The witness’ change of heart came after deputies mistakenly put both men in the same room at the Milwaukee County Jail before a key court hearing.
As a result, prosecutors dropped first-degree homicide charges against Joel Rivera, and a judge on Thursday sentenced Christian Colon to 46 years for his role in the crime, far more than he had expected from his original plea deal.
Both men had been charged in the January 2007 robbery and shooting death at Marty’s Party, 3735 W. National Ave., that took the life of customer Nicholas Knutowski.
Colon, 21, was charged in March 2007. He was brought this month to the Milwaukee County Jail from the state prison in Green Bay to testify at the preliminary hearing for Rivera, 20, who was charged in December.
But Colon wound up in the same area with Rivera and then refused to testify.
“It was his mom, his aunt and his brother he was concerned about,” said Colon’s attorney, Nik Kostich. “The Riveras and the Colons all live in the same area. He didn’t want them to take revenge on his family.”
Milwaukee County Sheriff David A. Clarke Jr. said Thursday he was livid that the two men were put in the same holding area but added that he doubted that the error led to Colon’s decision not to testify. Nonetheless, he said the matter is under investigation and he would refer it to the district attorney for possible charges against two deputies.
“A court order is a court order,” Clarke said, referring to directives that Colon and Rivera be kept apart. “We have to obey court orders just like anybody.”
District Attorney John Chisholm said there was no excuse for housing the two men together, but that defendants often get cold feet before testifying for the state.
The wrinkle did not set Rivera free; in February 2008, he pleaded guilty to two armed robberies and is serving five years at the Racine Correctional Institute.
Colon will spend much longer in prison. In February 2008, he agreed to plead guilty to felony murder and two counts of armed robbery, while prosecutors dismissed four felony counts from other robberies.
In court Thursday, Assistant District Attorney William Molitor said Colon had been involved in thefts and other relatively minor crimes before joining Rivera at age 18 because he was out of work and needed money to buy diapers for his two young children.
On Dec. 22, 2006, Colon went with Rivera and others on a spree of three business robberies. They all wore masks, and during one robbery, Colon fired two shots from a 45-caliber pistol, according to Molitor.
But at the Marty’s Party robbery, he told police, he had a BB gun, while Rivera was at the door with a loaded pistol, Molitor said.
According to Molitor, Colon said that Rivera told him: “I’ll be at the door. If anyone moves, leave it to me.”
Colon, Rivera and a 14-year-old boy went into the bar, Molitor said, all wearing masks. Knutowski and two female bartenders were there. A shot was fired at the jukebox, and Knutowski moved toward the shooter and was shot twice. The women had dived behind the bar and into a second room and were not hit. The robbers fled.
Colon acknowledged his role in the crimes and had cooperated with police – until he was locked up with Rivera.
Jesse Knutowski told Milwaukee County Circuit Judge Patricia McMahon that the killing of his brother, Nicholas, had deeply affected his entire family.
“The affect of Nick’s murder is with us every day,” Jesse Knutowski said. “A day doesn’t go by when we don’t think of him. It affects us differently – some are angry, some want revenge, some have spiraled into depression. It’s changed how we see people, the world and ourselves.”
Colon apologized to the Knutowski family.
“I wish I could go back to that night,” Colon said. “I never meant for this man to get hurt.”
While prosecutors had initially agreed to recommend leniency for Colon, Molitor suggested Thursday that he get the heavier sentence.
McMahon gave Colon 22 years plus six years’ supervision for felony murder, and 12 years plus four years’ supervision on each of the two robbery counts, each to be served consecutively.
“You think nothing of taking things from other people,” McMahon said. “We are known by our acts, by what we do.”