In Dolores County Court on Monday, District Court Judge Todd Plewe denied multiple pretrial motions filed by the defense in the case of Ronald Morosko, a muzzleloading hunter who faces trial for allegedly fatally shooting bow hunter Gregory John Gabrisch in the San Juan National Forest on Sept. 17.
The 22nd Judicial District Attorney’s Office has charged Morosko with Class 4 felony manslaughter, Class 5 felony criminally negligent homicide and hunting in a careless manner, a misdemeanor.
Morosko has pleaded not guilty and is set for a five-day trial in Dolores County starting May 16.
During a two-hour motions hearing in Dove Creek, Plewe heard oral arguments from defense attorney Kenneth Pace and prosecutors Assistant District Attorney Will Furse and Deputy District Attorney Jeremy Reed.
Pace submitted pretrial motions to suppress evidence, including arguments that Morosko’s Fifth Amendment right was denied, that evidence was not preserved at the scene of the shooting and that the discovery process was inadequate.
Pace said when Morosko was initially questioned by a law enforcement officer, he indicated he did not want to speak about the shooting until he contacted an attorney.
But Morosko later answered questions about the incident from another officer, Dolores County Sheriff Lt. Braden Banks. Pace claimed the second questioning violated Morosko’s constitutional right to remain silent.
By “indicating the Fifth Amendment, he invoked his right to remain silent,” Pace said. “He told of his desire to have counsel. Continuing questioning was coercive.”
Furse countered that Morosko did not “unequivocally invoke” his right to silence or counsel under the Fifth Amendment.
“Banks says. ‘I just want to know what happened,’ then there is a free exchange of discussion,” Furse said.
Plewe denied the motion to suppress evidence of Morosko’s initial statements to law enforcement. He said there was no Fifth Amendment violation, and found that Morosko was not in custody at the time, was not coerced and gave statements voluntarily.
Banks testified at the hearing, and his body camera video of Morosko’s interview was played. Morosko also took the stand regarding his statements before arrest.
After viewing the video, Plewe said Banks was calm in his questioning. No guns were drawn, Morosko was not told he could not move, and he was not frisked.
Countering a defense argument, Plewe said that questioning Morosko while he was emotionally troubled did not rise to the level of coercion.
In another motion, Pace claimed a due process violation regarding preservation of evidence.
He said law enforcement did not use metal detectors to look for the bullet. He said the search did not include whether there was evidence of an elk’s presence, broken vegetation where hunters lay or an indication of bullet ricochet.
Fresh elk droppings could “be an indication of an animal in front or behind the decedent, but (they) did not search for this,” Pace said. Within a week, snow had fallen at the scene.
Furse countered that investigators searched the scene properly and in good faith, and that due process was not violated based on the law.
Plewe denied Pace’s motion to suppress evidence for a due process violation. He said there “was no showing of evidence suppressed or destroyed,” no evidence of “bad faith or complete failure to preserve,” and no showing that “regular procedures were not used.”
He said the defense could argue its issues regarding the preservation of evidence under cross-examination during the trial and let the jury make the decision.
In another motion, Pace claimed the prosecution violated discovery rules by not providing 3D laser-scan imagery taken of the scene by the Colorado Bureau of Investigation. He said the defense needed time to review the file and that the evidence could change the analysis of the scene by defense expert witnesses.
Furse countered that the prosecution never denied the defense the material, and that it was referenced in discovery documents shared with them.
“It was available on request,” he said.
Prosecutors said they also only recently noticed the reference to the CBI 3D analysis in documents and have obtained the file, which they provided to the defense.
At a point of witness statements, Plewe ordered sequestration for any witness who might be listening to the proceedings online.
Sequestration orders are meant to prevent witnesses from hearing testimony of other witnesses and changing their testimony based on what they heard in court.
The order came before the showing of Banks’ video of the Morosko questioning and before Morosko took the stand.
The Journal was present online and asked for clarification regarding media presence. It was instructed by a court administrator in the WebEx message box to “comply with Plewe’s order” and leave the hearing. The court telephoned The Journal a short time later to say the hearing was open to the news media and to sign back on.
Court Administrator Eric Hogue said Plewe’s sequestration order was not intended for The Journal and that the clerk’s subsequent response was the result of a misunderstanding.
The court hearing was in-person, and the proceedings were open to the public and press, Hogue said.
Online court viewings can be problematic for sequestration because the open portal system makes it difficult to identify everyone watching, Hogue said.
The 22nd Judicial District Court is moving back toward in-person court attendance, he said. If necessary, judges can allow private online viewing for certain witnesses or victims, and it may be limited to only the portion of the proceedings relevant to the viewer.
Morosko allegedly fatally shot Gabrisch after he mistook him for an elk near the Kilpacker Trail, according to an arrest affidavit.
Morosko’s hunting partner, Slade M. Pepke, was using a call to lure elk within shooting range.
Morosko told deputies from Montezuma and Dolores counties that he heard an elk bugle and scream and believed a bull elk was coming his way.
“When he saw white in the pines, he took a shot at what he thought was an elk,” according to the affidavit, written by Dolores County Sheriff Don Wilson.
Morosko said the archery hunter was wearing dark-brown camouflage, not hunter orange.
Bow hunters are not required to wear daylight fluorescent orange clothing during the archery season, according to Colorado law.
Morosko and Pepke are from Pennsylvania, and Gabrisch was from Houston.
The incident occurred in Game Management Unit 71, a 520-square-mile area that stretches from north of Dolores to Lizard Head Pass and includes the Lizard Head Wilderness Area.
The shooting occurred when muzzleloader and archery seasons overlap.
During the Jan. 12 Colorado Parks and Wildlife Commission meeting, CPW staff members recommended a policy change that would have required archery hunters to wear flourescent orange or pink during the overlapping muzzleloader season in September. The proposal was rejected unanimously by the wildlife commission.
Bow hunters are not required to wear blaze orange during the bow season, a preference they say is needed to keep cover at close range of their prey and take an ethical and accurate shot that kills the animal.
Rifle and muzzleloader hunters are required to wear at least 500 square inches of solid flourescent orange or pink above the waist. Part of it must be a hat or head covering.
jmimiaga@the-journal.com
