Key witness questions memory in Kmart case

Posted: Thursday, November 13, 2003

A woman who said last week she gave Frank Brian Rowcroft the key to the Kmart cash cage on the morning the safe was emptied last year said Wednesday that times and dates are hard to remember.

Marie Ehlers was recalled to testify by the defense after Assistant District Attorney Doug Gardner rested his case Wednesday morning.

Rowcroft is standing trial on a first-degree theft charge in the March 31, 2002, theft of nearly $100,000 in cash, checks and credit receipts from the now-closed store. He was then the loss-prevention supervisor.

Defense attorney Louis Menendez said he expects to rest his case today.

Rowcroft was arrested on May 3, 2002, after U.S. Customs near Skagway found about $30,000 in his car, including about $23,000 in plastic bags under the carpet in the trunk. His then-fiancé, Alia McAlister, testified last week he had brought about $40,000 home about a week after the theft, at a time when he was unemployed.

No prosecution witnesses placed him at Kmart at the time investigators believe the theft occurred, during a staged power outage that started shortly before 5 a.m. But two testified Rowcroft had the key to the cash cage, where the safe was located.

Ehlers testified last week she gave Rowcroft the keys belonging to her fiancé, Eric Harrell, at about 2:30 a.m.

Rowcroft told Harrell he hadn't picked up the keys by 3:30 a.m., Harrell had testified.

Harrell said he got the keys from Rowcroft at about 6 a.m., before opening the safe and discovering the theft.

Menendez began questioning Ehlers on Wednesday by pointing out discrepancies in dates that she said Rowcroft had threatened her. Ehlers and Harrell said they left Alaska the week before they were scheduled to testify because of Ehlers' fear of Rowcroft.

Menendez asked if she received the two threatening calls in September 2002, as she originally testified in the Kmart trial, or in April 2002 and December 2002, as she testified elsewhere.

She said the truth was April and December. "It was really hard to remember," she said. "And then I'm scared, so ... ."

"Just as it's hard to remember the time of 2:30 when you're being asked about March 31, 2002?" Menendez asked.

"Right," she replied.

Harrell, the last prosecution witness, finished his testimony Wednesday morning under cross-examination by Menendez. He agreed when the defense attorney suggested he "had unlimited access to the cash cage."

When Menendez asked him about statements he made to police after the theft, he said officers usually woke him up at home because of his unusual working hours.

Menendez asked if there were any times when they didn't have to wake him up.

"The time they took me in to take the lie detector test," Harrell answered.

Out of the presence of the jury, Menendez complained to the judge about the mention of a polygraph test, calling Harrell "wily and sophisticated."

Superior Court Judge Patricia Collins said Harrell's answer was a logical response to the question. Later, however, she advised jurors that polygraph tests are not admissible in Alaska courts and it is up to them to determine the truthfulness of the witness.

Menendez later called another former Kmart employee, Helena Dymock, to ask her about Harrell's actions shortly before the power outage. She said she was working on a computer in the back of the store that morning.

"Eric came back and rushed me out the door" for a cigarette break, she said. It "seemed unusual," she said, and she recalled being upset with Harrell later because she had lost her work on the computer.

Monday, Menendez questioned Harrell about why he had asked someone from the back of the store to go out for a smoking break before the outage.

"You don't really know what happened," Gardner told Dymock while cross-examining her. "You're just sitting here speculating, aren't you?"

"Yeah, kind of," Dymock replied.

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