don't remember it after that."

Burrell was shot in the head and was in the hospital for more than three weeks recovering from his injuries. He said he struggled to speak to those who visited him and described undergoing physical, speech and occupational therapy as part of his recovery. He did speak with family and other agents about the raid.

"I almost got murdered that night," Burrell said. "Of course I talked to them. … (The other agents) drug me out of the house. If it weren't for these officers, I'm dead."

Burrell's testimony came during the second day of a scheduled three-day preliminary hearing in 2nd District Court. Judge Noel Hyde will determine whether there is sufficient evidence to order Stewart to stand trial for aggravated murder, a capital offense; seven counts of attempted aggravated murder, a first-degree felony; and production of a controlled substance, a second-degree felony.

Matthew David Stewart sits at the defense table during the second day of the preliminary hearing Thursday, Nov. 1, 2012 in Ogden. (Nick Short, ) Matthew David Stewart sits at the defense table during the second day of the preliminary hearing Thursday, Nov. 1, 2012 in Ogden. (Nick Short, )

Stewart is accused of killing Francom and injuring five other officers at his Ogden home,  3268 Jackson Ave.

'Just chaos'

Roy police officer Jason Vanderwarf testified that he was made aware of a marijuana growing operation in Stewart's basement through a tip from Stewart's ex-girlfriend, Stacy Wilson. She told him Stewart had been growing 12 to 15 plants and had additional marijuana in his freezer. She also said Stewart had been growing marijuana for nine years.

He twice tried to meet with the woman without success before the case got "pushed to the side." Later, a sergeant asked about the case and Vanderwarf decided to try and perform a "knock and talk" at the home three times during the last week of December 2011.

Mike Stewart, father of Matthew David Stewart, listens during the second day of the preliminary hearing Thursday, Nov. 1, 2012 in Ogden. (Nick Short, ) Mike Stewart, father of Matthew David Stewart, listens during the second day of the preliminary hearing Thursday, Nov. 1, 2012 in Ogden. (Nick Short, )

Officers did not make contact with Stewart. At one of the visits to Stewart's home, however, Vanderwarf said officers looked into a side door and clearly saw items that would suggest a marijuana growing operation, including a number of power cords leading into a basement room, a bright light coming from the room, waste from humidifiers, empty water jugs and a wooden stick believed to help in propping up marijuana plants.

On Jan. 4, Vanderwarf requested a warrant.

Francom used a battering ram to get the agents inside the house that night. He was the last in the home. The agents split up between the upstairs and downstairs.

Officer Shawn Grogan testified Wednesday that he was in the upstairs group and went to clear a bedroom hallway when he saw a gun come around the door and fire at him, striking him in the cheek. Vanderwarf was in the basement when shots rang out and he said he ran upstairs to see Grogan and officer Derek Draper leaving the home. He saw Francom returning fire before dropping to the ground. Vanderwarf testified he was struck in the hip soon after.

Nate Stewart, brother of Matthew David Stewart, listens during the second day of the preliminary hearing Thursday, Nov. 1, 2012 in Ogden. (Nick Short, ) Nate Stewart, brother of Matthew David Stewart, listens during the second day of the preliminary hearing Thursday, Nov. 1, 2012 in Ogden. (Nick Short, )

"What can you hear?" prosecutor Gary Heward asked.

"Just chaos," Vanderwarf said.

When the rest of the group had gone to the south door, Weber County Sheriff's Sgt. Nate Hutchinson took a post near the front door. When he heard the south door being rammed, he met back up with the officers and entered the basement. After finding the marijuana growing operation, he "heard a burst of gunfire."

He remembered hearing the words "out" and thought the shooter had gone outside. After running outside and seeing nothing, he returned inside.

"I was met in the stairway there by agent Grogan, who had been shot," Hutchinson said. "He was holding his face, he was bleeding. I could tell that he had been shot in the face."

He put his arms around Grogan and helped walk him around the driveway to another sergeant who took Grogan to the hospital. He was returning back up the driveway when he again heard gunshots and ran into the home, ending up in the kitchen, where he could see Francom and Burrell.

"Agent Francom was in front of agent Burrell (and) he held his gun up in the air and I heard him announce that he was out (of ammunition)," Hutchinson said. "Agent Burrell was shuffling to get in front of (Francom) and there was another burst of gunfire and they both went down."

Prayer for protection

Hutchinson attempted to get Burrell and Francom out of the line of fire. He said he came under fire multiple times while trying to get the two to safety. As he was dragging Francom out, he saw a silhouette emerge from the hallway. Hutchinson dove backward, with Francom, and fell down four stairs until he said he was almost back to the south door of the home.

Then, he said, a hand clutching a gun reached around the corner and opened fire.

"(I) pretty much asked God to save me," Hutchinson said. "I pretty much pushed agent Francom out the door. Agent Draper was there to help pull him out."

Having emptied his weapon, Hutchinson picked up a shotgun from the floor of the kitchen. Once Francom was outside, he held that shotgun and manned the door.

"The aggressiveness of the shooting was standing out to me and I knew if I just turned and walked away we would probably all get shot in the back in the driveway," Hutchinson testified. "I stood in the door with the shotgun. A silhouette appeared at the top of the stairwell (and) I think he was startled and he jumped back and fired."

The bullet struck Hutchinson in his right arm, shattering it. He got out of the home and was making his way down the driveway when he saw muzzle flashes and realized he was now being shot at from the front door. He took cover in a gutter and made his way to a nearby police vehicle, which he and Burrell were loaded into and transported to the hospital by Draper.

Backup response

The shotgun belonged to Ogden police officer Michael Rounkles. Rounkles was on a patrol shift when he heard a radio call reporting shots fired and an officer down. He was only about a block away.

He pulled up to the home, saw Draper in the driveway and parked his vehicle. He retrieved his shotgun and headed inside.

Once in the kitchen, he said he leaned around to aim his weapon and was immediately shot in the mouth and forearm. He testified that his arm collapsed and he became disoriented, trying to crawl his way out of the house.

Rounkles, Burrell and Vanderwarf all testified that they were wearing bulletproof vests. Burrell and Vanderwarf's vests were marked "Police." Rounkles was in his Ogden police uniform. Hutchinson said he had attempted to put on his vest, but the straps broke, prompting him to go without. He said he was wearing a fleece vest, also marked as a police vest.

Ogden police officer Tyler Crouch testified he responded to the shooting that night and went to the backyard to try and establish a perimeter. He heard a sound like someone using duct tape and looked up to see Stewart trying to exit the home through a back window.

He said he pointed his weapon and its light at Stewart and told him to put his hands up. He said Stewart never responded, but looked at him and then jumped back into the home. Crouch went to move to a better position when he realized Stewart has jumped out the window. He turned his weapon light on again to survey the yard.

"I turn off my light, I'm not sure how much time passes, maybe 10 seconds," Crouch said. "Matthew Stewart very quickly jumps out of the shed and shoots at me. … The very first round he fired let off a really good muzzle flash that I could see who I was dealing with was the same person who jumped out the window."

He fired on the shed and heard "sounds that would indicate (Stewart) is in pain — moaning or groaning."

Training 'kicked in'

The day after the shooting, Robert Carpenter, an investigator with the Weber County Attorney's Office, said he spoke with Stewart in the hospital. He said Stewart waived his Miranda rights and agreed to talk to him.

"I asked Mr. Stewart how he got shot," Carpenter said. "Mr. Stewart said someone was breaking into his house and he thought he needed to defend himself. I asked what he needed to defend himself from. He said a bunch of guys breaking in and he said his training just kicked in."

Stewart said he had been in the military. Carpenter testified that Stewart told him he was just getting up to go to work and was half asleep. He said he just heard yelling, the door breaking and people "tromping through" his home.

"Mr. Stewart said he felt like he was being invaded," Carpenter said. "He said he thought they were trying to kill him. Mr. Stewart stated he tried to defend himself."

Stewart thought the intruders had automatic weapons and he told Carpenter his gun was a 9mm Beretta. He said he pointed the gun around a corner to defend himself and those people in his home "unloaded."

Carpenter said Stewart told him that the people who entered his home "believed that what they were doing was right." When Carpenter asked if Stewart knew who the men were, Stewart said, "Not specifically" and later said, "There were lots of different branches."

"I asked Mr. Stewart, 'Branches of what?'" Carpenter said. "Mr. Stewart stated, 'Branches of government.'"

Stewart later said, "They could have been anybody,'" according to Carpenter.

"Mr. Stewart said he didn't see a uniform and he didn't hear anything specific," Carpenter testified. "I asked Mr. Stewart how many times he pulled the trigger. Mr. Stewart said he didn't know — he lost count."

Defense attorneys questioned whether Carpenter knew Stewart had an attorney, that they had invoked Stewart's privilege against self-incrimination or what medications Stewart had taken. Carpenter said he was not aware of those things.

E-mail: emorgan@desnews.com, Twitter: DNewsCrimeTeam

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