Due to a combination of erroneous jury instructions and prosecutorial misconduct, a Court of Appeals panel overturned the murder conviction of a Colorado Springs soldier and ordered a new trial.
A spokesperson for the Fourth Judicial District said that as of Thursday afternoon, “no decision has been made” about whether prosecutors will pursue a retrial.
Fernando Rosales contacted 30-year-old Sean Michael Crescentini through an online dating app, and the two met at Rosales’ home early on the morning of Aug. 15, 2015. Rosales reportedly grew uncomfortable and asked Crescentini to leave. Increasingly impatient, Rosales ordered him out, but the Crescentini blocked the door.
Allegedly, Crescentini then punched Rosales in the face. Rosales retrieved a knife and stabbed the victim in the stomach. Crescentini said “I’m sorry” repeatedly, got into his truck, and crashed it farther down the street trying to drive away. The victim subsequently died from his stab wound.
Facing a second degree murder charge, Rosales, who was a Fort Carson sergeant who served in Iraq and Afghanistan, invoked the state’s “make my day” law that permits deadly physical force against an intruder or in his own defense.
An El Paso County jury found him guilty and Rosales received a sentence of 26 years in prison. Rosales appealed, citing several errors, and the three-member appellate panel agreed that one mistake in particular and several mistakes taken together “seriously undermine our confidence in the outcome of the trial.”
Rosales was justified in using force if he was in imminent danger of receiving “great bodily injury.” He testified that Crescentini appeared nearly 100 pounds larger than him, that Rosales could not see after being punched because he was bleeding, and that Crescentini reportedly said, “You don’t know what I know. I know some things,” which Rosales did not know how to interpret.
Yet there was no definition of great bodily injury for the jury. The closest statement came from the prosecutor, who told jurors, “The only injury that Mr. Rosales received that night … is the cut above his eyebrow. A small cut … That’s not great bodily injury.”
Retired Judge Daniel M. Taubman, sitting on the panel at the chief justice’s assignment, wrote that the omission of a definition for the jury was erroneous and “was exacerbated by the prosecution’s improper focus on it during closing arguments by discussing the injury Rosales actually sustained rather than whether Rosales’s [sic] reasonably believed that such injury was imminent.”
The panel noted a combination of factors that also contributed to the reversal of Rosales’ conviction. First, the prosecution showed pictures of the guns Rosales possessed in his room, which did not serve to refute Rosales’ defense. Second, the district court judge gave further erroneous instructions about Rosales being the initial aggressor. Third, the jury received an instruction about a defendant who goads the victim into an attack, which did not fit the facts of Rosales’ case.
Finally, the prosecutor committed misconduct by referring eight times to Rosales’ ability to retreat to his bedroom instead of resorting to force. Colorado law permits non-aggressors to respond with force without first seeking a means of escape. (In addition, Rosales attempted to call 9-1-1, but the call did not connect.)
Carmen Moraleda of the attorney general’s office told the judges during oral argument that the prosecutor also suggested Rosales, as an alternative to using deadly force, could have gone to his room to get a gun to intimidate Crescentini into leaving.
“But didn’t he do that with the knife?” asked retired Chief Judge Janice B. Davidson, sitting on the panel also at the chief justice’s assignment.
Moraleda admitted that sometimes “things don’t come out the right way” in a prosecutor’s arguments.
“After addressing these considerations, we conclude that in the aggregate, the breadth of the errors presented here prevented Rosales from a fair trial, even though each error, by itself, was not alone sufficient for reversal,” Taubman explained in unpublished opinion released on Thursday morning.
The panel did side against Rosales on one of his claims. Colorado’s “make my day” law requires a person to make unlawful entry into a home to justify the use of deadly force. Rosales contended that Crescentini had at least partially exited the home, and reentered to punch him, although he provided differing descriptions of the exit to law enforcement than he did at trial.
“What defendant is asking this court to do is essentially a jury function,” said Moraleda. “It was for the jury to determine which version of the defendant’s statements to believe.”
The panel agreed, and declined to find the “make my day” provision should have applied in this instance.
The case is People v. Rosales.