BULLETIN
By JUAN ESPINOSA
PUEBLO — Jurors in the case told Judge Tim O’Shea, “Further deliberation would not be productive.”
“The jury is deadlocked,” O’Shea told the court Thursday afternoon before he declared the trial a mistrial.
According to several jurors who agreed to talk, the vote was seven for conviction to five for acquittal. They also said that after more than seven hours, deliberations became intense and it was obvious no one was going to change their opinion.
O’Shea wanted to set a date for a retrial immediately, but defense attorney’s asked for a status hearing on the case before a new trial date was set. They also asked for a bond hearing. Defendant David Frank Martinez has been held on a million dollar bond since his arrest almost a year ago.
The status hearing was set for Aug. 4.
O’Shea thanked the jury of eight men and four women for their service and dismissed them from duty. He told the jurors it was their choice whether they talk to anyone about the trial.
Several of the jurors did linger outside the courthouse to speak with defense lawyers and others. One woman was critical of the police investigation and said they could have done a more thorough job of tracing the .45 caliber gun that was known to have fired the 12 rounds on June 28, 2024, that killed Elaine DeLeon Masias. She also found the videos used in the trial unconvincing.
Jury deliberations began Wednesday afternoon
Testimony in the first-degree murder trial of David Frank Martinez ended Tuesday, July 15, 2025. The trial resumes today with closing arguments from both the prosecution and defense. The case is expected go to the jury later in the day.
Martinez is charged in the murder of Elaine DeLeon Masias on June 28, 2024, at Veterans Tavern in Bessemer. Masias was sitting inside the tavern when she was struck in the heart by a single bullet fired through the open back door of the bar.
On Monday, District Judge Tim O’Shea ruled against the defense attorneys’ request to present an “alternative suspect defense.” Because no witnesses have tied Martinez directly to the shooting and because the .45 caliber auto Springfield known to have fired the fatal bullet, the defense lawyers wanted to argue that someone else committed the murder.
Prosecutor David Dingess said the defense’s alternative suspect case relied on “double hearsay” testimony and would only serve to “confuse” the jury — the judge agreed.
The testimony resumed Monday morning with lead Detective Kenneth Cole testifying about his interview of Martinez. A video of the interview was entered into evidence.
“I had a stroke and a heart attack,” Martinez told Cole in the video. “I had a brain bleed.” As a result, Martinez explained “I walk like I’m drunk.”
Initially Martinez said he couldn’t remember what he did the day of the shooting. After he was told of video of his Ford 250 truck seen driving slowly in front of the tavern before the shooting, Martinez said he went out for some food.
In the video Cole tells Martinez that surveillance video shows him parking his truck near the Do Drop Inn. “Can you tell me why you walked down that alley,” Cole asks. The alley in question leads to the rear of Veterans Tavern.
“Did you think Cheryl (Rampa, Martinez’s former girlfriend) was with another guy?” Cole asks.
“No, that doesn’t matter to me,” Martinez says. He denied knowing Cheryl was at the tavern or that it was him seen walking into the alley.
The video is stopped. When it resumes, Martinez is told that a gun and ammunition have been found in a search of his home and property.
“That gun has never been fired,” Martinez says.
“We found several casings,” Cole says and explains that the shells can be tested to see if they were fired by that .45. “What if they march?”
“Those bullets are not going to match,” Martinez says.
During the interview, Cole asks Martinez for permission to search his phone which he grants. He also gives Cole the phone’s access code.
Cole tells Martinez that he is lying to him about going out the night of the murder and about owning a gun;.
“You’re trying to pin it on me,” Martinez says.
The video is stopped when the defense attorney’s ask to confer with the judge.
Testimony continued Tuesday with Cole still on the stand under cross examination from Defense Attorney Beau Worthington. There are two firearms at issue in the case, he said. One is the .45 Smith & Wesson found at Martinez’s home. That gun had an 8-round clip of Wolf ammunition.
Shell casings found at the scene of the Veterans Tavern after the shooting of Masias were sent to the Colorado Bureau of Investigation crime lab to see if they were fired by the .45 found at Martinez’s home. Those ballistic tests led to the second .45, a Springfield Auto XD that was involved in an incident at a Pueblo McDonalds in 2019. That gun had been linked to casings found at the McDonalds incident when police had it tested in 2019.
When no charges were filed in the McDonalds incident, the gun was returned to its owner, Julian Saccamanno, who reported that it was stolen in a burglary in 2022.
After Cole’s testimony, prosecutor Dingess told the court that, “The people rests.”
Before the defense began presenting its case, Judge O’Shea talked directly to Martinez about his right to testify on his own behalf.
First witness for the defense was a Sylvia Patricia Madrid, who said she lived with Martinez for seven or eight years. She was shown video of the figure entering the alley and asked if she thought it was Martinez.
“No I don’t,” she said. “It doesn’t resemble his stature, clothing or walk.”
She said the person in the video walked with a wide stance and wore a hood. “He never wore a hood because he was particular about his hair,” she said.
Defense attorney Michael Stuzynski asked Madrid if she thought Martinez committed the murder.
“I don’t think he did it,” she said. When asked if she would lie to protect Martinez, she said, “No.”
A second defense witness was Deborah Martinez, Martinez’s ex-wife of 32 years. She also said the figure in the videos did not look like him.
The defense also called Detective Cole to the stand and questioned why he didn’t follow up on the .45 caliber linked to the McDonalds incident. They also questioned Cole’s lack of experience as a homicide investigator. Cole said the Martinez investigation was his first as lead detective in a homicide case.
The final defense witness was John San Austin, who teaches crime investigation at Colorado College and was employed by the El Paso Sheriffs Department for 17 years.
San Austin said, “I take a geek approach to law enforcement”
After reviewing the bulk of evidence in investigation of the Martinez case, San Austin said the case is based on a video snapshot of a shadowy figure and a license plate reader. “There is no ballistic evidence tied to Martinez.”
When the ballistics testing of the shell casings found in the alley behind Veterans Tavern didn’t match Martinez’s .45, it was a “big problem,” said San Austin.
After the gun (found at Martinez’s home) didn’t match casings, the focus should have shifted to the .45 that did match. “Keep investigating, the casings are linked to a gun involved in other crimes. It’s the only physical evidence you have to Veteran’s shooting.”