Around 1:30 a.m. on November 22, 2009, a shooting took place at Barra Vieja, a Mexican restaurant and tavern in Denver, Colorado, that was also known as the Merry Go Round bar.
C.D. was there, celebrating his 27th birthday with his brothers, A.D., who was 30 years old, and R.D., who was 25 years old, as well as their friend, Gabriel Reyes. During the evening, C.D. and Reyes had left for a time, but returned just before closing time to pick up A.D. and R.D.
At about the same time, James Garner, who was celebrating his 36th birthday, arrived with his girlfriend, Jaime Velasquez, and several other friends.
The bar manager offered Garner’s group free drinks. One of the bartenders, Sylvia Hernandez-Granillo, noticed Garner and Velasquez because they were kissing, taking pictures, and having a good time. Just as their drinks were being served, at least five shots were fired.
People began shoving and scattering, attempting to run away. Garner fell and lost his black-rimmed sunglasses. Velazquez dropped her cell phone, which contained pictures of her, Garner, and their friends.
When police arrived, C.D., who had been shot in the abdomen and feared he was dying, told a police officer that the gunman was “a Norteño pelon.” “Norteño” meant north and “pelon” meant “bald.” C.D. said the gunman was wearing a dark-colored shirt with a number on it.
A.D., who had suffered a graze wound, was taken to the hospital after the shooting, where he told police that he saw C.D. get shot. A.D. said that before the shooting, he approached the gunman and told him: “Take it easy, bro.”
In response, the man shot at him.
A.D. described the shooter as a 27-year-old Hispanic man, 5 feet 2 inches tall, 155 pounds, with short black hair, jeans, and tennis shoes.
R.D. said he was returning from the bathroom when a white, bald man with a white shirt, black baseball cap, and “tattoos all over his arms” pushed him and they began fighting. R.D. said he did not see who the shooter was because he was on the ground fighting the man wearing the baseball cap when the shots were fired. He thought the gunman was wearing a bandana. He said he thought someone in the shooter’s group of friends was wearing prescription sunglasses.
Reyes said the gunman was with four other men, all of whom were dressed in black. He said the gunman had a thin build and a mustache, was about 5 feet 4 inches to 5 feet 8 inches tall, and was "half Mexican and half white." Reyes said the gunman wore a black shirt, black pants, black shoes, and a pair of black square glasses. He told police that if he saw the shooter again, he would recognize him.
Hernandez-Granillo found Velazquez’s cell phone after the shooting, which contained pictures of Velazquez, Garner, and their friends. She gave it to police, showed them the photos, and identified Garner, Velazquez, and two other women as having been at the bar that night. She told police that although she did not see the shooting, a man came in by himself after everyone else, and she heard the gunshots as soon as he walked in.
Fernando Ordonez, the bar manager, also told police he saw a man enter the bar right before the shooting. Ordonez said it “didn’t seem like [the man] was with [Garner’s] group.” As the shots were fired, Ordonez said he saw a man wearing a black shirt with a red stripe on the sleeve run past the bar. He did not know if this man was the shooter because he never saw the man’s arm or a gun.
Bartender Yadira Ortega Manzo told police she could not identify the shooter because her back was turned when the shots were fired.
In December 2009, the police interviewed A.D. a second time. He said, “I don’t remember this guy [the gunman]. I don’t remember.”
In February 2010, Detective Mark Faulhaber created a police bulletin that was published throughout the Denver metro area. The bulletin showed photos of Garner and Velazquez that were pulled from Velazquez’s cell phone, said they were “wanted” in connection with the November 22 shooting, and asked for help identifying them. On March 1, 2010, someone responded to the bulletin and identified Garner.
Garner became a suspect although he did not resemble descriptions of the gunman. He was white, 5 feet 8 inches tall, 165 pounds, and had brown hair and brown eyes.
Detective Faulhaber created a photo lineup that included Garner and five other men. Over several days in March, C.D., A.D. and R.D., as well as Reyes and employees of the bar all viewed the photographic lineup. No one identified Garner as the gunman.
C.D. marked Garner as “possibly” present at the bar, but also said that two of the fillers were “positively” there and that one of them was the gunman. Reyes identified one of the fillers as being at the bar.
During an interview with police on March 4, 2010, C.D. said he had talked to Reyes, who had informed C.D. what Reyes thought the gunman looked like. C.D. said he believed the shooter was a bald man with a “north” tattoo on the side of his head. He said the shooter wore a hat and a dark shirt and that he was 19-20 years old, with no glasses, beard, or mustache. C.D. also described another man with glasses that stood out, but said this man did not get involved until after the shooting occurred.
The sunglasses recovered at the bar were submitted for DNA testing and Garner was identified as the source of skin cells on the sunglasses.
On June 4, 2010, Garner was charged with three counts of attempted first-degree murder for shooting at the three brothers. He also was charged with first-degree assault of C.D. and A.D., and possession of a weapon by a felon.
On August 13, 2012, Garner went to trial in Adams County District Court. His defense attorneys did not file any motions to prevent in-court identifications of Garner by any of the prosecution witnesses.
R.D. was the first of the brothers to testify. Shortly before the trial recessed for the day, he was asked if he saw the gunman in the courtroom. He identified Garner.
The following day, the defense objected to the identification as “unduly suggestive,” and an impermissible one-on-one show up identification. Judge Mark Warner took the objection under advisement, but took no additional steps to exclude the identification or cure the error with the jury.
Later that day, A.D. and C.D. both identified Garner from the witness stand. The defense again objected to the suggestive nature of A.D.’s identification and to C.D.’s identification as a prejudicial show up identification.
The defense did not pursue a ruling from Judge Warner and did not broaden its objections.
The defense also did not object to the prosecution’s bolstering of the brothers’ testimony. R.D. was asked, “Do you want to see an innocent person be convicted of these serious charges?” R.D. replied, “If he’s innocent, no.”
The same question was asked of C.D. And after A.D. was asked if he was sure that Garner was the gunman and replied that he was 100 percent sure, the prosecutor asked, “Would you want an innocent person to be convicted of something they did not do?”
“No,” A.D. replied. “I know it’s him…I would not have an innocent person going to jail for him.”
On August 20, 2012, the jury convicted Garner of two lesser charges of attempted reckless manslaughter and two counts of assault. Judge Warner sentenced Garner to 36 years in prison.
The Colorado Court of Appeals upheld the convictions and sentence in 2015. In 2019, the Colorado Supreme Court affirmed the Court of Appeals ruling.
In December 2022, Kathleen Lord and Jeanne Segil, attorneys at the Korey Wise Innocence Project at the University of Colorado Boulder, filed a motion for postconviction relief on behalf of Garner. The motion said that Garner’s trial defense attorneys had provided ineffective assistance of counsel.
The motion said the attorneys had failed to adequately challenge the in-court identifications by the brothers, failed to pursue a ruling on their objections on the identifications during the trial, and failed to request jury instructions that could have mitigated the damage caused by the “positive” identifications nearly three years after the crime and more than two years after they were unable to identify Garner in the photographic lineup.
The motion said that the trial lawyers had failed to interview many of the witnesses who were present in the bar at the time of the shooting. The motion said a new witness, JR, had come forward and said that he arrived at the bar at the same time that Garner and his group arrived. JR said they walked to the bar together to order drinks, and were standing there when the gunshots were fired. JR said there was “no way” that Garner could have been the gunman.
“[N]ew research demonstrably shows that the only potentially reliable identification made by an eyewitness is the first identification,” the motion said. “As such, new recommendations by the relevant scientific community dictate that memory should be tested only once. If the eyewitness does not identify the suspect, the eyewitness should not have the opportunity to identify the suspect again, including a courtroom identification.”
The motion noted that “confidence about an in-court identification is not a reliable indicator of accuracy if the eyewitness failed to identify the suspect prior to the in-court identification. New studies demonstrate that jurors are heavily influenced by confident in-court identifications of the accused. Thus, although inaccurate, in-court identifications sway jurors.
“Based on the newly discovered evidence, an in-court identification should be suppressed where an eyewitness could not identify the accused in an initial lineup. In the alternative, even if the in-court identification is allowed, the defense could introduce an expert to explain that initial identifications are the only reliable identifications. Moreover, new research supports providing reason-based jury instructions to counter a jury’s reliance on in-court identifications.”
On April 23, 2025, following an evidentiary hearing, the prosecution filed an amended response saying it agreed that Garner’s convictions should be vacated and the case dismissed. “Specifically, the record supports several instances of trial counsel and appellate counsels’ failures to provide effective assistance of counsel, and the People further recognize that the cumulative effect of those failures resulted in prejudice to the defendant,” the prosecution said.
The response noted that Garner’s trial defense lawyers had testified at the hearing that they did not consider making any objections under the Colorado Rules of Evidence. At the hearing, a legal expert testified that the objections that were made were below standards for reasonably competent defense attorneys. While proper objections may have been denied, at least the issue would have been preserved for appeal.
The prosecution quoted the Colorado Supreme Court ruling affirming Garner’s conviction that said, “because Garner failed to object to the brothers’ in-court identifications under any particular rule of evidence, we agree with the court of appeals that his evidentiary arguments are unpreserved.”
The prosecution said that once R.D. had made the initial in-court identification, the defense attorneys should have asked for a mistrial or a continuance or a mid-trial hearing to test the reliability of such in-court identifications. And the defense had no good reason for not moving for new trial after the jury convicted Garner, the prosecution said.
The prosecution also noted that the trial defense attorneys failed Garner by not objecting to the prosecutor’s “repeated inadmissible questioning of [the] three victims as to whether they want[ed] to convict an innocent man of such serious charges.”
Judge Warner granted the prosecution motion to vacate the convictions and to dismiss the case, and Garner was released.
“My job is to do the right thing on every case, and this was the right thing to do,” 17th Judicial District Attorney Brian Mason said. “We have painstakingly reviewed the transcript of the jury trial, we have heard the new witness testimony… and we believe that there were enough significant issues in this case that the convictions should be vacated.”
In June 2026, Garner filed a lawsuit seeking compensation from the state of Colorado. The lawsuit sought $877,972 for Garner and $51,579 in attorney fees.
– Maurice Possley
Posting Date: 05-15-2025
Last Update Date: 06-12-2026
