The new trial for hunter Ronald Morosko got off to a rocky start Wednesday in Cortez with a snowstorm delay and a request for a mistrial.
Morosko is charged with criminal negligent homicide and hunting in a careless manner in the shooting death of bowhunter Gregory Gabrisch while the two hunted separately in the San Juan National Forest north of Rico on Sept. 17, 2021.
Morosko has pleaded not guilty on both charges.
The first trial in Dove Creek ended in a mistrial Oct. 31 after a COVID-19 outbreak in the courtroom infected two jurors, courtroom staff and an attorney.
The prosecutor, 22nd Judicial District Attorney Matt Margeson, moved to retry Morosko on the same charges, and defense attorneys were granted a change of venue to Montezuma County Combined Courts.
Jury selection was conducted Tuesday in the midst of a snowstorm that closed area schools along with city and county government offices.
“Despite the weather conditions, a fair number of jurors reported,” said Court Administrator Eric Hogue.
The attorneys selected 12 jurors and two alternates Tuesday.
But on the first day of the official trial Wednesday, two jurors were absent, stranded at home from deep snow that accumulated the previous few days.
Chief Judge Todd Plewe ordered the trial to continue Thursday at 9 a.m. to allow time for the two jurors to dig out and make it to court.
He said the trial could have continued without the two jurors, but he did not want to risk losing a juror without an alternate.
“Going forward without alternates is not a good idea, given what happened last time,” Plewe said. “I’m not willing to risk another mistrial. We need 14 jurors.”
The two alternates were not identified.
All 14 jurors hear the case and do not know who the alternates are, to avoid the potential that the alternates might not pay close attention to the proceedings.
An alternate juror would step in if the court determined a juror was unable to continue.
After the evidence is heard and the jury is set to deliberate, the judge identifies who the alternate jurors are, and they are discharged.
After the trial delay was ordered, Margeson requested a mistrial because of the loss of an expert witness for the prosecution, Jason Trousdale, an expert in firearms, firearm safety, hunter safety and muzzleloader safety.
Trousdale could not attend because a close family member was critically ill in a hospital, Margeson said.
“I don’t take this (mistrial request) lightly. He is a necessary witness,” he said, adding that his absence would “be a disadvantage to the People’s case.”
The presence of the Trousdale is also necessary to rebut any attack on his credibility by defense.
Morosko’s defense attorney, Kenneth Pace, objected to Margeson’s mistrial request, arguing that transcripts of Trousdale’s previous trial testimony could be read into the record.
“Our position is to get this trial done,” Pace said, adding that the witness could testify later in the trial.
“A lot of time, energy and money has been spent. ... If the prosecution can’t proceed, maybe it is time to dismiss the case,” Pace said.
After a review of transcripts from the previous trial, Plewe denied the request for a mistrial, saying Trousdale’s previous testimony could be repeated verbatim for the record.
“The witness testified prior and under cross-examination,” Plewe said. “That is why we record these things.”
Plewe’s denial was based on the need to avoid another mistrial, the existence of Trousdale’s previous testimony and the travel time for witnesses.
While acknowledging “great empathy for the witness and his family,” the case needs to be tried and “will move forward,” Plewe said. “I do not see prejudice to the People. We can read the transcripts into the record.”
He advised jurors to not discuss the case or read about it and to return Thursday morning, at which time opening statements will be presented by the prosecution and defense.
Of the 12 jurors who attended Wednesday’s proceedings, nine were women and three were men.
Prosecutors are Margeson and Deputy District Attorney Jeremy Reed. Morosko is represented by defense attorneys Pace and Heather Little. Plewe will oversee the trial.
The trial is scheduled for five days.
In the previous trial’s opening statements, Margeson stated Morosko made “numerous fundamental errors” when he fatally shot bowhunter Gregory Gabrisch during a muzzleloading rifle hunt.
Morosko did not intend to shoot the other hunter, but his actions were criminally negligent, Margeson said.
Little faulted the law enforcement investigation and argued that Morosko’s actions were not criminal. She said evidence shows the incident does not meet the legal definition of criminal negligence in Colorado.
The shooting occurred as both men hunted elk during overlapping muzzleloading and archery seasons Sept. 17, 2021, near the Kilpacker Trail in the San Juan National Forest northeast of Dolores.
The Journal filed for expanded media coverage for the trial to record audio, and take video and still photography, but was allowed instead to take still photographs through the mirrored glass in the attorney-client room. No photos of the jury were allowed.