Barile, Peery receive jail time

PALMER -- Magistrate David Zwink sentenced Tammy Barile in Palmer District Court Monday to 60 days in jail for fourth-degree assault in a Feb. 26, 2001, incident in Palmer, and co-defendant Milton Peery to 30 days.

Zwink began the sentencing on Nov. 8 but, after two hours of statements, arguments and witness testimony, chose to delay completion of the ruling. He handed down the final components of the sentence on Monday.

Barile and Peery were convicted in August on misdemeanor charges of disorderly conduct, resisting arrest and fourth-degree assault during a controversial two-week trial which focused attention on the Alaska State Trooper who arrested them in the 2001 incident.

According to charging documents, Trooper Eric Spitzer approached Barile and Peery outside a Palmer bar when they appeared to him to be intoxicated and engaged in an argument with each other. A struggle followed during which Barile was injured and the pair were then arrested.

The prosecution argued during trial that Barile and Peery had assaulted Spitzer when he was checking into what appeared to be an altercation or domestic-violence situation. The defense contended Spitzer had intervened unnecessarily and used excessive force in subduing Barile, causing her injuries.

Barile's ex-husband, Albert Williams, appeared in court Nov. 8 as a character witness on Barile's behalf, testifying he had known Barile for more than 15 years to be a caring mother, no danger to anyone, responsible for her own actions and for her children, and displaying no lapses in judgment or problems with alcohol.

Assistant District Attorney Bob Collins recommended a 90-day composite jail sentence on all charges for Barile, citing a need to deter her and others who would attack law enforcement officers, and a 60-day sentence for Peery, who has a criminal history of DWI charges, as well as a current DWI charge based on an Oct. 19 arrest. Collins also requested Barile be required to make restitution to the state for her medical treatment expenses of $599.

In requesting the jail time, Collins cited as an aggravating factor that civilian bystanders had perceived Barile's and Peery's conduct as a threat to the trooper and had subsequently come to the trooper's assistance.

Defense attorney Nancy Driscoll opposed the restitution, contending the state had caused Barile's injuries. As for the jail time, Driscoll requested a suspended imposition of sentence in light of Barile's lack of a record and her standing as a person of good character and mother of three. She denied any aggravating factors, saying Barile had already been through enough, and recommended she be sentenced to do community work service. She requested a delayed remand pending appeal.

Defense attorney Lance Wells requested a 30-day sentence for Peery, citing the officer, whom he described as "aggressive and mean," as the problem. Although he acknowledged Peery has a light criminal history, he emphasized this case represented the first assaultive behavior on Peery's part. He said Peery was a good candidate for rehabilitation, and pointed out Peery had not been driving in conjunction with the incident.

Barile made a statement on Nov. 8 that she had no previous record and had done nothing wrong in this case. Although she had always been respectful of troopers in the past, she said in this instance she stood her ground against a bully with a badge, adding Peery would have helped any woman being beaten by a cop. She said the state had finally acknowledged a problem with the officer and cited an FBI investigation into Spitzer's actions which, according to FBI spokesman Eric Gonzalez, resulted in a report currently pending decision at the Justice Department.

Peery, although present on both days, made no statement.

In commencing the ruling on Nov. 8, Zwink said he had looked at all aspects of the case. He said that he found Spitzer's earlier comments about "what he's done to be softer and more cuddly flat out missed the mark. He's a big person and has no choice about that."

Zwink attributed Spitzer's stiff bearing to his military background, but said it was intimidating. He added Spitzer has a long way to go to work on his demeanor and needs help with learning how to go into situations and calm them.

Spitzer was not present at the Nov. 8 sentencing, but was in attendance on Nov. 18, at which time Zwink requested that the tape of the Nov. 8 proceedings be played for him later.

In handing down the sentences, Zwink observed that the incident could not have happened the way Barile and Peery testified it had. He said he felt Barile and Peery believed what they said, but he thought alcohol and the passage of time had affected their account.

Instead, he found the testimony of Stephanie Speare, an independent witness of the incident who defended Spitzer's actions during the trial, to be credible. If events had happened the way Barile and Peery described, Zwink said Speare would have "been aghast" at the trooper's actions.

"We have a lot of problems with domestic violence," said Zwink, adding it would have been unacceptable for Spitzer to ignore what appeared to be a domestic-violence situation. He said, however, that Spitzer's bearing did not help, and the couple's response to Spitzer's intervention and their intoxication "kicked it all into overdrive."

"Lots of domestic violence starts that way and people die," said Zwink. "It's a tough balance."

Zwink said his decision to sentence Barile to 60 days for the assault charge had been difficult in light of her lack of record, yet he found her actions in the incident so far against public policy that the suspended imposition of sentence was not appropriate.

"It should not come as a surprise to anyone that when a police officer comes up it should be a peaceful and cooperative encounter," said Zwink. He added that the dynamics between Barile and Peery were unknown before the officer arrived, but once he came there should have been a time out. Instead, he said, "Someone tossed flaming fluid on the embers and it blew up."

Zwink said he preferred to give Peery only 30 days on the assault charge and concentrate instead on Peery's relationship with alcohol, sentencing him to participation in the Alcohol Safety Action Program with up to 90 days of residential treatment authorized.

Barile also received ASAP referral, with no residential treatment time. Both Barile and Peery received three-year probation periods, and Barile was sentenced to pay the state $599 restitution for her medical costs since, according to Zwink, the injuries occurred while Barile was resisting arrest and dropping or being pulled to the pavement.

At the conclusion of the ruling Monday, Barile questioned the decision not to grant her a suspended imposition of sentence, stating that she was not a threat to society, but had taken the case to trial to protect her children and society.

"Now my children will suffer more," she said, asking that Zwink consider ruling differently in such cases in the future.

Zwink replied that he had not come to his decisions quickly or lightly.