Made available by Touch N' Go Systems, Inc. and
This was Gottstein but needs to change to what?
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 274-9493

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.

Kowalski v. State (6/22/2018) ap-2606

Kowalski v. State (6/22/2018) ap-2606


           The text of this opinion can be corrected before the opinion is published in the  

          Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

          errors to the attention of the Clerk of the Appellate Courts:  

                                        303 K Street, Anchorage, Alaska  99501

                                                    Fax:  (907) 264-0878

                                           E-mail:  corrections @

                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                        


                                         Appellant,                           Court of Appeals No. A-12061  

                                                                            Trial Court No. 1JU-11-1245 CR  


STATE OF ALASKA,                                                                           O P I N I O N  


                                                                                 No. 2606 - June 22, 2018  

                     Appeal from the Superior Court, First Judicial District, Juneau,  


                     Louis James Menendez, Judge.  

                     Appearances:           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. *  


                     Judge ALLARD.  

     *     Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  

Constitution and Administrative Rule 24(d).  

----------------------- Page 2-----------------------

                                 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 theAlaskaStateTroopers,theshooting 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 404(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  

         1      See  Montana Stat. 45-5-103(1) (providing that a person commits mitigated deliberate  

 homicide when he "purposely or knowingly causes the death of another human being ...                                                                    

under the influence of extreme mental or emotional stress for which there is a reasonable                                 

 explanation or cause").  

                                                                                                   - 2 -                                                                                            2606

----------------------- Page 3-----------------------

conclude   that  neither   of   these   evidentiary   rulings   require   reversal   of   Kowalski's  


                                                                             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.                                                                                                                                                                                                                                       

                                                                                                                                                                                                                                           -  3 -                                                                                                                                                                                                                                  2606

----------------------- Page 4-----------------------

                                                                           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 therewas insufficient evidenceto                                                                                                                                                                                                                         chargeKowalski                                                                                 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                                                                                                                                                 

                                                                                                                                                                                                                                    - 4 -                                                                                                                                                                                                                            2606

----------------------- Page 5-----------------------

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 froma   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                                                                                                         

                                                                                                                                                                                                                                                                -  5 -                                                                                                                                                                                                                                                      2606

----------------------- Page 6-----------------------

police.     The   police   received   the   report   around   11:00   a.m.,   twelve   hours   after   the  


                                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                                                                                                 



                                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 first- and second-degree murder charges for the death of  



                                Kowalski's trial in Alaska  


                                Prior to trial, the State filed a motion seeking to admit evidence of the  


 Montana shooting, as well as ten other acts of domestic violence by Kowalski, under  



 Evidence Rule 404(b)(4).                                         After conducting a balancing test under Bingaman v. State,  

        2       See Montana Stat. 45-5-103(1); see also North Carolina v. Alford                                                                                       , 400 U.S. 25, 38  

 (1970) (permitting a defendant who maintains his innocence but admits that the prosecution  

would likely be able to prove his guilt beyond a reasonable doubt to plead no contest in a                                                                                                                 

 criminal case).  



                See  Alaska Evid. R. 404(b)(1) ("Evidence of other crimes, wrongs, or acts is not  


 admissible if the sole purpose for offering the evidence is to prove the character of a person  


 in order to show that the person acted in conformity therewith. It is, however, admissible for  


 other  purposes,  including,  but  not  limited  to,  proof  of  motive,  opportunity,  intent,  


preparation, plan, knowledge, identity, or absence of mistake or accident."); Alaska Evid. R.  


 404(b)(4) ("In a prosecution for a crime involving domestic violence ... evidence of other  


                                                                                                 -  6 -                                                                                          2606

----------------------- Page 7-----------------------

the trial court excluded most of the other acts of domestic violence as more prejudicial                                                           

than probative.                 But the court ruled that the 2008 Montana shooting was admissible                                                  


because the two shootings were so strikingly and remarkably similar.                                                                                            

                                                                                                                                            The court also  


ruled that the 2008 Montana shooting was independently admissible under Evidence  


Rule 404(b)(1) because it was relevant to rebut Kowalski's claim of accident or mistake.  


The  court  acknowledged  the  potential  for  unfair  prejudice  that  might  result  from  


allowing this evidence to be introduced, but the court concluded that this could be  


addressed by strong limiting instructions.  


                          At Kowalski's trial, the State's case rested primarily on the evidence from  


the original investigation.  Various witnesses from the investigation testified, including  


the guest in the neighboring room who had heard the gun shot, the owners of the lodge,  


and other people who had interacted with Kowalski and Perry at the time.   Trooper  


McPherron and the other troopers involved in the original investigation also testified, as  


did the medical examiner who examined Perry's body, the firearms investigator who  


examined the shotgun, and the crime scene reconstructionist who examined the crime  


scene. The State was also able to introduce the original crime scene photographs, which  


had been preserved.  


                          The  State  acknowledged  that  most  of  the  physical  evidence  from  the  


original investigation had been destroyed. The jury was also given a Thorne instruction  


telling them to presume that the evidence from the original investigation that had been  

       3     (...continued)  

crimes involving domestic violence by the defendant against the same or another person ...  


is admissible.").  

       4     See Bingaman v. State, 76 P.3d 398 (Alaska App. 2003).  

                                                                               -  7 -                                                                         2606

----------------------- Page 8-----------------------

destroyed (which included the audio tapes of the interviews with Kowalski) would have                                                         

been favorable to Kowalski.                      5  


                       In addition to the witnesses and evidence from the original investigation,  


the State also introduced evidence concerning the 2008 Montana shooting that the trial  


judge had ruled admissible under Evidence Rule 404(b)(1) and 404(b)(4). The State also  


introduced evidence that indicated Kowalski had given somewhat inconsistent accounts  


of the 1996 shooting to various people in the years since Perry's death.  


                       Kowalski's defense was that the shooting was an accident and the State's  


original decision not to prosecute Kowalski was the correct one.  The defense attorney  


 emphasized the thoroughness of the original investigation and the fact that little had  


changed since then other than witnesses' memories had grown stale and the physical  


 evidence had been destroyed. The defense attorney urged the jury to focus on the actual  


 evidence related to the 1996 shooting and not to be distracted by the evidence related to  


the 2008 Montana shooting.   The defense attorney also emphasized how devastated  


Kowalski had been by Perry's death, and how it had changed him as a person.  


                       Followingdeliberations,thejuryhung on thechargeoffirst-degreemurder,  


but convicted Kowalski of second-degree murder.  


                       This appeal followed.  


            Kowalski's ex post facto claim  


                       Alaska Evidence Rule 404(b)(4) provides, in relevant part, that "[i]n a  


prosecution  for  a  crime  involving  domestic  violence  ...  evidence  of  other  crimes  


involving domestic violence by the defendant against the same or another person ... is  

      5     See Thorne v. Dep't of Public Safety, 774 P.2d 1326, 1331-32 (Alaska 1989).  

                                                                       -  8 -                                                               2606

----------------------- Page 9-----------------------

 admissible."   This rule was enacted by the legislature in 1997, a year after the criminal                                                                                                            

 acts alleged in this case occurred.                          

                                  On appeal, Kowalski argues that because Evidence Rule 404(b)(4) did not                                                                                                            

 exist at the time he committed his alleged offense, application of this rule to his case                                                                                                                        

violated the ex post facto clauses of the United States Constitution and the Alaska                                                                                                                       

 Constitution.    As Kowalski acknowledges, we previously considered and rejected a                                                                                                                                      

 similar ex post facto argument with regard to a comparable evidentiary rule change in                                                                                                                                 

Allen v. State                    .6  


                                  In Allen , we addressed the retroactivity of Alaska Evidence Rule 404(a)(2),  


which authorizes the trial court to admit evidence of a defendant's character for violence  


when this evidence is offered by the government to rebut a claim that the victim was the  



                                            Relying on the United States Supreme Court's decision in Collins v.  

 first aggressor. 


 Youngblood, we held that retroactive application of Rule 404(a)(2) did not violate the ex  


post facto clause of either the state or federal constitution because it was a rule of  


 evidence that did not "alter the definition of crimes or increase the punishment for  



 criminal acts." 


                                  We reached a similar conclusion in Hendrickson v. State, an unpublished  


memorandum decision in which we addressed the retroactivity of Alaska Evidence Rule  



                                (Rule 404(b)(3) authorizes admission of a defendant's prior acts of sexual  

         6       Allen v. State , 945 P.2d 1233, 1237 (Alaska App. 1997); see also State v. Coon,  974  

P.2d 386, 392 (Alaska 1999) (changes to rules governing the admissibility  of  evidence do not  

violate the prohibition on ex post facto laws).  

         7       Allen , 945 P.2d at 1237.  

         8       Id. (quoting Collins v. Youngblood, 497 U.S. 37, 43 (1990)).  

         9       Hendrickson  v.  State,  1997  WL  115921,  at  *2  (Alaska   App.  Mar.  12,  1997)  

                                                                                                        - 9 -                                                                                                  2606

----------------------- Page 10-----------------------

abuse or attempted sexual abuse in a trial involving charges of sexual abuse, provided   

that certain conditions are met.)                

                        Kowalski contends that we should revisit our ex post facto analysis in these                                                



cases because of the United States Supreme Court's decision in                                                     Carmell v. Texas                  - a  


case that was decided after our decisions in Allen and Hendrickson .  


                        We agree with Kowalski that the Carmell decision clarified that there is a  


category  of  evidentiary  rules  where  retroactive  application  of  the  rule  violates  the  


prohibition against ex post facto laws. But neither the evidence rules at issue in Allen or  


Hendrickson, nor the evidence rule at issue in the present case, fall within that category.  


                        In  Carmell,  the  United  States  Supreme  Court  distinguished  between  


"ordinary" rules of evidence - i.e., rules which regulate the admissibility of evidence  


- and "sufficiency of the evidence" rules of evidence.  Rules in this latter category,  


although often designated as rules of evidence, actually specify the type or quantum of  


proof  required  to  support  a  criminal  conviction  as  a  matter  of  law.                                                         Retroactive  



application of such rules violates the ex post facto clause. 


                        For example, the Texas statute at issue in  Carmell abolished an earlier  


provision of Texas law which declared that convictions for certain sexual offenses could  



not rest on the uncorroborated testimony of the victim.                                                As the United States Supreme  


Court explained, the elimination of this corroboration requirement reduced the quantum  


of evidence needed to support a conviction under Texas law.  That is, the new statute  

      9     (...continued)  


      10    Carmell v. Texas, 529 U.S. 513, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000).  

      11    Carmell v. Texas, 529 U.S. at 532-34 & n.23, 544-46; 120 S.Ct. at 1632-33 & n.23,  


      12    Id. , 529 U.S. at 516, 120 S.Ct. at 1624.  

                                                                         -  10 -                                                                    2606

----------------------- Page 11-----------------------

 altered the legal definition of what constituted sufficient proof of these sexual offenses                                                                                                                                                                                                                                                                                                                                                        

-  and altered it in a manner that reduced the government's burden.                                                                                                                                                                                                                                                                                                                    Thus, the Supreme                                        

 Court concluded, retroactive application of this Texas statute violated the ex post facto                                                                                                                                                                                                                                                                                                                                                                            


                                                                           The same cannot be said, however, of the evidence rule at issue here.                                                                                                                                                                                                                                                                                                                                                        

Alaska Evidence Rule 404(b)(4) fits squarely within the category of "ordinary rules of                                                                                                                                                                                                                                                                                                                                                                                                

 evidence"   described   in   Carmell.     It   regulates   the   admissibility   of   certain   evidence  

 (evidence of prior crimes of domestic violence) when a defendant is being tried for a                                                                                                                                                                                                                                                                                                                                                                                                    

 crime   involving   domestic   violence.     Unlike   the   Texas   statute   at   issue   in   Carmell,  

Evidence Rule 404(b)(4) does not alter the type or quantum of evidence that is legally   

required to support a conviction for a crime of domestic violence.  We therefore reject                                                                                                                  

Kowalski's contention that application of Evidence Rule 404(b)(4) at his trial violated                                                                                                                                                                                                                                                                                                  

the federal ex post facto clause.                                                                                                       

                                                                           Kowalski argues in the alternative that we should expand the scope of the                                                                                                                                                                                                                                                                                                                             

 ex post facto protection provided by the Alaska Constitution to cover the retroactive                                                                                                                                                                                                                                                                                                                                              

 application   of   rules   like   Evidence   Rule   404(b)(4).     Kowalski   points   out   that   Rule  

404(b)(4) expanded the type of "other crime" evidence that could be admitted at a trial                                                                                                                                                                                                                                                                                                                                                                             

 for a crime of domestic violence, and that the evidentiary change primarily benefits the                                                                                                                                                                                                                                                                                                                                                                                        

prosecution. Kowalski contends that the ex post facto clause of the Alaska Constitution                                                                                                                                                                                                                                                                                                                                      

 should protect defendants against these types of "one-sided" evidentiary rule changes.                                                                                                                                                                                                                                                                                                                                                         

                                                                           In support of this argument, Kowalski cites two Oregon cases in which the                                                                                                                                                                                                                                                                                                                             

 Oregon Supreme Court held that Oregon's ex post facto clause prohibits the retroactive                                                                                                                                                                                                                                                                                                                                               

 application of evidentiary rule changes "that alter the rules of evidence in a one-sided                                                                                                                                                                                                                                                                                                                                          


way that makes conviction of a defendant more likely."                                                                                                                                                                                                                                                                                                                                                                                        

                                                                                                                                                                                                                                                                                                                                                    But the Oregon Supreme  

                    13               See State v. Fugate                                                                                      , 26 P.3d 802, 813 (Or. 2001);                                                                                                                                          see also State v. Guzek                                                                                                       , 86 P.3d  


                                                                                                                                                                                                                                  -  11 -                                                                                                                                                                                                                             2606

----------------------- Page 12-----------------------

Court's ex post facto analysis appears to be an outlier among state court decisions.                                                                                                                                                     

Kowalski points to no other appellate court that has adopted such an expansive view of                                                                                                                                           

its state constitution's ex post facto clause.                                                                       

                                    In addition, neither of the Oregon cases cited by Kowalski involved an ex                                                                                                                   

post facto analysis of an evidence rule like Alaska Evidence Rule 404(b)(4). In contrast,                                                                                                                       

the courts in jurisdictions that have specifically addressed comparable evidence rules                                                                                                                                   

have consistently held that these types of evidence rules do not implicate ex post facto                                                                                                                                                 



                                 We find the reasoning of these courts sound and in accord with our Alaska  


law.  We also note that although Evidence Rule 404(b)(4) expands the type of prior bad  


act evidence that is admissible against a defendant in a domestic violence trial, this  


expansion is offset, at least in part, by the requirement that the trial court also conduct  

         13       (...continued)  

 1106, 1112-14 (Or. 2004), vacated and remanded, 546 U.S. 517 (2006), and modified, 153  


P.3d 101 (Or. 2007).  

         14       See, e.g., State v. Kibbee, 815 N.W.2d 872, 885 (Neb. 2012) (retroactive application  


of an evidentiary rule change that expanded the admissibility of prior sexual assault evidence  


did not violate the ex post facto clause because the change did "not affect the sufficiency of  


the evidence [or] change the quantum of evidence needed for the conviction"); State v. Willis,  


915 So. 2d 365, 381-83 (La. App. 2005) (retroactive application  of  an evidentiary rule  


change that removed prior restrictions on the admissibility of certain prior bad act evidence  


did not violate the ex post facto clause, because the change "merely pertain[ed] to the type  

of evidence which may be introduced" and such evidence was admissible if it fell into one  


of the exceptions); People v. Dolph-Hostetter, 664 N.W.2d 254, 260-61 (Mich. App. 2003)  


(retroactive application of a new exception to the marital privilege did not violate the ex post  


facto clause because the new rule simply affected what evidence might be introduced at trial  


and did not change quantum of proof); McCulloch v. State , 39 S.W.3d 678, 684-85 (Tex.  


App. 2001) (retroactive application of an evidentiary rule change that expanded the type of  


evidence admissible in child sex cases did not violate the ex post facto clause, because even  


though the new rule "relax[ed] the strictness associated with Rule 404(b)", it did not "alter  

the quantum of proof required by law to support the conviction").  

                                                                                                           -  12 -                                                                                                      2606

----------------------- Page 13-----------------------

a robust balancing test and assess the potential for unfair prejudice before the court can                                                                   


allow this evidence to be admitted at a defendant's trial.                                                     


                         Accordingly, we reject Kowalski's ex post facto claim on appeal.  


             Why we conclude that the trial court did not abuse its discretion when it  


             admitted evidence of the 2008 Montana shooting  


                         Kowalski also argues that even if evidence of the 2008 Montana shooting  


wasadmissibleunder AlaskaEvidenceRule404(b)(4), thetrialcourt erred in concluding  


that the probative value of the evidence outweighed the risk of unfair prejudice.  


                         In Bingaman v. State, we held that Evidence Rule 404(b)(4) did not deprive  


a defendant of due process because any evidence admitted under this rule was still  



subject to the constraints of Evidence Rules 402 and 403.                                                     We then outlined six factors  


that a trial judge is required to consider when deciding whether to admit evidence of a  



defendant's prior acts of domestic violence under Rule 404(b)(4). 


                         The  record  in  this  case  shows  that  the  trial  judge  carefully  and  


conscientiously evaluated all six Bingaman factors, and that the judge concluded that the  


probative value of the Montana shooting with regard to the disputed issues of intent and  


absence  of  mistake  outweighed  the  risk  of  unfair  prejudice.                                                       The  judge  based  this  


decision, in large part, on his finding that the two shootings were "remarkably similar."  


The record supports this finding. Indeed, the similarities between the two cases are stark:  


in both cases, Kowalski and a girlfriend were alone and arguing; in both cases, Kowalski  


shot his girlfriend in the head and then delayed reporting his girlfriend's death for many  

       15    See Bingaman v. State, 76 P.3d 398 (Alaska App. 2003).  

       16   Bingaman, 76 P.3d at 410.  

       17   Id . at 415-16.  

                                                                            -  13 -                                                                      2606

----------------------- Page 14-----------------------

hours; and in both cases                                                                                                                                Kowalski claimed (at least initially, in the Montana case) that                                                                                                                                                                                                                                                                                                             

the shooting was an accident.                                                                                                  

                                                                                    Given the notable similarities between these two events, we cannot say that                                                                                                                                                                                                                                                                                                                                                                       

the trial court abused its discretion when it determined that this evidence was probative                                                                                                                                                                                                                                                                                                                                                                                                        

 of Kowalski's mental state and that its relevance outweighed the risk of unfair prejudice                                                                                                                                                                                                                                                                                                                                                                                                         

under both the                                                                            Bingaman  factors required for Evidence Rule 404(b)(4) and the Rule 403                                                                                                                                                                                                                                                                                                                                                                    

balancing test required under Evidence Rule 404(b)(1).                                                                                                                                                                                                                                   

                                                                                    Accordingly,   we   conclude   that   the   superior   court  did   not   abuse   its  

 discretion when it admitted evidence of the 2008 Montana shooting at Kowalski's trial.                                                                                                                                                                                                                                                                                                                                                                                                                                        

                                         Kowalski's claim that the trial court erred in refusing to allow Kowalski to                                                                                                                                                                                                                                                                                                                                                                                 

                                          introduce   a   1996   memorandum   explaining  why   the   State   was   not  

                                        prosecuting Kowalski for Perry's death                                                                                                                                                                               

                                                                                    Kowalski's second claim on appeal relates to the trial court's decision to                                                                                                                                                                                                                                                                                                                                                                                 

 exclude evidence of a 1996 screening memorandum written by then-assistant district                                                                                                                                                                                                                                                                                                                                                                                                                            

 attorney Richard Svobodny.                                                                                                                                                       In this memorandum, Svobodny summarizes the evidence                                                                                                                                                                                                                                                               

 from the 1996 investigation and provides his own assessment of whether the State could                                                                                                                                                                                                                                                                                                                                                                                                                                   

prove that the shooting was a criminal act beyond a reasonable doubt.                                                                                                                                                                                                                                                                                                                                                                              (Because a copy      

 of the memorandum was given to Perry's family, the memorandum did not qualify as                                                                                                                                                                                                                                                                                                                                                                                                                                                              

 attorney work product.)                                                                  

                                                                                    The trial judge denied Kowalski's request to introduce the memorandum   

 on several grounds.                                                                                                             The judge ruled that the memorandum was inadmissible hearsay.                                                                                                                                                                                                                                                                                                                                                                  

 The judge also ruled that, even if the memorandum fell within an exception to the                                                                                                                                                                                                                                                                                                                                                                                                                                                    

hearsay rule, it should be excluded under Evidence Rule 403 because any probative                                                                                                                                                                                                                                                                                                                                                                                                              

value it had was greatly outweighed by the risk of unfair prejudice and confusion of the                                                                                                                                                                                                                                                                                                                                                                                                                                                 

 issues.    The judge noted that, to the extent the memorandum described the evidence                                                                                                                                                                                                                                                                                                                                                                                                              

                                                                                                                                                                                                                                                             -  14 -                                                                                                                                                                                                                                                         2606

----------------------- Page 15-----------------------

pertaining   to   the   1996   shooting,  it  was   cumulative   of   the   evidence   that   would   be  

presented   through   other   means   at   Kowalski's   trial.     And   to   the   extent   that   the  

 memorandum contained Svobodny's personal evaluation of the evidence (as it stood in                                                                                                                                   

 1996), the memorandum had only marginal value and was likely to be confusing to the                                                                                                                                

jurors, whose duty was to evaluate that evidence independently.                                                               

                                  On appeal, Kowalski argues that the trial judge was wrong to exclude this                                                                                                        

 memorandum on hearsay grounds.                                                           Kowalski argues that the memorandum qualified as                                                                             

 an admission of a party opponent and was therefore admissible under Alaska Evidence                                                                                                                


 Rule 801(d)(2).                                                                                                                                                                                               

                                               In support of this claim, Kowalski cites several decisions from other  


jurisdictions where memoranda written by prosecutors or other government officials  



 were deemed out-of-court statements of a party opponent. 

         18      See United States v. Kattar                                        , 840 F.2d 118, 130 (1st Cir. 1988) ("the Federal Rules   

 clearly contemplate that the federal government is a party-opponent of the defendant in                                                                                           

 criminal cases") (quoting United States v. Morgan, 581 F.2d 933, 937 n.10 (D.C. Cir. 1978)).   

         19      See, e.g., United States v. Salerno, 937 F.2d 797, 811-13 (2d Cir. 1991) (concluding  


 that opening statements from prior cases can, under some circumstances, be admissible as  


 statements of a party opponent);  United States v. Van Griffin, 874 F.2d 634, 638 (9th Cir.  


 1989) (concluding that a government pamphlet explaining sobriety testing procedures was  


 an admissible statement of a party opponent); Kattar, 840 F.2d at 130-31 (concluding that  


 a sentencing memorandum and brief submitted by the Department of Justice in other cases  


 were admissions by a party opponent); Freeland v. United States, 631 A.2d 1186, 1191, 1194  


 (D.C. App. 1993) (concluding that statements from an Assistant United States Attorney in  


 a memo attached to a pretrial motion regarding the defendant's availability for trial were  


 admissible as statements by a party opponent); Bellamy v. State, 941 A.2d 1107, 1113, 1117  


 (Md. App. 2008) (concluding that statements in a prosecutor's proffer from a prior case were  


 admissible   as   statements   made   by   a   party   opponent   because:   (1)   the   statements  


 "unequivocallymanifested an adoption of or belief in [the defendant's] statement" during the  


plea hearing; and (2) prosecutors were acting as the authorized agents of the state); State v.  


 Worthen, 765 P.2d 839, 843, 848 (Utah 1988) (concluding that a letter from a prosecutor to  


 the  trial  judge  indicating  that  the  state  had  no  evidence  tending  to  show  who  inflicted  


                                                                                                       -  15 -                                                                                                 2606

----------------------- Page 16-----------------------

                                                   However,asKowalskiacknowledges,thesedecisions                                                                                                                                                        allinvolvestatements                     

 made by a prosecutor in court pleadings or statements made in open court while pursuing                                                                                                                                                                                                               

 criminal prosecutions. We therefore question the value of these decisions in the context                                                                                                                                                                                                                   

 of Kowalski's case, where the prosecutor's memorandum was provided to the victim's                                                                                                                                                                                                                      

 family but was not filed in court.                                                                    

                                                   In any event, we need not reach the question of whether the memorandum                                                                                                                                                          

 was admissible under the hearsay rules, because we conclude that the trial court did not                                                                                                                                                                                                                                   

 abuse its discretion when it excluded this evidence under Evidence Rule 403.                                                                                                                                                                                                       

                                                   As the trial judge recognized, the type of personal opinion embodied in                                                                                                                                                                                                      

 Svobodny's memorandum is rarely admissible at a criminal trial. Prosecutors and police                                                                                                                                                                                                                          

 officers are generally not allowed to offer their personal opinions as to the strength of the                                                                                                                                                                                                                               

 evidence, the significance of the evidence, or the proper verdict in a criminal case.                                                                                                                                                                                                                                   20  


                                                   Kowalski contends that his case is different - that Svobodny's personal  


 evaluation of the 1996 evidence was directly relevant because Svobodny (unlike the  


jury) was able to review the evidence from 1996 that had since been destroyed.  But the  


jury was aware that this evidence had been destroyed, and the jury was instructed under  


 Thorne that it was to presume that the destroyed evidence would have been beneficial  


 to Kowalski.  The jury was also aware that the Department of Law's original decision  


 not to prosecute Kowalski was based, in part, on this destroyed evidence.  And to the  


 extent that Svobodny's memorandumdescribed real or potential deficiencies in the 1996  

              19          (...continued)  

 physical abuse on a victim was a statement by a party opponent).  

             20           See, e.g., Grandstaff v. State, 171 P.3d 1176, 1201-02 (Alaska App. 2007); Noel v.   

 State, 754 P.2d 280, 283 (Alaska App. 1988);                                                                                                                        Patterson v. State                                              , 747 P.2d 535, 538 (Alaska  

 App. 1987).  

                                                                                                                                                          -  16 -                                                                                                                                                   2606

----------------------- Page 17-----------------------

evidence, Kowalski's attorney was free to highlight these same deficiencies at trial                                                                                                        

(which the record shows he did).                                 

                               Given the trial judge's decision to give the jurors a                                                           Thorne  instruction, and   

given   the   substantial   risk   that   admission   of   the   memorandum   would   lead   to   jury  

confusion and the needless presentation of cumulative evidence, we conclude that the                                                                                                           

trial   judge   did   not   abuse   his   discretion   when   he   excluded   the   memorandum under   

Evidence Rule 403.                 

                Our independent review of the unredacted emails submitted to the trial                                                                                      

               court for in camera review  


                               On appeal, Kowalski requests that this Court review various unredacted  


State emails that the trial court reviewed in camera and provided to Kowalski with  


redactions.  We have independently reviewed these emails and compared them to the  


redacted versions that were later given to the defense.  Based on our review, we have  


confirmed that the redacted portions of the emails constitute information that is protected  



as attorney work product and was therefore not discoverable to the defense.                                                                                                                 We  



therefore  conclude  that  the  redactions  were  appropriate  and  that  the  defense  was  


provided with all of the non-privileged information that it had requested.  



                               The judgment of the superior court is AFFIRMED.  

        21     See Alaska R. Civ. P. 26(b)(3).  

                                                                                            -  17 -                                                                                       2606  

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights