Judge rejects request to move Kmart theft trial

Posted: Wednesday, September 24, 2003

Despite the publicity the case has received in Juneau, Superior Court Judge Patricia Collins will look to seat a Juneau jury when a former Kmart employee stands trial for the theft of nearly $100,000 in cash, checks and receipts from the local store in 2002.

Collins denied a motion to move Frank Brian Rowcroft's trial, now scheduled to begin Nov. 3. Rowcroft's attorney, Louis Menendez, sought to change the site, arguing that Juneau residents would be prejudiced by a front-page article in the Aug. 26 Juneau Empire, which he said was not totally accurate.

Assistant District Attorney Doug Gardner, arguing against the move, said that although the story misidentified the judge in the case, "the article contained no material inaccuracies."

Gardner also noted that publicity has not been limited to Juneau. After the article ran in the Empire, it was picked up by the Associated Press and newspapers elsewhere, including Anchorage.

Moving the trial, he added, would deprive jurors of being able to view the Juneau Kmart site, where the theft took place about 13 months before the store closed.

The theft occurred on March 31, 2002, while Rowcroft was the store's security chief. Police reports show that circuit breakers apparently were tripped to cause a power outage in the store on the morning it was learned $99,980 in cash, checks and credit card receipts was missing.

Kmart fired Rowcroft on April 6, 2002. Less than a month later, on May 3, he was arrested at the Canadian border near Skagway after a customs agent found $30,586 in plastic bags beneath the liner carpet in the trunk of his car.

While rejecting the defense motion to move the trial, Collins wrote that the motion could be raised again after prospective jurors are questioned.

She also denied motions from Menendez that would have excluded most of the prosecution's evidence.

Menendez had argued that Juneau Police should have obtained a warrant to notice dust fingerprints in the trunk of his car. That led to his car's being searched by U.S. Customs agents at the Skagway Port of Entry. Menendez also argued that police acted improperly to engineer a warrantless federal border search of Rowcroft's vehicle.

"This court is satisfied that there was no covert conspiracy or agency relation between state, federal and Canadian officials," Collins wrote after considering testimony from an evidence hearing earlier this month.

She also ruled the car's dust fingerprints could be seen from a place where the police officer had every right to be and noticing them did not constitute search or seizure.

Menendez also argued for the suppression of evidence collected after Rowcroft reported he was shot on Sept. 14, 2002. At the evidence hearing, Rowcroft testified that some of the documents were found in an envelope that was marked as communication with his attorney.

The prosecution characterized the evidence as incriminating, including what could be read as suicide notes and a note addressed to Juneau Police Officer Ken Jennings, who was investigating the Kmart theft.

"The Jennings letter and the suicide notes are not addressed to Mr. Menendez," Collins wrote, denying the motion after conflicting testimony about where the evidence was found.

She found "the police proceeded with notable caution, leaving possible attorney-client communications at the scene."

Collins also ruled that evidence of prior wrongdoing by Rowcroft could not be used against him at trial. She said the prosecution will be able to discuss his firing from Kmart and apparent state of mind after the theft.

• Tony Carroll can be reached at tony.carroll@juneauempire.com.

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