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Juneau man guilty on assault charge but not drug distribution

Posted: August 2, 2011 - 9:55pm
Defense counsel Kevin Higgins and client Jose Perez listen as the jury returns a verdict in Juneau Superior Court on Tuesday.   Klas Stolpe / Juneau Empire
Klas Stolpe / Juneau Empire
Defense counsel Kevin Higgins and client Jose Perez listen as the jury returns a verdict in Juneau Superior Court on Tuesday.

A jury deadlocked in Juneau Superior Court on Tuesday in the trial of a man accused of selling heroin.

Jose Perez, 36, was found guilty of assault and one count of interference with official proceedings, but the jury was hung on the more serious charge of second-degree misconduct involving a controlled substance in the second degree. The case can be retried.

Judge Philip Pallenberg polled the jury to confirm the results and then asked the spokesperson if there was any likelihood further deliberations would lead to a verdict by the jury. The spokesperson said no.

Defense attorney Kevin Higgins then moved for a mistrial on the drug charge and another count of interference with official proceedings.

“The state charged (interference) under two theories, but for the same thing,” Higgins said outside the courtroom. “I am saying since they convicted him of one theory we should just dismiss the other one because my argument will be at sentencing the two counts would merge anyway. So there wouldn’t be a separate sentence imposed for each one and I actually think the counts themselves would merge, not just the sentences. He can be retried on the drug offense though.”

State assistant district attorney Angie Kemp did not object to the motion and Pallenberg declared a mistrial on the drug charge.

“Because count three was based on an alternate theory of the same offense I would actually move to dismiss that count at this point,” Higgins said regarding the second interference charge.

Pallenberg discharged the jury and took the motion to dismiss the second interference charge under advisement. He gave Higgins five days to file a written memorandum in support of his oral motion and the state 10 days to respond to Higgins’ oral motion.

Kemp said she would like time to respond to the defense motions and debate a further process.

The conviction for assault is part of the interference with official proceedings because of the force Perez was found to use, and the defense conceded he used. The jury also found that assault was designed to interfere with witness testimony.

Perez faces one to three years in prison on interfering and up to a year on the assault charge.

A status hearing was set for August 8.

• Contact reporter Klas Stolpe at 523-2263 or at klas.stolpe@juneauempire.com.

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