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Judge weighs in before murder trial

Judge says former DA's memo explaining why charges were never brought is inadmissible

Posted: March 20, 2014 - 12:09am

A jury will hear from prosecutors today that Robert D. Kowalski murdered his girlfriend at a Yakutat lodge nearly 20 years ago, but what they won’t hear is why prosecutors did not press criminal charges at the time.

The judge presiding over Kowalski’s murder trial, which starts in Juneau Superior Court with opening statements this morning, ruled that an old memo which explains why prosecutors chose not to charge Kowalski in 1996 will not be admissible at trial.

“I’m not going to allow it in evidence,” Menendez said in his ruling Tuesday, siding with prosecutors.

Then-Juneau District Attorney Richard Svobodny penned the memo about four months after Sandra Perry’s death, and a copy was provided to Perry family members who demanded to know why Kowalski was not being charged with a crime. The family held on to its copy of the document, and they sent it to the Anchorage-based Office of Special Prosecutions and Appeals (OSPA) when the cold case against Kowalski was re-opened in 2009.

The memo surfaced last summer as attorneys prepared for trial; the new lead prosecutor, James Fayette of OSPA, found it in the case’s files and provided a copy to Kowalski’s attorney.

Svobodny summarizes the facts of the case based on the Alaska State Troopers investigation in the memo, and he concludes there was no indication Kowalski intended to cause Perry’s death.

According to the memo, Kowalski was interviewed multiple times after Perry died from a gunshot wound to the head in a room at Glacier Bay Lodge where the two were vacationing from Washington. He was interrogated twice on July 21 — the date of her death — once on July 23 and again on July 25. In all the interviews, Kowalski was visibly “distraught” and even vomiting.

The memo states Kowalski gave investigators different information in each of the interviews, but the accounts didn’t contradict.

“There is a change in story from one statement to the other, but no one statement contradicts what was said in another statement and any apparent contradiction would appear to be the use of different words in explaining what happened at different times or the prodding of Kowalski’s memory for more details,” the memo states.

In Kowalski’s first interview with troopers, Kowalski said he and Perry heard a noise outside the room’s window they believed it was a bear. He grabbed a shotgun and Perry shouted “Boo,” which startled him and caused him to fire the shotgun. During the next interview, he told investigators that he had been holding the shotgun and standing next to Perry, who was sitting on the bed. Perry asked him for a cigarette and when he was handing it to her, she startled him and the gun went off. In interview on the 23rd, Kowalski said they heard a thump near the window and thought it was a bear. Kowalski said he grabbed the shotgun and held it in both hands with the gun parallel to the ground. He said the safety was off and that when he walked to the foot of the bed (that Perry was sitting on) to peer out the window, his left foot bumped into a bedpost and that at the same time, Perry yelled “Boo,” which startled him, caused him to turn and point the gun at her and fire.

He said he was so overwhelmed about having shot Perry that he sat on the opposite bed and waited for someone to come in. He said he unloaded the gun, then reloaded it as he contemplated suicide. In later interviews, Kowalski specified that it’s possible Perry said “Bob” (his first name) rather than “Boo,” and that at one point the barrel of the shotgun hit Perry in the chest when he tripped or stumbled over the frame of the bed.

Svobodny goes on to state in the memo that Kowalski offered this information to investigators, and that Kowalski told witnesses the same thing.

The only exception, Svobodny wrote, is that there may have been a verbal argument that took place in the couple’s room at the lodge (Room No. 10) that was overheard by a person in Room No. 9. The Room 9 occupant told troopers he was awakened at about 2 o’clock in the morning when Kowalski and Perry returned to their room and he heard Perry use a loud voice in talking to Kowalski. The occupant in Room 9 said he heard Perry say “**** you” to Kowalski about five times, and later around 3:10 a.m., he heard the gunshot, the memo states.

Svobodny wrote that there was no evidence in the couple’s room to indicate a physical altercation between the two, and Kowalski never raised his voice, just Perry, possibly due to a hearing problem. Svobodny noted that Perry also was not adverse to using profanity as a pattern of speech. When confronted about the argument, Kowalski told investigators it was a discussion, not an argument, about “picking up a particular rock to bring back to Seattle,” the document reads.

At the end of the 11-page memo, Svobodny writes the state would not be charging Kowalski with first-degree or second-degree murder, manslaughter or criminally negligent homicide. He noted that causation was a problem in the case.

“Causation is a major problem in this case,” the memo reads. “There is no way of disproving Mr. Kowalski’s statement that he hit his foot on the end of the bed which caused him to fall forward, ultimately discharging the firearm. Stubbing one’s toe is not generally a reckless or criminally negligent act.”

Given’s Svobodny’s written opinion, the lead prosecutor in the re-opened case requested in January that the judge exclude the memo from trial, saying it is not admissible under evidence rules that bar hearsay. Kowalski’s attorney, Eric Hedland, and another defense attorney, Tim Ayer, opposed that motion last week and then made a cross motion to admit it into evidence as an admission of a party opponent.

Arguing before the judge on Monday, Fayette said it’s unlikely Svobodny still holds the same opinion. Svobodny is now head of Alaska’s Department of Law, Criminal Division, and in his position has oversight over the present prosecution, Fayette said.

“It’s extraordinarily unlikely that he still adheres to his 1996 opinion,” Fayette told the judge.

The prosecutor emphasized that the document is “absolutely not” relevant because it only reflects the opinion of one attorney and is “unhelpful expert testimony.”

If presented to the jury, it could present a danger that the jury will take more stock in Svobodny’s opinion than testimony and evidence at trial, he argued.

“That would be wrong,” Fayette said. “That would be an unfair windfall for the defendant.”

The defense did not see it that way. Ayer argued that the document was relevant because it expressed the state’s beliefs at the time. It further helps fill in the gaps about why the case was never charged, and it also begs the question of why the case is being charged now.

The defense maintains that the case was only brought because Kowalski was convicted via Alford plea of killing his girlfriend in Montana in 2008. Ayer said the state has no new evidence that Kowalski murdered Perry aside from that Montana conviction.

“Prosecutors thought the Montana case would persuade jury that this guy’s a murderer,” Ayer said. “The jury has a right to know the government didn’t prosecute based on the facts on the ground.”

Judge Louis Menendez in the end sided with prosecutors saying he did not find the memo relevant.

“It has no relevancy today in terms of what’s being litigated,” Menendez said.

The judge noted that the conclusions Svobodny drew were in the pre-litigation status of a case (not in the context of court proceedings) and that his statements did not bind the government forever. Menendez added that it’s the jury’s job to decide the facts that “I think to submit Mr. Svobodny’s memo would interfere with that responsibility.”

The judge also ruled on two other evidentiary matters. He ruled again that he would allow the Montana conviction into evidence. The defense has maintained since the indictment was filed in 2011 that admitting evidence about the Montana case would be unfairly prejudicial to Kowalski.

The judge ruled in Kowalski’s favor in another matter by not allowing other past domestic violence acts alleged against him in at trial. Fayette in his motion in limine outlined 11 prior complaints of domestic violence against Kowalski.

“I think it’s piling on,” Menendez said. “I think it’s too much information. I don’t even know what this information is except what’s been written here.”

The majority of the past alleged acts involve the same victim, who was interviewed by investigators in 2013; some of the incidents prompted local police to respond at the time, Fayette noted in his motion.

Fayette wrote that he wanted to elicit testimony at trial about the following information: in 1997, Kowalski threatened his girlfriend and her mother in their King County, Washington home with a gun, causing a hole in the roof; in 1997 King County, Wash., Kowalski assaulted his girlfriend a hotel room; in 2001 in Kalispell, Mont., Kowalski threatened his girlfriend with a gun and assaulted her in their home; in 2002 in Bigfork, Mont., Kowalski placed his wife and stepson in fear of assault and destroyed property; in 2003 in Bigfork, Kowalski was intoxicated, injured himself, assaulted someone, destroyed property in a house and refused to leave a residence or let officers in; in 2003 in Bigfork, police responded to a 911 call from his girlfriend for an in-progress argument; in 2003 in Bigfork, Kowalski was intoxicated and angry and tried to push a woman off a deck and nearly attacked police with a lamp; in 2003 in Bigfork, Kowalski threatened to cut his girlfriend’s son’s head off; in 2007, he assaulted his girlfriend.

Menendez said that information at this time would be “more prejudicial than probative” to the case, but he would re-consider if Fayette makes further application.

Kowalski is facing one count of first-degree murder and one count of second-degree murder for Perry’s death. He could be facing life in prison if convicted.

He was sentenced in April 2009 for the Montana case — 50 years in prison with 10 years suspended — for killing Lorraine Kay Morin.

The Juneau trial is slated to last three weeks, and opening statements are scheduled to begin around 9 a.m. Thursday.

The state said their first witness will be one of Perry’s children.

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

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