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Rossiter v. State (9/15/2017) ap-2568

Rossiter v. State (9/15/2017) ap-2568

                                                                               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@ akcourts.us  



                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                      



DEVIN  M.  ROSSITER,  

                                                                                                                                                 

                                                                                                       Court of Appeals No. A-11300  

                                                                                                                                                             

                                                      Appellant,                                     Trial Court No.  1KE-11-197 CR  



                                        v.  

                                                                                                                    O   P   I   N   I   O   N  

STATE  OF  ALASKA,  



                                                      Appellee.                                     No.  2568 -              September   15,  2017  



                                                                                                                                  

                           A              

                              ppeal   from   the   Superior   Court,   First   Judicial   District,  

                                                                                        

                           Ketchikan, Trevor N. Stephens, Judge.  



                                                                                                                                        

                           Appearances:   Marjorie Mock, under contract with the Public  

                                                                                                                               

                           Defender   Agency,   and   Quinlan   Steiner,   Public   Defender,  

                                                                                                                                   

                           Anchorage, for the Appellant.   Diane L. Wendlandt, Assistant  

                                                                                                                                              

                           Attorney General, Office of Criminal Appeals, Anchorage, and  

                                                                                                                                                      

                           Craig W. Richards, Attorney General, Juneau, for the Appellee.  



                                                                                                                                   

                           Before:  Mannheimer, Chief Judge, Allard, Judge, and Suddock,  

                                                                     *  

                                                                         

                           Superior Court Judge. 



                                                                                                      

                           Judge MANNHEIMER, writing for the Court.  

                                                            

                           Judge ALLARD, concurring.  



       *      Sitting   by   assignment    made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  



constitution and Administrative Rule 24(d).                            


----------------------- Page 2-----------------------

                                                                 Following a jury trial, Devin M. Rossiter was convicted of second-degree                                                                                                                                                                                                                  



murder for stabbing a man.                                                                                                           Rossiter was also convicted of tampering with evidence for                                                                                                                                                                                                                   



later cleaning the push-knife he used in this stabbing.                                                                                                                                                           



                                                                 In   this   appeal,   Rossiter   argues   that   his   murder   conviction   should   be  



reversed because the prosecutor made improper arguments to the jury.                                                                                                                                                                                                                                                                               For the reasons                          



 explained here, we agree that the prosecutor made a number of improper arguments and                                                                                                                                                                                                                                                                                                                           



that the cumulative effect of those arguments undermined the fundamental fairness of                                                                                                                                                                                                                                                                                                                                  



Rossiter's trial.                                                          We therefore reverse Rossiter's conviction for second-degree murder.                                                                                                                                                                                                                                           



                                  Underlying facts   



                                                                 On March 12, 2011, eighteen-year-old Devin Rossiter was in a trailer park                                                                                                                                                                                                                                                                 



in   Ketchikan;   he   was   rifling   through   someone   else's   car,   apparently   looking   for  



cigarettes.    



                                                                 This   car   belonged   to   the   elderly   parents   of   Nick   Stachelrodt.     When  



 Stachelrodt saw what Rossiter was doing, he went to the car and pulled Rossiter out.                                                                                                                                                                                                                                                                                                                            As  



 Stachelrodt pulled Rossiter out of the car and into the driveway,                                                                                                                                                                                                                                                                    Rossiter began to                                                               



 struggle with Stachelrodt.                                                                                                 Rossiter later told the police that he "flipped out" because he                                                                                                                                                                                                                          



was afraid Stachelrodt was going to harm                                                                                                                                                                        him.   During this struggle, Rossiter used a                                                                                                                                                              



push-knife (a small dagger with a perpendicular grip)                                                                                                                                                                                                                to stab Stachelrodt, once in the                                                                                                            



chest and once in the neck.                                                                                                     The stab wound to Stachelrodt's chest severed an artery, and                                                                                                                                                                                                                    



 Stachelrodt died at the scene.                                                                                                               Rossiter later used mouthwash or alcohol to clean off his                                                                                                                                                                                                            



knife.   



                                                                 Based on this incident, Rossiter was indicted for second-degree murder and                                                                                                                                                                                                                                                                      

                                                                                                                            1        At his trial, Rossiter's attorney argued that Rossiter should  

tampering with evidence.                                                                                                                                                                                                                                                                                                                                                                        



                 1              AS 11.41.110(a)(1)-(2) and AS 11.56.610(a)(1), respectively.                                                                                                                                                                                                                                  



                                                                                                                                                                                                      -  2 -                                                                                                                                                                                                2568
  


----------------------- Page 3-----------------------

be acquitted of second-degree murder because he stabbed Stachelrodt in self-defense,                                                                           



under the fear that Stachelrodt was going to kill or seriously harm him.                                                                                      The defense   



attorney argued in the alternative that Rossiter was guilty only of manslaughter because                                                                                  



                                                                   2  

he acted in the heat of passion.                                        



                             Prior to delivering the State's closing argument, the prosecutor furnished  

                                                                                                                                                                       



the defense attorney and the trial judge with copies of a PowerPoint presentation (both  

                                                                                                                                                                                



text  and  photographs)  that  the  prosecutor  intended  to  show  to  the  jury  during his  

                                                                                                                                                                                    



summation.  Some of the prosecutor's slides addressed Rossiter's defenses to the murder  

                                                                                                                                                                            



charge.  

                   



                             One of these slides read, "Nick Stachelrodt did not deserve to die".   The  

                                                                                                                                                                                 



next slide then told the jurors:  

                                                                  



                             The only way you can find the defendant not guilty of Murder in the  

                                                                                                                                                                       

               Second Degree is:  

                                                 

                             -  you  disagree  [with  the  preceding slide,  and]  Nick  Stachelrodt  

                                                                                                                                                   

                             deserved what he got  

                                                                             

                             (self-defense / heat of passion)  

                                                                              



                             Rossiter's  attorney  objected  to  this  slide,  arguing that  it  impermissibly  

                                                                                                                                                            



shifted the burden of proof from the State to his client.   The trial judge overruled this  

                                                                                                                                                                                   



objection, concluding that the slide did not, on its face, shift the State's burden of proof.  

                                                                                                                                                                                            



The judge told the defense attorney that if the prosecutor actually made a burden-shifting  

                                                                                                                                                          



argument during his summation, the defense attorney should renew his objection.  

                                                                                                                                                                                 



                             Throughout the prosecutor's summation, he repeatedly emphasized that the  

                                                                                                                                                                                     



question before the jury was whether Nick Stachelrodt deserved to die.  The prosecutor  

                                                                                                                                                                    



began his summation with a picture of Nick Stachelrodt that described him as "married  

                                                                                                                                                                        



[for] 25 years", a "father of three", a "grandfather of one", and a "caretaker for his  

                                                                                                                                                                                     



       2      See  AS 11.41.115(a) and (f)(2).                     



                                                                                        -  3 -                                                                                   2568
  


----------------------- Page 4-----------------------

parents."   This picture of Stachelrodt was followed by a mugshot-like picture of Devin                                                                                                                                                                                                                                                                            



Rossiter that described him as a person who was "planning on leaving Alaska" and                                                                                                                                                                                                                                                                                             



"celebrating leaving Alaska."                                                                                                     



                                                            The prosecutor then proceeded to argue                                                                                                                                                    that   the jury was required to                                                                                               



convict Rossiter of murder unless the jurors concluded that Stachelrodt deserved to die.                                                                                                                                                                                                                                                                                                        



Here is one example:                                



                                                             

                                                                                        Prosecutor :     What   is   the   offensive   thing that                                                                                                                                                           Nick  

                                                            Stachelrodt    did?      Because    believe    me,    if    you    convict  

                                                           Mr.   Rossiter of anything other than murder in the second                                                                                                                                                                              

                                                            degree, or [if you] acquit Mr. Rossiter, send him home, then                                                                                                                                                                                        

                                                           you have to conclude that Nick Stachelrodt did something                                                                                                                                                                  

                                                           horrible to deserve what happened to him.                                                                                                                                                     



Later, in his summation, the prosecutor told the jurors:                                                                                                                                                                                           



                                                             

                                                                                        Prosecutor :    Nick Stachelrodt did not deserve to die                                                                                                                                                                      

                                                            [for pulling Rossiter out of the car].                                                                                                                         The only way that you                                                                  

                                                            can find [that] the defendant is not guilty of murder in                                                                                                                                                                                               the  

                                                            second degree is if you disagree with that premise - that                                                                                                                                                                                            

                                                           Nick Stachelrodt did not deserve to die for what he did.                                                                                                                                                                                                

                                                                                          .   .   .  



                                                                                         So the only way you can find him not guilty of murder                                                                                                                                                     

                                                           in    the    second    degree    is    if    you    [conclude    that]    Nick  

                                                            Stachelrodt deserved what he got - or you misunderstand                                                                                                                                               

                                                           the law.                              



                                                            Still later in his summation, the prosecutor told the jurors that the essence                                                                                                                                                                                                                   



of a claim of self-defense was that "the guy deserved it."                                                                                                                                                                                                 And still later, the prosecutor                                                     



told the jurors:                   



                                                             

                                                                                        Prosecutor :  [I]f you conclude that I have not proven  

                                                                                                                                                                                                                                                                                                    

                                                           the absence of self-defense here, then                                                                                                                             [what] you're saying[is   



                                                                                                                                                                                      -  4 -                                                                                                                                                                               2568
  


----------------------- Page 5-----------------------

                                                                    that]   Nick   Stachelrodt   deserved   what   he   got,   and   Devin  

                                                                    Rossiter walks out the door.                                                                                                                    Please don't let that happen.                                                                              



                                                                    Finally,   toward the end of his argument,                                                                                                                                                                           the prosecutor returned to                                                                                                                   his  



theme that Nick Stachelrodt was a good man who did not deserve to die.                                                                                                                                                                                                                                                                                                The prosecutor   



told   the   jury   that   "[w]e   should   be   thankful   that   there   are   such   people   as   Nick  



 Stachelrodt":  



                                                                      

                                                                                                     Prosecutor :     I'm   not   going to                                                                                                                            get   all   preachy   and  

                                                                    "it takes a village" on you.                                                                                                           But I will say, Nick Stachelrodt's                                                                   

                                                                    pulling this young man out of the car and not responding with                                                                                                                                                                                                                           

                                                                    name-calling or violence                                                                                                          or threats,                                                but with "we need to                                                                                  

                                                                    talk" and "you need to learn to respect your elders",                                                                                                                                                                                                                                     that  

                                                                    there's nothing that could even be remotely criticized about                                                                                                                                                                                                                     

                                                                    that, let alone justified his being murdered.                                                                                                                    



                                                                    The jury found Rossiter guilty of second-degree murder, and Rossiter now                                                                                                                                                                                                                                                                                    



 argues that his trial was rendered unfair by the combination of the PowerPoint slides and                                                                                                                                                                                                                                                                                                                                         



the various statements made by the prosecutor.                                                                                                                                                                                                    



                                                                    More    specifically,    Rossiter    argues    that    the    prosecutor's    slides    and  



 statements to the jury mischaracterized the law of self-defense and impermissibly shifted                                                                                                                                                                                                                                                                                                                          



the burden of proof to the defense, by implying that the jury should presume Rossiter's                                                                                                                                                                                                                                                                                                            



guilt unless the jurors affirmatively found that Nick Stachelrodt "deserved what he got."                                                                                                                                                                                                                                                                                                                                                               



                                                                    As we explain in this opinion, we agree with Rossiter that the prosecutor                                                                                                                                                                                                                                                   



grossly   mischaracterized   the   law   of   self-defense.     Because   we   conclude   that   the  



prosecutor's misstatements of the law probably affected the jury's verdict, we reverse                                                                                                                                                                                                                                                                                                                          



Rossiter's conviction.                                                                                         



                                                                                                                                                                                                                -  5 -                                                                                                                                                                                                          2568
  


----------------------- Page 6-----------------------

                            Why we reverse Rossiter's murder conviction                                                                                               



                                                     The   prosecutor's   PowerPoint   slides   and   his   statements   to   the   jury  



 significantly mischaracterized the law of self-defense.                                                                                                                                                              



                                                     We acknowledge that, even though Rossiter's attorney objected to portions                                                                                                                                                                                         



of   the   prosecutor's   slide   presentation,   the   defense   attorney   did   not   object   to   the  



prosecutor's closing argument - despite the trial judge's express invitation for him to                                                                                                                                                                                                                                                       



do so.                      Accordingly, to the extent that Rossiter now argues that the prosecutor's final                                                                                                                                                                                                                         



argument misstated the law of self-defense,                                                                                                                                        or impermissibly disparaged the defense                                                                                            



theory of the case, Rossiter must show plain error.                                                                                                                                                         But we conclude that Rossiter has                                                                                           



met this burden.                 



                                                     When a defendant charged with homicide raises a claim of self-defense, the                                                                                                                                                                                                           



question for the jury is whether there is a reasonable possibility that the defendant used                                                                                                                                                                                                                                         



deadly force (1) in reasonable response to an                                                                                                                                          actual threat                                         of unlawful and imminent                                           



death, serious physical injury, sexual assault, robbery, or kidnapping,                                                                                                                                                                                                               or  (2) under the                                  



reasonable belief                                                     (even if mistaken) that he or she was about to be subjected to unlawful                                                                                                                                                                       

death, serious physical injury, sexual assault, robbery, or kidnapping.                                                                                                                                                                                                          3  



                                                     The availability of self-defense does not hinge on  whether the deceased  

                                                                                                                                                                                                                                                                                                                  



"deserved to die".  The prosecutor's argument was a gross distortion of the law of self- 

                                                                                                                                                                                                                                                                                                                                     



defense.                                     Indeed,  because  our  law  declares  that  self-defense  is  established  if  the  

                                                                                                                                                                                                                                                                                                                                        



defendant made a reasonable mistake regarding the need to use deadly force, there will  

                                                                                                                                                                                                                                                                                                                                        



be  times  when  a  homicide  will be  justified  by  self-defense  even  though  the  victim  

                                                                                                                                                                                                                                                                                                                           



actually did nothing to assault the defendant.  

                                                                                                                                     



             3             See  AS 11.81.330, AS 11.81.335, and AS 11.81.340;                                                                                                                                                    David v. State                                          , 698 P.2d 1233,                        



 1235 (Alaska App. 1985).                                                                          



                                                                                                                                                                   -  6 -                                                                                                                                                            2568
  


----------------------- Page 7-----------------------

                                                                  But in the prosecutor's summation to the jury, he repeatedly told the jurors                                                                                                                                                                                                                                                                



that Rossiter's claim of self-defense would be valid in only one circumstance:                                                                                                                                                                                                                                                                                                                       only if   



Nick Stachelrodt deserved to die.                                                                                                                                     This error was so obvious, and so egregious, that the                                                                                                                                                                                                



trial judge was required to intervene - even if Rossiter's attorney had never objected.                                                                                                                                                                                                                                                                                                      



                                                                  We also conclude that the prosecutor engaged in another form of improper                                                                                                                                                                                                                                                     



 argument by suggesting that Rossiter's claim of self-defense was a ruse invented by his                                                                                                                                                                                                                                                                                                                                    



 defense counsel.                                                                   As we explained earlier, the defense theory of self-defense was that                                                                                                                                                                                                                                                               



Rossiter reacted in fear that Stachelrodt would kill or seriously injure him, or perhaps                                                                                                                                                                                                                                                                                                           



rape him.                                        Here is how the prosecutor responded to this claim:                                                                                                                                                                                                                 



                                                                    

                                                                                                   Prosecutor :    [O]f all the things that [defense counsel]                                                                                                                                                                  

                                                                   could emphasize in his opening statement, why would he talk                                                                                                                                                                                                                          

                                                                   about sexual assault instead of simply assault - a serious                                                                                                                                                                                                        

                                                                   assault ...                                      [?]    Well,   the [defense attorney's] emphasis on                                                                                                                                                                                    

                                                                   sexual assault is because if you come to the conclusion that                                                                                                                                                                                                                      

                                                                  you don't like Nick Stachelrodt,                                                                                                                                      [if]   you think he's a bad                                                                                   

                                                                  man, [then] it's easier for you to come to the conclusion that                                                                                                                                                                                                                       

                                                                  Devin Rossiter was justified in killing him.                                                                                                                                                                        And that should                                   

                                                                   offend   you   a   little   bit.     Because   what   Nick   Stachelrodt's  

                                                                   family doesn't know, but [what]                                                                                                                                       I know, is that no matter                                                                      

                                                                  how good a life you lead, no matter what you do with your                                                                                                                                                                                                                       

                                                                   life, if you are killed randomly by a drunk nineteen-year-old                                                                                                                                                   

                                                                  who's going through your car,                                                                                                                                a lawyer will stand up in a                                                                                                        

                                                                   court of law and say that you were trying to rape someone.                                                                                                                                                                                                                                               

                                                                   That    should    strike    you    as    ...    [a]    somewhat    offensive  

                                                                   argument.  



                                                                                                                                                                                                                                                                                                                                                                                   

                                                                   This Court has previously  drawn a distinction between (1) permissible  



                                                                                                                                                                                                                                                                                                                                                                                                                          

prosecutorial argument that a defendant's version of events is not credible, given the  



                                                                                                                                                                                                                                                                                                                                                                                   

 evidence in the case, and (2) impermissible argument that "disparages the legitimacy"  



                                                                                                                                                                                                           -  7 -                                                                                                                                                                                                     2568
  


----------------------- Page 8-----------------------

                                                                                                                                                 4  

of the legal theory or defense asserted by the defendant.                                                                                            The prosecutor's argument in                                              



Rossiter's case fell into this latter category.                                                                         The prosecutor implied                                              that Rossiter's   



defense attorney - indeed, defense attorneys in general - would connive to advance                                                                                                                            



false claims of self-defense, hoping that jurors would view the victim in a bad light and                                                                                                                                 



would conclude that the victim was not worthy of the law's protection.                                                                                                                     In other words,        



the prosecutor's argument was "designed to awaken in the jury a suspicion that the                                                                                                                                         



 [defense was] merely a subterfuge employed by the defendant to evade responsibility for                                                                                                                                     

                         5     This is not permitted.  

his acts."                                                                               



                                   The remaining question is whether the prosecutor's improper argument  

                                                                                                                                                                                                           



requires reversal of Rossiter's murder conviction.  As we have explained, the prosecutor  

                                                                                                                                                                                                        



repeatedly asked the jury to employ an incorrect formulation of the law of self-defense.  

                                                                                                                                                                                                                                      



He framed the issues to be decided as a referendum on the value of the victim's life. And  

                                                                                                                                                                                                                         



he suggested that the whole issue of self-defense was the subterfuge of a conniving  

                                                                                                                                                                                                          



defense  attorney.                                       Having  carefully  considered  the  record,  we  conclude  that  the  

                                                                                                                                                                                                                          



inflammatory and  misleading nature of the prosecutor's PowerPoint presentation and  

                                                                                                                                                                                                                          



closing argument undermined the fundamental fairness of Rossiter's trial.  We believe  

                                                                                                                                                                                                                 

that these improper remarks appreciably affected the jury's decision. 6  

                                                                                                                                                              



                                   Accordingly,  we  REVERSE  Rossiter's  conviction  for  second-degree  

                                                                                                                                                                                            



murder.  



         4         See Williams v. State                                 , 789 P.2d 365, 369 (Alaska App. 1990).                                                                



         5  

                                                                                                                                                                                                                      

                   State v. McDonald, 472 A.2d 424, 425-26 (Me. 1994), discussed in Rogers v. State ,  

                                                                                                    

280 P.3d 582, 594 (Alaska App. 2012).  



         6  

                                                                                                                                                                                                                             

                 Love  v.  State ,  457  P.2d 622,  634  (Alaska 1969)  (holding that,  for  instances  of  

                                                                                                                                                                                                                      

non-constitutional error, the test for harmlessness is whether the appellate court "can fairly  

                                                                                                                                                              

say that the error did not appreciably affect the jury's verdict").  



                                                                                                                      

                                                                                                            - 8 -                                                                                                       2568
  


----------------------- Page 9-----------------------

Judge ALLARD, concurring                         .  



                                                                                                                                             

                         I agree with the majority opinion that the prosecutor's closing arguments  



                                                                                                                                                            

were improper and constituted a gross distortion of the law.  I write separately only to  



                                                                                                                                               

point  out  that  Rossiter's  conviction  for  second-degree  murder  was  not  a  foregone  



                                                                                                                                                          

conclusion and that manslaughter was a plausible verdict in this case.  A conviction for  



                                                                                                                                              

second-degree murder required the State to prove not only that Rossiter acted recklessly  



                                                                                                                                                        

when he killed Stachelrodt (and that he did not do so in self-defense),  but also that  



                                                                                                                                                            

Rossiter acted "under circumstances manifesting an extreme indifference to the value of  

                        1   -  i.e.,  that  Rossiter's  actions  constituted  "the  type  of  heightened  

                                                                                                                                           

human  life"  



                                                                                                                            2  

recklessness that is equivalent to purposeful or knowing homicide."  

                                                                                                                               



      1     AS 11.41.110(a)(2).
                  



      2  

                                                                                                        

            Jeffries v. State , 169 P.3d 913, 917 (Alaska 2007).
  



                                                                                   

                                                                           - 9 -                                                                       2568
  

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