Cimmarusti refuses to testify in retrial

Judge sentences man convicted of Downwind’s death to additional jail time

BEMIDJI — Already serving a three-decade prison term, the Bemidji man convicted of killing Rose Downwind in 2015 was sentenced to six additional months Tuesday for refusing to testify in a related trial.

The trial, which began Monday, will determine whether a second Bemidji man, Brandon Joseph Rossbach, 34, can receive a new sentence for his conviction of aiding an offender after the fact.

Rossbach was originally sentenced to more than 16 years in prison in 2016. However, an appeals court ruled in 2018 that a jury should have helped determine the level of homicide Rossbach aided and that he was subsequently eligible for a new sentencing.

As the central figure in Downwind’s death, Marchello Cimmarusti was transported to Bemidji from St. Cloud and ordered to testify in Rossbach’s trial Tuesday. From the stand, however, Cimmarusti, 43, said he refused to testify on principle, although he didn’t elaborate beyond that.

“No, I refuse to testify,” Cimmarusti said calmly from the stand.

Downwind, 31, died in 2015 after a fight with Cimmarusti, her boyfriend, in a south Bemidji house. The fight resulted in Downwind falling down a flight of stairs. Once he realized she was dead, Cimmarusti called Rossbach and another man, Christopher John Davis of St. Paul. Together, they took Downwind’s body to a wooded, remote area northwest of Bemidji where they burned and buried her remains.

Cimmarusti was convicted of second-degree murder and sentenced to 35 years in prison.

Davis and Rossbach were both convicted of aiding an offender after the fact. Davis, 30, was sentenced to 10 years in prison.

While the six-month contempt of court sentence ordered Tuesday may be just a drop in the bucket compared to Cimmarusti’s existing prison term, Judge Paul Benshoof said he wanted to make sure the sentence was an actual consequence.

Because of that, he ordered Cimmarusti serve it consecutively with his initial term. That means he will have to serve six months in the Beltrami County Jail after the end of his 35-year prison term rather than serve both sentences at the same time.

Benshoof also said he wanted to make sure the sentence did not get lost during the course of Cimmarusti’s primary sentence. So, he issued a warrant for Cimmarusti so that it would be evident to the prison staff that he had additional time to serve after he left.

“It does strike at the heart of the criminal justice system in a major way,” Benshoof said about Cimmarusti’s refusal to testify. “I’m not going to take a chance this falls through the weeds over time.”

Benshoof also informed Cimmarusti that a warrant on his record could potentially affect the kind of programs he otherwise would be eligible for in prison. Despite that, Cimmarusti still refused to testify.

Cimmarusti’s attorney, Steve Bergerson, informed that judge that Cimmarusti already testified during an earlier trial and that he was simply refusing to testify again. Bergerson also said he was unsure if Benshoof had the authority to issue a warrant based on the circumstances.

Benshoof said he would consider withdrawing the warrant if Bergerson could assure him the prison’s record keeping could keep track of the additional six-month sentence until it could be served more than 30 years down the road.

In lieu of an actual testimony Tuesday, the prosecution read a transcript of the testimony Cimmarusti previously gave in 2016.

There was disagreement, though, between the prosecution and the defense about how much of the testimony should be read into the record. Rossbach’s defense attorney Kassius Benson said reading the transcript would be at least somewhat inefficient because it would not convey certain elements of verbal communication, such as sarcasm. They redacted portions of the 2016 testimony so that it could not be entered into the record.

“Had he testified, we wouldn’t be confronted with this difficulty,” Benshoof said.

In addition to the conversation about Cimmarusti’s testimony, the second day of the trial also included testimony from Butch Huston, a forensic pathologist with the Ramsey County Medical Examiner’s Office. Questioned by both the prosecution and the defense, Huston spoke about how they identified Downwind’s body from both DNA and dental records. He also testified that Downwind likely died before she was burned. He said there were multiple ways they were able to determine that, such as the amount of carbon monoxide in her remains and the lack of soot in her airway.

The trial is scheduled to continue Wednesday.