You might call this a case of smoke and beers, even if that sounds as if it might trivialize such a tragic matter.
And even if it properly suggests why, instead of being convicted of the more serious charge of impaired driving causing death, a young man from Steinbach was convicted last month of dangerous driving causing death instead.
Although there could be another way of explaining why that happened.
You could also call it the curious case of the incurious cop.
Last month, Shane Tyler Recksiedler faced both criminal driving charges during a trial which, perhaps fittingly, coincided with the third anniversary of the day he drove through a red light at Broadway and Donald Street, striking and fatally injuring 23-year-old Amy Gilbert as she was walking to work at Cinematheque on a bright but cool early spring Saturday evening.
She was crossing with the light, in full stride judging by the impact marks left on Recksiedler’s black, 2002 Mercedes Benz E430, when she was struck in the middle of the south lane of Broadway.
There were no skid marks.
Police later estimated the vehicle was going just below or just over the 50 km/h speed limit. Amy was crossing with the green walk sign. The traffic light had been red for nine seconds when, as Justice Chris Martin phrased it, Recksiedler "blew through" it.
Alison Gilbert is Amy’s mother. Amy was her only child.
Last week, I spoke with Alison for the first time since shortly after her daughter’s memorial service. By then, a month had passed since the four-day trial that concluded with a conviction on the lesser charge that left Alison feeling "as if I had been punched in the stomach."
"We were there for everything," Alison said of what she called four days of hell. "That was hard to listen to, but we felt we had to be there for Amy."
What made it more difficult to listen to — beyond the obvious — was her anger with the initial police investigators and how she believes they blew the impaired case. And even now, when they must realize that, they wouldn't own up to it on the witness stand.
Alison had suspected the driver had been drinking from the beginning because of an early conversation with police who took over the investigation, and later the Crown. But the officers who initially responded to the scene, and the traffic officers who were called in from home after 5 p.m. to interview Recksiedler at the Public Safety Building, testified they didn't see any signs of impairment on Recksiedler.
Or smell any, either.
This despite witness testimony from three of Recksiedler's friends who, over different stages of his all-but-sleepless nearly 24 hours prior to the crash, had described him as intoxicated. He was having girlfriend problems. He began in Steinbach the evening before the collision by binge drinking about a dozen beers until about 8 a.m. when the booze ran out. Later in the morning, he drove to Winnipeg. Drinking from alcohol in his trunk, he had another two to three beers diluted with Pepsi late that afternoon in front of a female friend's residence in The Maples. She testified that he arrived at 3 p.m. intoxicated, with beer on his breath. By the time he left — after driving to get gas, nearly getting into an accident and having his last round — she warned him not to drive back to Steinbach because he was drunk.
Half an hour later, a young woman he didn't know lay dying on the road, more than 15 metres from where his car hit her. Despite all of that evidence about his drinking and the smell of beer on his breath, which the early investigators weren't aware of, none of them said they smelled booze on Recksiedler. All of which is probably the result of the smoke I was alluding to.
And the curiously incurious cop.
Tactical response team officer Stewart Holtmann was the first cop to see Amy severely injured and unconscious but still breathing. Holtmann, who had spent the previous 10 years of his city police career on general patrol, was also the first officer to encounter Recksiedler seated near his car, on a curbside planter a block down Broadway from Donald.
Holtmann noted that Recksiedler was smoking as he approached. And would continue to smoke during the 10 or so minutes he spent with him. "Chain-smoking," as Const. Tyler Rahn testified. He was the then-rookie officer who relieved Holtmann and waited with Recksiedler for nearly two hours before escorting him to the Public Safety Building, under arrest for suspected dangerous driving causing bodily harm or death at that time.
Later, at the request of the still-seated Recksiedler, Holtmann would even retrieve a pack of cigarettes from the Mercedes for the young driver.
What's the big deal about fetching him more smokes?
Well, for one thing, Holtmann testified the cigarette smoke caused him to back away from Recksiedler. As far back as 10 feet, he said at the preliminary hearing. Which changed to "five or six" at the trial. So instead of getting closer to see if he could smell booze on his breath or if he had red glassy eyes — Holtmann never said whether he checked for either — Recksiedler's smoking blew him back. That leads us to an even bigger reason why all that smoking was a major issue. A fact that, given the circumstances of such a serious collision, Holtmann should have known. And actually did.
Under questioning by Crown attorney Manoja Moorthy, Holtmann was asked to explain the effect of smoking on a suspected impaired driver. It was something the Crown obvioulsy knew Holtmann was familiar with because officers are trained to be wary of the tactic. Holtmann answered this way: "It’s very common, through my experience of dealing with impaired investigations and persons I have arrested in the past for impaired driving, that very commonly they will smoke cigarettes upon encountering police in order to mask the smell of liquor coming from them."
Obviously, that could explain, at least in part, why Holtmann didn't detect booze on Recksiedler's breath. But not why an experienced officer would allow him to keep smoking. Unless, of course, the officer wasn't all that curious about whether he had been drinking.
That attitude was the even bigger problem at the scene.
It was an attitude stunningly exemplified when a former buddy from the military approached Holtmann at the scene wanting to tell the cop what he had witnessed.
Recksiedler's red eyes, Matthew Havens would testify.
But Holtmann told him not to tell him anything.
Holtmann was just there to keep "watch" over the driver and the scene.
The way a police cadet would. Not a seasoned officer who would spend more time reminiscing with his army buddy than speaking "briefly" twice with Recksiedler. Holtmann testified he didn't want to "contaminate" the scene for other officers by getting further involved in the investigation. Holtmann testified that he told Recksiedler that he "would have to speak with other officers that would be taking over the investigation."
Then Holtmann added something that suggests what was behind the attitude of the former general patrol officer-turned elite unit member.
"Being a member of the Tactical Support Team, it’s not my primary role to investigate traffic accidents."
Recksiedler's chain-smoking, assisted by Holtmann, appears to have been one reason the cops missed an opportunity to demand a breathalyzer test.
But the far bigger issue was the first officer on the scene did not do what cops are supposed to do. Instead, he acted like a high-priced security guard.
And it was that attitude — his lack of interest in the sobriety of a driver whose vehicle had just hit and critically injured a pedestrian — that arguably had a cascading effect on the other officers who may have assumed he had done his job.
One that Amy Gilbert's mother clearly got as she listened to their testimony.
"Not one police officer even asked if he had been drinking."
Winnipeg Police Service Tactical Response Team officer Stewart Holtmann was the first officer on the scene on April 5, 2014 when a car driven by Shane Tyler Recksiedler went through a red light and fatally injured 23-year Amy Gilbert as she was crossing the Broadway at Donald with a green light. Three years less two days from that tragic anniversary, Holtmann, the now 14-year veteran of the service, took the stand at a trial where Recksiedler was charged with Impaired driving causing death but would only be convicted of dangerous driving causing death. The examination in chief was lead by Crown attorney Manoja Moorthy. This an abridged transcript of some of the constable’s testimony.
CROWN: When you arrived at the scene what were your observations.
HOLTMANN: I could see that there was a female victim that was laying in the curb lane of Broadway, east-bound traffic. There were several bystanders gathered around the victim . . . I attended to the female that was down and I could see that she had some significant injuries. She was positioned in the curb lane, lying on her side, in what I consider the recovery position . She was breathing. She had a pulse. But she was unconscious.
CROWN: And at some point you come into contact with Mr. Recksiedler.
CROWN: How long after arriving on scene was this?
HOLTMANN: It was probably a couple of minutes afterwards. One of the citizens that was helping the person who was involved in the collision told me the vehicle was parked further east up Broadway at Smith and had been pulled over there.
CROWN: And when you first came in contact with Mr. Recksiedler where was he?
HOLTMANN: He was seated on a planter on Broadway on the southside of the street, kind of along the curb. He was seated there with a couple of other people who were consoling him.
CROWN: What was he doing when you saw him?
HOLTMANN: He was smoking. He appeared quite upset and quite concerned. That’s when I had gone over and asked if he was the driver of the vehicle involved. And he indicated he was. And I asked to see his driver’s license. He provided that to me and I pulled out my notebook and I write down that information. And I also asked him his cell phone number."
CROWN: How long is this conversation?
HOLTMANN: It was brief. Under a minute.
CROWN: During this conversation did Mr. Recksiedler remain seated?
HOLTMANN: He did stand at some point during my time there at the scene. I did ask him if he had the car keys and he did stand up and provide those keys to me.
CROWN: And you indicated earlier when you first saw him he was smoking during this conversation. Was he still smoking?
HOLTMANN. Yes. And he asked me to retrieve his cell phone and his cigarettes from the car and I did so and provided those to him.
CROWN: So at this point when you’re speaking with him you still haven’t received any specific tasks with respect to this investigation.
HOLTMANN: No, I didn’t know where this investigation was going. I didn’t know the nature of it.
I knew it as a serious collision between a vehicle and pedestrian and at this point there was more resources on the way. I just wanted to preserve it as best I could and have everyone remain until more resources came on scene.
CROWN: When you’re having this conversation with Mr. Recksiedler, the initial conversation, how far are you from him?
HOLTMANN: I would say when I retrieved the driver’s license and keys I was two to three feet away. And then once I had that I backed off. I’m not a fan of cigarette smoke at all. So I try and keep a distance so I’m not breathing it."
CROWN: How far back would you say you went?
HOLTMANN: Maybe five or six feet.
CROWN: So, after this initial conversation . . . do you go directly from this conversation to the car?
HOLTMANN: I believe I did, yeah. I went to the car, I got them. I handed those items to him. And I explained that obviously the nature of this accident was quite serious. He would have to speak with other officers that would be taking over the investigation. Being a member of the Tactical Support team it’s not my primary role to investigate traffic accidents.
CROWN: This second conversation with him, how long is this conversation?
HOLTMANN: Again, very brief. Not long. I didn’t engage in any sort of lengthy conversation. I didn’t want to ask any questions pertaining to the accident because I knew investigators would want to steer the investigation where they felt it should go. So I didn’t want to contaminate any of his possible explanations.
CROWN: When you’re having this second conversation with him where is Mr. Recksiedler?
HOLTMANN: He’s still seated on the planter.
CROWN: And are you standing when you’re speaking with him?
CROWN: And how far are you from him at this point?
HOLTMANN: Five, six feet away.
CROWN: And how did Mr. Recksiedler appear to you at this point?
HOLTMANN: Ah, he was concerned. he was upset. He made a phone call. I believe to his girlfriend. He needed to tell her he was going to be late or not be able to attend . . . He had told me initially that he was on his way to his girlfriend’s. So he made a phone call. He continued to smoke cigarettes. And I just kind of remained watch of his vehicle. The scene. Himself.
CROWN: And what time did the sergeant arrive on the scene?
HOLTMANN: You know, I did not record those times. I don’t wear a wrist watch and I didn’t have my notebook out recording anything. I just was watching."
CROWN: Are you able to say how long after you first arrived on scene the sergeant arrived?
HOLTMANN: It was maybe 10, 15 minutes at the most.
CROWN: During that time did you end up seeing anyone at the scene that you knew in your personal life?
HOLTMANN: Yes, a witness came forward to me who happened to be an old friend of mine. He just by chance was there that day. And he had witnessed the accident. And he wanted to tell me that. So I told him, ‘don’t talk about it with me.’ I didn’t want to contaminate any of his evidence that he could provide pertaining to the accident. Be it that him and I were old friends it could be a conflict of interest. So I didn’t want him to disclose to me what was going on. So we had a brief conversation. Just about – we hadn’t seen each other in several years. So just talked about our lives."
CROWN: At this point, while you’re having this conversation, where is Mr. Recksiedler?
HOLTMANN: He’s still seated on the planter, remaining for investigators.
CROWN: And at this point you’re focused on your conversation with your friend?
HOLTMANN: A little bit, yeah. Obviously, yeah, I was talking to him.
CROWN: Now in the time that your were with Mr. Recksiedler, for that 10 to 15 minute period, you indicated that he was smoking. Are you able to say how many cigarettes he had?
HOLTMANN: No. I didn’t record how many cigarettes he had. He continued to smoke throughout my time observing him.
CROWN: And, again, when the sergeant arrived on scene what did you tell the sergeant, if anything, with respect to Mr. Recksiedler?
HOLTMANN: I had identified Mr. Recksiedler as the driver, the only person in the car at the time of the collision . . . And that I had the keys to the vehicle. I explained that I had provided his cell phone and cigarettes to him. And at that point I said that there was witnesses, lot of witnesses down by where the victim was . . .aside from my friend, Matthew Havens, who was another witness. And he told me that general patrol Echo 104 was going to be taking over control of the vehicle and Mr. Recksiedler.
CROWN: And did you say anything to the sergeant about any observation you made of Mr. Recksiedler’s demeanor.
HOLTMANN: I don’t remember doing that . . . I think I explained to the sergeant that he was cooperative and understood that he would need to speak with police and wouldn’t be allowed to leave the scene.
CROWN: And what, if anything, did you do after your finished your conveying that information to the sergeant?
HOLTMANN: I turned the keys over to Cst. (Tyler) Rahn from Echo 104, an evening car that had come, and that’s when I basically introduced him to Mr. Recksiedler and ended my involvement. They took over.
CROWN: You indicated you handed the keys over to officer Rahn. Other than that did you convey any other information to officer Rahn with respect to the accused?
HOLTMANN: Ah, not that I recall. I think that they had maybe asked on Mr. Recksiedler’s sobriety, or my opinion of it. But I don’t recall observing anything that needed to be brought forward to them. (Rahn later testified that he had nothing in his notes about a conversation with Holtmann about the state of the driver’s sobriety, and he would have recorded that if it happened. "I took it that he had no concern" Rahn, who had two years experience with the WPS at that point)
CROWN: Did you ask Mr. Recksiedler if he had anything to drink?
HOLTMANN: I don’t recall asking him that, no.
CROWN: And if you arrive at the scene of an accident at 5:30 p.m. on a Saturday what sort of steps would you take to ascertain sobriety of a driver?
HOLTMANN: Ah, just observations. In his mannerisms and behavior. I didn’t witness the collision or the manner of driving prior to it so I didn’t have any of that information at hand. In the event of an accident on a Saturday afternoon, it didn’t really occur to me that maybe he was impaired or not. That’s why I was deciding just to observe him and watch to see if there were any of those signs of impairment. Um, at that point I didn’t observe any. Therefore I didn’t charge and caution him.
CROWN: What would have been a triggering sign to enter into that investigation?
HOLTMANN: Um, well, again the manner of driving, ah, helps a lot when determining an impaired investigation . . manner of speech, slurring of words, ah, maybe the way they hold themselves. Ah, staggered gate . . .glassy, watery eyes. The smell of liquor from the person.
CROWN: Ok, in your training with respect to impaired driving investigations were you ever trained with respect to the impact of cigarettes on impaired investigations?
CROWN: And what was that?
HOLTMANN: It’s very common, through my experience of dealing with impaired investigations and persons I have arrested in the past for impaired driving, that very commonly they will smoke cigarettes upon encountering police in order to mask the smell of liquor coming from them.
CROWN: When you arrived at the scene, when first speak with Mr. Recksiedler, did you turn your mind to the thought that this could be an impaired investigation.
HOLTMANN: Ah, it did cross my mind. Anytime there’s an accident I’m going to try to determine the sobriety of the driver. However, nothing stood out to me that he was under the influence of alcohol at that point. And, of course, the smell of liquor – or smell of cigarette smoke, I really couldn’t smell any liquor. If there was any there I was smelling cigarette smoke.
CROWN: When you’re engaged in an impaired investigation where you arrive at a scene and you see the individual smoking a cigarette, what, if anything, would you do?
HOLTMANN" Ah, I would ask them to stop smoking if I believed that was an impaired investigation because if we are going to administer whether an ASD (An Approved Screening Device is a portable breathalyzer intended to provide a quick way for police to access sobriety) or a breath test you have to have a clear 15 minutes of nothing consumed.
CROWN: Did you specifically focus on Mr. Recksiedler to look for signs of impairment.
HOLTMANN: I would say I did, yes.
CROWN: And how did you do that?
HOLTMANN: Just visual observations of his mannerisms.
CROWN: Did you note anything in your notes with respect to this?
HOLTMANN: No, I don’t believe so. There was nothing that stood out to me.
CROWN: And did you note in your notes . . . that you engaged in this sort of observations for signs of impairment?
HOLTMANN: No. I didn’t record anything saying I observed or deliberately observed for that purpose.