|
You can of the Alaska Court of Appeals opinions.
|
|
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
SHAWN W. ROGERS,
Appellant, Court of Appeals No. A-9991
Trial Court No. 3KN-04-1762 Cr
v.
STATE OF ALASKA, O P I N I O N
Appellee.
End of Caption No. 2263 May 21, 2010
Appeal from the Superior Court, Third Judi
cial District, Kenai, Larry D. Card, Judge.
Appearances: Arthur S. Robinson, Soldotna,
for the Appellant. Timothy W. Terrell,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Daniel S. Sullivan, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
MANNHEIMER, Judge.
Shawn W. Rogers appeals his conviction for
manslaughter.1 He argues that there is a fatal variance between
the theory of causation that the State presented to the grand
jury and the theory of causation that the trial jury apparently
adopted (as suggested by the jurys questions to the court, and by
the jurys verdict on a proposed aggravating | factor | ). The States theory of this case (both at grand jury and at trial | ) was that Rogers committed first-degree murder by pulling a handgun in a bar and shooting another man with the intent to kill him. The trial jury found Rogers guilty of manslaughter apparently under the theory that, after Rogers pulled the handgun, several bystanders (including the victim | ) struggled with Rogers for control of the gun, and that during this struggle Rogers lost control of the gun, but the gun somehow went off, fatally wounding the victim. |
| For the reasons explained in this opinion, we conclude that even if the jury adopted the view of the case described in the preceding paragraph, this is not a fatal variance from the States theory of an intentional shooting, and thus the jurys verdict is a valid resolution of the case. | |||
| Rogers also argues that the State improperly failed to apprise the grand jury of an exculpatory statement that Rogers made to a state trooper several hours after his arrest. For the reasons explained in this opinion, we conclude that Rogerss statement is not exculpatory (for purposes of grand jury practice | ). | ||
Underlying facts, Part 1: the
parties competing versions of the shooting
Shawn Rogers was indicted, and brought to
trial, on a charge of first-degree murder. The case
arose from an altercation that took place at Fat
Alberts Tavern in Beluga on the evening of July 26-27,
2004. Rogers and another man, Brian Black, were among
the patrons of the tavern that night.
When Rogers arrived at the tavern, he was
carrying a loaded handgun that he had taken with him
earlier that day on a fishing trip. He gave this
weapon to the bartender, but he retrieved the weapon
shortly after last call was announced. Exactly what
happened next was the central dispute at Rogerss trial.
The States theory was that Rogers
intentionally shot Black. The State presented evidence
that, around closing time, Rogers said something
provocative to Black. None of the States witnesses
could tell exactly what Rogers said, because the music
in the tavern was turned up so loud. But whatever
Rogers said, it caught Blacks attention. Black asked
Rogers, Are you talking to me? Rogers indicated that
he was talking to Black, and then he repeated his
comment.
At that point (according to the States
witnesses), Rogers stood up, drew his handgun from the
holster, and pointed the gun at Black. Black said
something like, Are you pulling a gun on me,
motherfucker?, and then he stood up and headed toward
Rogers apparently intending to disarm him. Two of
Blacks co-workers Chuck Thome and Ron Thebeau also
converged on Rogers.
Rogers got off two shots in quick succession.
One of these caused a near-contact wound in Blacks
side, just below his left armpit. The bullet passed
through Blacks lungs and aorta, then lodged near his
spine. Black died soon after receiving this wound.
Rogerss gun jammed after the second shot.
With Rogers unable to get off another round, Thome
managed to knock the weapon from Rogerss hand and
subdue him.
The defense offered a competing version of
events. The defense asserted that Rogers did not
threaten anyone with his gun, and that he was the
victim of an attack by Black and his two friends.
According to the defense, Rogerss gun went off
accidentally during the struggle, and Black was shot.
Rogers took the stand at his trial and
testified that he was wearing a handgun when he entered
the bar, so he removed the weapon from its holster and
handed it to the bartender for safekeeping. Later,
when the bar was closing, he retrieved his handgun from
the bartender. He tried to return the weapon to its
holster, but he was unable to do so because the holster
was tangled with his other clothing. At that point,
without warning, Black and his friends approached
Rogers and attacked him. According to Rogers, the gun
went off once in his hand from the physical contact.
Rogers testified that the gun was pointed toward the
floor when this first shot was fired. Then Rogers lost
control of the weapon. A few moments later, Rogers was
thrown to the floor and knocked unconscious. Rogers
asserted that he was unaware of how the second shot was
fired.
Underlying facts, Part 2: the issue of causation, and
how this issue was litigated at Rogerss trial
After the presentation of evidence at Rogerss
trial was concluded, the trial judge and the attorneys
discussed the proposed jury instructions. The parties
agreed that the jury should be instructed on first-
degree murder (the crime charged in the indictment),
and on the lesser offenses of second-degree murder and
manslaughter. After discussing the various culpable
mental states that applied to these different degrees
of criminal homicide, the judge and the attorneys
turned to the issue of proximate cause.
The prosecutor submitted proposed
instructions on proximate cause because, as the
prosecutor explained to the trial judge, the defense
had introduced evidence suggesting that Black was shot
accidentally during a struggle over the gun:
Prosecutor: [T]he defense is attacking
the States case [by] indicating that the
death of Mr. Black could have been caused by
accident through the struggle that ensued.
... The jury could find that Mr. Rogers
pulled the gun [and] pointed it at Mr. Black,
but did not shoot ... ; rather, during the
struggle that ensued, ... [either] through
the victim himself pulling the gun away from
the defendant, or from a third [person]
intervening in the struggle and disarming the
defendant, thats [how] the death of Mr. Black
... was caused.
[Under that scenario,] what the case law
tells us ... is [that] the defendant is
responsible for ... actions that ... he has
set in motion, as long as his actions were a
substantial factor in causing the death.
Rogerss attorney raised two
objections to the proposed instructions on
proximate cause. First, the defense attorney
disputed the prosecutors assertion that, if
Black was killed accidentally during a
struggle over control of the gun, Rogers
would be criminally responsible for the
homicide. Second, the defense attorney
argued that the State was changing its basic
theory of the case. The defense attorney
pointed out that, from the time of the
initial felony complaint and indictment, the
State had maintained that Black died as a
result of Rogers purposely shooting him. The
defense attorney argued that it would be
improper for the State to now rely on a
theory that Black died as a result of an
accidental discharge of the gun during a
struggle.
In reply, the prosecutor
acknowledged that the States theory of the
case was that Rogers purposely shot Black
with the intent to kill him. But the
prosecutor pointed out that the jurors might
conclude that the State had failed to prove
its theory of the case beyond a reasonable
doubt. The prosecutor argued that, if the
jury was in doubt as to whether the gun
accidentally discharged during the struggle
between Rogers and Black and Blacks co-
workers, the jurors would need to understand
the law of proximate cause in order to render
a proper verdict.
After hearing these arguments, the
trial judge concluded that it would be
improper to instruct the jury on the law of
proximate cause. The judge gave three
reasons for his decision.
First, the judge ruled that it
would be improper to hold Rogers accountable
for the homicide simply because he unlawfully
carried a firearm into a bar.
It should be noted that this was
not the prosecutors argument. Rather, as
shown by the excerpt quoted above, the
prosecutor argued that Rogers could be held
accountable for the homicide if Rogers pulled
the gun and pointed it at Black, and then,
when Black and his co-workers attempted to
disarm Rogers, the gun went off accidentally.
Second, the trial judge ruled that
any jury instruction on proximate cause
(i.e., any instruction on the legal doctrine
that Rogers could be held liable for Blacks
death if Rogerss actions were a substantial
factor in causing Blacks death) would
effectively lower the States burden of proof.
The judge declared:
The Court: When we start talking about
proximate causation, were using a term thats
shared with civil law, [with] tort law, where
the standard of proof is preponderance of the
evidence. The [standard of proof] in this
case [is] beyond a reasonable doubt. And Im
not saying that the State is suggesting that
I should intentionally or knowingly lower the
standard of proof, but when we get into ideas
involving proximate causation, ... then we
get into an area [where] we are dangerously
close to lowering the standard of proof for
the government [in a criminal case].
As we explain in the next section
of this opinion, the trial judges analysis of
this issue is mistaken. Instructing a jury
on the applicable law of causation does not
alter the burden of proof that governs a
criminal case.
Finally, the judge declared that
the substantial factor rule of causation did
not apply to a charge of first-degree murder
although the judge conceded that this
doctrine of causation might apply to the
lesser included offenses of second-degree
murder or manslaughter. As we explain in the
next section of this opinion, the judges
analysis of this issue was also mistaken.
The same law of causation applies to all
degrees of criminal homicide indeed, to all
criminal charges that require proof of
causation.
The next morning, just before the
attorneys delivered their summations to the
jury, the prosecutor asked the trial judge to
reconsider his decision regarding whether to
instruct the jury on causation. In
conjunction with his request for
reconsideration, the prosecutor presented the
court with re-drafted instructions on the
doctrine of proximate cause.
According to the prosecutor, these
re-drafted instructions clarified two issues:
first, that the State was not obliged to
prove that Rogerss actions were the sole
cause of Blacks death; and second, that if
the jurors believed that Rogers pulled the
gun and threatened Black, and that Black was
shot during the ensuing struggle, then Rogers
could be held criminally responsible even
though he did not have his finger on the
trigger when the gun went off. As the
prosecutor explained:
Prosecutor: [Rogerss act of] pointing
the gun would be unlawful conduct. And the
jury needs to understand [that] a third
person[s] or a victim[s] [act of] intervening
[after] the defendants pulling of the gun ...
does not ... absolve [the defendant] of
criminal liability.
In response, the defense attorney
renewed his argument that the State was
improperly trying to alter its theory of the
case in the middle of the stream. The
defense attorney noted that, all along, the
State had contended that Rogers deliberately
shot Black. The defense attorney then
asserted that, because the State had never
given notice that it might argue an
alternative version of events, [it] would be
highly prejudicial, highly unfair, [and]
probably a violation of due process if the
State was allowed to argue that Rogers could
be found guilty even if he did not
deliberately shoot Black.
After considering these arguments,
the trial judge again concluded that
instructing the jury on the doctrine of
proximate cause would effectively lower the
States burden of proof. In addition, the
judge concluded that the facts of Rogerss
case did not raise any issue of causation
and, thus, any instruction on proximate cause
would only tend to confuse the jurors. For
these two reasons, the judge again declined
to instruct the jury on causation although
the judge stated that he might revisit this
issue if ... the jury has a question.
The parties then delivered their
summations to the jury.
The prosecutor argued that Rogers
deliberately shot Black, and that Rogers
acted with the intention of killing Black.
The defense attorney, on the other
hand, suggested that Rogers was innocently
trying to get his gun back into its holster,
and that Black and his friends with their
judgement impaired [by] booze and pot
mistakenly thought that Rogers was
threatening them with the gun, so they
attacked him, and in the struggle that
ensued, the gun accidentally discharged,
causing Blacks death.
The defense attorney then
explicitly invoked the doctrine of causation.
He told the jury that, not only had the State
failed to prove first-degree murder, but the
State had also failed to prove either of the
potential lesser offenses (second-degree
murder and manslaughter) because they have
failed to prove beyond a reasonable doubt
that Shawn [Rogers] caused the death of Brian
Black.
In his reply argument, the
prosecutor responded to the defense attorneys
assertion that Rogers had not caused Blacks
death. The prosecutor argued that even if
the jurors did not believe that Rogers was
guilty of deliberately shooting Black, Rogers
could nevertheless be found guilty of a
lesser degree of homicide because Rogerss act
of threatening Black with a handgun was the
event that set the homicide in motion:
Prosecutor: [P]ulling out the gun [and]
pointing it at another person across the bar,
intoxicated people, the person across the bar
intoxicated, other people in the bar are
intoxicated, whats foreseeable there?
Someone is going to rush you. Thats
certainly a likely possibility, a foreseeable
possibility. Someones going to rush you and
attempt to disarm you. Thats what happened
in this case[, and it was] certainly a
foreseeable result of the defendants conduct.
. . .
[The defense attorney is] trying to tell
you [that] if Mr. Rogers didnt mean to [shoot
Black] and didnt mean to pull the trigger,
and [then,] in ... the struggle for the gun,
it goes off, hes not responsible; he hasnt
committed the offense. Thats not correct
because he set in motion the chain of events
that were foreseeable: that another person
would try and intervene.
Here, ... as a result of [Rogerss]
conduct in pointing the gun across the bar,
... he set in motion the chain of events that
were reasonably foreseeable when Mr. Black
approached him ... [and] tried to disarm him,
or someone else tried to disarm him, and
thats when Mr. Black was shot. Mr. Rogers is
still responsible for the death, because its
his conduct that set in motion that chain of
events. Its his conduct that was a
substantial factor in setting in motion those
events.
Even though the defense attorney had actively
opposed the prosecutors request for a
substantial factor causation instruction, the
defense attorney made no immediate objection
to the prosecutors argument.
A few minutes later, however, after
the prosecutor finished his rebuttal
summation, the trial judge held a bench
conference. During this conference, the
defense attorney objected that the
prosecutors remarks (quoted above) openly
invited the jury to apply a substantial
factor test when deciding whether Rogers was
guilty of a criminal homicide.
The trial judge overruled this
objection. The judge declared that he had
already correctly instructed the jurors on
all the issues necessary for their decision,
and the judge noted that the jury
instructions included the admonition that the
jurors were to ignore the remarks of the
attorneys if the attorneys were mistaken in
their view of either the law or the evidence.
Shortly after this ruling, the
alternate jurors were excused and the
remaining twelve jurors were allowed to begin
their deliberations.
On the following business day,
shortly before one oclock in the afternoon,
the trial judge convened the parties to
consider a note that the court had received
from the jury earlier that morning. In their
note, the jurors asked the court to give them
further instruction on the issue of
causation. The note (with its original
emphases and internal quotation marks) read:
In regards to [the charge of]
manslaughter, if the jury agrees that Shawn
W. Rogers recklessly contributed to the death
of Brian Black, is that the same as
recklessly caused the death of Brian Black?
If [Rogerss] recklessness contributed to the
death, is that equal to caused the death?
[Or] does it need to be all his fault?
When the trial judge asked the
attorneys to give their views on how the
jurys question should be answered, the
prosecutor renewed his request for a
substantial factor instruction. The
prosecutor noted that, although the law did
not require the State to prove that Blacks
death was entirely Rogerss fault, it would be
wrong for the jury to convict Rogers simply
because his actions contributed in some
slight way to Blacks death. Instead, the law
required the State to prove that Rogerss
conduct was a substantial factor in causing
Blacks death. Accordingly, the prosecutor
asked the trial judge to instruct the jury on
this doctrine of causation.
The defense attorney argued
(incorrectly, as we shall explain) that the
State was required to prove that Blacks death
was entirely Rogerss fault and, thus, it
would be error to instruct the jury
concerning the substantial factor test.
After hearing these arguments, the
judge decided to instruct the jury on the
substantial factor test for causation. The
judge acknowledged that he had earlier
refused to instruct the jury on this legal
doctrine, but he stated that he had changed
his mind, now that the jury was specifically
asking about this issue.
The judge also noted that the
defense attorneys position on the issue of
causation was wrong: the State was not
required to prove that the homicide was
entirely Rogerss fault, but rather only that
Rogerss conduct was a substantial factor in
bringing it about.
The trial judge then gave the
following instruction to the jury:
A criminal defendant can be held
responsible only for injuries that result
from or are caused by his conduct. But the
defendants conduct need not be the sole
factor in producing the injury. Rather, the
test is whether the defendants conduct was a
substantial factor in bringing about the
injury. Since a defendants conduct need not
be the sole cause of the injury, a defendant
will be held accountable for an injury or
death resulting from his conduct even though
it may be shown that the negligence of some
other person also contributed in a
substantial degree to causing the injury or
death. Contributory negligence of the victim
does not constitute a defense to criminal
charges.
(The trial judge then added a
supplemental instruction which told the
jurors incorrectly that the substantial
factor test for causation does not apply to
criminal offenses that require [proof that]
the defendant act[ed] intentionally[, such
as] Murder in the First Degree ... or ...
Murder in the Second Degree [under the
theory] that the defendant [acted with] the
intent to cause serious physical injury.)
The following morning, the jury
returned its verdicts in Rogerss case. The
jurors acquitted Rogers of first-degree
murder and second-degree murder, but they
found him guilty of manslaughter.
Because manslaughter is a class A
felony to which the presumptive sentencing
law applies, the court then asked the jury to
deliberate on two aggravating factors that
had been proposed by the State: aggravator
(c)(4) that Rogers employed a dangerous
instrument in furtherance of the offense; and
aggravator (c)(6) that Rogerss conduct
created a risk of imminent physical injury to
three or more persons. See AS 12.55.155(c)
and (f)(2).
During its deliberations on these
two aggravators, the jury posed several
questions to the court. One of these
questions asked for a clarification of
aggravator (c)(4). The jury asked, In
regards to [aggravator (c)(4)], does [in]
furtherance of the offense [require proof
that] he pulled the trigger for the shot that
killed Brian Black[?] (Emphasis in the
original)
After listening to the arguments of
the parties on this issue, the trial judge
concluded that the statutory definition of
the aggravator, AS 12.55.155(c)(4), was
unclear on this point, and that there were
two reasonable interpretations of the
aggravator so the judge adopted the
interpretation more favorable to Rogers.
That is, the judge ruled that, under the
circumstances of Rogerss case, aggravator
(c)(4) required proof that Rogers personally
pulled the trigger to produce the gunshot
that killed Black. The judge also reminded
the jurors that their decision on this point
had to be unanimous.
After receiving this supplemental
instruction, the jury resumed its delibera
tions and, ultimately, the jury found that
the State had failed to prove aggravator
(c)(4).
The law of causation in criminal cases
As the prosecutor correctly argued at Rogerss
trial, and as the trial judge ultimately told the
jury, a defendant can be held criminally
responsible for an injury or death if the
defendants conduct was a substantial factor in
causing that injury or death. The law does not
require the government to prove that the defendant
was solely responsible for the injury or death.
See Johnson v. State, 224 P.3d 105, 109-111
(Alaska 2010); State v. Malone, 819 P.2d 34, 36
(Alaska App. 1991).
One type of joint causation that courts
frequently encounter is the situation where a
defendant launches an attack on another person and
(in response) the intended victim, or the victims
relatives or friends, or other bystanders take
defensive measures to impede or prevent the
attack. At common law, and under todays law as
well, any response of a human being to harm or
threat of harm is [viewed by the criminal law as]
a consequence of whatever produced [the] harm or
threat. Rollin M. Perkins & Ronald N. Boyce,
Criminal Law (3rd ed. 1982), p. 794.
Thus, for instance, if a person grabs a
firearm which has suddenly been pointed at him,
acting in the effort to save himself from apparent
death or great bodily injury, and if the force
thus exerted by [the victim] causes a fatal
discharge not intended by the pointer, the act of
pointing the weapon has [nevertheless] caused the
death. Id. at 795. This is because, [i]f a
loaded weapon is pointed at another at close
range[,] it may be foreseeable that he may grab
for it and perhaps cause a discharge in this way.
Id. at 796.
This same rule of causation applies when the
victims defensive action is to try to escape. On this
point, see the example given in Wayne R. LaFave,
Substantive Criminal Law (2nd ed. 2003), 6.4(f)(4),
Vol. 1, p. 483: Suppose that A approaches B with a
deadly weapon and a murderous intent to kill, so that
B, in order to escape, voluntarily jumps out a window,
or ... into a ravine, or plunges into a river, with
fatal consequences to B. [In such instances,] A is ...
guilty of murdering B.
These examples from Perkins & Boyce and from
LaFave illustrate another crucial aspect of the law of
causation: contrary to the trial judges ruling in this
case, the doctrine of causation including the
substantial factor test for assessing causation
applies to all offenses that require proof of
causation, regardless of the culpable mental state that
must be proved to establish the offense. Immediately
after describing the example that we quoted two
paragraphs above, the authors of Perkins & Boyce add
the following explanation:
The [one who pointed the firearm] will not
necessarily be criminally responsible for the
death because his menacing act may have been
justified or excused; but there has
[nonetheless] been [a] homicide which the law
imputes to him [as a matter of causation].
Perkins & Boyce, p. 795.
In other words, when a defendant is
charged with criminal homicide, the
government must invariably prove that the
defendants conduct was a substantial factor
in causing the victims death. But even
though causation may be proved, the
defendants guilt or innocence (or level of
guilt) will hinge on the defendants culpable
mental state and/or the surrounding
circumstances.
Returning to the example cited in
Perkins & Boyce, if the defendant pointed the
firearm at the victim with the intent of
killing him (or of killing someone else),
then even if the firearm discharged by
accident during the struggle for control of
the weapon, the defendant could properly be
found guilty of first-degree murder. On the
other hand, if the defendant only intended to
frighten the victim, or was merely reckless
in handling the gun, then the defendant might
properly be found guilty of manslaughter.
Or, as the passage from Perkins & Boyce
points out, if the defendant was completely
blameless in pointing the gun, then the
defendant would be guilty of no crime, even
though the defendants conduct was a
substantial factor in causing the homicide.
In other words, as this Court
stated in Malone, the general rule [is] that
a defendant who acts with the required
culpable mental state will be held criminally
responsible for injuries [or deaths] that
result from other peoples normal or
foreseeable reactions to his conduct. 819
P.2d at 36 (emphasis added).
In Riley v. State, 60 P.3d 204
(Alaska App. 2002), this Court recognized an
analogous doctrine that applies when a
criminal prosecution is based on a theory of
complicity. The doctrine of complicity
supplies the rules for determining when one
person can be held criminally accountable for
the conduct of another person. But each
accomplices culpable mental state must be
adjudged separately:
Take, for instance, the situation where two
defendants are jointly accountable for a
criminal homicide one because he personally
struck the fatal blow or inflicted the fatal
wound, and the other under a theory of
complicity because he encouraged or assisted
the homicidal act. If one of the defendants
acted in cold blood (i.e., with malice afore
thought) while the other acted in the heat of
passion, the one who acted with malice would
be guilty of murder and the one who acted in
the heat of passion would be guilty only of
manslaughter. This was true regardless of
which defendant was the perpetrator and which
the accomplice. See Perkins & Boyce, pp.
753, 757; [Wayne R. LaFave & Austin W. Scott
Jr., Criminal Law (1986)], 6.7(c), Vol. 2,
pp. 144-45.
Riley, 60 P.3d at 207.
In conclusion, the law of causation
i.e., the rules that define when a defendants
conduct will be deemed to have caused a
particular result for purposes of the
criminal law applies to all offenses that
require proof of causation, from first-degree
murder down to the most minor misdemeanor.
But, standing alone, the fact that the law
views the defendants conduct as having caused
the result specified in a criminal statute
does not mean that the defendant can be
convicted of violating that criminal statute.
The government must prove that the defendant
acted with the culpable mental state(s)
required by the statute, and the government
must prove the existence of any surrounding
circumstances specified by the statute.
Before turning to the specific
issues raised in Rogerss appeal, we need to
address one further point relating to the law
of causation. Contrary to the trial judges
ruling in this case, the doctrine of
causation has nothing to do with the
governments burden of proof. The government
always bears the burden of proving the
elements of a criminal case beyond a
reasonable doubt. The rules of causation
help to explain what the government must
prove.
An introduction to Rogerss two arguments that it was
fundamentally unfair to allow the jury to return a
verdict of manslaughter based on the theory that
Rogers merely pointed his handgun at Black, and
that the gun accidentally discharged when Black
and his co-workers struggled with Rogers
In Rogerss brief to this Court, he does not
take issue with any of the propositions of law
discussed in the preceding section of this opinion.
Rogers does not dispute that a person can be held
criminally accountable for a homicide if their conduct
was a substantial factor in causing that homicide.
More specifically, Rogers does not dispute that, as a
general proposition, a person can be convicted of
manslaughter (or of some other degree of criminal
homicide) if they point a firearm at another person
and, in response, the other person takes defensive
measures which cause the gun to discharge accidentally.
Instead, Rogers argues that it was
fundamentally unfair, under the facts of his case, for
the jury to convict him of manslaughter (or convict him
of any other degree of criminal homicide) if the jurors
concluded that Rogers did not deliberately shoot Black,
but merely pointed the gun at Black, and that the gun
discharged by accident during the ensuing struggle.
Rogerss first argument is based on the right
to grand jury indictment guaranteed by Article I,
Section 8 of the Alaska Constitution. Rogers contends
that his right to grand jury indictment was violated
because (1) the State asked the grand jury to indict
Rogers for murder based on the theory that Rogers
deliberately shot Black, but later, at the conclusion
of the jury trial, (2) the prosecutor argued an
alternative theory of events in response to the defense
evidence suggesting that Rogerss handgun might have
discharged accidentally during the struggle. Rogers
argues that, if the trial jury found him guilty of
manslaughter based on the theory that the gun
discharged accidentally during the struggle, this would
be a fatal variance from the grand jurys indictment.
Rogerss second argument is an alternative
argument, based on the fact that the trial judge
initially refused to instruct the trial jurors on the
substantial factor test for causation. Rogers contends
that, even if his grand jury variance argument is
wrong, his trial was nevertheless unfair because, when
Rogerss defense attorney delivered his summation to the
jury at the end of the trial, the defense attorney
detrimentally relied on the trial judges ruling i.e.,
detrimentally relied on the fact that the jurors would
not be instructed on the applicable law of causation.
It is important to note that Rogers does not
actually assert that the trial judges initial ruling
was correct. Rather, Rogers argues that he is entitled
to a new trial because, even if the judge was wrong
when he declined to instruct the jurors on the
pertinent law of causation, Rogerss defense counsel
relied on that ruling. Here is the pertinent portion
of Rogerss opening brief to this Court:
[When] making his closing argument, Rogers
counsel could reasonably rely on [the trial
judges ruling] that the jury would not be
allowed to consider the substantial factor
causation test [when it] determin[ed] [the]
defendants guilt[.] ... Rogers was entitled
to make his jury argument on the assumption
that [a] substantial factor test instruction
would not be submitted to the jury.
Rogerss argument that his conviction for manslaughter
constitutes a fatal variance from the grand jury
indictment
As we have already explained, the jury
acquitted Rogers of murder but convicted him of
manslaughter. And later, when the jurors deliberated
on the States proposed aggravating factors, the jurors
rejected aggravator (c)(4) after the trial judge
instructed them that (c)(4) required proof that Rogers
personally fired the shot that killed Black. Rogers
relies on these verdicts to argue that the jurors must
have convicted him of manslaughter based on a view of
the evidence that the prosecutor discussed during his
rebuttal summation: the theory that Rogers pointed his
gun at Black but did not fire the weapon, and that the
weapon discharged accidentally during the struggle that
ensued between Rogers and Black and his co-workers.
Rogers contends that, if the jury did in fact
convict him of manslaughter under this theory, then
there is a fatal variance between the trial jurys
verdict and the offense for which Rogers was indicted
by the grand jury.
Obviously, the offense for which Rogers was
indicted (first-degree murder) is different from the
offense for which he was convicted at trial
(manslaughter). But under Alaska Criminal Rule 31(c),
and under this Courts decision in Blackhurst v. State,
721 P.2d 645, 649-650 (Alaska App. 1986), a criminal
defendant is on notice, as a matter of law, that the
State is entitled to ask the trier of fact to find the
defendant guilty of a lesser offense necessarily
included within the charged offense.
Under Alaska law, the cognate test is
employed to evaluate whether a lesser offense is
included within the charged offense. Elisovsky v.
State, 592 P.2d 1221, 1226 (Alaska 1979). Under the
cognate test, the question of whether a lesser offense
is included within the charged offense is not answered
merely by looking at the elements of the two offenses.
Rather, the cognate test looks to the particular facts
of the case. Ibid. As the Alaska Supreme Court
explained in State v. Minano, 710 P.2d 1013, 1016
(Alaska 1985), Whether [a] lesser offense is
necessarily included [in the charged offense] is to be
viewed from the perspective of the facts charged in the
indictment, in light of the evidence actually presented
[at the trial].
In Rogerss case, the evidence that would
justify a verdict of manslaughter is a combination of
the evidence that the State presented and the evidence
that Rogers presented. The State, for its part,
presented evidence that Rogers drew his weapon, pointed
it at Black, and then as Black and his co-workers
converged on Rogers, attempting to disarm him Rogers
deliberately shot Black. Rogers, on the other hand,
presented evidence that he had the gun in his hand, but
was not threatening anyone with it, when Black and his
co-workers physically attacked him and that, during
this struggle, the gun discharged accidentally.
From the jurys verdicts, it appears that the
jury may have accepted the States version of the
initial portion of the incident (i.e., the States
allegation that Rogers drew his weapon and pointed it
at Black), but the jury accepted Rogerss version of the
latter portion of the incident (i.e., Rogerss assertion
that he never deliberately shot the gun, and that the
gun accidentally went off during his struggle with
Black and his co-workers). Under this view of the
facts, the jury could reasonably reach a verdict of
manslaughter; that is, the jury could reasonably find
(1) that Rogers caused Blacks death, and (2) that
Rogers acted recklessly with respect to the possibility
that his conduct might result in human death.
In other words, this resolution of the case
a verdict of manslaughter flowed directly from the
evidence presented at Rogerss trial. It would
therefore appear (as a matter of law) that Rogers was
on notice, going into the trial, that if the jury heard
his testimony and only believed portions of it, the
jury might return a manslaughter verdict based on the
view of the evidence that we have just described.
Rogers argues against this result, relying
primarily on the Alaska Supreme Courts decision in
Michael v. State, 805 P.2d 371 (Alaska 1991).
The defendant in Michael was indicted for
first-degree assault for having caused serious physical
injury to his infant daughter, either personally or
acting as the accomplice of his wife. Id. at 372. The
trial judge (sitting as the trier of fact) found that
Michaels wife was the one who injured the child; the
judge concluded that the State had failed to prove
either that Michael personally inflicted injury on the
child or that Michael acted as his wifes accomplice.
Ibid. Nevertheless, the trial judge found Michael
guilty of the lesser offense of second-degree assault
under the theory that (1) Michael knew that his wife
was assaulting the child; (2) because he was the childs
father, Michael was under a legal duty to protect his
child from his wife; and (3) Michael breached this
duty. Ibid.
The supreme court concluded that there was a
fatal variance between the crime for which the grand
jury indicted Michael and the crime for which he was
convicted; in the words of the court, Michael was
convicted for a crime never charged by the grand jury.
Id. at 374.
On its face, this statement seems
paradoxical: the grand jury indicted Michael for first-
degree assault, and he was convicted of the lesser
offense of second-degree assault. But what the supreme
court meant was that the theory of criminal liability
that the grand jury relied on to indict Michael for
first-degree assault was significantly different from
the theory of liability that the trial court relied on
to convict Michael of second-degree assault.
Normally, bystanders are not responsible (as
a legal matter) for criminal acts that they witness,
even if these bystanders might easily have intervened
and prevented the crime or saved the victim at no
danger to themselves. See Rollin M. Perkins & Ronald
N. Boyce, Criminal Law (3rd ed. 1982), p. 742. The
exception to this rule is if the bystander owes some
special duty of protection to the intended victim.
Ibid.
At common law, parents owed a duty of
protection to their children. Perkins & Boyce at 662.
And, in Michael, the supreme court apparently
acknowledged that this duty continues to exist under
Alaska law because the supreme court declared that the
States evidence in Michael would have justified the
grand jury in indicting Michael for assault under this
theory:
Had the grand jury chosen to do so, it
certainly could have indicted Steven Michael
for second degree assault, for failing to
protect his child. Michaels failure to carry
out his parental duty was clear from the
evidence.
Michael, 805 P.2d at 374. But the supreme
court reversed Michaels conviction because
the grand jury made no such charge in the
indictment. Ibid.
In other words, Michaels status as
the childs parent, and his concomitant duty
to protect the child from his wifes
assaultive behavior, was an essential element
of Michaels conviction for second-degree
assault. Michaels status as the victims
parent set him apart from other bystanders;
it allowed the State to charge him with
assault based on his inaction. Absent this
factor, Michael would not have been
criminally responsible for failing to prevent
his wifes abuse of the child.
The supreme court reversed Michaels
conviction because, even though the State
presented evidence to the grand jury that
easily would have supported a finding that
Michael was the victims parent (indeed, this
fact was undisputed), the State neglected to
ask the grand jury to make this finding. As
the supreme court noted in the concluding
footnote of its opinion, The result in this
case illustrates the continuing importance of
careful pleading under Alaskas criminal law.
Michael, 805 P.2d at 374 n. 13.
This Court reached a similar result
in Hansen v. State, 845 P.2d 449, 452-54
(Alaska App. 1993).
The defendant in Hansen was
indicted for first-degree murder, first-
degree robbery, and first-degree arson. Id.
at 451. The States theory of the case was
that Hansen (and his co-defendants) committed
the murder and the robbery, and then set fire
to the victims house in an effort to conceal
these crimes. Id. at 452.
When Hansens case was submitted to
the jury, the trial judge granted the States
request for a jury instruction on second-
degree murder under a felony murder theory.
Id. at 451. We held that this was error
because a charge of felony murder requires an
element that was not included in the other
charges for which Hansen was indicted. Id.
at 452-54.
Specifically, even though the grand
jury found all of the required elements of
first-degree murder, first-degree robbery,
and first-degree arson, the crime of felony
murder requires proof of an additional
element not included in any of these three
crimes the requirement that the victims
death be caused in the course of or in
furtherance of [one of the listed predicate
felonies] or in immediate flight from that
crime. AS 11.41.110(a)(3). As we noted in
Hansen, [t]he grand jury was never asked to
decide whether the State could prove that
[the victim] met his death during the course
of or in furtherance of the robbery or the
arson. 845 P.2d at 452.
As the supreme court did in
Michael, we acknowledged in Hansen that the
States grand jury evidence might easily have
supported an indictment for felony murder
i.e., the evidence would have supported a
finding that the victim was killed during the
course of, or in furtherance of, the robbery.
Id. at 453. We added, however, that even
though the extra element required for felony
murder (the causal link between the robbery
and the homicide) might be apparent from the
evidence, the grand jury must still
explicitly consider this additional element
and make a finding with regard to it. Cf.
Michael v. State, 805 P.2d 371 (Alaska 1991).
Hansen, 845 P.2d at 453.
Thus, in both Michael and Hansen,
the problem was that the grand jury did not
make a finding with respect to all of the
necessary elements of the crimes for which
the defendants were convicted.
Rogers, however, asks us to
interpret Michael in a significantly broader
fashion. According to Rogers, Michael stands
for the proposition that a trial jury has no
authority to convict defendants of the crimes
for which the grand jury indicted them (or
for a necessarily included lesser crime) if
the trial jurys view of the evidence in
particular, its view of the defendants
actions differs significantly from the view
of the evidence adopted by the grand jury.
With regard to the specific facts
of his case, Rogers argues that Michael
prohibited his trial jury from finding him
guilty of first-degree murder (the crime for
which he was indicted), or guilty of any
lesser degree of criminal homicide, if the
trial jury disagreed with the grand jurys
assessment that Rogers deliberately shot
Black.
As we explained earlier in this
opinion, if Rogers pointed his handgun at
Black, and if Black and his co-workers then
attempted to disarm Rogers, and Black was
killed when the gun accidentally discharged
during this struggle, Rogers might properly
be found to have caused Blacks death. If the
jury concluded that Rogers, when he pulled
his gun, intended to kill Black (or anyone
else), then Rogers might properly be found
guilty of first-degree murder. Similarly, if
the jury concluded that Rogers deliberately
pointed his gun at Black, without an intent
to kill but with reckless disregard for the
risk of death, then Rogers might properly be
found guilty of manslaughter.
As we also explained earlier,
Rogers does not dispute these propositions as
general statements of law. But he argues
that, under the supreme courts decision in
Michael, his trial jury was prohibited from
returning verdicts like these because the
grand jury that indicted him did not
expressly anticipate the possibility that
Rogers did not deliberately fire his gun at
Black, and that Black died instead from an
accidental discharge of the weapon that
occurred while Black and his co-workers were
struggling with Rogers.
We do not interpret Michael and
Hansen to stand for the rule that a trial
jury has no authority to convict a defendant
of a felony if the jurys verdict is premised
on a view of the evidence more specifically,
a view of the defendants conduct that is
different from the grand jurys.
First, as a practical matter, a
trial jury generally hears a much fuller
presentation of the evidence than a grand
jury. In particular, a trial jury will hear
the cross-examination of the governments
witnesses, and will often hear the defendants
witnesses. The trial jurors will then have
to sort out, from the competing testimony,
the version of events that they believe is
proved. If, as was apparently true in
Rogerss case, the trial jurors conclude that
the States theory of the defendants conduct
is only partially accurate, then under the
rule that Rogers proposes the jurors would
not be able to return a verdict on a lesser
offense, but would instead have to acquit the
defendant.
We doubt that the supreme court
intended Michael to require such results.
Alaska has long recognized that the proof
ultimately adduced at a criminal trial may
differ in significant ways from the evidence
presented to the grand jury, and that the
trial jury may legitimately reach a different
view of events from the one represented in
the grand jury indictment.
For example, in Miller v. State,
866 P.2d 130 (Alaska App. 1994), the
defendant was originally indicted on the
theory that he was guilty of robbery as an
accomplice, because he was the getaway driver
in the robbery. But at trial, a witness
testified that Miller was one of the two men
who entered the residence and robbed the
occupants, and that a third man named Bill
had driven the getaway car. Id. at 135-36.
On appeal, Miller argued that the
jurors should have been instructed that they
could convict him only if they believed that
he was an accomplice (as the State originally
alleged), and not if they found that he was
one of the principal robbers. We rejected
Millers argument:
[T]he legal distinction between
principals and accomplices has long been
abrogated in Alaska. See AS 11.16.110. See
also Morris v. State, 630 P.2d 13, 15-16
(Alaska 1981); Machado v. State, 797 P.2d
677, 685-86 (Alaska App. 1990). It is
well-settled that a defendant charged as a
principal may be convicted as an accomplice;
the converse is also true.
Miller, 866 P.2d at 137 (footnote and
citations omitted).
The supreme courts decision in
Elisovsky v. State, 592 P.2d 1221 (Alaska
1979) (the case in which the supreme court
adopted the cognate approach to lesser
included offenses) illustrates this same
principle.
The defendant in Elisovsky was
indicted (under Alaskas former criminal code)
for the offense of assault with a dangerous
weapon. The State alleged that Elisovsky
pointed his rifle at two Cordova police
officers who attempted to intervene in a
dispute between Elisovsky and his wife. Id.
at 1223. But at Elisovskys trial, the jury
heard three different versions of this event:
As the police arrived, Elisovsky was
taking his rifle and gear out of the rear of
the couples station wagon. Both police
officers testified that [Elisovsky] pointed
the rifle at them[,] and that [his wife]
Jackie pushed the muzzle of the gun to the
ground. Elisovsky testified that he was
taking the rifle and other gear out of the
car for the purpose of spending the night on
a friends boat and was merely planning to
stand the rifle beside the car. Jackie
testified that she ... grabbed the barrel of
the rifle to push it down, but [she] believed
that Elisovsky was only brandishing the gun
and had not pointed it at anyone.
Elisovksy, 592 P.2d at 1223.
The question presented in Elisovsky
was whether the trial judge should have
honored the defendants request to instruct
the jury on the lesser offense of careless
use of firearms. The supreme court concluded
that the jury should have been instructed on
this lesser offense:
In the present case, there is a conflict
in the testimony as to whether Elisovsky ever
intentionally pointed the weapon at any
person. The officers testified that he
pointed the rifle directly at them.
Elisovsky testified ... that he intended to
point the gun at no one but merely wanted to
stand it up alongside the car. [His wifes]
version was that the muzzle of the gun was
raised slightly and that she pushed the
muzzle to the ground. From this conflicting
evidence[,] the jury could have believed that
the rifle was intentionally pointed at the
[officers, but] without malice.
Evidence was thus presented that the
defendant committed only the lesser offense
of careless use of a firearm.
Elisovsky, 592 P.2d at 1226.
Although the issue was not squarely
raised in Elisovsky, it is clear that the
decision in Elisovsky implicitly rests on the
notion that a trial jury is entitled to base
its verdict on a view of the defendants
conduct that differs from the view adopted by
the grand jury.
Indeed, as this Court noted in
Ragsdale v. State, 23 P.3d 653, 659 (Alaska
App. 2001), even the trial jury itself
ordinarily does not have to agree on a single
interpretation of the facts of a particular
criminal episode.
For example, in Hilbish v. State,
891 P.2d 841 (Alaska App. 1995), the
defendant was prosecuted for the first-degree
murder of her long-time boyfriend. The
evidence was sufficient to prove either that
Hilbish personally shot her boyfriend or that
she intentionally aid[ed] another person in
[the] planning or commission of the murder.
Id. at 853. This Court held that Hilbish was
properly convicted of this offense even if
the jurors were not unanimous in their view
of the facts:
Hilbish objects that the jury [should
not have been] instructed on accomplice
liability [because,] in Hilbishs view, the
evidence was insufficient to establish her
guilt as an accomplice, even if it might have
been sufficient to prove [her] guilt as a
principal. This argument lacks merit. Under
the evidence, fair-minded jurors could
reasonably have found beyond a reasonable
doubt that if Hilbish was not a principal,
then she must have been an accomplice that
is, that [the victim was] intentionally
killed by Hilbish or by someone acting at her
behest and with her active and intentional
assistance. The distinction between an
accomplice and a principal has long been
abrogated, see Miller v. State, 866 P.2d 130,
137 (Alaska App. 1994), and when [the
evidence] suffices to establish the
defendants guilt under either theory, the
jury need not be unanimous in deciding
whether the defendant acted as a principal or
as an accomplice. [State v.] McDonald, 872
P.2d [627,] 655 [(Alaska App. 1994)].
Hilbish, 891 P.2d at 853 n. 5.
We reached the same conclusion in
Norris v. State, 857 P.2d 349 (Alaska App.
1993), a case whose facts are more closely
analogous to the facts of Rogerss case.
Norris involved a prosecution for second-
degree murder. We held that the jurors did
not need to unanimously agree on whether the
victim died because the defendant
deliberately fired his rifle at the victim
(as the government alleged) or, instead,
whether Norris merely pointed the rifle at
the victim, and the victim responded by
grabbing the pointed rifle, causing it to
discharge by accident. Id. at 354.
For these reasons, we reject
Rogerss interpretation of Michael. The
supreme courts decision in Michael does not
stand for the rule that a trial jury is
forbidden to deviate from the view of events
adopted by the grand jury. Rather, Michael
stands for the rule that, in felony
prosecutions, the defendant can not be
convicted of an offense unless the State has
obtained a grand jury finding on every
essential element of that offense.
(For clarification, it is
sufficient if the grand jurys findings
include the essential elements of the offense
for which the defendant is convicted as, for
instance, where the grand jury finds that the
defendant acted intentionally with respect to
a result specified in the statute, and the
trial jury finds that the defendant acted
recklessly with respect to this result. See
AS 11.81.610(c). See also Cheely v. State,
850 P.2d 653, 661-63 (Alaska App. 1993)
(holding that all six of the methods of
committing theft defined in AS 11.46.100 are
encompassed by a theft indictment).)
In Rogerss case, the grand jury
indicted Rogers for first-degree murder
because the grand jurors found that Rogers
caused the death of Brian Black, and that
Rogers acted intentionally with respect to
causing a human death. The trial jury agreed
that Rogers caused Blacks death (although the
trial jury adopted a different view of the
underlying facts), but the trial jurors
rejected the States assertion that Rogers
intended to cause death; instead, they found
that Rogers acted recklessly with respect to
the risk of death.
Given these facts, the trial jurys
verdict of manslaughter did not constitute a
fatal variance from the grand jury
indictment.
Rogerss argument that his defense attorney
detrimentally relied on the trial judges initial
refusal to instruct the jury on the applicable law
of causation
Rogerss alternative argument is that he
detrimentally relied on the fact that the trial
judge initially refused to instruct the trial
jurors on the substantial factor test for
causation.
As we explained earlier, the jurors submitted
a mid-deliberation question that asked for further
instruction concerning causation; the jurors question
prompted the trial judge to alter his earlier decision
and instruct the jurors on causation (in particular,
the substantial factor test for causation). Rogers
does not argue that the judges causation instruction
was legally incorrect. Rather, Rogers contends that
even if that causation instruction correctly stated the
law, the judges decision to give the jurors that
instruction was unfair because, when Rogerss defense
attorney delivered his summation to the jury at the end
of the trial, the defense attorney detrimentally relied
on the trial judges initial ruling that the jurors
would not be instructed on the applicable law of
causation.
To answer Rogerss argument, we must briefly
recapitulate the procedural history that led to the
trial judges ultimate decision to instruct the jurors
on causation.
After the presentation of evidence at Rogerss
trial was complete, the trial judge and the attorneys
discussed jury instructions. During that discussion,
the prosecutor twice asked the trial judge to instruct
the jurors on the law of causation in particular, the
substantial factor test for causation.
The prosecutor pointed out that, in light of
the conflicting evidence on how the shooting occurred,
the jurors might come to the conclusion that Mr. Rogers
pulled the gun [and] pointed it at Mr. Black, but did
not shoot and that during the struggle that ensued,
... [either] through the victim himself pulling the gun
away from the defendant, or from a third [person]
intervening in the struggle and disarming the
defendant, thats [how] the death of Mr. Black ... was
caused. Thus, the prosecutor argued, the jurors needed
to understand how the law of causation applied to that
set of facts.
Rogerss attorney opposed the prosecutors
request, and he succeeded in convincing the trial judge
not to give a jury instruction on causation. However,
when the trial judge issued this ruling, the judge
expressly stated that he might revisit this issue
if ... the jury has a question.
The parties then delivered their summations
to the jury.
In his opening summation, the prosecutor
argued that Rogers deliberately shot and killed Black.
In response, the defense attorney argued that the
evidence demonstrated a reasonable possibility that
Rogers did not deliberately shoot Black, but that
instead the gun went off accidentally during the
struggle between Rogers and Black and Blacks co-
workers.
Then the defense attorney made an argument
that took advantage of the fact that the jurors had not
been instructed on the substantial factor causation
test: the defense attorney told the jury that, not
only had the State failed to prove first-degree murder,
but the State had also failed to prove either of the
potential lesser offenses (second-degree murder and
manslaughter) because they have failed to prove beyond
a reasonable doubt that Shawn [Rogers] caused the death
of Brian Black.
In reply to this argument, the prosecutor
told the jurors that, even if they did not believe that
Rogers was guilty of deliberately shooting Black,
Rogers could nevertheless be found guilty of a lesser
degree of homicide because Rogerss act of threatening
Black with a handgun was the event that set the
homicide in motion.
The next afternoon, during jury
deliberations, the court received a note from the jury,
asking for further instruction on the law of causation
as it related to the lesser included offense of
manslaughter. The jury asked if Rogers could be found
to have caused Blacks death if Rogerss conduct only
contributed to the death, or if the law instead
required the State to prove that Blacks death was
entirely Rogerss fault.
As we have already explained, when the trial
judge initially ruled on (and denied) the prosecutors
request for a causation instruction, the judge
expressly told the parties that he might reconsider his
ruling if ... the jury has a question. Based on the
jurys question, the judge concluded that he now needed
to give the jurors a fuller explanation of causation.
So the judge finally instructed the jurors on the
substantial factor test, and he expressly told the
jurors that Rogerss conduct did not have to be the sole
cause of Blacks death.
After receiving this supplemental
instruction, the jury convicted Rogers of manslaughter.
Rogers now argues that it was unfair for the
trial judge to alter course and instruct the jurors on
the applicable law of causation. In support of this
argument, Rogers relies heavily on this Courts decision
in Rollins v. State, 757 P.2d 601 (Alaska App. 1988).
In Rollins, the defendant was indicted for
third-degree assault (placing another person in fear of
imminent serious physical injury). After the close of
the evidence, the defense attorney initially requested
a jury instruction on the lesser included offense of
fourth-degree assault (placing another in fear of
imminent, non-serious physical injury), but then the
defense attorney withdrew this request. The State did
not object to submitting the case to the jury with the
jurys deliberations limited to third-degree assault.
Id. at 602.
During final argument, Rollinss attorney
focused on the element of serious physical injury,
arguing that the victim might have reasonably feared
some physical injury but not the serious physical
injury necessary for conviction of third-degree
assault. The jury, apparently crediting the defense
attorneys argument, sent a note to the judge asking
what they should do if they found that the victim had
reasonably feared only non-serious injury. In reply,
and over Rollinss objection, the judge instructed the
jury on fourth-degree assault, and the jury convicted
Rollins of this lesser charge. Ibid.
On appeal, this Court reversed Rollinss
conviction. We recognized that, as a matter of law,
Rollins was on notice that fourth-degree assault was a
potential lesser included offense. Nevertheless, we
held that, after the State and the trial judge agreed
to send the case to the jury solely on the charge of
third-degree assault, Rollins was entitled to rely on
this posture of the case when formulating his summation
to the jury. More specifically, this Court concluded
that Rollins had justifiably relied to his detriment on
the restricted charge when he decided to focus his
argument on the States failure to prove the element of
fear of imminent serious physical injury. Id. at
602-03.
Rogers argues that his case presents the same
sort of detrimental reliance. In Rollins, however, the
States attorney acquiesced in the defense attorneys
decision to present the case to the jury in an all or
nothing posture i.e., in such a way that lesser
offenses would not be at issue. In Rogerss case, on
the other hand, the prosecutor actively (and correctly)
argued that the jurors needed to be instructed on the
law of causation if they were to properly consider the
lesser included offenses of second-degree murder and
manslaughter.
Rogerss defense attorney opposed the
prosecutors request and convinced the trial judge not
to instruct the jurors on causation. Then, in his
summation, the defense attorney actively argued that
the evidence failed to establish that Rogers caused
Blacks death which appears to have been a key factor
in prompting the jury to ask for further instruction
concerning the law of causation.
Moreover, Rogerss attorney was on notice
(when he delivered his summation) that the trial judge
was willing to reconsider the issue of whether the jury
should be instructed on causation, should the jury
later inquire about this matter. Later, the jury did
indeed pose a question concerning the law of causation
and, in accordance with his earlier caveat, the judge
reconsidered the issue and decided to instruct the jury
on causation. In other words, if Rogerss attorney
formulated his summation to the jury under the
assumption that the jury would never be instructed on
the applicable law of causation, the defense attorneys
assumption was unreasonable because it was at odds
with the trial judges ruling.
For these reasons, we conclude that it was
not unfair for the trial judge to instruct the jurors
on the applicable law of causation in response to their
mid-deliberation question.
Rogerss argument that the State breached its duty to
present exculpatory evidence to the grand jury
Rogers claims that the State breached its
duty to present exculpatory evidence to the grand jury
when the State failed to apprise the grand jury of a
short statement comprising only a few sentences that
Rogers made to a state trooper about the incident.
Rogers made this statement several hours
after the shooting, when he was in custody. Rogers was
not being interrogated at the time; rather, he
volunteered his statement while he was waiting in a
patrol car with the state trooper. According to the
troopers handwritten notes, Rogers said: It went bad.
I got jumped on. ... [Its] not every day someone gets
jumped, gets [their] gun taken away, and someone ends
up dead. It happened tonight.
Relying on the troopers handwritten notes of
Rogerss statement, Rogerss attorney asked the superior
court to dismiss the murder indictment. In his motion,
the defense attorney referred to Rogerss statement as
an assertion that he did not do anything wrong. But,
as can be seen from the state troopers account of
Rogerss statement (quoted in the preceding paragraph),
Rogers did not directly assert that he had done nothing
wrong. Rather, this was the defense attorneys
characterization of Rogerss statement. And that
characterization is, at best, debatable.
As we have already explained (at length) in
this opinion, Rogers would be criminally responsible
for causing Blacks death if he drew his gun and pointed
it at Black, prompting Black and his co-workers to take
defensive measures, and then the gun discharged
accidentally during the struggle. And if Rogers
pointed the gun at Black with an intent to kill, Rogers
could properly be found guilty of first-degree murder
(the offense for which he was indicted) even though his
finger was not on the trigger when the gun went off.
Thus, Rogerss statements that [he] got jumped
on [by Black and his co-workers], and that [his] gun
[got] taken away, and someone end[ed] up dead are not
exculpatory at least, not standing by themselves. If
Rogers initiated the incident by pointing his gun at
Black, and if he did so with an intent to kill, then
the grand jury could properly indict Rogers for first-
degree murder even if Rogerss statements to the trooper
were true.
One could, of course, argue that Rogerss
statements suggested that he was innocent of murder.
But this is not sufficient to establish that the
prosecutor had a duty to present these statements to
the grand jury.
As the Alaska Supreme Court explained in
Frink v. State, 597 P.2d 154, 166 (Alaska 1979), the
prosecutors obligation to present exculpatory evidence
to the grand jury does not turn the prosecutor into a
defense attorney; the prosecutor does not have to
develop evidence for the defendant [or] present every
lead possibly favorable to the defendant. Thus, as
this Court stated in Cathey v. State, 60 P.3d 192, 195
(Alaska App. 2002), [a] prosecutors duty to apprise the
grand jury of exculpatory evidence extends only to
evidence that tends, in and of itself, to negate the
defendants guilt.
For these reasons, we uphold the superior
courts denial of Rogerss motion to dismiss the
indictment.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1AS 11.41.120(a)(1).
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
