Ex-BLPD Chief Gundersen Cleared Of All Felonies – March 16, 2012

Friday, March 16, 2012
Dave Gundersen

Kevin L. Hoover

Eye Editor

BLUE LAKE – Former Blue Lake Police Chief David Gundersen has been cleared of all major charges first filed against him in 2008.

Gundersen was originally charged with eight felonies, including spousal rape, witness tampering, possession of a machine gun and a silencer. He was also charged with three misdemeanors, including violation of a court order, possession of a controlled substance and unauthorized disclosure of information.

The rape charge and two of the misdemeanors were dismissed. After a jury trial in September, 2008, Gundersen was found guilty of the submachine gun and silencer possession felonies, plus a misdemeanor charge of violating a court order.

He was also found guilty of 11 misdemeanor charges of battery over surreptitious photographs taken of his ex-wife and BLPD colleague, Darcy Seal, when she was asleep. But those charges were later tossed out due to the statute of limitations. The single misdemeanor charge of violating a court order was not appealed, and still stands.

Gundersen was sentenced to two concurrent two-year terms, which were suspended. He was placed on four years probation and sentenced to 354 days in county jail but got credit for time served, which accounted for all but a few days of the sentence. He appealed the two weapons charges in December, 2008.

On Thursday, March 15, a state appeals court overturned the two felony convictions. Gundersen had contended that Humboldt County Superior Court Judge Marilyn Miles failed to adequately instruct the jury about exemptions in state law that allow regular, salaried, full-time police officers to possess machine guns and silencers. He claimed that his possession the Heckler & Koch MP5 submachine gun and silencer were within the scope of his duties.

Through his attorney, Russell Clanton of Arcata, Gundersen argued that the prosecution was required to prove beyond a reasonable doubt that the exemptions did not apply. He contended that had the trial court told the jury that the prosecution was required to prove unlawful possession of the weapons, it would have understood the applicable exceptions.

The appeals court’s decision cites case law which requires that juries must be properly instructed regarding burden of proof, and that the trial court didn’t indicate which party – prosecution or defense – was required to prove whether the exemptions were applicable or what the standard of proof was.

States the appeals court’s decision, “The [jury] instructions were confusing because they informed the jury that the prosecution was required to ‘prove’ appellant ‘possessed’ the items in question but failed to direct the jury that the prosecution was required to prove appellant possessed them ‘unlawfully.’”

Continues the appellate decision, citing case law, “A reviewing court ‘must consider the arguments of counsel in assessing the probable impact of the instruction on the jury.’

“We conclude that the trial court erred in failing to instruct the jury on the burden of proof applicable to the exceptions of liability for unlawful possession of a machine gun and a silencer.”

The decision acknowledges that there was “A great deal of circumstantial evidence that appellant possessed the MP5 and the silencer outside the scope of his official duties.” This included the fact that the weaponry in question was kept in a locked safe at Gundersen’s home, that the weapons weren’t logged as Blue lake Police Dept. weapons and weren’t registered with the state. Further, they weren’t obtained in the same manner as the rest of the BLPD arsenal, nor were the department’s officers trained in their use.

But the appeals court decided that those facts were “weakened” by the fact that Gundersen was on duty 24/7, with after-hours calls to BLPD routed to his home. Nor was the official BLPD weapons inventory considered a complete listing.

“Undoubtedly, the evidence raised serious questions about appellant’s possession of the MP5 and silencer,” the decision states. “But the issue for the jury was whether the evidence proved beyond a reasonable doubt that appellant’s possession was unlawful. Had the jury been properly instructed, we could confidently say the evidence was sufficient to support its verdict… The convictions for unlawful possession of a machine gun and unlawful possession of a silencer must be reversed.”

The appellate court decision misspells Gundersen’s name as “Gunderson” throughout the document. The Humboldt County District Attorney’s Office could re-file the charges. Attorney Russ Clanton declined comment.

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