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Investigator, witness take the stand

Attorneys argue over admissibility of play fighting, victim's alleged violent past

Posted: April 5, 2012 - 12:11am
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Juneau Superior Court Judge Louis Menendez, center, holds a conference with Public Defender Eric Hedland, left, and District Attorney David Brower, foreground, in the trial of Kenneth E. Nalan, 36, on Wednesday. Prosecutors allege Nalan shot his friend John N. Duran, 33, in the face with a .357-caliber gun at Nalan's house in the Mendenhall Valley the night of Dec. 20, 2011.  Michael Penn/Juneau Empire
Michael Penn/Juneau Empire
Juneau Superior Court Judge Louis Menendez, center, holds a conference with Public Defender Eric Hedland, left, and District Attorney David Brower, foreground, in the trial of Kenneth E. Nalan, 36, on Wednesday. Prosecutors allege Nalan shot his friend John N. Duran, 33, in the face with a .357-caliber gun at Nalan's house in the Mendenhall Valley the night of Dec. 20, 2011.

The trial against 36-year-old Kenneth E. Nalan continued Wednesday with more police testimony and the first witness testimony. The jury also heard an audio recording of the 911 call and viewed photographs and a videotape of Nalan’s house on Glacierwood Drive, where a shooting took place in December.

Nalan is charged with one count of first-degree assault, a felony, after shooting a man in the face during a get-together at his house where alcohol was being consumed. Nalan is claiming self-defense.

The man who was shot, John N. Duran, 33, survived the incident but required facial reconstructive surgery. He is expected to testify later this week.

On Wednesday, District Attorney David Brower called Juneau Police Department Sgt. Paul Hatch to the stand. Hatch is an investigator who was off duty at the time of the shooting, but was called in to help process the crime scene about half an hour after the fact.

Hatch, who has been a police officer for 20 years, narrated for the jury a four-minute videotape he took for documentation purposes after warrants were obtained. The tape showed the interior of Nalan’s home and a trail of blood from the front hallway to the master bedroom in the back of the house where Duran was shot.

Photographs Hatch had taken showed pools of blood on the bedroom floor and blood smears on the hallway walls from where Duran staggered, with the help of Nalan and Nalan’s brother-in-law John Day, to get to the front porch to wait for medics.

Nalan’s attorney Eric Hedland, during cross examination, questioned apparent holes in the police investigation. He asked why the .357 Magnum revolver was not processed for fingerprints, why the blood found in the house was not tested for DNA, and why there wasn’t consultation with a ballistics expert about the trajectory of the bullet, especially after Hatch testified, “I cannot conclusively say the path that (the bullet) took.”

Hedland also fought Hatch’s assertion that there wasn’t any “blowback” apparent on the revolver. Blowback is blood, flesh or other particles that can enter a barrel of a gun after it is fired at close range. The implication of a lack of blowback in this case could indicate Duran wasn’t shot at close range.

Hedland asked Hatch if it was possible whether the blowback could not be found because a responding officer with one year on the force removed the gun from the crime scene, emptied its bullets and secured it in his belt before placing it in an evidence bag. Hatch agreed it was possible.

“Was that a good idea for preserving the scene?” Hedland asked.

“Probably not,” Hatch said.

“What would you have done if you’d seen the gun there?”

“Based on the circumstances at the time, I might have considered leaving it in the house.”

“Why would you leave it where it was?” Hedland continued.

“For better documentation of where it ended up and possible leading forensic evidence on the firearm,” Hatch said.

The state next called Nadine Peratrovich to the stand, a woman who lives in Nalan’s house with her significant other, Nalan’s brother-in-law John Day and their newborn baby.

Peratrovich said the day of the shooting, she and Day picked up Day’s friend John Duran from work around 5:30 p.m. to go shopping and pick up some beers from Walmart. They had already gotten permission from Nalan to invite Duran over, whom Nalan had only met twice before, according to Hedland.

Peratrovich, who wasn’t drinking, had dropped off her then-4-month-old baby with someone she trusts, she said, because she didn’t want her child at the house while Day, Duran and Nalan were drinking.

A few hours later, she went to pick up her child, then returned to the house about 45 minutes later. Not a minute after she was inside at about 10:30 p.m., she said she heard a “thud” sound. Then she said she heard a gunshot.

Leaving the sleeping child in another bedroom on the opposite side of the house, Peratrovich said she rushed over to Nalan’s room with cell phone in hand, where she found Day, Duran and Nalan. She said she saw Duran lying face-down on the floor, Nalan standing and Day sitting on the edge of the bed.

“Ken had told me he had shot him and to call 911, and I said ‘OK.’ And I had my cell phone in my hand, which I always do, and I called instantly,” she said. “ ... I saw (Duran) on the floor laying face down, and once he heard my voice, he stood up and he started walking toward me.”

Nalan and Day helped him walk through the hallway to get to the front porch to wait for the medics when Duran collapsed, though he was still conscious, Peratrovich said.

The jury listened to Peratrovich tell 911 dispatchers, “Somebody’s been shot,” and relayed instructions to Day and Nalan to place a clean cloth on Duran’s face to stop the bleeding.

Peratrovich is heard telling dispatchers, “It sounds like a self-defense type of thing. They’re all friends. It wasn’t a hostile thing.”

When asked by Brower if she had a basis for her “self-defense” statement, Peratrovich responded, “I said that because J.D.’s (Duran) kind of an intimidating, aggressive type personality, and Ken is not. And if anything I would suggest that given J.D.’s and Day’s history, they would — they call it ‘slap sparring’ around. It’s basically playing around and hitting each other and that’s fun for them. Sounds crazy but it is,” she said. She added Day is a boxer and Duran is a wrestler.

Peratrovich testified she knew her partner Day for about three years, and she met both Duran and Nalan through Day. She said she’s known Duran for about two years.

The night of the shooting, Duran was talking about his upbringing and stories from his past, Peratrovich said.

“He has a lot of — I don’t want to say gang — but he does have gang history and drug history,” she said. “I don’t want to say it as a mean way, but he would glorify it, his past.”

When the jury was not present, Peratrovich told the court she thought Duran was a violent person. She listed several examples, including one where Duran was at a party with his uncle at someone’s house and that Duran pretended to get drunk with the others, but then tied them up and robbed them. She said another instance is when Duran was a teenager, his girlfriend was shot in a drive-by shooting. Duran found out who the killer was and killed him, Peratrovich said. In another instance, Peratrovich said, Duran choked her friend’s son.

Brower argued Peratrovich should not be able to testify about those things since they were circumstantial and not relevant, whereas Hedland argued Peratrovich should testify about it to demonstrate the effects those statements had on Nalan the night of the shooting. They go to show that Duran was the first aggressor in the shooting, and Nalan had a defensive state of mind, Hedland said.

Brower also moved for the judge to impeach Peratrovich to challenge her credibility since she was convicted of a crime of dishonesty — providing false information, a misdemeanor — in 2006. Alaska evidence rules say that a witness can be impeached if they have been convicted of a crime of dishonesty in the past five years, though sometimes a judge will relax that rule to extend past five years.

Juneau Superior Court Judge Louis Menendez denied the motion to relax the five-year rule, which prevents Brower from asking Peratrovich in front of a jury if she has ever been convicted a crime of dishonesty.

Menendez also allowed Peratrovich to testify more in depth about the robbery Duran was involved in and the slap fighting behavior. She was not allowed to testify about Duran’s alleged gang or drug prior history, though, since it wasn’t relevant to this case, Menendez ruled.

Peratrovich will continue her testimony Thursday. Day and Duran are also expected to testify.

• Contact reporter Emily Russo Miller at 523-2263 or at emily.miller@juneauempire.com.

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