A jury trial began on Tuesday for the Juneau carpenter charged with felony assault after he shot a guest at his Valley home in December.
In opening statements, District Attorney David Brower said the issue wasn’t whether Kenneth Nalan, 36, shot his brother-in-law’s drinking buddy, 33-year-old John Duran, while they were drinking at Nalan’s house the night of Dec. 20. Rather, the question is why?
“This is not a question of ‘whodunit?’,” Brower told the jury. “It’s a question of ‘why-dunit?’”
Brower argued Nalan recklessly shot Duran in the face without reason, while Nalan’s attorney Eric Hedland argued the shooting was in self defense.
But first, Hedland described in his remarks the circumstances that led up to the incident, which left Duran in critical condition at the hospital and required him to undergo facial reconstructive surgery.
Hedland said Nalan allowed his brother-in-law, John Day, Day’s partner Nadine Peratrovich and their newborn baby to live at his house in the 3000 block of Glacierwood Drive. Nalan is married, but was not living with his wife, Angela, at the time, Hedland said.
The night of the shooting, Day asked Nalan if it was OK if he invited his friend Duran over to drink some beers at the house.
“Ken says ‘Whatever, that’s fine,’” Hedland said.
Nalan had only met Duran twice before — once at a job site and another time a year earlier, Hedland said.
“John Duran was not friends with Ken Nalan,” Hedland stressed, a point contrary to what police and family members had told the Empire earlier.
To emphasize that point, Hedland pointed out that Nalan was drinking his own beer the night of the shooting, not the beer the trio had brought back to the house.
Hedland portrayed both John Day and John Duran as being “rough and tumble guys,” in contrast with his client whom he described as peaceful. Duran in particular, Hedland said, is violent and was allegedly involved in gangs in California and demonstrated kill points on Day with a knife.
“He’s a martial arts expert, he knows about kill points, he knows about guns, he likes to fight,” Hedland said. “These guys are in their 30s — John Duran and John Day are in their 30s, and they have fun by doing things like grappling and slap fighting and stuff like that. That’s what they were doing this evening.”
In comparison, Nalan never owned a handgun until he was “seriously assaulted on his porch” about a year ago, Hedland said, without elaborating on that attack except to say the it was investigated but the attacker was never charged.
Though he had owned rifles before, Nalan got a handgun for protection, Hedland said. Duran knew that handgun was in the house because he was there the day it arrived, Hedland said.
“The day that it was brought over, John Duran was there, he saw the gun,” Hedland said, saying that was the second instance Nalan met Duran. “... Mr. Duran knew that gun was in the home, Mr. Duran likes guns.”
Around 7:30 p.m. the night of the shooting, the drinking began, and there was some “slap fighting” and “trash talk” going on between Day and Duran, Hedland said.
“They’re the rough and tumble guys,” he said. “They’re the guys that think it’s fun to fight. ... Ken’s not participating in that. Yeah, he wants to be one of the guys, but he is not grappling with them. That’s not his thing.”
“The tension is building, and Mr. Nalan is going, ‘What dark cloud did you bring over here. What is going on here?’” Hedland added.
Day, Duran and Nalan go to the back master bedroom to smoke cigarettes, while Peratrovich left the house to pick up the baby.
The scenarios of what happens next differ.
According to Hedland, Nalan was sitting on a computer chair next to the bed with Day was sitting on the bed, oblivious and drunk. All of a sudden, Nalan sees Duran, who is about 100 pounds heavier than him, come into view from behind an armoire with Nalan’s .357 Magnum revolver in his hand.
“He reacts immediately, grabs the gun, the guns goes off, Mr. Duran gets shot in the face,” Hedland said.
Peratrovich, who had returned inside the house with the baby about a minute before she heard the gun shot, came to the back room and dialed 911 amid the panic, Hedland said.
Three police officers, who were dispatched to a nearby call, arrived on scene within a few minutes.
Brower called the three police officers to the stand Tuesday to testify about what they saw and heard while responding to the shooting.
All three said they saw Duran, Day and Nalan on the front porch outside the house, with Duran lying on his left side, where Day and Nalan brought him from the back bedroom to wait for help to arrive.
Officer Steve Warnaca, who arrived on scene at the same time as Officer Joe Bankowski, went to group on the porch and said he saw someone kneeling over Duran and cradling his head.
“My first thought was that he was dead,” Warnaca said, adding that when he asked who the victim was, Duran responded, “My name is John Duran.”
“I was shocked,” Warnaca said.
Apparently, the bullet entered and exited Duran’s left and right cheek without touching his teeth or tongue. One of the attorneys described it as “miraculous” that he survived.
Meanwhile, Bankowski’s asked “Where’s the weapon?,” according to an audio recording played in court. Peratrovich, who was still on the phone with 911 and was holding her baby in the other arm standing in the doorway, led Bankowski through the house to the bedroom where the gun was. Bankowski secured the weapon by emptying five of the six bullets (the sixth would later be found lodged in the wall of the bedroom near a light switch), and placing it on his belt before transferring it to another police officer. Hedland questioned during cross examination whether that might have compromised the crime scene.
Lt. David Campbell, then a sergeant who was the night shift patrol supervisor in charge that night, arrived on the scene about 30 seconds to a minute after the two officers. He ordered Day and Nalan to step away from Duran and to sit down, which they did. Campbell testified Day and Nalan were cooperative and visibly upset. They were not placed in handcuffs or under arrest, but Campbell said in hindsight, police should have placed them in handcuffs to better control the scene for safety purposes.
Medics took Duran to the hospital, and Nalan was taken to the police station.
The jury listened to portions of Campbell’s tape recorder, which captured a medic asking Nalan how close was the muzzle of the gun when he shot it.
Nalan responded, “Pretty close, dude, he threatened me really quick.”
Duran is heard in the background, moaning, “No, I didn’t, liar,” and Nalan says, “I’m sorry, I’m sorry, I’m sorry.”
Nalan is inconsolable during most of the recording, crying, “Oh my god, please hang in there,” and begging the EMTs to hurry (They were called before police arrived at the house). Campbell tells him, “They’re coming, they’re coming.”
“You’re the one that shot him?” Campbell asks at one point.
“I did,” Nalan said.
“Why would you do that?”
“Because he attacked me,” Nalan replied, sobbing.
When asked later why Duran would want to attack him, Nalan said, “I don’t know. ... I was attacked in the back bedroom and I was like ‘F--- that.’”
“California came at me, dude,” Nalan is heard explaining to Day in another portion of Campbell’s recording. “ ... I didn’t have a choice, dude. I guess I probably should have just took a lickin’ or something. I don’t know. It was instantaneous: Grab it.”
Brower argued that Nalan’s statements change over time, saying one thing at that moment when police and medics responded and another thing during a later police interview.
“He says John Duran had the gun, but his statements change over time over different interviews,” Brower said. “The first time he said, ‘John Duran had the gun and I grabbed it and shot him.’ (A police detective) said, ‘Did you grab it out of his hand and shoot him?’ He goes, ‘Yes sir, yes sir.’ And then, not long after that, he said, ‘Well, I didn’t take it out of his hand. It was still in his hand and I turned it around on him and pulled the trigger.’” Brower told the jury. “The question you’re going to have to answer is: If he took it out of his hand, why did he shoot him? Why did he feel threatened once he had the gun?”
Testimony in the case will continue tomorrow. The state said it anticipates calling a police detective, as well as Peratrovich, Day and Duran. The trial is slated to last the rest of the week with Juneau Superior Court Judge Louis Menendez presiding.
• Contact reporter Emily Russo Miller at 523-2263 or at email@example.com.