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Rogers v. State (5/4/2012) ap-2358

Rogers v. State (5/4/2012) ap-2358


        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

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                                                )           Court of Appeals No. A-10716 
                                Appellant,      )          Trial Court No. 3PA-07-3231 Cr 
                        v.			) 
                                                )                   O   P  I  N  I  O  N 

                                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, 


                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. 

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

                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. 

                                                - 2 -                                           2358

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

        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. 

                                                 - 3 -                                             2358

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

                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 - 

                                                  - 4 -                                             2358

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

                 because he stands apart from most people who live on this 


                 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). 

                                                    - 5 -                                                  2358 

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

         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], 

                                      - 6 -                                                    2358

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

                 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 


                 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. 

                                                   - 7 -                                              2358

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

                 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. 

                                                    - 8 -                                                2358 

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

                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 


                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 


                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 

                                                - 9 -                                           2358

----------------------- Page 10-----------------------

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 


                        2.  Is the witness's testimony available from another 


                        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 

                                                 -  10 -                                           2358

----------------------- Page 11-----------------------

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 



              The judgement of the superior court is AFFIRMED. 

                                            -  11 -                                      2358

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