Mark De Simone enters Juneau Superior Court on Wednesday, May 9, 2018. De Simone is accused of killing Duilio Antonio “Tony” Rosales during a hunting trip in Excursion Inlet in 2016. (Michael Penn | Juneau Empire)

Mark De Simone enters Juneau Superior Court on Wednesday, May 9, 2018. De Simone is accused of killing Duilio Antonio “Tony” Rosales during a hunting trip in Excursion Inlet in 2016. (Michael Penn | Juneau Empire)

Issue of intent is key as jury deliberates in murder trial

Attorneys in the murder trial of Mark De Simone made their final cases Thursday before the jury began its deliberations at about 10:30 a.m. The jury broke for the day at 4:30 p.m., and will resume its deliberations at 8 a.m. Friday.

Assistant District Attorney Amy Paige spoke for a little under half an hour Thursday, alleging that De Simone intentionally shot and killed Duilio Antonio “Tony” Rosales on May 15, 2016 on a hunting trip at an Excursion Inlet cabin.

[Catch up on all the details of the trial with our live blog]

Assistant Public Attorney Deborah Macaulay, representing De Simone, did not dispute the fact that De Simone shot Rosales that day. During her 20-minute closing argument Macaulay asserted, based on the testimony of her expert witnesses this week, that De Simone could have unintentionally shot and killed Rosales due to a few different factors.

One point of contention between the two attorneys, that came up frequently during their closing arguments, was the safety of the Ruger .41 Magnum Blackhawk revolver with which De Simone shot Rosales. While Macaulay said the gun had not been properly updated since it was made in 1972, Paige pointed out that evidence showed the gun was in good working order.

De Simone had fired the gun a few days earlier, multiple witnesses testified, when he shot at an animal near the cabin. After the shooting of Rosales, firearm expert Debra Gillis testified that she tested the gun three times and found it to be in good working order.

“They want to argue that this gun was just looking for an accident,” Paige said of the defense during her rebuttal Thursday. “No, this is a murder looking for an accident.”

The issue of intent iskey as the jurors try to determine whether De Simone is guilty of first-degree murder, Macaulay and Paige agreed. The two sides agreed on most of the facts in the case, Macaulay said both in her opening statement and closing argument: they agreed on the who, what, where and when, but disagreed on the why and how, she said.

Throughout the trial, nobody had an explanation for why De Simone would want to kill Rosales. Alaska State Trooper Ryan Anderson testified that through his investigation of the case, he couldn’t find a source of conflict between the two men.

“The lack of a reason,” Macaulay said in her closing argument, “is a gaping hole in the state’s case.”

Paige argued throughout the trial that because the gun is a single-action revolver – one that requires the hammer to be cocked and the trigger to be pulled for every shot – that the action of shooting it twice is proof of a deliberate desire to shoot it.

“It’s impossible for us to show the contents of a person’s heart,” Paige said. “The law recognizes that. Motive is not an element of the crime charged. What we look at is intentional conduct. You look at the choices a person makes.”

Paige pointed out that at the very least, De Simone’s choices revealed his lack of regard for Rosales’ life. Witness Vince Bengston, who carried the firearm for most of the hunting trip, testified that the gun was always kept in a holster, and on the day of the shooting it was in a black bag.

With this in mind, Paige said, De Simone would have had to take the holster out of the bag, take the gun out of the holster, move close to Rosales and have his hand on the trigger. It’s impossible to know what was going on in De Simone’s mind, Paige said, but evidence shows that the gun was fired twice within about 18 inches of Rosales’ head.

De Simone declined to testify during the trial.

Rosales’ friends and family were seated in the first two rows of the courtroom behind the prosecution and jury for much of the trial. Multiple times throughout the trial, they left the courtroom whenever Macaulay spoke at length. They left once again at the outset of Macaulay’s closing argument, waiting in the hallway just outside the courtroom.

The jurors entered the jury room a little after 10:30 a.m. Thursday, and Pallenberg said they will have until 5 p.m. to meet. If they don’t have a verdict by then, Pallenberg said, they will pick it back up at 8 a.m. Friday.


• Contact reporter Alex McCarthy at 523-2271 or amccarthy@juneauempire.com. Follow him on Twitter at @akmccarthy.


Assistant Public Defender Deborah Macaulay delivers her closing argument to the jury on May 10, 2018 in her defense of Mark De Simone. De Simone is accused of killing Duilio Antonio “Tony” Rosales during a hunting trip in Excursion Inlet in 2016. (Alex McCarthy | Juneau Empire)

Assistant Public Defender Deborah Macaulay delivers her closing argument to the jury on May 10, 2018 in her defense of Mark De Simone. De Simone is accused of killing Duilio Antonio “Tony” Rosales during a hunting trip in Excursion Inlet in 2016. (Alex McCarthy | Juneau Empire)

Duilio Antonio “Tony” Rosales is pictured on a hunting trip in Excursion Inlet May 15, 2016. Later that day, Rosales was shot and killed. Mark De Simone, who was with Rosales on the trip, is accused of murder. (Rosales Family | Courtesy Photo)

Duilio Antonio “Tony” Rosales is pictured on a hunting trip in Excursion Inlet May 15, 2016. Later that day, Rosales was shot and killed. Mark De Simone, who was with Rosales on the trip, is accused of murder. (Rosales Family | Courtesy Photo)

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