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Rogers v. State

Court of Appeals of Alaska

May 21, 2010

Shawn W. ROGERS, Appellant,
STATE of Alaska, Appellee.

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[Copyrighted Material Omitted]

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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.



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 jury's questions to the court, and by the jury's verdict on a proposed aggravating factor). The State's 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

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view of the case described in the preceding paragraph, this is not a fatal variance from the State's theory of an intentional shooting, and thus the jury's 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 Rogers's 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 Albert's 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 Rogers's trial.

The State's theory was that Rogers intentionally shot Black. The State presented evidence that, around closing time, Rogers said something provocative to Black. None of the State's witnesses could tell exactly what Rogers said, because the music in the tavern was turned up so loud. But whatever Rogers said, it caught Black's 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 State's 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 Black's 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 Black's side, just below his left armpit. The bullet passed through Black's lungs and aorta, then lodged near his spine. Black died soon after receiving this wound.

Rogers's gun jammed after the second shot. With Rogers unable to get off another round, Thome managed to knock the weapon from Rogers's 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, Rogers's 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 Rogers's trial

After the presentation of evidence at Rogers's 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

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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 State's 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, that's [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.

Rogers's attorney raised two objections to the proposed instructions on proximate cause. First, the defense attorney disputed the prosecutor's 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 State's 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 Black's 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 prosecutor's 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 Black's death if Rogers's actions were a substantial factor in causing Black's death) would effectively lower the State's burden of proof. The judge declared:

The Court: When we start talking about " proximate causation", we're using a term that's 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 I'm 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 judge's 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.

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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 judge's 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 Rogers's actions were the sole cause of Black's 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: [Rogers's 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 defendant's 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 State's burden of proof. In addition, the judge concluded that the facts of Rogers's 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 Black's 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 attorney's assertion that Rogers had not caused Black's 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 Rogers's 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

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bar, intoxicated people, the person across the bar intoxicated, other people in the bar are intoxicated, what's foreseeable there? Someone is going to rush you. That's certainly a likely possibility, a foreseeable possibility. Someone's going to rush you and attempt to disarm you. That's what happened in this case[, and it was] certainly a foreseeable result of the defendant's conduct.
[The defense attorney is] trying to tell you [that] if Mr. Rogers didn't mean to [shoot Black] and didn't mean to pull the trigger, and [then,] in ... the struggle for the gun, it goes off, he's not responsible; he hasn't committed the offense. That's 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 [Rogers's] 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 that's when Mr. Black was shot. Mr. Rogers is still responsible for the death, because it's his conduct that set in motion that chain of events. It's his conduct that was a substantial factor in setting in motion those events.

Even though the defense attorney had actively opposed the prosecutor's request for a " substantial factor" causation instruction, the defense attorney made no immediate objection to the prosecutor's 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 prosecutor's 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 o'clock 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 [Rogers's] recklessness contributed to the death, is ...

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