Testimony halted once again Friday in the trial against a man accused of murdering his girlfriend at a Yakutat lodge 17 years ago as more legal wild cards cropped up in the case.
This time, the issues involved the salacious allegations that Robert D. Kowalski confessed to intentionally shooting 39-year-old Sandra M. Perry at the Glacier Bear Lodge and that Kowalski was high on methamphetamine at the time he pulled the trigger.
Kowalski, 53, who is facing two counts of murder for Perry’s July 1996 death, claims the shooting was an accident, and his attorney says there is no scientific evidence from the toxicology reports to support the methamphetamine claim.
With the jury waiting in another room, attorneys argued for more than an hour before Juneau Superior Court Judge Louis Menendez about whether the jury should be allowed to hear that testimony from witnesses.
Prosecutors sought to introduce the “confession” testimony through Tony Fredeen, who said he heard Kowalski make a sinister statement during a conversation back in 1996. Fredeen said he attended an informal gathering at Perry’s house in Washington shortly after Perry’s death, and that Kowalski told Fredeen, Perry’s son and a third person something along the lines of, “The last girlfriend I had that did something bad behind my back, bad things happened.”
“Which you took as what?” asked Assistant Attorney General James Fayette during testimony taken away from the jury.
“He murdered her on purpose,” Fredeen answered on the witness stand, adding the comment was out of the blue and it scared him.
Fredeen used to live across the street from the Perry residence in Washington and was best friends with her oldest son, Jeremy Padgett, who was about 16 when his mother died. Fredeen said he and Padgett are still close friends and that he still believes Kowalski murdered Perry.
Fredeen, now 36, also offered up another tidbit that adds yet another dimension to the case: Fredeen said he believes Kowalski murdered Perry because he found out she had a tryst with Fredeen’s father. The fling took place the night of his brother’s birthday on July 10, 1996, a week before Kowalski and Perry traveled to Alaska for vacation, Fredeen said.
Prosecutors said they did not intend on eliciting that testimony from Fredeen at trial because Fredeen does not have first-hand knowledge about what Kowalski knew or didn’t know, or have first-hand knowledge about the purported fling. (That would have been a fling within a fling since Kowalski was married at the time he and Perry were dating.) But they did want to elicit the statement about the so-called confession.
Assistant Public Defender Eric Hedland said he doubts Kowalski made that statement, but even if it were true, there is no way of knowing if Kowalski was referring to Perry (as Fredeen believed) or some other past unknown girlfriend. If it was not Perry who was being referred to, it’s not relevant and shouldn’t be allowed in, he argued.
Hedland also pointed out that the statement is not reliable for three reasons: Fredeen did not report that statement to law enforcement at the time; the other person who heard the statement told law enforcement that Fredeen was not present at the time it was said; and Fredeen’s statement of what Kowalski said has changed over time. Hedland noted, for instance, that Fredeen never added the “behind my back” portion of the quote until on the stand Friday. Hedland also took note of Fredeen’s bias against Kowalski, which Fredeen was candid about.
Hedland said that it would be a “huge” leap for the state to argue Kowalski killed Perry over the purported tryst, a theory which had not previously been made public.
“I think that the potential prejudice is massive,” he said. “And if, your honor, if that’s the best motive that the state can come up with, I mean, it just shows it doesn’t fit with any of the other narratives. It doesn’t fit with these other statements that Mr. Kowalski is alleged to have given. It doesn’t fit with any of them.”
Prosecutor Fayette, on the other hand, argued it should be up to the jury to decide whether Kowalski was referring to Perry in the comment. It’s the jury’s job to hear factual disputes, not judges, Fayette said.
“It’s not unfairly prejudicial at all,” he said.
If admitted, the statement will be prosecutor’s only admission of animosity between Kowalski and Perry. Witness accounts at trial so far — including witnesses from the lodge — have largely painted a picture that the couple was happy and in love.
The judge said he will take the weekend to decide whether Fredeen’s testimony should come in.
The judge did allow testimony regarding a new allegation that both Kowalski and Perry were high on methamphetamine the night of the shooting, which the defense dismissed as a “complete fabrication” given the toxicology reports.
That testimony came in through Rex Millard, a 26-year-old from Libby, Mont., whose mother was married to Kowalski from 2001 to about 2006. Millard said one night when he was about 16 years old, Kowalski was drunk and tearfully told them the story behind the Alaska shooting. Millard said Kowalski told them that he and Perry were high on meth, and he got spooked when they heard a bear, tripped and shot Perry on accident.
Hedland didn’t bother cross-examining Millard, as the defense will likely rely on the toxicology reports.
Hedland told the judge away from the jury earlier that Kowalski tested negative for THC, the active ingredient of marijuana, and any other illicit controlled substances. Kowalski voluntarily gave his blood to police to be tested when he reported the shooting to them about nine hours afterward.
Preliminary testing showed that Perry had traces of amphetamines in her system, but a more complex blood test was conducted that tested negative for amphetamines. Hedland said the traces were probably present due to Perry’s medication for attention deficit disorder.
Perry also had microscopic amounts of THC found in her system. Kowalski told law enforcement at the time that they smoked pot sometime during the night and that Perry had more than he did. The couple was also drinking alcohol, testimony has shown.
Outside the presence of the jury, Hedland also noted that there was no evidence from the crime scene that indicated meth use; no witnesses at the lodge described the couple having “fidgety” or suspicious behavior that indicated drug use; that Millard has a conviction from 2011 for distributing drugs; and that the state of Alaska Crime Lab analyst who tested the blood in the case, Stephen Palmer, was recently indicted for six felonies for tampering with evidence from the crime lab for his own personal drug use.
Before the judge took up the wild card issues, the jury heard more testimony from William Gifford, the Alaska State Trooper investigator who travelled to Yakutat in 2011 to recreate the crime scene. Gifford was examined by prosecutors on Thursday and testified Perry could not have been shot from the foot of the bed where Kowalski said he tripped over the wheel attached to the leg of the metal bed frame, according to one of Kowalski’s statements to police in 1996.
Hedland pressed Gifford on that opinion during cross-examination Friday morning, and he established that Gifford drew that conclusion primarily from the gunshot residue evidence seen in autopsy photos and not from anything evident at the crime scene.
The jury also heard from the first witness relating to the 2008 Montana case, which served as the impetus for reopening the Yakutat cold case.
Kowalski was convicted of homicide via Alford plea (meaning he maintained his innocence but conceded the state of Montana had enough evidence to convict him) for killing his girlfriend, 45-year-old Lorraine Kay Morin, in Flathead, County, Mont., in 2006. He is currently serving out a 40-year prison sentence for her death. Alaska investigators re-opened the Yakutat case after he was convicted because the two were similar.
Fayette called one of Morin’s friends to the stand, Kathryn Thomy, of Columbia Falls, Mont. Thomy said she dropped Morin off at her house the night she was killed and she was the last person to see her alive outside the house. The two friends had run into each other at a bar called The Silver Bullet, and Thomy offered to give her a ride home since Morin did not have a car. She took her home around 7 p.m. and never saw her again, she said.
Thomy was only on the stand for about 10 minutes. Hedland did not cross examine her.
The lead trooper involved in the Yakutat case, Randell McPherron, was also in charge of the case in 1996. He was called to the stand to testify but he was cut short due to time restraints. McPherron is expected to testify next week.
Prosecutor Fayette said he has almost wrapped up his case against Kowalski, whose trial began with jury selection two weeks ago.
Court will not convene on Monday due to the state holiday and will resume Tuesday with testimony from two law enforcement officers from Montana who will testify about the Montana case. The jury will also hear the rest of McPherron’s testimony, and possibly from Fredeen.
Fayette, based out of Anchorage with the Office of Special Prosecutions and Appeals, is hopeful his case will be finished by Wednesday, although the defense said that might be optimistic. Hedland said his case will take about a day and a half to put on after the state rests.
Fayette noted he is about two days behind his anticipated witness schedule.
The trial was waylaid earlier this week in light of legal arguments surrounding the fact that troopers destroyed almost all of the physical evidence in the case in 1998, which Hedland said he only learned about in the days leading up to trial. The destruction of evidence has become a theme at trial as Hedland strives to highlight the loss of items with forensic value.
If convicted, Kowalski could be facing life in prison.
The jury raised scheduling questions on Friday afternoon, several of them noting they have travel plans set for April. The court planned ahead for that by selecting 16 jurors to hear the case, should one of them need to leave. Usually 14 jurors hear trials and two are dismissed at random after testimony concludes to decide the case. In this case, the court has four alternates.
• Contact reporter Emily Russo Miller at 523-2263 or at firstname.lastname@example.org.