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Jurors hear closing arguments

Jury also can convict Robert D. Kowalski on lesser offenses

Posted: April 11, 2014 - 12:15am
Judge Louis Menendez, center, listens to Assistant Public Defender Eric Hedland, left, and Assistant Attorney General James Fayette as they work out the details for closing arguments in the trial of Robert D. Kowalski on Wednesday. Kowalski, 53, is standing trial on first- and second-degree murder charges for fatally shooting his girlfriend, 39-year-old Sandra M. Perry, at a Yakutat lodge in 1996.  Michael Penn | Juneau Empire
Michael Penn | Juneau Empire
Judge Louis Menendez, center, listens to Assistant Public Defender Eric Hedland, left, and Assistant Attorney General James Fayette as they work out the details for closing arguments in the trial of Robert D. Kowalski on Wednesday. Kowalski, 53, is standing trial on first- and second-degree murder charges for fatally shooting his girlfriend, 39-year-old Sandra M. Perry, at a Yakutat lodge in 1996.

Robert D. Kowalski was never charged with a crime in 1996 when he fatally shot his 39-year-old girlfriend while they were on vacation in Yakutat. Prosecutors on Wednesday called that a miscarriage of justice and one they asked the jury to correct.

“It’s not too late to correct that injustice now,” Assistant Attorney General James Fayette said during closing arguments, noting there is no statute of limitations for murder. “Mr. Kowalski killed Sandra Perry, ended her life suddenly, unfairly, and when he did that he broke the criminal law, and he is now being held accountable, properly, fairly, equitably, for what he did to take that woman’s life.”

Not so fast, said Assistant Public Defender Eric Hedland. Kowalski was cleared of a crime back then and never charged. Alaska State Troopers even destroyed most of the evidence, thinking the case would never go to court.

So what changed since then, Hedland asked the jury, who has heard testimony from more than 26 witnesses during the four weeks of trial in Juneau Superior Court. He answered the rhetorical question: Montana.

“Fundamentally, the state’s case rises and falls on Montana,” Hedland said.

Kowalski was convicted of criminally negligent homicide via an Alford Plea for fatally shooting his girlfriend in Montana in March 2008. That case prompted Alaska investigators to re-open the Yakutat case and to charge Kowalski with first-degree and second-degree murder for Perry’s death. Perry was a 39-year-old mother from the Seattle area. Kowalski, also from Washington, was 35 at the time of the shooting and is now 53.

Prosecutors say the two cases are “undeniably similar.” Both women were shot in the head by Kowalski with one round at close range; Kowalski waited hours before reporting the deaths; Kowalski claimed both were accidents.

But the defense says the Montana case is the only new piece of evidence the state has in Perry’s death, and the law prohibits the jury from considering that conviction for any purpose other than absence of mistake. The trooper investigation from 2009 to 2011 did not turn up anything new, Hedland emphasized.

Fayette disputed that the state’s case “rises and falls” with Montana in his rebuttal argument, although he did note, “After a while, folks, the claim of accident isn’t believable.”

If there’s one thing the attorneys agreed upon, it’s that this case is about state of mind. It’s not a “Whodunnit?” since it’s undisputed that Kowalski shot Perry. What is disputed is whether Kowalski intended to kill her, or whether it was an accident as Kowalski claims.

Kowalski says he and Perry were in Room 10 of Yakutat’s Glacier Bear Lodge around 3 a.m. July 21, 1996. They heard a noise outside they thought was a bear. Kowalski grabbed a Mossberg 12-gauge shotgun for protection and went to the window to check it out while Perry was sitting on the bed. On his way back from the window, he says he tripped over a bed leg and fell on Perry. The gun discharged as he pushed himself off her. Before the gun went off, Perry had startled him by saying “Boo!”, he claims.

Fayette on Wednesday dismissed that as a “ridiculous” story that should not be believed.

“Why do you have to pick up the 12-gauge shotgun?” asked the Anchorage-based prosecutor with the Office of Special Prosecutions and Appeals. “You’re inside a hotel room. Do you really think a bear’s going to jump through the window or break down the door? It’s ridiculous. It’s a silly story. There was no bear.”

Proof that Kowalski shot Perry on purpose lies in the timing of the shot (the middle of a “heated argument”) and the location of the shot — in the head, Fayette argued.

“If it’s an accidental shooting or just a goofy shooting, what happens?” he asked the jury. “A round might hit the ceiling, or it might hit the floor, or it might hit somebody in the arm or go at a crazy angle or go through someone’s foot, but right at the head? And that’s an accident? Come on.”

Hedland said there was no “heated argument,” as Fayette maintains. The witness who overheard the couple in Room 10 told law enforcement at the time that he could not be sure whether they were arguing or not. That changed drastically at trial when the witness told the jury that the shot went off just as Perry was telling Kowalski “**** you.”

But if the walls of the lodge were that paper-thin, wouldn’t that witness have overheard something along the lines of, “Don’t shoot” or “Don’t point the gun at me, Bob,” or something to that effect, Hedland questioned.

Hedland pointed out that Kowalski did and said things afterward that were consistent with innocence, including being in shock, being distraught and cooperating with police. Police were unconvinced that Perry said “Boo!” or that there was a noise outside and interrogated Kowalski on those points. He never wavered on those two points of the story, or that it was an accident, according to the transcripts of his interview with troopers in July 1996.

Hedland said the things Kowalski told troopers matched what they found at the scene. Even when troopers recreated the crime scene, they couldn’t disprove it happened the way Kowalski said it did.

Fayette told the jury that if they can’t find that Kowalski guilty of first-degree murder for intentionally killing Perry, they should find him guilty of second-degree murder for knowingly engaging in conduct that resulted in Perry’s death under circumstances showing an extreme indifference to human life.

“The safety was off, the round was racked, his finger was on the trigger, the weapon was pointed at a living person — not just anywhere at a living person, but right at her head — when he was that drunk,” Fayette argued.

Hedland disputed that Kowalski was “that drunk.”

He had drank about nine beers between 9:30 p.m. to 3 a.m., which Hedland said is not a lot for a 5’9” man given the passage of time. Alcohol absorption rates would suggest Kowalski burned off five and a half beers by the time the shot was fired.

In addition to the counts Kowalski is charged with (first-degree and second-degree murder), the jury will also consider lesser included offenses. For instance, if the jury finds Kowalski not guilty of the first count (first-degree murder), they can find him guilty of second-degree murder, manslaughter or criminally negligent homicide instead. As for the second count (second-degree murder), the jury can find him not guilty but still convict him of manslaughter or criminally negligent homicide. That means Kowalski is on the hook for a total of seven offenses.

Each offense carries a different state of mind element that the state has to prove. First-degree murder requires an “intentional” state of mind, which means on purpose. Second-degree murder requires a “knowing” state of mind, which means aware of a substantial probability. Manslaughter requires finding “recklessness,” which means disregard of a known risk. And criminally negligent homicide requires “negligence,” which means disregard of a risk one should have been aware of.

Sixteen jurors heard the trial evidence, and one juror was excused near the end due a planned family obligation. After closing arguments Wednesday, three other jurors were randomly selected as alternates and excused, leaving 12 to decide the case. The final jury panel of 12 is comprised of three women and nine men. They began deliberating Thursday morning.

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

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