Kowalski v. State

          Appeal from the Superior Court, First Judicial District, Juneau, Louis James Menendez, Judge. Trial Court No. lJU-11-1245 CR

          Kelly Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

          Donald 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. ^[*]

          OPINION

          ALLARD JUDGE

         In July 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 homicide.^[1]

         The 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.

         Kowalski 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 conviction.

         Lastly, 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.

         Background facts and prior proceedings

         The 1996 shooting in Yakutat

         In 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.

         On July 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.

         Richard 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 to sleep.

         Eight 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]."

         Police 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.

         Kowalski 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.

         Based 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.

         Richard 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.

         Approximately 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.

         The 2008 shooting in Montana

         In 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.

         According 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.

         A short 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.

         Kowalski 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 shooting.

         When 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 deliberate homicide.^[2]

         The 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 ...