ROBERT D. KOWALSKI, Appellant,
STATE OF ALASKA, Appellee.
from the Superior Court, First Judicial District, Juneau,
Louis James Menendez, Judge. Trial Court No. lJU-11-1245 CR
Taylor, Assistant Public Defender, and Quinlan Steiner,
Public Defender, Anchorage, for the Appellant.
Soderstrom, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Jahna Lindemuth, Attorney General,
Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
1996, while visiting Yakutat from Washington state, Robert
Kowalski shot and killed his girlfriend, Sandra Perry, in
their hotel room. Following an investigation by the Alaska
State Troopers, the shooting was classified as an accident
and the case was closed. Twelve years later, in 2008, while
living in Montana, Kowalski shot and killed his girlfriend,
Lorraine Morin. After a thirty-hour standoff with police,
Kowalski surrendered. Kowalski initially told investigators
that the shooting was an accident, but he later entered a
no-contest plea to mitigated deliberate
2008 shooting death of Kowalski's girlfriend in Montana
led the State of Alaska to reopen its investigation into the
1996 Yakutat shooting. In 2011, a grand jury indicted
Kowalski on alternative counts of first- and second-degree
murder for the 1996 death of Sandra Perry. At Kowalski's
trial on these charges, the State was permitted to introduce
evidence of the 2008 Montana shooting under Alaska Evidence
Rules 4O4(b)(1) and 404(b)(4). The jury was unable to reach a
verdict on the first-degree murder charge, but the jury
convicted Kowalski of second-degree murder.
now appeals his murder conviction, arguing that the trial
court committed reversible error when it allowed the State to
introduce evidence of the 2008 shooting under Evidence Rules
404(b)(1) and 404(b)(4). Kowalski additionally argues that
the trial court committed reversible error when it denied
Kowalski's request to introduce a 1996 legal memorandum
prepared by the Department of Law. This memorandum was given
to Perry's family, and it explained why the State was not
prosecuting Kowalski for Perry's death at that time. For
the reasons explained here, we conclude that neither of these
evidentiary rulings require reversal of Kowalski's
Kowalski requests that this Court review the unredacted
versions of various emails that the State submitted to the
trial court for in camera review. Based on our
independent review, we conclude that the redactions were
appropriate and that the defense was provided with all of the
non-privileged information that it had requested.
facts and prior proceedings
1996 shooting in Yakutat
1996, Robert Kowalski, who was living in Washington at the
time, took a trip to Yakutat with his girlfriend, Sandra
Perry. During their trip, Kowalski and Perry stayed at
Glacier Bear Lodge, which was co-owned by Kowalski's
friends James Ross and Martha Indreland. Ross and Kowalski
had hunted moose together during Kowalski's previous trip
to Yakutat, and Ross felt comfortable giving Kowalski a
shotgun for protection against bears. Ross went over the
safety features of the shotgun with Kowalski. Kowalski had
owned shotguns in the past and, according to Ross,
"seemed to know all the right answers and the right
steps" pertaining to gun safety.
20, Kowalski and Perry had a verbal altercation in which
Kowalski appeared to be upset with Perry for speaking to a
group of fishermen. Later that night, Kowalski and Perry had
dinner and drinks at the hotel bar. They left the bar around
2:00 a.m. and returned to their room with more drinks.
Tenwolde was staying in the adjacent room. Tenwolde reported
hearing arguing from Kowalski's room at around 2:00 a.m.
Tenwolde heard Perry repeatedly say "fuck you," and
then he heard a gunshot. Tenwolde woke his brother-in-law,
who was in the room with him, and the two walked outside and
looked around. They did not see anything, and they went back
hours later, Kowalski left the room, went to the front desk,
and reported that Perry had been shot. According to Martha
Indreland, Kowalski was "hysterical" and barely
understandable. It sounded like Kowalski was saying
"boo" or "boom," and Indreland "got
the gist that something bad had happened to [Perry]."
officers arrived at the Glacier Bear Lodge around 1:00 p.m.
Perry's body was in one of the beds, and a shotgun was
leaning against the bed. James Jensen, a Yakutat police
officer, conducted two interviews with Kowalski and had him
provide a blood sample. Randel McPherron, an Alaska State
Trooper, also questioned Kowalski twice, and the trooper
reenacted the shooting with Kowalski's guidance.
told the officers that he had heard a "bumping on the
wall or window" and thought it might be a "person
or a bear." According to Kowalski, he grabbed the
shotgun, which was leaning up against the wall, and went to
the window. Kowalski told the police that Perry was in bed
with a cigarette, and that she needed a light. Kowalski went
to light her cigarette. According to Kowalski, Perry said
"boo" or "move" or "Bob." He
was startled, and he tripped on the corner of the bed. The
gun went off, and the shot killed Perry instantly. Kowalski
said that he stayed in the room for many hours after Perry
died because he was shocked and unable to move. During that
time, he unloaded the shotgun, considered suicide, reloaded
the shotgun, and then unloaded the shotgun again.
on the police investigation of the shooting, the Department
of Law concluded that there was insufficient evidence to
charge Kowalski with any crime related to Perry's death
and that there was insufficient evidence to disprove
Kowalski's claim of accident.
Svobodny, the assistant district attorney on the case, wrote
a memorandum which he sent to Perry's sister, detailing
the reasons his office was declining to prosecute Kowalski
for killing Perry. These reasons included the fact that
Kowalski's description of the events had remained
relatively consistent across multiple interviews with only
minor discrepancies that could be explained away. There was
no evidence of a fight or a struggle in the hotel room, and
there was no evidence suggesting that Perry's body had
been moved or the scene otherwise altered. The medical
examiner also found no defensive wounds on Perry.
two years later, in 1998, most of the evidence from the
investigation into Perry's death was destroyed. Among the
evidence that was destroyed were the audio recordings of the
interviews with the witnesses and the audio recordings of the
three interviews with Kowalski, which included the
reenactment of the shooting.
2008 shooting in Montana
2008, Kowalski was living in Montana and staying part-time at
the home of his girlfriend, Lorraine Morin. In March 2008,
Morin returned home from a bar where she had been drinking.
Kowalski was at the house, and he had also been drinking.
to Kowalski's statement to the police, he and Morin got
into a fight when Morin got home. The fight continued off and
on throughout the evening, growing louder and more physical.
At one point, Kowalski took Morin's handgun from the
dresser and fired a shot into the television. He also
threatened to kill himself. They fought over the gun, and
Morin was able to get the gun from Kowalski, but then she
handed the gun back to him and told him to kill himself.
time later, they began to struggle over the gun again.
According to Kowalski, he pushed Morin down into the chair,
and went to "plop" down in a different chair.
When he "plopped" down, the gun went off, shooting
Morin in the head and killing her instantly.
remained in Morin's home with the dead body until the
next morning. He then left and told a friend what had
happened. That friend called the police. The police received
the report around 11:00 a.m., twelve hours after the
police arrived at the home, a thirty-hour standoff ensued. At
one point during the standoff, Kowalski fired a shot as the
police approached his window. He later claimed that he was
"startled... and the gun just went off." Kowalski
ultimately surrendered to police. Kowalski told the police
that his girlfriend was shot when the gun accidentally went
off, but Kowalski later pleaded no contest to mitigated
Montana shooting led the State of Alaska to reopen its
investigation into the death of Perry in 1996. In 2011, as a
result of the renewed investigation, a grand jury indicted
Kowalski on ...