A 20-year-old Wyoming man who shot his friend to death in a January duck-hunting incident is asking a judge to dismiss the criminal case against him, saying his handling of the gun was not reckless.
Goshen County District Court Judge Edward Buchanan has scheduled a Nov. 12 hearing to listen to Gaige Zook’s argument.
Zook is a University of Wyoming student from Pinedale with no criminal history, says an Oct. 16 filing by his attorney, Jason Tangeman.
He is charged with one count of involuntary manslaughter in the Jan. 20 death of Maurizio Justiniano, who was 19. The charge is punishable by up to 20 years in prison, and is a felony that would remove Zook’s gun and voting rights if he’s convicted.
The charge asserts that Zook handled a shotgun “recklessly,” causing Justiniano’s death on the Platte River Jan. 20, as the pair and a third hunter hunkered in a manmade driftwood blind on the river’s south shore.
Zook saw a duck and tried to shoot it, but his gun misfired, says the case evidentiary affidavit. So he leaned his gun against the fallen tree, and borrowed the third hunter’s 20-gauge shotgun instead. He missed the duck, then went back to his own gun and tried to see what was wrong with it.
The gun fired unintentionally, striking Justiniano in the left side of his abdominal area, says the affidavit.
Zook “failed to properly and safely clear his weapon of malfunctions, and by having it pointed in an unsafe direction when it discharged, directly led to and caused the death of Maurizio Justiniano,” charging documents allege.
Zook told the third hunter to call 911. Zook also helped emergency medical personnel care for Justiniano as he lay dying, says the affidavit.
State Of Mind
In Wyoming, a person can’t be convicted of murder or manslaughter unless he has some deviation in his state of mind. For first-degree murder, that deviation is “purposely and with premeditated malice.” For second-degree murder it’s “purposely and maliciously.”
And for the involuntary manslaughter charge that Zook faces, that deviation of the mind is “recklessly.”
There was no recklessness here, so there was no manslaughter crime, Tangeman’s motion argues on Zook’s behalf.
The motion characterizes the shooting as a fluke, rather. It quotes Zook’s written statement to investigators, taken in January, which says:
“I gave (the third hunter) back his shotgun, then as I went to grab the gun to inspect it and put the safety on, it fired, hitting Mars.”
Zook also gave investigators a video interview and performed a reenactment of the incident on scene; and these match his written statement, the filing says.
None of these statements provide evidence he consciously allowed the muzzle of his shotgun to point at his friend, Tangeman argued.
The motion says Wyoming case law casts “recklessly” as a state of mind which approaches an intent to do harm. The Wyoming Supreme Court in one 1960 case defined the mindset as a disregard for the safety of others, or behaving with a careless indifference to the consequences of one’s actions, the motion adds.
“The undisputed evidence is that the shotgun misfired and was safely set down with the muzzle pointing straight up,” wrote Tangeman. “Gaige Zook was trying to make the firearm safer in an effort to protect fellow hunters and himself at the time it discharged.”
The Shot Did Kill Justiniano
Yet at some point, the shotgun’s barrel had to be facing Justiniano, Tangeman’s filing acknowledges.
“The question becomes, how did this occur?” he wrote. On the one hand, he says the investigating officer was “speculating” that Zook laid the shotgun down so that it was pointing at Justiniano. But it says that runs contrary to Zook’s matching statements about the incident, and that Zook “does not remember exactly what occurred in the split second the firearm discharged.”
It is likely, argued Tangeman, that Justiniano moved forward and stood up into the barrel’s path at the wrong moment, while Zook was focusing his attention on the faulty gun.
But if the prosecutor’s evidence is “speculative,” then Zook should not have to contest it at trial, the defense attorney argued further.
The Own-Risk Law
Lastly, Tangeman invoked Wyoming’s civil law on sports and recreation, which says people engaging in those activities accept any risk associated with them. That’s a law that governs civil, not criminal law.
But the defender argued that it would not fit, to preclude a hunter for being sued in such a shooting – since hunting is inherently risky – but not to spare him from a criminal conviction, which requires a much heftier proof of evidence than the civil trial from which that law may exempt him.
“Allowing this case to proceed to a jury trial would result in criminalizing any hunting accident,” Tangeman wrote.
The Late Justiniano
Online details about the late Justiniano are sparse.
His brother Nahuel Dadin established a GoFundMe page earlier this year asking for help with Justiniano’s cremation, the transport of his ashes back to his home state of Minnesota, and other expenses.
Dadin did not immediately respond to a request for comment placed via the page, which is no longer accepting donations. He could not be reached for comment through other means.
“I just want to go with my family to give my brother the respect he deserves,” wrote Dadin on the page. “We want to pick up my brother (sic) ashes and bring him home where he belongs.”
Justiniano was not a licensed hunter but wanted to go with the other two hunters that day in January, to learn about duck hunting, says the affidavit.
Goshen County Attorney Eric Boyer did not immediately respond to a Monday voicemail request for comment.
Different Investigator
Goshen County Coroner Darin Yates told Cowboy State Daily on Monday that after reviewing the forensic pathologist’s account of the autopsy, he deemed Justiniano’s death “accidental.”
It is not unheard-of for a coroner’s manner of death not to match the charges that a prosecutor applies to a case, noted Yates.
That’s because law enforcement and coroners perform their own different investigations of fatal scenes, each looking at different elements of the case.
And coroners do not have the authority to apply or refuse to apply criminal charges, Yates added.
Clair McFarland can be reached at clair@cowboystatedaily.com.
