The defendant in the re-opened murder case of Sandra M. Perry, who was fatally shot at a Yakutat lodge in 1996, will now be tried in Juneau in March instead of next week.
Juneau Superior Court Judge Louis Menendez agreed to move Robert D. Kowalski’s trial date from Nov. 4 to March 17, 2014, during a court hearing Monday. The trial will last three weeks.
Kowalski’s attorney made the expedited request for the continuance based on a late-filed discovery and recent investigative activity in the case by Alaska State Troopers conducting follow-up interviews with witnesses. The motion went unopposed by prosecutors.
Kowalski, 52, has been awaiting trial at Lemon Creek Correctional Center since a Juneau grand jury indicted him in the fall of 2011. He is charged with first- and second-degree murder in connection to Perry’s death 17 years ago at Glacier Bay Lodge, where the couple was vacationing from Washington.
Alaska investigators at the time ruled the death accidental and never arrested Kowalski. The case was re-opened in January 2009 after Kowalski was charged and convicted of killing his girlfriend Lorraine Kay Morin in Montana in 2008.
The issue of whether the Montana conviction can be admissible in the Alaska case has dominated the pre-trial litigation. Defense attorney Assistant Public Defender Eric Hedland previously challenged the indictment on that basis, arguing the bad act evidence should not have been presented to the grand jury because it was unfairly prejudicial.
Menendez ruled last week to uphold the indictment and said the evidence of the Montana homicide is relevant because both women were killed under similar circumstances. State prosecutors say both women were shot by Kowalski at close range with a single gunshot following an argument. Both times he waited hours before reporting the deaths to authorities, and both times, he claimed it was an accident.
“The two cases involve the same sort of ‘situational behavior’ — an argument within the context of a domestic relationship, immediately preceding the shooting, where one party is killed under circumstances similar as to the cause and manner of the killing of the other party,” Menendez wrote in the 20-page ruling.
Menendez also found that the prejudicial impact is outweighed by the probative value of the evidence, and he agreed with prosecutors that the Montana shooting is admissible to prove Kowalski’s intent and the absence of mistake or accident.
Hedland told the judge during Monday’s hearing that the ruling will essentially force him to defend Kowalski against two crimes at trial — both the Montana shooting and the Yakutat shooting.
“I respectfully disagree with the court that there won’t be the need to try two cases. I think there will be,” the attorney said. The judge responded by saying he would not discuss the ruling.
Hedland told the Empire outside the courtroom, “I think it makes it hard for him to get a fair trial. Almost impossible.”
Attorney General James J. Fayette, the lead prosecutor in the case with the Office of Special Prosecutions and Appeals, declined to comment.
The attorneys are scheduled to meet again in November for a status hearing to make sure they are still on track to go to trial in March. The trial has been rescheduled six or seven times already, but the judge on Monday indicated this new start date is likely to stick.
• Contact reporter Emily Russo Miller at 523-2263 or at email@example.com.