Defense rests, judgment of acquittal denied

The Robert Kowalski homicide case will soon be in the hands of the jury.

The defense rested on Tuesday, day 16 of the trial. The prosecution had no rebuttal.

Closing arguments in the homicide case are scheduled for Wednesday before the jury begins deliberations.

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Defendant Robert Kowalski (left) enters the courtroom under a Judicial Services escort during his trial on Tuesday. (Photo by Matt Miller/KTOO)

Investigator Randel McPherron quickly sketches out an exhibit to be used for cross examination of a defense witness. (Photo by Matt Miller/KTOO)

Public defender Eric Hedland, prosecutor James Fayette, and witness Donald Schuessler look over Investigator Randel McPherron’s sketch during Tuesday’s trial session. (Photo by Matt Miller/KTOO)

Bench conference: Public defender Eric Hedland, Judge Louis Menendez, and prosecutor James Fayette confer on legal issues during Tuesday’s trial session. (Photo by Matt Miller/KTOO)

Using a pen, former Deputy Medical Examiner testifies to a possible path that the shotgun slug took when it hit Sandra Perry. (Photo by Matt Miller/KTOO)

Defendant Robert Kowalski reviews some documents during his trial on Tuesday. (Photo by Matt Miller/KTOO)

Juneau Superior Court Judge Louis Menendez on Tuesday denied a defense motion for judgment of acquittal on the charge of first degree murder.

“The motion of judgment of acquittal must be denied if the court determines that fair-minded jurors could conclude that guilt had been established beyond a reasonable doubt,” Menendez said.

That means the jury will still consider a charge of first degree murder. Kowalski’s defense has argued that there was no intent when he killed Sandra Perry with a shotgun blast in Yakutat’s Glacier Bear Lodge in July 1996.

Kowalski also was charged with second degree murder for alleged conduct that displayed extreme indifference to the value of human life.

Jurors were sent home early Tuesday afternoon as attorneys argued over other trial issues, including special instructions reminding jurors that preservation of evidence was the responsibility of the state of Alaska, but there was no bad faith involved when it was destroyed.  Jurors were told to presume it would have been favorable to Kowalski’s defense.

It included clothing, objects found in Room 10 of the lodge where the shooting occurred, as well as video and tape recordings of investigators’ interviews with Kowalski that were discarded in 1998. At the time prosecutors had already declined to prosecute Kowalski and it appears the evidence was destroyed to make room in a Ketchikan evidence storage facility.

Judge Menendez said the tape recordings would have been crucial in determining Kowalski’s state of mind.

You heard someone say something to you and based on our own human nature, you’re able to make a decision on the issue of credibility, issues of truthfulness, and issues of honesty, and determine whether or not what that person is telling you is in fact factually correct or factually incorrect. But you have to be able to hear intonation of their voice, and how they say it and what they say. It’s even more helpful when you’re able to have a videotape of their actions or their movement towards the crime scene and get an idea of where people were standing.”

Last week, jurors spent a few tedious hours listening to an investigator read paper transcripts of the interviews.

Other highlights from Tuesday:

  • Robert Kowalski declined to testify in his own defense.
  • After weeks of resisting the introduction of evidence from the Lorraine Morin homicide in Montana, defense attorney Eric Hedland offered a copy of Kowalski’s judgment of a guilty plea and subsequent sentence to 40 years in prison (50 years with 10 years suspended) for the March 2008 death of Morin. It was intended to impeach a Montana investigator and prosecution witness who testified that Kowalski told him Morin’s death was an accident. Judge Menendez denied its use.
  • The prosecution and defense agreed to introduce Kowalski and Perry’s preliminary toxicology test results. State Deputy Chief Medical Examiner Norman Thompson testified the tests did not show amphetamine in Perry’s blood, but indicated possible trace amounts of marijuana in Perry and Kowalski’s blood. It was unclear from Thompson’s testimony if any alcohol was in Kowalski’s blood. Perry was reportedly taking a prescription medication for attention deficit disorder. A former Kowalski stepson testified that he was told by Kowalski that the shooting occurred after he had taken methamphetamine, which is a related but slightly different compound than amphetamine.
  • Norman Thompson also acknowledged the path of the shotgun slug could only be estimated with certain assumptions of the original elevation and position of Perry’s head and torso on the bed, such as if she was looking toward the foot of the bed and facing the gun.