The main question on the final day of witness testimony in the Mark De Simone murder trial was not what happened on May 15, 2016 at Excursion Inlet, but what could have happened. With testimony wrapped up, the jury should begin deliberating Thursday.
Assistant Public Defender Deborah Macaulay was wrapping up her defense Wednesday, presenting the jury with her argument that De Simone — who is accused of shooting and killing Juneau jeweler Duilio Antonio “Tony” Rosales in 2016 — could have pulled the trigger unintentionally two times.
Only two expert witnesses testified Wednesday, but they each took the stand twice. Macaulay and Assistant District Attorney Amy Paige went back and forth with two firearm experts in court Wednesday, trying to determine if De Simone (or anyone, for that matter) could unintentionally fire a gun twice.
Chad Kendrick, a local firearms expert and owner of Juneau gun and ammunition store Taku Tactical, performed a demonstration for the jury of how he thinks a person could end up firing two unintentional gunshots.
Paige called Debra Gillis, a forensic firearms and tool marks examiner for the Alaska Scientific Crime Detection Laboratory in Anchorage, to respond to Kendrick’s demonstration. Gillis said that when she first the theory of back-to-back unintentional gunshots, she thought it was “ridiculous.”
“It’s rare to have an unintentional discharge in the first place,” Gillis said. “To have two in conjunction, I think, is very rare.”
The argument centered around factors that could cause a person to unintentionally fire a gun, based on the research of Dr. Roger Enoka. Enoka testified via video call from Colorado on Tuesday, listing off ways a person could fire a gun without meaning to do so.
Two of these ways, Enoka and Kendrick explained this week, are if a shooter is startled as he or she holds the trigger and what’s called a sympathetic response. A sympathetic response, basically, is that if one hand does something, the other one will likely want to do that same thing, Enoka explains. Enoka says he saw instances where an officer was detaining a subject with one hand and holding a gun with the other, and sometimes when the non-armed hand closed in a fist, the hand carrying the gun would automatically follow suit and form a fist and pull the trigger.
Kendrick said a subject could fire as a result of these factors, and then the recoil of the gun could cause the subject to fire the gun again quickly.
He demonstrated that a person might try and stop the gun as it recoils but accidentally re-cock the gun. With the finger still on the trigger from the first shot, Kendrick said, a person could squeeze the trigger again.
Kendrick used a revolver in the demonstration that was loaded with silicone bullets that stopped the gun from actually firing. The gun he used was his own, and a slightly different model than the Ruger .41 Magnum Blackhawk revolver that was identified as the weapon that killed Rosales.
Paige aggressively cross-examined Kendrick after the demonstration. Through cross-examination, Kendrick said the demonstration was purely hypothetical and was not based on any evidence in this specific case.
Paige asked Kendrick to consider another possibility as well — that a shooter could have fired the gun once, aimed again, cocked the gun again and fired again. Kendrick agreed. Paige then pointed straight at Kendrick, thrusting her hand forward with each word to emphasize her point.
“In other words,” Paige said, “this gun could have also operated exactly as it was intended to operate, isn’t that right?”
“It is possible, yes,” Kendrick said.
During her opening statement at the start of trial, Macaulay said she wasn’t denying that De Simone was the one holding the gun when it fired and killed Rosales. Multiple witnesses who were along with De Simone and Rosales on a hunting trip at the time testified that De Simone admitted shooting Rosales. De Simone declined to testify in the case.
Through the testimony of three witnesses this week — Kendrick being the main one — Macaulay illustrated the possibility that a shooter could unintentionally fire the gun twice.
Kendrick’s testimony was that if someone unintentionally fires twice, he or she would likely do it in extremely fast succession. This fits in with testimony from forensic pathologist Dr. Todd Grey on Monday, who said the bullets that went through Rosales’ head likely did so in very quick succession because their paths were very similar.
A main point for the prosecution is that firing the single-action revolver requires deliberate movements. If someone fired the gun intentionally, he or she would have to cock the hammer and pull the trigger for each shot.
Both attorneys will say their final words to the jury Thursday morning during their closing arguments. Judge Philip Pallenberg has said to the jury multiple times that he wanted the case to get to the jury on Wednesday, but he told them it’s best to give the attorneys ample time to make their closing arguments.
“I know that all of you would like to conclude your jury service and I know that this has gone on a long time,” Pallenberg said to the jurors. “At the same time, it’s a serious case. The stakes are, well, it’s a serious case and the decision is a very important one.”
• Contact reporter Alex McCarthy at 523-2271 or email@example.com. Follow him on Twitter at @akmccarthy.