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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CHRISTOPHER ERIN ROGERS JR., )
) Court of Appeals No. A-10716
Appellant, ) Trial Court No. 3PA-07-3231 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
Appellee. No. 2358 - May 4, 2012
Appeal from the Superior Court, Third Judicial District, Palmer,
Vanessa White, Judge.
Appearances: Josie Garton, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and John J.
Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
MANNHEIMER, Judge.
Using a machete, Christopher Erin Rogers Jr. attacked his father and his
father's fiancée one night while they were in bed. This attack left Rogers's father dead
and his fiancée seriously wounded.
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Rogers was indicted for first-degree murder and attempted first-degree
murder. At trial, Rogers conceded that he attacked his father and his father's fiancée
with the machete, but he contended that he did not intend to kill them - and, thus, he
should only be found guilty of second-degree murder and first-degree assault. The trial
jury rejected this defense and found Rogers guilty of the charges in the indictment.
In this appeal, Rogers argues that his trial was rendered fundamentally
unfair by certain aspects of the prosecutor's summation to the jury. Rogers
acknowledges that his trial attorney did not object to the prosecutor's argument, but
Rogers contends that the prosecutor's statements to the jury were so egregious that they
constituted plain error.
When a litigant raises a claim of plain error, one element that must be
proved is that the litigant had no tactical reason for failing to object to the error in the
lower court proceedings. In Rogers's case, the record shows that his defense attorney
chose to deal with the prosecutor's improper arguments, not by seeking judicial
intervention, but by highlighting those arguments in his own summation to the jury, and
pointing out that the prosecutor was essentially asking the jurors to disobey their oath to
decide the case solely on the evidence and the law. The defense attorney's tactical
decision precludes a finding of plain error.
In a separate argument, Rogers contends that the superior court improperly
refused to delay his sentencing hearing to allow Rogers to procure the testimony of an
out-of-state psychiatrist. For the reasons explained here, we conclude that Rogers failed
to demonstrate diligence in seeking this psychiatrist's testimony.
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Rogers's challenge to the prosecutor's summation to the jury
Rogers argues that the prosecutor engaged in improper argument to the
jury, and that the prosecutor's improper remarks constitute plain error.
We agree with Rogers that the prosecutor engaged in improper argument
in two respects.
As we have explained, the State alleged that Rogers acted with the intent
to kill his father and his father's fiancée, and that he should therefore be convicted of
first-degree murder and attempted murder. Rogers, on the other hand, contended that he
had not acted with intent to kill, and that he should therefore be convicted of the lesser
offenses of second-degree murder and first-degree assault.
When the prosecutor argued that the jurors should find Rogers guilty of the
greater charges, the prosecutor exceeded the bounds of proper argument by asking the
jurors to consider whether, in light of the heinous nature of Rogers's crimes, Rogers
"deserve[d] any mercy":
Prosecutor : So when you go in the jury room and you
consider the issue of whether this person [i.e., Rogers] should
be convicted of the highest offenses for these crimes or
something less, I would ask you to keep the victims in mind.
True, you're not supposed to use sympathy in your decision,
but you have seen direct evidence in this case of how much
sympathy the defendant showed for his father and his father's
fiancée ... . You have seen how much mercy he showed
them. [So] ask yourself: Does he deserve any mercy?
This was a blatant invitation for the jurors to disregard their duty to hold
the State to its burden of proof beyond a reasonable doubt - a request for the jurors to
decide the issue of the defendant's culpable mental state, not based on the evidence, but
rather on the jurors' sympathy for the victims and a desire for retribution.
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The prosecutor also exceeded the bounds of proper argument by repeatedly
telling the jurors that Rogers was a "bad man" and that he had committed "terrible
crimes". Given the tenor of the prosecutor's remarks as a whole, the prosecutor's
repeated assertion that Rogers was a "bad man", apart from whatever crimes he might
have committed, carried the implication that Rogers was not entitled to the full protection
of the law.
The prosecutor began this theme in his opening statement, when he told the
jury, "We're going to prove that this defendant is a bad, bad man who committed a
terrible crime." As a legal matter, the State's job was not to prove that Rogers was a bad
man; instead, it was to prove that he committed one or more crimes.
The prosecutor continued this approach to the case in his summation, when
he told the jury, "[Y]ou don't have to take my word for it[; the evidence shows] that the
defendant is a bad man and that he committed a horrible crime." Again, the fact that
Rogers might be a bad man is irrelevant. Bad people can be accused of crimes without
sufficient proof - and, in such cases, it is the jury's duty to find them not guilty.
Moreover, the prosecutor's remark, "you don't have to take my word for
it", suggested that the prosecutor personally thought that Rogers was a bad man - and
that his personal belief was corroborated by the evidence.
A few minutes later in his summation, the prosecutor suggested that Rogers
was "bad", not simply because of what he had done, but because he was morally
different from other people:
Prosecutor : All of us [are physically capable of
committing such crimes]. But ... what sets all of us apart
from the man ... sitting there in the blue shirt at [the defense]
table [is that] we don't want to do something like this. We
[have] got what it takes inside of us to prevent us from doing
something like this. That's why [Rogers is] a bad man -
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because he stands apart from most people who live on this
planet.
These remarks, taken as a whole, were not simply an argument that the
evidence presented at trial proved the State's charges. Rather, these remarks carried the
suggestion that Rogers was not deserving of the law's protection.
Thus, we agree with Rogers that the prosecutor exceeded the bounds of
proper argument. However, Rogers's attorney made no objection to these remarks.
Thus, on appeal, Rogers must show that these remarks constituted plain error.
When a litigant raises a claim of plain error, the litigant "must negate the
possibility that their attorney's failure to make a timely objection in the trial court was
the product of a tactical decision." 1 And in Rogers's case, the record of the trial court
proceedings shows that Rogers's attorney chose to deal with the prosecutor's improper
remarks by openly confronting these remarks during the defense summation, rather than
asking the trial judge to admonish the prosecutor or grant some stronger form of relief
(such as a mistrial).
Here are the four relevant portions of the defense attorney's summation:
Defense Attorney : Now, Erin Rogers is not charged
with being a "bad man", as [the prosecutor] has said he is, a
couple of times. He's charged with doing a bad thing. And
[deciding] what that bad thing constitutes, [under the] law, is
what your difficult job is.
. . .
1 Borchgrevink v. State , 239 P.3d 410, 421 (Alaska App. 2010). See also Henry v.
State, 861 P.2d 582, 589 (Alaska App. 1993) (an appellate court will not entertain a claim
of plain error when it appears that the litigant had a tactical reason to withhold an objection);
Robison v. State , 763 P.2d 1357, 1358 n. 1 (Alaska App. 1988) (if a litigant had strategic
reasons for refraining from seeking a remedy, this precludes a finding of plain error).
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I want you to look at what the State has done [in this
case]. You're instructed that you're not to consider sympathy
toward any party. But how much of the State's case has been
unquestionably designed to evoke your sympathy? It was
done in [the prosecutor's] closing; it was done through
[various witnesses]; it was done through the [victim's] dog,
Bear, coming into the courtroom; it was done with the picture
of the [victims]. Why? Why make this any worse than it is?
[As] I said at the beginning [of this case] - [and] I've
never said anything other[wise] - this was a horrible,
horrible thing. What's wrong with it just being a horrible,
horrible thing? Why [does the prosecutor] go to all [these]
lengths to try to amp it up? ... [As] I said in opening
statement, ... the State wants to hold Erin Rogers to a higher
level of responsibility than they can demonstrate.
. . .
The State's overreaching [includes] obvious efforts to
elicit sympathy for the victims - which, of course, ... they
deserve, but it doesn't have any role in your deciding this
case. And you all recognize that. You've all said ... that you
would be objective and impartial[.]
. . .
Finally, ... defense attorneys are supposed to spend a
good deal of time on talking about [the] presumption of
innocence and [the] burden of proof beyond a reasonable
doubt, and I would be remiss if I didn't[.] ... [Even] looking
at all the evidence[,] ... you really don't know what was going
on, and no one may ever know what was going on [inside the
defendant's head].
You [can] say, "God, this was just ... terrible. He must
have intended to kill his father. He must have intended to kill
his father's fiancée." He probably did. [But it] is not ...
enough to believe that he "probably" [had an intent to kill],
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or that he must have - because how could something like
this happen in the absence of an intent to kill? That is
bowing to the prayer for sympathy that the State has made to
you. That is not being impartial [and] objective[.] ... That is
not requiring proof beyond a reasonable doubt of an intent to
kill.
Given the fact that Rogers's attorney chose to respond to the prosecutor's
improper argument in this fashion, we reject Rogers's claim of plain error.
The superior court's refusal to continue Rogers's sentencing hearing
one more time
The jury found Rogers guilty on December 18, 2008, and Rogers's
sentencing hearing was initially scheduled for March 24, 2009. The superior court
continued the sentencing hearing until May 4, 2009, owing to an unopposed defense
request. On May 4th, the court again continued the sentencing hearing - this time until
July 27th.
Five days before this scheduled July 27th hearing, Rogers filed yet another
request to continue the sentencing hearing. Rogers explained that he wished to obtain
the professional services of Dr. Jason Roof, a board-certified psychiatrist practicing in
California, to prepare a full psychiatric evaluation and diagnosis for sentencing purposes.
(The first communication in the record between Dr. Roof and Rogers's
attorney - a letter written by Dr. Roof - is dated July 26, 2009. It therefore appears
that Rogers's attorney contacted the doctor sometime shortly before the scheduled
July 27th sentencing hearing.)
The superior court granted Rogers's request for a continuance, and
rescheduled the sentencing hearing for October 27th.
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Later, the court delayed the sentencing hearing once more at Rogers's
request. The reason a delay was needed (according to Rogers's attorney) was that
Dr. Roof, who was licensed to practice psychiatry in California, declined to evaluate
Rogers and testify at the sentencing hearing unless he was assured that he would not be
charged with the unlicensed practice of medicine in Alaska. The superior court
continued the sentencing for another ten weeks, until January 11, 2010.
It appears that, under Alaska law, Rogers's attorney could have obtained
authorization for Dr. Roof to participate in this case by having Dr. Roof work in
association with an Alaska-licensed physician - an arrangement that would have
exempted Dr. Roof from Alaska's licensing requirements. 2 Indeed, in the superior court,
Rogers's attorney acknowledged that the Division of Occupational Licensing had
suggested this course of action to him.
The defense attorney told the superior court that he was not going to follow
this suggested procedure because "[a] close reading of the statute ... indicate[d] that the
requesting physician would have to bend the truth a bit in order to make the request
conform to statutory requirements in this case." But the defense attorney offered no
explanation of what he was talking about.
Alaska law also allows an out-of-state physician to apply for a temporary
permit to practice in Alaska. Such temporary permits cost a small fee (one-fourth of the
normal fee for a biennial license, plus an application fee), and they are valid for six
months. 3 As the superior court noted, the record in this case gives no indication that
Rogers's defense counsel or Dr. Roof explored this option.
2 See AS 08.64.370(2), which declares that a non-resident physician is not subject to
Alaska licensing laws if "[they are] asked by a physician ... licensed in this state to help in
the diagnosis or treatment of a case[.]"
3 AS 08.64.270.
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Instead of pursuing either of these options (i.e., having Dr. Roof associate
himself with an Alaska physician, or having Dr. Roof apply for a temporary permit to
practice in Alaska), Rogers's attorney filed a lengthy motion attacking the
constitutionality of AS 08.64.380(5)(A), the statute defining the practice of medicine for
purposes of the requirement that medical practitioners be licensed. The defense attorney
argued that this statute was unconstitutional under the circumstances of Rogers's case,
because it prevented Rogers from employing the expert witness of his choice. The
superior court found the statute to be constitutional, and denied the motion.
(Rogers does not renew his constitutional challenge to the statute in this
appeal.)
On Friday, January 8, 2010 - i.e., the last business day before the
sentencing hearing scheduled for Monday, January 11th - Rogers's attorney filed yet
another motion asking the superior court to continue the sentencing. The defense
attorney argued that he needed additional time because (1) he intended to seek
reconsideration of the court's ruling on the constitutionality of the statute defining the
practice of medicine, and because (2) he needed time to contact another psychiatrist if
the court again upheld the constitutionality of the statute.
The superior court denied this motion because Rogers's attorney failed to
present any evidence (or otherwise make an offer of proof) concerning efforts he might
have made either to obtain a temporary permit for Dr. Roof or to obtain a substitute
psychiatrist.
Now, on appeal, Rogers argues that the superior court abused its discretion
in failing to continue the sentencing hearing one more time.
Both Rogers and the State agree that the propriety of the superior court's
action should be assessed under the test set forth in Salazar v. State, 559 P.2d 66 (Alaska
1976). In Salazar, 559 P.2d at 72, the supreme court listed the following factors for
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determining whether a court should grant a continuance so that a party can obtain the
testimony of a witness:
1. Is the witness's proposed testimony material to the
case?
2. Is the witness's testimony available from another
source?
3. Is the proposed testimony cumulative?
4. What is the probability of securing the witness's
presence in a reasonable time?
5. Has the requesting party acted diligently and in
good faith?
6. What is the nature or degree of inconvenience to the
court and to others if the proceeding is delayed? and
7. What is the likelihood that the witness's testimony
would affect the decision to be rendered?
Here, the superior court relied primarily on the fact that Rogers failed to
show diligence, and the record supports the court's ruling.
The sentencing hearing had already been continued several times. The
pending date of January 11, 2010 was almost six months after Rogers's attorney first
asked the superior court (on July 22, 2009) to grant a continuance of the sentencing so
that Dr. Roof could conduct a psychiatric evaluation of Rogers.
Rogers's attorney gave the superior court no information about the efforts
(if any) he had made during the intervening six months to have Dr. Roof obtain a
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temporary permit to practice medicine in Alaska, or to have Rogers evaluated by another
psychiatrist who was licensed to practice in Alaska.
Based on this record, we conclude that the superior court did not abuse its
discretion when the court declined to continue Rogers's sentencing hearing one more
time.
Conclusion
The judgement of the superior court is AFFIRMED.
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