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Judge denies 2nd motion to acquit shooter

Jury today to consider Kenneth Nalan assault case in Superior Court

Posted: April 11, 2012 - 12:04am

A jury will consider whether a Juneau man who shot his brother-in-law’s friend in the face should be convicted of felony assault on Wednesday after closing arguments.

The jury of 12 will have to decide beyond a reasonable doubt that Kenneth E. Nalan, 36, did not shoot John “J.D.” Duran in self defense.

Duran was shot the night of Dec. 20 at Nalan’s house on Glacierwood Drive after a night of drinking with Nalan and Nalan’s brother-in-law. Duran survived, but required facial reconstructive surgery.

The jury has already heard five and a half days worth of police and witness testimony. Attorneys will make their closing arguments Wednesday morning.

Juneau Superior Court Judge Louis Menendez Tuesday once again denied a motion to acquit Nalan. Nalan’s attorney Eric Hedland made the motion a second time Tuesday after the state finished cross examining Nalan, who took the stand to tell his side of the story.

“I remain convinced this is a case that must go before a jury based on the law and based on the facts in this case,” Menendez ruled.

Hedland again claimed the state hasn’t proved its case, or has even made a clear argument.

“The state said in its opening statement — Mr. Brower said, ‘You’re going to have to figure it out.’ That’s what he said to the jury, ‘You’re going to have to figure it out,’” Hedland argued. “That’s not even a(n) assertion by the state that it can prove the case beyond a reasonable doubt, or disprove self defense beyond a reasonable doubt.”

Hedland continued that Nalan’s testimony presented “uncontroverted” evidence of self defense. He added Nalan doesn’t have to prove self defense — the state has to disprove it.

“I would suggest specifically on cross examination, the state’s case got worse,” Hedland said, noting the state did not introduce any physical scientific or forensic evidence to contradict the self defense claim.

He said the state was only relying on statements made minutes after the shooting, referring to the 911 call, police audio tape while responding on scene and police interviews an hour or so after the fact.

“I would suggest to the court that’s not assisting a jury in figuring out the case,” Hedland said. “At least not if you’re trying to convict somebody ... of a very serious felony.”

District Attorney David Brower pushed back, saying the state is arguing Nalan recklessly shot Duran. Brower told the judge Nalan’s testimony on the stand directly refutes what he told police officers before he was arrested on Dec. 21.

For instance, Brower pointed out, Nalan told police during an interview at the station that ‘The first thing I did was grab a gun. I was like ‘F--- that.’

“That doesn’t show that anybody else got the gun but Ken Nalan,” Brower argued.

Nalan testified Monday that Duran grabbed Nalan’s .357 Magnum revolver out of his closet first and came at him. Nalan said there was a brief struggle, or tug-of-war with the gun before he pulled the trigger.

Brower said Nalan told police officers that “a lot of little s--- happened with my gun in the house,” whereas on the stand, Nalan said he has not seen or touched the gun since he placed it in his closet over the summer.

“Mr. Nalan’s testimony is not uncontroverted by his own inconsistent statements,” Brower said.

Various things in Nalan’s testimony just “don’t add up,” Brower said.

When pressed during cross examination, Nalan responded he doesn’t know why he told police the things he did.

“My mind was going a million miles an hours,” Nalan said, adding, “It was very, very chaotic to me.”

During cross examination, Brower asked Nalan what he meant when he told police officers that he was having a “d--- pissing contest” with Duran.

Brower asked, “Do you remember telling Detective (Elias) Joven that, ‘It was a d--- pissing contest totally. That’s the bottom line. It was a d--- pissing contest and he’s from California and the Duran family. I am in your own house and I win. You don’t win’.”

“I don’t remember saying exactly that but I’m sure if I said that, I said that,” Duran said.

Nalan also told police he told Duran where the gun was, Brower said. Nalan said that wasn’t true when he testified. Nalan testified Monday that he never shot the .357 until Dec. 20, which contradicts a statement he gave police earlier, that he took the gun to a rifle range.

“I said a lot of things I don’t know why I said, some of which that totally don’t make any sense now that I look back on it,” Nalan said.

Nalan said he went back to the police station the morning after the shooting to make a statement, but his wife, Angela, got a lawyer on phone to talk him out of it.

Nalan said he even argued with her about it while standing in the JPD parking lot. But his attorney “was insistent, insistent” that he not make a statement, Nalan said.

Brower told the judge that much of the testimony so far in the case “doesn’t compute,” and that it’s up for jury to decide the truth.

“This is a case for the jury,” Brower said. “Fair-minded jurors can find beyond a reasonable doubt that it wasn’t self defense.”

A second juror was excused from his seat Tuesday afternoon while the courtroom was sealed. A female was excused last week when she heard a passing comment that Nalan was a “hot-head.”

The case started with 14 prospective jurors, two of whom were to be chosen as alternates. Twelve remain.

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

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