GOSHEN — The attorney for a man on trial for attempted murder asked if he could have been defending a friend when he opened fire on a truck near the New Paris Speedway.
Michael Ortiz, 38, is charged with three counts of attempted murder for allegedly firing at a pickup truck on C.R. 46 in June 2017. Jurors heard from two witnesses to the incident as the third day of trial began Wednesday.
Frank Gasko and Patrick McNamara both said they were standing near the northwest corner of the speedway when they watched a group of motorcycles stop in the intersection of C.R. 46 and C.R. 127, then head back west toward a green Dodge Ram stopped in the road. They said they heard multiple shots as the truck left the roadway, which is when McNamara pulled out his phone and called 911.
The truck was struck seven times, though the driver and his two passengers were uninjured. Jurors heard Tuesday about a dispute involving the driver of the truck and members of the motorcycle club that Ortiz headed.
Attempted murder is a Level 1 felony that carries a punishment of up to 40 years in prison.
Gasko said as the incident unfolded, he watched a bigger man on one of the motorcycles draw a gun and raise both hands in the air, as if he were “trying to look like a hard-ass.” He identified the man as Ortiz when questioned by police soon after the incident, and pointed him out in court as sitting at the defendant’s table.
He said he kept his eyes on the man as he rode toward the truck and opened fire. He told Elkhart County Deputy Prosecutor Kathleen Claeys that he didn’t count the shots but “it really kind of seemed like it wasn’t gonna stop.”
When questioned by Ortiz’s attorney, Marielena Duerring, Gasko said he saw the shooter fire along the side of the truck rather than toward the front. He said when the truck turned to drive off-road, he thought it could have appeared to the shooter like it was going to hit one of the other bikers.
He agreed when she asked if he might have made the same decision if he were in the man’s situation. He also said if he were the driver of the truck, he would have shot the biker first.
“We don’t take to intimidation well,” Gasko said.
Asked again by Claeys, Gasko later said that the shooter looked like he was trying to kill somebody. He said the shots started too soon to be in reaction to a perceived threat, and that the truck driver had every opportunity to crash into one of the motorcycles if he had wanted to.
Duerring pointed out to Gasko that he had two years to think about the answers he would give in court, and that he was friends with the occupants of the truck and spoke with them Tuesday night after they testified. She asked if he remembered telling detectives soon after the incident that he thought the truck was going to hit one of the bikers, but he insisted he didn’t remember that.
Jurors heard a recording of McNamara’s 911 call, in which he described the group of bikers taking off north on C.R. 127 immediately after the shooting. He described them to the dispatcher as wearing black vests and riding Harley-Davidson-style motorcycles, and said he saw only one with a gun.
He stayed on the phone as the damaged truck reached the speedway and the occupants said they recognized some of the people involved.
“I hope they all f-----g go to jail, ’cause this is bull---t,” McNamara could be heard telling the dispatcher as he waited for sheriff’s deputies to arrive.
Earlier in the morning, before jurors were called in to the courtroom, the judge and attorneys discussed an objection Duerring had lodged to the 911 call made by one of the passengers in the truck. She argued against it being introduced as evidence Tuesday when the woman testified, on the grounds that it was hearsay.
Duerring observed Wednesday that the foundation wasn’t properly laid before the recording was introduced. Evidence that would otherwise be inadmissible as hearsay may be allowed if the remarks are an “excited utterance” in reaction to a “startling event,” but she pointed out that the woman sounded relatively calm at the beginning the recording.
Deputy Prosecutor Don Pitzer disagreed, and pointed to the woman saying that she was “freaking out” during the incident. He said someone who’s describing an event as it unfolds in front of them is assumed to be giving an accurate account because they don’t have time to come up with something different.
Circuit Court Judge Michael Christofeno also told Duerring he disagreed with her analysis over the lack of foundation for the recording. He said he allowed it to be given as evidence because it was clear to him that the passenger was startled by the event, and that she had no opportunity for thought or reflection as she was describing the incident to the 911 dispatcher.
Christofeno said the passenger described seeing the bikes coming back toward them and begging the driver to get away. He said she described seeing Ortiz level the gun, point it and fire, and feeling something hot go through her hair as a bullet entered the cabin of the truck and ricocheted.
“She thought she was shot,” he said. “I saw her testify. When she talked about freaking out, she clearly teared up.”