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Forensic photos prompt move for mistrial

Judge presiding over 17-year-old murder trial denies motion

Posted: March 27, 2014 - 12:14am
This photograph, which was provided to the Empire by state prosecutors and published with permission of family members, shows Sandra M. Perry in the years before she was killed at a Yakutat lodge in July 1996. Now 17 years later, her boyfriend is on trial in Juneau for murdering her. The defendant, Robert D. Kowalski, claims the fatal shooting was an accident.  Courtesy photo
Courtesy photo
This photograph, which was provided to the Empire by state prosecutors and published with permission of family members, shows Sandra M. Perry in the years before she was killed at a Yakutat lodge in July 1996. Now 17 years later, her boyfriend is on trial in Juneau for murdering her. The defendant, Robert D. Kowalski, claims the fatal shooting was an accident.

A Juneau jury heard from a ballistics expert Wednesday during the cold case murder trial of a man who fatally shot his girlfriend, but the real explosions took place away from the jury.

An argument between attorneys about forensic photographs of firearms testing got heated, and when the judge allowed the photographs as evidence, the defense attorney moved for a mistrial.

The judge didn’t entertain the request.

“It’s denied,” Juneau Superior Court Judge Louis Menendez said instantly after Assistant Public Defender Eric Hedland uttered the word “mistrial.” Menendez then chided Hedland for posturing for the press.

The episode began Wednesday afternoon when prosecutors sought to introduce photographs of the results of testing done on the Mossberg 12-gauge “bear killer” shotgun that killed 39-year-old Sandra M. Perry at Yakutat’s Glacier Bear Lodge in July 1996. Perry’s boyfriend, Robert D. Kowalski, 53, claims it was an accident.

State crime lab firearms expert Robert Shem conducted the testing in March 2013. Though prosecutors had the photographs for nearly a year, they did not provide notice of their intent to introduce them as an exhibit at trial. They only provided the pictures to Hedland — who had never seen them before — on Wednesday morning.

Hedland called it an “egregious” discovery violation, saying he suspected prosecutors only wanted to introduce the photographs to show that the muzzle of the gun was closer to Perry’s body than they originally postulated. Hedland’s suspicions were confirmed when Shem told the judge that he no longer believed the gun could have been shot from up to four feet away from Perry.

“I would not say this was a four-foot shot,” Shem said, adding the shot was probably more in the 18-inch to 2-foot range.

Shem never disclosed that opinion until Wednesday. In his original report, he said there was significant soot and/or gun powder residue powder at each range (one to four feet) he fired a test shot, and he did not detail any distinctions among the four ranges.

But Shem said he saw autopsy photographs for the first time this week that showed “gun powder tattooing” or residue patterns on Perry’s face, which the deputy medical examiner had sewed back together with stitches. That made him change his conclusion, he said. Shem added that the photographs show distinctions in the amount of soot and residue found at each range, with more soot at closer ranges.

While Assistant Attorney General James Fayette urged to judge to not let the jury be “cheated” out of seeing the photographs, Hedland said he was being “sandbagged” because he was not provided enough notice for Shem’s opinions and the exhibit. Hedland cited court evidence rules that require prosecutors to make expert opinions available as soon as they are known and no later than 45 days before trial. The rule says if that doesn’t happen, possible remedies can include suppressing the evidence, granting a continuance so the defense can consult its experts, or a mistrial.

Fayette argued that suppression was not an appropriate remedy. He proposed a continuance, insisting, “this is not ground-breaking stuff.”

The deputy medical examiner who performed Perry’s autopsy previously testified at trial that the gun went off probably six inches to three feet away.

The judge allowed the photographs to come in, which prompted Hedland to move for the mistrial.

“I’m saying the photographs that should not come in,” Hedland argued after the judge denied his motion. “It’s an egregious discovery violation, the state — you know what? It’s not just that it’s 45 days too late, it’s 17 years too late.”

It is not yet entirely clear how the gunshot distance will play into the attorneys’ legal strategies. A jury will have to determine whether Perry was shot intentionally or accidentally. Kowalski claims he tripped and the gun discharged, shooting Perry in the head as she was sitting in bed.

During his testimony, Shem told the jury the Mossberg shotgun requires at least 4 1/2 pounds of pressure on the trigger to be fired. Shem added that nothing was mechanically wrong with the gun to cause it to discharge unintentionally.

Earlier in the day, the jury saw photographs of the crime scene from 1996 taken by another crime lab employee, now retired, Jim Wolfe.

The trial, which began last week and is slated to last another week, will pick up again today with more testimony from Shem under direct examination and then cross-examination.

Kowalski is facing two counts of murder in connection to Perry’s death, and he could be facing life in prison if convicted. He was never charged in 1996 because prosecutors could not disprove his claim of an accidental shooting, but the case was re-opened after he was convicted of homicide in connection to his girlfriend’s death in Montana in 2008. He is serving a 40-year prison sentence for her death.

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

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