May 2, 2013 | Vol. 39, No. 18

Cunningham found guilty in 10 of 11 counrs

Seven months after the incident, Jace H. Cunningham found himself before a Petersburg jury for four days of testimony. Cunningham was charged with six counts of third degree assault with cause to fear injury with a weapon, one count of driving under the influence, one count of fourth degree misconduct involving a weapon and possessing while intoxicated and two counts of fifth degree criminal mischief with damage under $50, after an hour long stand- off with Petersburg police officers Sunday, Oct. 7, 2012.

After one full day of jury selection, Alaska District Attorney, Nick Polasky called his first witness and testimony began.

Andreas Payne was the first to take the stand and proclaimed herself a friend of Cunningham and remains a friend now.

“I started getting text messages and phone calls from Jace and he said he was going to kill himself,” Payne testified. “I went out to meet him and sat in the car with him for about an hour and a half trying to talk him out of shooting himself.”

During cross examination, defense attorney Michael Heiser asked about the location of the gun while Payne was in the vehicle with him.

“The gun stayed on the middle console, he never pointed it at me,” Payne stated. “He did shoot a couple of times out the window and showed me he put the safety on after he shot.”

Eric and Kelly Overdorff observed Cunningham's vehicle several times throughout the day on Cabin Creek Road.

“The car was still there when Kelly and I came home from dinner,” Eric Overdorff said. “We didn't call the police until about 8 p.m. and there was a lot of back and forth on the scanner going on.”

Chad Wright of Petersburg Mental Health, who had only been in Petersburg for two weeks was called out to the scene and testified that he heard two gun shots coming from Cunningham's vehicle after he encountered a roadblock set up by the Petersburg Police Department.

Petersburg Police Sergeant Heidi Agner was the first of the PPD officers to testify.

“We had the roadblock set up by about 8:15 p.m.,” Sgt. Agner stated. “He drove up to the roadblock and then backed up into the ditch and took off in the other direction to run into the ditch on the other side.”

Sgt. Agner testified to hearing two gunshots as Cunningham is backing away from the roadblock.

“He approached me on foot and he appeared extremely angry,” Sgt. Agner stated. “He was asking about who was there and threatening to kill us all.”

Polasky played a recording of the incident to the jury and they were able to hear Cunningham say he had Heidi in his scope and he had a full clip.

“Cunningham was only about 10 to 15 feet away from me,” Sgt. Agner testified. “He had his gun pointed at me.”

After an hour of back and forth conversation between he and Sgt. Agner, Cunningham laid down his weapon and was taken into custody.

PPD Investigator Kalin Rosse testified that he heard two gunshots and saw flashes coming from the driver’s side of the vehicle.

Each of the officers called for testimony, Captain John Hamilton, Police Chief Jim Agner and Officer Jared Popp each testified to the sound of gunfire but Hamilton and Popp each additionally testified that Cunningham pointed his gun at Sgt. Agner.

Before cross examination of PPD Dispatcher Patrice Huettl, Cunningham made the request to act as co-counsel.

“I can't leave my life in the hands of someone else,” Cunningham stated. “I feel I should ask questions out of my mouth and I understand the consequences.”

Judge William Carey was reluctant to approve this request, but did with a warning that Cunningham not disrupt, disrespect his court or antagonize the witnesses.

Polasky asked for a PCR waiver at that time, which means that Cunningham cannot claim inadequate counsel when acting as his own attorney.

Cunningham asked questions of Huettl with regard to the 911 telephone logs, radio logs and PPD phone logs.

“The PPD phone log says shots were fired at 9:47 p.m., the radio logs says shots were fired at 9:26 p.m. and the 911 telephone log shows that you and I were on the phone between 9:20 and 9:30 p.m.,” Cunningham said. “If we were on the phone together, why is there no recording of the shots on the phone call?”

Huettl explained that 9:47 was the time that the Alaska State Trooper called in the shots, the radio log shows when the officer on the scene called in the shots, they may not have happened at the same time.

“The radio log will be the most accurate of the two because the officer calling in is there,” Huettl said. “But there is an eight minute lag in the 911 system from the clock that we use at the desk to mark time for calls and radio entries.”

Cunningham took the stand and recounted all of his actions for that day. He arrived out Cabin Creek Road between 11:30 a.m. and noon and sat there for hours.

He stated that he spoke with Payne and Ken Birch and told them he was tired and wanted his heart problem to go away.

“I put the rifle in the steering wheel, with the barrel pointed at my heart,” Cunningham testified. “I sat there, thought about things and reached up to pull the trigger. The gun jammed. That is the only reason I am here today, my gun jammed.”

Cunningham testified that he could not have possibly fired his rifle at the roadblock, it was not working.

Polasky asked Cunningham if he made threats to the police.

“I did threaten Heidi, I told her I had her in my scope,” Cunningham stated. “I don't know why I said that, I guess I was just freaked out, it wasn't true. I didn't even have any bullets in the gun.”

Cunningham was also recorded stating that he never wanted to hurt anyone, or himself, he just wanted his heart problems to go away.

In closing arguments, Polasky explained the charges and described Cunningham as a controlling, manipulative individual who always wants to be in charge.

“He even controlled the way he surrendered,” Polasky said to the jury. “He laid the rifle down right beside him to show he was still in control of the situation before he went into custody.”

Cunningham added his own closing argument stating that he could not have fired due to his gun being jammed and also stated that he was on the phone with Huettl when he was supposed to have fired those two rounds.

After 15 hours of deliberation, the jury found Cunningham not guilty of third degree assault for the first four counts but guilty of fourth degree assault; counts five and six he was found guilty of third degree assault; guilty of driving under the influence, guilty of fourth degree misconduct with a weapon, guilty of two counts of fifth degree criminal mischief.

Cunningham will be held at Ketchikan Correctional Center until sentencing which is scheduled for June 24, 2013 in Petersburg.

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