The attorney of a Kenai man charged with second-degree murder and several felony assault charges has filed a motion to dismiss the Kenai grand jury indictment filed on June 8, 2012.
Assistant public defender Hatton Greer filed the motion on April 15 on behalf of Alfred Jones, 49, who faces charges of second-degree murder, manslaughter, nine counts of third-degree assault, driving under the influence and fourth-degree misconduct involving a controlled substance, methamphetamine.
In his motion, Greer alleges “the state failed to present exculpatory evidence to the grand jury, failed to inform the grand jury that it was their option whether to indict or not, and failed to properly instruct the grand jury.”
The motion to dismiss the indictment is still pending. If the court does not dismiss the entire indictment, the motion states, “it should dismiss Count VI because there is no evidentiary support for that charge.”
On May 29, 2010, Memorial Day weekend, at about 8 p.m., Jones allegedly drifted over the centerline while driving a GMC pickup northbound on the Sterling Highway between Homer and Anchor Point, according to an affidavit. He struck an oncoming Subaru Forester killing Kathleen Benz, 25, of Washington, D.C.
The driver of the Subaru, Daniel Fairchild, was injured and rear-seat passenger, Christine Hung, received minor injuries. Four other southbound vehicles were forced to take evasive action to avoid the collision.
On the night of the incident, Jones gave a blood and a urine sample at the hospital for chemical testing. The samples tested positive for benzoylecgonine and carboxy-THC — the metabolites of cocaine and marijuana, which are produced when the body tries to rid itself of a drug — and methamphetamine and oxycodone. The oxycodone found in Jones’ samples measured at a “low therapeutic dose” according to an opinion letter from Sarah Urfer, M.S. Laboratory Director from ChemaTox.
Washington State Toxicologist Brian Capron testified to the grand jury about the substances found in Jones’ samples. In Greer’s motion, he alleges Capron did not explain to the grand jury “that the metabolites of these drugs are inactive, i.e., they are not psychoactive. Neither did Mr. Capron explain the extremely low levels of oxycodone were within therapeutic levels, and actually at the low end.”
The state presented two examples of evidence to the grand jury to support “extreme indifference” in the charge of second-degree murder. The motion states Jones was only under the influence of two active substances at the time of the incident, but the state impressed upon the grand jury that Jones was under the influence of four substances. The state’s second example of Jones’ “extreme indifference” was testimony that “Mr. Jones was traveling at a high rate of speed.” According to the motion, the testimony was that Jones was not necessarily speeding when the incident occurred, but was speeding prior to the incident.
Greer alleges the jury was incorrectly instructed, when it was presented with charges in April 2012, with the phrase, “The grand jury shall find an indictment when all the evidence taken together … would warrant a conviction of the defendant.”
The motion suggests that with the word “shall” mandates jurors to indict upon showing of sufficient evidence. Alaska’s Constitution and the Alaska Statutes use the word “may,” in similar instructions which, according to the motion, makes it “clear that grand juries have discretion as to whether to indict the defendant.”
Greer alleges the grand jury was improperly instructed a second time when difference between second-degree murder and manslaughter was explained. According to the motion, the jury was informed that extreme indifference to human life is the same as extreme recklessness. Allegedly, the state also did not clarify to the grand jury that the four factors it was to use to determine if the level of recklessness rose to “extreme indifference to the value of human life” were to be used to differentiate between manslaughter and murder. Lastly the defendant alleges the state didn’t inform the grand jury that “simple intoxication cannot support a murder charge.”
The state attempted to call Jocelyn Hensley, who was a driver of one of the other vehicles involved in the incident, but could not reach her for testimony. Count VI charges Jones with third-degree assault stating Jones put “Hensley in fear of imminent serious physical injury.” Kathy Wilson was a passenger in Hensley’s vehicle the night of the incident and testified before the grand jury. The motion states Wilson’s testimony does not make it clear whether Hensley was indeed “in fear.”
Judge Charles Huguelet, who is handling the case, has yet to rule on the motion. Jones is scheduled for trial call on June 20.
Kaylee Osowski can be reached at email@example.com.