A Juneau Superior Court judge Monday denied a motion to acquit a man accused of shooting a person in the face in December.
As the prosecution rested on the fifth day of Kenneth E. Nalan’s trial, Nalan’s attorney Eric Hedland moved for acquittal, saying the state hasn’t proved its case.
“The evidence isn’t sufficient to sustain a conviction,” Hedland said, pointing in part to an “unprecedented” lack of physical and forensic evidence. “... The state did not introduce one piece of physical evidence in this case. Not one piece of physical evidence. None. The gun. Clothing. Any kind of forensic testing.”
Nalan, a 37-year-old construction worker and carpenter, is charged with first-degree assault in the Dec. 20 shooting of John “J.D.” Duran. Duran was shot with Nalan’s .357-caliber revolver at Nalan’s house on Glacierwood Drive after a night of drinking with Nalan and Nalan’s brother-in-law, John Day, 43.
Duran, 33, is a former DIPAC employee who moved to Alaska in 2009. He survived the incident but required facial reconstructive surgery. Nalan is claiming self defense.
Judge Louis Menendez considered Hedland’s two-pronged argument the state failed in proving the shooting was reckless and it failed to refute the self-defense claim beyond a reasonable doubt. Menendez disagreed and allowed the trial to continue.
Hedland then recreated the crime scene for the jury, transforming the courtroom into Nalan’s bedroom. It was complete with props such as Nalan’s guitar and armoire that is kept at the foot of his bed. Blue tape on the courtroom floor outlined the contours of the room.
It was all to help visualize an answer a question that has so far proved elusive: What happened that night? Three people were in Nalan’s bedroom when the gun went off: Nalan, Day and Duran. Day said he was too intoxicated to remember much of anything, and Duran testified earlier in the week he couldn’t remember either, possibly since the shooting has affected his memory.
So Hedland called in his main witness: Nalan.
“For six days, we almost forgot you were in the courtroom,” Hedland told Nalan, who nodded in response. Throughout the trial, Nalan’s been quiet and still, his only movement resting his head in his hands. Once last week he was asked to stand up to demonstrate for the jury that he was a few inches shorter and more slight in build than Duran.
On Monday, the jury for the first time got to hear him speak more than just one word answers, “yes” and “no.”
Originally from Skagway, the father of three said he received the .357 from a coworker after he was seriously assaulted at his home last year. Several of his ribs were broken in the incident, as was his jaw, Nalan said.
The assailant had barged through Nalan’s unlocked front door and into his house, he said. When Nalan told him to leave, he did. But then he came back and pummeled him, Nalan said.
The pistol was for home protection, he said, because the perpetrator, who was never charged with the crime, was threatening to burn down his house and shoot his wife and kids. Nalan said he kept the pistol in his bedroom closet, obscured behind sundry items. He said he never shot it before.
“It was a out-of-sight, out-of-mind, high place. I didn’t want any of the kids or anybody to see it or sort of grab interest, especially kids,” Nalan said.
Nalan said Duran knew where the gun was because Duran was over at his house the day the gun arrived. Nalan’s sister testified earlier in the day she watched Duran show Nalan’s wife, Angela, how to load the gun that day.
The night of the shooting, Nalan said he, his brother-in-law Day and Duran, whom he’s only met three times before, were drinking in Nalan’s kitchen. Duran told stories about how he has robbed and killed someone, and Duran sparred with Day and demonstrated kill points on Day, Nalan said.
The trio moved into Nalan’s bedroom to hang out there and smoke cigarettes. Nalan said Duran “playfully” shoved Nalan down the hallway, he said. Except it wasn’t playful in Nalan’s opinion. Day more or less told Duran to knock it off, Nalan said. But Nalan began growing increasingly concerned and said he began to hope that both of them would start getting tired and leave. He didn’t ask Duran to leave because he didn’t want to cause a confrontation, and he “certainly didn’t want to piss J.D. off,” Nalan said.
“I was concerned mostly because the thing that happened a year ago,” Nalan said. “And I wanted to say ‘Get the heck out, or get the hell out of my house. I want to shut this whole show down.’ But the last time I did that, it backfired. So I was just hoping the problem would go away.”
Nalan, when asked by Hedland, came down from the witness stand and demonstrated how to was positioned sitting watching the Discovery Channel on his computer in the corner of his room, while Duran and Day were talking amongst themselves.
“I was trying to tune them out,” Nalan said.
All of a sudden, he heard someone yell loudly. Nalan looked behind him and saw Duran, whose hands were initially obscured by the 4-foot-tall armoire at the foot of the bed, holding the pistol in his hand, Nalan said.
“I swear he grabbed the gun first,” Nalan said.
Nalan, still demonstrating for the jury, immediately jumped up and skirted the edge of the bed and went straight for the gun. With Hedland playing Duran in the scenario, Nalan demonstrated how there was a “tug-of-war” type struggle for the pistol. He said the hammer was cocked.
“Both of us have all our hands on the gun ... There was a tug-of-war out in front of this dresser, and eventually I got — the gun broke loose,” Nalan said, wrestling the imaginary gun from Hedland.
“It seemed like forever, but I’m guessing 10, 15 seconds,” Nalan said when asked how long the struggle lasted.
Duran fell forward, and Nalan tried to catch his own balance as he was falling backwards, Nalan said. “And then, it went off,” Nalan said.
“I must have (pulled the trigger),” Nalan added, stifling back tears. “It was in my hands.”
Duran stood halfway up and started staggering to the door, and Day and Nalan helped him outside to the front porch. Duran collapsed.
“I can remember him choking on his own blood,” Nalan said, “We tried to roll him on his side so he didn’t choke.” Nalan said he held a towel to Duran’s face to try to stop the bleeding while waiting for paramedics.
“I will never forget that for the rest of my life,” he said.
District Attorney David Brower will have a chance to cross-examine Nalan Tuesday. If convicted, Nalan could face up to 20 years in prison for the felony offense.
• Contact reporter Emily Russo Miller at 523-2263 or at firstname.lastname@example.org.