SPAULDING LAW, PC

1221 Noble Street, Suite 301

Fairbanks, Alaska 99701
Tel: (907) 456-6219
[email protected]

IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

FOURTH JUDICIAL DISTRICT

STATE OF ALASKA, )
Plaintiff )
)
v. )
)
STEVEN HARRIS DOWNS )
Defendant )
____________________________ )
Case No.: 4FA-19-00504CR

VRA CERTIFICATION
I certify that this document and its attachments do not contain (1) the name of a victim of a sexual offense listed in AS 12.61.140 or
(2) a residence or business address or telephone number of a victim or a witness to any offense unless it is an address used to
identify the place of the crime or it is an address or telephone number in a transcript of a court proceeding and disclosure of the
information was ordered by the court.

DEFENDANT’S MOTION FOR JUDGMENT OF ACQUITTAL, OR,

IN THE ALTERNATIVE, FOR NEW TRIAL [RULES 29 AND 33]

Now comes the Defendant, Steven H. Downs, by and through undersigned

counsel, and states the following:

Introduction

Following a jury trial that lasted several weeks, Defendant was convicted of

Murder in the First Degree and Sexual Assault in the First Degree.

Defendant’s Motion for Judgment of Acquittal, or, in the Alternative, for New Trial, Case No.: 4FA-19-00504CR
1
 At the end of the State’s presentation of its case in chief, the defense moved for

a judgment of acquittal. The motion was denied by the Court.

Rule 29(b) of the Alaska Rules of Criminal Procedure allows for the renewal of a

motion for judgment of acquittal within five (5) days of a jury’s verdict.

Rule 33(c) of the Alaska Rules of Criminal Procedure allows the Defendant, in

the interest of justice, to seek a new trial within five (5) days of a jury’s verdict.

The Defendant has timely filed this motion.

Factual and Legal Argument

During the trial, the State engaged in serious prosecutorial misconduct, perjured

testimony, and other wrongful behavior, warranting that the Defendant’s convictions be

vacated and dismissed, or, in the alternative, that the Court grant a new trial.

1. The lead investigator engaged in perjured and otherwise

untruthful testimony.

a. Detective Randel McPherron’s perjured and other

substantive untruthful testimony under oath.

One of the key witnesses for the state was Katherine deSchweinitz Lee, the

former girlfriend of Defendant Steven Downs. During the trial, Ms. Lee testified that

she recalled that the Defendant owned a gun during the timeframe that S.S. was

murdered. At a prior pretrial hearing on February 4, 2021, Ms. Lee testified that she

recanted her prior statements about the Defendant’s ownership of guns.

During cross-examination at trial, lead investigator Randel McPherron testified,

inter alia, that he “went to the bathroom” during that part of Ms. Lee’s prior testimony.

Defendant’s Motion for Judgment of Acquittal, or, in the Alternative, for New Trial, Case No.: 4FA-19-00504CR
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He furthermore testified that he had not been made aware of the substantive detail of

Ms. Lee recantation by the prosecutors.

Mr. McPherron’s brazen false testimony comes on the heels of other serious

misconduct of the lead investigator. The H&R .22 pistol seized from Steven’s home in

Maine was obviously important evidence in the State’s case. Investigator McPherron’s

testimony that he “did not have enough information” and “did not have the time” to

investigate the 2015 purchase of the gun from Sherman Varney does not pass the

straightface test. Mr. McPherron also previously made substantive false statements,

under oath, in search warrant affidavits submitted to the Court, falsely misrepresenting

that a student named Brian Kowalski had indicated that Steven had owned a gun at the

time of the homicide.

b. Knowingly presenting untruthful/perjured testimony

is a serious violation of the Alaska Rules of
Professional Conduct.

Rule 3.3 of the Alaska Rules of Professional Conduct provides:

“(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously made
to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the position
of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the
lawyer's client, or a witness called by the lawyer has offered material
evidence and the lawyer comes to know of its falsity, the lawyer shall
take reasonable and timely remedial measures, including, if
necessary, disclosure to the tribunal. A lawyer may refuse to offer
evidence, other than the testimony of a defendant in a criminal matter,
that the lawyer reasonably believes is false.
Defendant’s Motion for Judgment of Acquittal, or, in the Alternative, for New Trial, Case No.: 4FA-19-00504CR
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 (b) A lawyer who represents a client in an adjudicative proceeding
and who knows that a person, including the lawyer's client, intends
to engage, is engaging, or has engaged in criminal or fraudulent
conduct related to the proceeding shall take reasonable and timely
remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the
conclusion of the proceeding, and apply even if compliance requires
disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all
material facts known to the lawyer that are necessary to enable the
tribunal to make an informed decision, whether or not the facts are
adverse to the lawyer's position.”

The State’s presentation of certain untruthful witness testimony, especially that of

Investigator McPherron, constitutes a violation of Rules 3(a)(3) and 3(b).

2. The State engaged in improper allegations during opening

statements and closing arguments.

a. The State improperly argued that Defendant had “lied” to

law enforcement during interrogations.

During her closing arguments, the prosecutor argued that the Defendant had

“lied” to the investigating troopers who interrogated him. This is serious prosecutorial

misconduct that warrants dismissal of the convictions against Defendant. Alaska

precedent is clear: “[I]t is usually improper for the prosecutor to call the defendant a

liar….”1 This was especially the case here, in which the State relied so heavily on the

Defendant’s denial that he knew who S.S. was or that he had had any contact with her

in 1993.

1 Smith v. State, 771 P.2d 1374, 1379 (Alaska App. 1989), citing United States v. Peyro, 786 F.2d 826, 831 (8th
Cir.1986); Harris v. United States, 402 F.2d 656, 657-59 (9th Cir.1968); Whitherow v. State, 765 P.2d 1153, 1155 (Nev.
1988).

Defendant’s Motion for Judgment of Acquittal, or, in the Alternative, for New Trial, Case No.: 4FA-19-00504CR
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 b. The State improperly argued that Defendant had a
“propensity” for owning an H&R .22 pistol.

The defense has argued from the beginning of the case that evidence of

Defendant’s H&R .22 pistol was irrelevant and that admission of any such evidence at

trial would be highly prejudicial. The defense filed a motion in limine to exclude such

evidence. That motion was denied, after the State argued that this was the gun that

killed S.S.

The evidence that unfolded at trial ended up magnifying the Defendant’s

concerns. From the opening statements through the end of the trial, the State, for the

first time in the pendency of this case, began to distance itself from the argument that

this was actually the gun used in the homicide. This became even more clear when key

witness Nicholas Dazer testified that the gun seized from Mr. Downs did not appear the

same gun that he recalled from 1993. Despite this knowledge prior to trial, the State

improperly continued to focus evidence on the H&R .22. This was clearly an attempt to

convince the jury that Steven had a propensity for ownership of this make and model.

“Evidence Rule 404(b)(1) codifies the common-law doctrine forbidding the

admission of “propensity” evidence. In this context, the phrase “propensity evidence” is

legal shorthand; it means: evidence of a person's other bad acts whose sole relevance

is to prove the person's character, so that the person's character can then be used as

circumstantial evidence that the person acted true to character during the episode being

litigated.”2

2 Bingaman v. State, 76 P.3d 398, 403 (Alaska App. 2003), holding modified by Douglas v. State, 151 P.3d 495
(Alaska App. 2006).

Defendant’s Motion for Judgment of Acquittal, or, in the Alternative, for New Trial, Case No.: 4FA-19-00504CR
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 c. The State improperly attempted to shift the burden of
proof to the defendant.

In its closing argument, the State argued repeatedly that the defendant had

presented “no evidence of” various defenses. This was an improper attempt to transfer

the burden of proof from the State to the defense.

3. The State improperly presented other witnesses with the

intent of misleading the jury, including, but not limited to, the
following:

a. Katherine Lee.

The State presented Katherine Lee as a witness. Ms. Lee testified that Steven

owned a gun at the time of the murder in 1993. The state presented this and other

misleading testimony from Ms. Lee, even though she had previously testified, under

oath, that she was recanting such testimony.

b. Jerilyn Nelson.

On the eve of trial, the State notified the defense that it would be presenting

Jerilyn Nelson as a witness to testify to recollections that were completely opposite to

what she had told law enforcement officers in previous interviews. The defense asked

the prosecution not to present such obviously false testimony. In bad faith, the State

nonetheless presented Ms. Nelson’s testimony. In the end, Ms. Nelson testified that

she had perhaps “imagined” her recollection of a taller man in a hoodie coming out of

Defendant’s Motion for Judgment of Acquittal, or, in the Alternative, for New Trial, Case No.: 4FA-19-00504CR
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the bathroom. This was part of the State’s tactics during trial of throwing as much mud

against Mr. Downs and hoping as much of it as possible would stick.

c. Leighton Lee.

Mr. Lee was another witness presented in bad faith by the prosecution. On the

eve of trial, the prosecution notified the defense that Mr. Lee “had heard” that Steven

Downs owned a gun at the time of the murder. This was the first time Mr. Lee was

reported to have made any such statement. It was inconsistent with his prior

statements to investigators that he had never seen Steven with a gun. It appears that

the State, in bad faith, presented Mr. Lee for the sole purpose of attempting to introduce

inadmissible hearsay testimony. Such testimony was excluded, and Mr. Lee went on to

testify that he personally had not seen Steven with a gun, and that Steven was

otherwise a friendly, well-adjusted friend who appeared to have no involvement in the

crime.

4. The defense asserts that it has probable cause to believe that

certain telephonic communications between Defendant and
his attorneys have been illegally monitored by the State.

Shortly after arrival in Alaska for the trial, undersigned attorneys James

Howaniec and Jesse Archer engaged in a lengthy telephone conversation with Steven

Downs at the Fairbanks Correctional Center. The conversation entailed a highly

sensitive discussion of the facts of the case that included highly confidential discussion

of trial strategy.

Defendant’s Motion for Judgment of Acquittal, or, in the Alternative, for New Trial, Case No.: 4FA-19-00504CR
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 Within less than twelve hours following the conversation, the defense received

the following unusual email from Assistant Attorney General Christopher Darnall:

“In an abundance of caution, I’m writing to make sure that you’re aware
that Alaska DOC records phone calls made by in-custody inmates.
Sometimes members of DPS review these calls, but they are otherwise
maintained solely by the DOC. Here, I understand that members of DPS
reviewed some of your client’s phone calls and found nothing material
or relevant – in other words, there was nothing of evidentiary value in
the calls that DPS listened to, either inculpatory or exculpatory, and we
do not intend to use any recordings that DOC possesses. Had DPS
discovered anything relevant or material, we would have passed it along.
I hope this isn’t any kind of surprise; it is a fairly routine practice here,
but usually only becomes an issue and/or is discovered if there are
calls that contain substantive statements and/or are relevant. However,
in an abundance of caution, we wanted to advise you of the occurrence.”

This was a warning that had not been made by the State during the prior three

years since Steven was arrested. During that time, Steven has had hundreds of

telephone calls with his attorneys. The timing of this odd email raised very serious

concerns that phone calls between Mr. Downs and his attorneys were being illegally

monitored by the State.

Following Mr. Darnall’s email, Attorney Archer made several discovery requests

to the State for more information pertaining to the securus telephone records from the

jail. The responses have been inadequate. Attorney Archer had a subpoena served

upon the Fairbanks Correctional Center more than a month ago, seeking more detailed

records. That subpoena has been ignored completely by the jail. The defense is filing a

separate motion to enforce the subpoena and compel discovery.

The defense’s alarms became even more urgent during closing arguments, when

the prosecutor recited a highly unusually phrased statement that the Defendant had

made during the aforementioned telephone conference. The statement could be pure

coincidence, but this seems highly unlikely to the defense.

Defendant’s Motion for Judgment of Acquittal, or, in the Alternative, for New Trial, Case No.: 4FA-19-00504CR
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 The defense understands that the above allegations are serious and that it will be

required to present convincing evidence of any such illegality. The defense would have

withheld this allegation until further evidence is developed, but for the prohibitions of

presenting “new evidence” beyond a five-day post-verdict window in Rule 33. The

defense is aggressively pursuing telephone records and will have them examined

forensically.

Conclusion

All of the above misconduct by the prosecution and its lead investigator warrants

a mistrial and dismissal of the convictions against the Defendant, or, in the alternative,

that a new trial be granted.

Wherefore, Defendant moves that the Court enter a judgment of acquittal, or, in

the alternative, grant a new trial.

Dated: February 14, 2022

/s/ Franklin E. Spaulding

Franklin E. Spaulding, Esquire
SPAULDING LAW, PC
1221 Noble Street, Suite 301
Fairbanks, Alaska 99701
Tel: (907) 456-6219
[email protected]

Dated: February 14, 2022

/s/ James P. Howaniec
James P. Howaniec, Esquire
Defendant’s Motion for Judgment of Acquittal, or, in the Alternative, for New Trial, Case No.: 4FA-19-00504CR
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 HOWANIEC LAW OFFICES
145 Lisbon Street
P.O. Box 655
Lewiston, Maine 04243-0655
Tel: (207) 777-3900
[email protected]

Dated: February 14, 2022

/s/ Jesse James Ian Archer
Jesse James Ian Archer, Esquire
11 Lisbon Street
P.O. Box 681
Lewiston, Maine 04243-0681
Tel: (207) 344-9362
[email protected]

CERTIFICATION OF SERVICE

This is to certify that a copy of the foregoing

is being served by email on the following
parties:

Jenna Gruenstein, Esquire

Assistant Attorney General
Department of Law, Criminal Division
310 K Street, Suite 601
Anchorage, AK 99501

/s/ James P. Howaniec 02/14/2022

JAMES P. HOWANIEC Date
Attorney for Defendant

Defendant’s Motion for Judgment of Acquittal, or, in the Alternative, for New Trial, Case No.: 4FA-19-00504CR
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