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Rogers v. State (6/15/2012) ap-2361

Rogers v. State (6/15/2012) ap-2361


        The text of this opinion can be corrected before the opinion is published in thePacific 

        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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CHRISTOPHER ERIN ROGERS JR.,                      ) 

                                                  )           Court of Appeals No. A-10635 

                             Appellant,           )          Trial Court No. 3AN-07-13602 CR 


             v.                                   ) 

                                                  )                 O    P   I  N  I  O  N 

STATE OF ALASKA,                                  ) 


                             Appellee.            ) 

                                                  )              No. 2361 - June 15, 2012 

                 Appeal     from    the   Superior    Court,   Third    Judicial   District, 

                 Anchorage, Eric A. Aarseth, Judge. 

                 Appearances: Hanley Rebecca Smith, Assistant Public Defender, 

                 and    Quinlan    Steiner,   Public   Defender,     Anchorage,     for   the 

                 Appellant.   Diane   L.   Wendlandt,   Assistant   Attorney   General, 

                 Office of Special Prosecutions and Appeals, Anchorage, and John 

                 J. Burns, Attorney General, Juneau, for the Appellee. 

                 Before: Mannheimer and Bolger, Judges, and Andrews, Senior

                 Superior Court Judge.*

                 [Coats, Chief Judge, not participating]

                 BOLGER, Judge.

        *    Sitting   by   assignment   made   pursuant   to   article   IV,   section   16   of   the   Alaska 


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

               Christopher Erin Rogers Jr. was convicted of first-degree murder, two counts 

of attempted first-degree murder, and several related crimes, after he confessed to shooting 

three people in Anchorage over several days in early December 2007, killing one person 

and seriously injuring two others. At trial on these charges, Rogers's attorney conceded 

that Rogers shot and wounded the third victim and stole his car, but he argued that Rogers 

had falsely confessed to the other two shootings, including the murder. The jury rejected 

this defense and convicted Rogers of most of the crimes with which he was charged. 

               On appeal, Rogers argues that the trial court violated his due process right 

to present a defense to the charge of murder by preventing him from offering evidence 

that another purportedly similar shooting took place in the same neighborhood a month 

earlier. Rogers argues that evidence of this other shooting was relevant and admissible 

to cast doubt on his guilt, because the evidence suggested that someone else might have 

committed both crimes. He also argues that the trial judge committed legal error by relying 

on the strength of the prosecution's evidence that he committed the charged murder to 

exclude the evidence of the earlier shooting. We conclude that the trial judge's analysis 

was not flawed, and that he did not abuse his discretion by excluding this evidence. 

               Rogers also argues that the prosecutor engaged in improper argument. We 

conclude that the prosecutor's arguments were either proper, or that Rogers failed to show 

that they affected the fairness of his trial. We therefore affirm Rogers's convictions. 


               On December 2, 2007, Rogers attacked his father and his father's fiancée 

with a machete at their home in Palmer, killing his father and seriously injuring his fiancée. 

Rogers then took his father's truck, a revolver, and ammunition, and drove to Anchorage. 

He abandoned the truck at a gas station and walked to a residential neighborhood in 

Spenard, where he shot Jason Wenger as he was warming up his Ford Bronco in his 

                                            - 2 -                                        2361

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

driveway. Rogers testified that he intended to take Wenger's truck, but that he fled after 

Wenger yelled and revved his engine. Wenger was later discovered by a neighbor who 

was walking his dog. He had eight gunshot wounds to his body. Two bullets were matched 

to Rogers's revolver. 

                That evening, Rogers encountered Elizabeth Rumsey in the Westchester 

Lagoon area as she walked home from the Bear Tooth Theater Pub. Rogers asked Rumsey 

for   the   time,   and   then   shot   her   multiple   times   because   he   was   concerned   she   had 

recognized him and would call the police. Rumsey was seriously injured but survived the 

attack. She described her attacker as white, very thin, taller than six feet, with a moustache 

and either a hood or ponytail, and wearing dark clothing. A bullet recovered from her 

clothing was matched to Rogers's revolver. 

                Early the next morning, Rogers shot Tamas Deak six times as he was getting 

into his Jeep Cherokee to go to work. He also hit Deak on the head with the butt of his 

revolver. Like Rumsey, Deak was seriously injured, but survived. Two of the bullets 

recovered from the shooting were matched to Rogers's revolver. Deak described his 

assailant as very thin, bearded, and dressed in a dark blue jumpsuit with a hood. He told 

the police his attacker had taken the Jeep and driven west. 

                The police soon spotted Deak's vehicle as it was preparing to turn onto 

DeBarr Avenue. After a brief pursuit, the police rammed the vehicle, pinned it between 

a power pole and a tree, and apprehended Rogers. When questioned by the police, Rogers 

admitted that he intended to shoot the three victims. He also said he tried to shoot the 

police officers who apprehended him, but that his gun malfunctioned. He told the police 

that aliens had ordered him to kill as many people as possible. 

                                                 -  3 -                                            2361

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

                                                                         1                              2 

                 Rogers was charged with first-degree murder   and first-degree robbery  for 

his attack on Jason Wenger. He was charged with attempted first-degree murder,3 first- 

degree robbery, and first-degree vehicle theft4 for his attack on Tamas Deak. He was 


charged with attempted first-degree murder and first-degree assault  for shooting Elizabeth 

Rumsey. He was also charged with the attempted first-degree murder of an Anchorage 


police officer, failure to stop at the direction of a police officer,   and first-degree weapons 

misconduct (for using a weapon while operating a vehicle).7 Rogers was tried separately 

in Palmer for the crimes involving his father and his father's fiancée. 

                 Rogers's main defense at trial was that his confession to the police was not 

credible. His attorney conceded that Rogers shot Deak and stole his vehicle, which he 

was driving when he was apprehended. But the attorney challenged the ballistics evidence 

tying Rogers to the Wenger and Rumsey shootings, and he argued that Rogers had falsely 

confessed to those shootings because of the guilt he felt for killing his father. Rogers took 

the stand at trial, apparently against his attorney's advice, and again admitted to all of the 

shootings, though he said he lied to the police when he claimed he intended to kill the 

victims. He also recanted his earlier admission that he attempted to kill police officers 

        1    AS 11.41.100(a)(1)(A). 

        2    AS 11.41.500(a)(1). 

        3    AS 11.41.100(a)(1)(A); AS 11.31.100. 

        4    AS 11.46.360(a)(1). 

        5    AS 11.41.200(a)(2). 

        6    AS 28.35.182(a). 

        7    AS 11.61.190(a)(2). 

                                                   - 4 -                                               2361

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at the scene of his arrest. In closing argument, Rogers's attorney contended that Rogers's 

trial testimony was his attempt to commit "suicide by jury." 

               During    the  trial,  Rogers's  attorney   sought   to  present  evidence   of  a 

purportedly similar, drug-related murder that took place several blocks from the Wenger 

shooting about a month earlier to support his claim that someone else killed Wenger. 

Superior Court Judge Eric A. Aarseth precluded this evidence, ruling that Rogers had not 

established a sufficient connection between the two shootings to make evidence of the 

earlier shooting admissible as other-suspect evidence. 

               After the prosecutor's final arguments, Rogers moved for a mistrial, arguing 

that the prosecutor had made improper remarks that prejudiced the fairness of his trial. 

The court denied the mistrial motion and Rogers's request for a curative instruction. 

               The jury convicted Rogers of all of the charges related to the Wenger, Deak, 

and Rumsey shootings. The jury also convicted Rogers of failure to stop at the direction 

of a police officer. The jury acquitted Rogers of attempted first-degree murder of an 

Anchorage police officer, and of the related weapons charge. Rogers appeals. 


               The trial judge properly excluded the other-suspect evidence. 

               As   just   explained,   Judge   Aarseth  prevented   Rogers   from   introducing 

evidence that a drug-related murder took place about a month earlier several blocks from 

where Wenger was killed. Rogers argued that evidence of the earlier murder should be 

admitted as evidence that someone other than Rogers committed both crimes because the 

two murders took place relatively close in time and place, witnesses reported seeing a 

light-colored sedan at the scenes of both crimes, and there was reportedly a drug house 

in Wenger's neighborhood. To support this argument, Rogers made an offer of proof that 

a witness to the earlier shooting had observed two people - including a tall man carrying 

                                             -  5 -                                        2361

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a rifle and wearing dark, Carhartt-type work clothes - leave the scene in a light-colored 

sedan. Rogers also made an offer of proof that the Anchorage police had information that 

light-colored vehicles were observed at the scenes of both crimes. Judge Aarseth found 

that the connection between the two murders was too speculative for evidence of the 

earlier murder to be relevant, and that evidence of the earlier shooting did not raise a 

reasonable doubt about Rogers's guilt. 

                 Rogers argues that this ruling violated his due process right to present a 

complete defense.8 He also argues that the trial judge committed legal error by excluding 

this evidence based in part on the strength of the prosecution's case. 

                 Although a defendant has a due process right to present a defense, that right 


is limited by considerations of relevance and materiality.  The Alaska Supreme Court has 

held   that   a   trial   court's   evidentiary   rulings   must   not   "substantially   infringe"   on   the 

defendant's right to present a defense.10 When a defendant wishes to present evidence 

and argument implicating another person in the commission of an offense, "evidence of 

the third party's guilt is admissible only if the defense can produce evidence that 'tend[s] 

to directly connect such other person with the actual commission of the crime charged.'"11 

 This limitation on other-suspect evidence is aimed at ensuring that the jury is not unduly 

distracted from the central issues of the case.12 

        8    U.S. Const. amend V; Alaska Const. art. 1, § 7. 

        9    Smithart v. State, 988 P.2d 583, 586 (Alaska 1999); Marrone v. State , 359 P.2d 

969, 984 n.19 (Alaska 1961). 

         10  Smithart, 988 P.2d at 586. 

         11  Id. (quoting Marrone , 359 P.2d at 984 n.19). 

         12  See id. at 586-87 (citing Marrone , 359 P.2d 969). 

                                                   -  6 -                                              2361

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                 The Alaska Supreme Court has provided some guidance on the type of 

evidence required to "directly connect" another suspect to the commission of the charged 

crime. In Marrone v. State , the court ruled that evidence that another person had threatened 

the victim was not sufficient, standing alone, to admit other-suspect evidence.13 Marrone 

was charged with killing the proprietor of an Anchorage night club.14 At trial, he sought 

to introduce evidence that earlier, in California, a man identified as "Little Joe" had 

threatened to "get" the decedent.15 Marrone intimated that "Little Joe" might have been 

the unknown "Joe" seen at the night club shortly   before the victim was shot.16 The 

supreme court affirmed the trial court's decision to exclude this evidence, observing that 

there was "no evidence in the record to connect 'Little Joe' with the 'Joe' described by 

the defendant, let alone evidence to connect 'Little Joe' with the commission of the crime 

charged."17 The court declared that "threats by a third person against the victim may not 

be shown unless coupled with other evidence having an inherent tendency to connect such 

other person with the actual commission of the crime."18 

                 In Smithart v. State, the supreme court ruled that there were sufficient direct 

connections between the alternative suspect and the charged crime to admit evidence and 

argument implicating the other suspect.19 In Smithart, the defendant made an offer of proof 

        13   359 P.2d at 984.

        14   Id. at 971.

        15   Id. at 984.

        16   Id.

        17   Id. at 985.

        18   Id. at 984.

        19   988 P.2d at 589.

                                                    -  7 -                                              2361

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that the other suspect - who appeared as a witness for the State - had been at the scene 

of the child victim's disappearance; that the shop in which the suspect worked was a 

plausible source of the paint chips and metal fragments found on or near the victim's body; 

that the suspect delayed coming forward with his identification of Smithart and lied about 

his own whereabouts when the victim disappeared; and that the suspect was a convicted 

felon who illegally possessed firearms in violation of his probation, including firearms 

similar to that used to shoot the victim.20 

                 The supreme court concluded that the trial court had viewed the direct- 

connection requirement of Marrone too narrowly when it excluded this evidence on the 

ground that it did not sufficiently implicate the other suspect in the charged crime.21 The 

proper question, the supreme court declared, was whether the other-suspect evidence 

"links the crime to the third party in a way that tends to create doubt about the defendant's 

guilt" - not whether the evidence tended to establish the guilt of the third party.22 

                 In this case, Rogers sought to admit evidence that, about a month before 

Wenger was killed, there was another shooting several blocks away, and that witnesses 

at the scenes of both crimes described a light-colored sedan and a tall man dressed in dark, 

Carhartt-like clothing. These common attributes are not distinctive enough to support a 

reasonable inference that both crimes were committed by the same person or persons. As 

Judge Aarseth observed, light-colored cars are common, and many people wear dark 

clothing in the winter in Anchorage. Nor is it unusual for a man to be described as tall. 

                 Furthermore,   as   the   State   points   out,   there   were   significant   differences 

between the two incidents. The earlier shooting was apparently a drug-related robbery, 

        20  Id. at 587. 

        21  Id. at 587-88. 

        22  Id. 

                                                   - 8 -                                                2361 

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and Rogers conceded there was no evidence Wenger was involved in drugs. A witness 

at the scene of the earlier shooting observed a man carrying a rifle, and Wenger was killed 

with a revolver. There were two people observed leaving the scene of the earlier shooting, 

a man and a dark-skinned woman, but only one person in dark clothing was seen near 

the Wenger shooting. A small white or silver sedan was observed speeding away from 

the Wenger shooting, while the witness at the earlier shooting observed a full-size, police 

cruiser style vehicle like a Chevrolet Caprice. 

                 In Wright v. State, an unpublished case, we upheld the trial court's decision 

to exclude evidence of a convenience store robbery that took place fifteen months before 

the charged offense in the same city, which the defendant had offered as other-suspect 

evidence.23 We agreed with the trial judge that there was not sufficient reason to believe 

both murders were committed by the same person or persons just because both crimes 

involved convenience-store clerks who were killed by gunshots to the head on a holiday 

weekend.24 Other courts have likewise excluded evidence of other similar crimes that 

shared only generic characteristics with the charged offense. For instance, in State v. 

Mosby , the Supreme Court of Louisiana upheld the exclusion of evidence of several 

robberies that shared basic similarities with the charged robbery - all of the crimes were 

committed by slender black males and occurred during the morning banking hours at 

banks in the same general area of the city.25  The Louisiana court noted that this kind of 

robbery was "not unusual" in an urban area.26 And in United States v. Seals, the Seventh 

Circuit upheld the exclusion of evidence of a bank robbery that took place two weeks after 

        23   Mem. Op. & J. No. 5659, 2010 WL 5273014, at *3-4 (Alaska App. Dec. 15, 2010).

        24  Id. at *4.

        25   595 So. 2d 1135, 1140 (La. 1992).

        26  Id. 

                                                   -  9 -                                            2361

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the   charged   bank   robbery,   even   though,   like   the   charged   offense,   the   robbery   was 

committed by a group of armed black men wearing disguises who fled in a getaway car.27 

The court noted that these characteristics described many bank robberies, and the two 

robberies differed in other ways - the robbers employed different firearms, disguises, 

and a different modus operandi.28  The fact that a detective involved in the case initially 

believed the robberies appeared similar did not change this analysis.29 

                 We conclude that Judge Aarseth did not err by ruling that the connection 

between the two shootings in Wenger's neighborhood was too speculative to raise a 

reasonable doubt about Rogers's guilt. The judge therefore did not abuse his discretion 

by excluding evidence of the earlier shooting under Smithart-Marrone. 

                 Rogers's next claim is that Judge Aarseth committed legal error by excluding 

the other-suspect evidence based in part on the strength of the State's case against him. 

He relies on the United States Supreme Court's decision in Holmes v. South Carolina , 

which struck down a South Carolina rule excluding alternative-suspect evidence in cases 

in which the government submitted strong evidence of the defendant's guilt.30 The Court 

held that the South Carolina rule was arbitrary and violated Holmes's right to present a 

complete defense because the rule did not focus on the probative value or potential adverse 

effects of admitting evidence of third-party guilt, but instead made the critical inquiry the 

strength of the state's case - with little, if any, examination of the credibility or reliability 

of the state's evidence.31 

        27   419 F. 3d 600, 603, 607 (7th Cir. 2005).

        28   Id. at 607.

        29   Id.

        30   547 U.S. 319, 328-31 (2006).

        31   Id. at 329.

                                                   -  10 -                                             2361

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                Rogers's reliance on Holmes is unpersuasive. In Holmes , the Supreme Court 

distinguished the South Carolina rule from "widely accepted" rules that prohibit the 

admission of other-suspect evidence that is too speculative or remote, or not relevant to 

any material fact.32 The Court listed cases that adhered to this constitutionally acceptable 

approach - including the Alaska Supreme Court's decision in Smithart.33 

                Judge Aarseth's analysis focused on whether the two murders were similar 

enough to establish a  "real connection" between the alternative suspect and the charged 

offense, and he concluded that they were not. Only then did he consider the other-suspect 

evidence in the context of the State's proof - in particular, Rogers's confessions and the 

ballistics   evidence.   The   judge   concluded   that   the   other-suspect   evidence   was   "too 

speculative, too distant in nature to be of relevance" and "could not create reasonable 

doubt in this case." This analysis did not run afoul of Holmes. As a California court of 

appeals has explained: 

                 [Holmes] dealt with a judicially created rule precluding third 

                party culpability evidence if the prosecution presented strong 

                evidence,   especially   forensic   evidence.   ... Holmes   did   not 

                consider the extent to which a trial court might consider the 

                strength    of  the  prosecution's     evidence    in  exercising    its 

                discretion to determine whether the third party evidence could 

                raise a reasonable doubt as to the defendant's guilt.34 

                We find no error in Judge Aarseth's analysis of this issue, and conclude that 

Rogers has not shown that the judge's decision to exclude evidence of the earlier shooting 

substantially infringed his right to present a defense. 

        32  Id. at 327. 

        33  Id. at 327 n.*. 

        34  People v. Samaniego , 91 Cal. Rptr. 3d 874, 896-97 (Cal. App. 2009). 

                                               - 11 -                                             2361 

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                Rogers is not entitled to reversal of his convictions because 

                 the prosecutor made an improper closing argument. 

                 We have previously held that it is improper for a prosecutor to express a 

personal belief on the evidence or to make appeals calculated to inflame the passions and 

prejudices   of   the   jury.35  Rogers   argues   that   the   prosecutor   engaged   in   this   kind   of 

misconduct by calling him, among other things, a murderer, a liar, and a heartless, callous 

man. He asserts that these remarks were not reasonable inferences from the evidence, that 

the prosecutor used them to inject her personal opinion into the argument, and that the 

only purpose of the remarks was to discredit and demonize him before the jury. 

                 With the exceptions noted below, Rogers did not object to these comments 

in the superior court. Therefore, he must show that Judge Aarseth committed plain error 

by not admonishing the prosecutor, instructing the jury to disregard her remarks, or 

declaring a mistrial, even though Rogers did not request this relief at his trial.36 

                 When      a  defendant    argues    that  a  prosecutor's     argument     amounted      to 

misconduct, we consider "whether the prosecutor's statements, if in error, constituted such 

egregious conduct as to 'undermine the   fundamental fairness of the trial.'"37 In this 

analysis, we view the challenged statements in the context of the record as a whole.38 

        35  Patterson v. State , 747 P.2d 535, 538 (Alaska App. 1987) (citing 1 Am. Bar Ass'n, 

Standards for Criminal Justice § 3-5.8(e) (2d ed. 1982)). 

        36  See Cook v. State, 36 P.3d 710, 729 (Alaska App. 2001). 

        37  Potts v. State , 712 P.2d 385, 390 (Alaska App. 1985), superseded by statute on 

other grounds as recognized in Braun v. State, 911 P.2d 1075, 1078 (Alaska App. 1996) 

(quoting  United States v. Young, 470 U.S. 1, 16 (1985)). 

        38  Patterson , 747 P.2d at 541. 

                                                  -  12 -                                            2361

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                 The prosecutor's assertions that Rogers lied 

                 Rogers argues that the prosecutor impermissibly suggested that he lied in 

his trial testimony. He points in particular to these remarks in the State's closing argument: 

                 The defendant wants you to believe he is either crazy or a liar 

                 when, in fact, he is just a murderer. Ladies and gentlemen, the 

                 question before you is not whether Erin Rogers lied at some 

                 point during a statement or during testimony in this case; most 

                 people who do reprehensible things often sprinkle distortions 

                 into   the  things    that  they   say   to  minimize     or  explain    or 

                 somehow rationalize the things they've done. 

Rogers also points to the prosecutor's insinuation that he lied when he testified that he 

spoke to Wenger before shooting him. Rogers testified that he told Wenger he wanted 

his truck and only shot Wenger in a panic because it looked like Wenger was reaching 

for a gun. Rogers said he lied when he told the police he intended to kill Wenger. In 

closing argument, the prosecutor suggested that Rogers fabricated this conversation with 

Wenger to make himself appear less "mean-spirited and culpable." 

                 It is not plain error for the prosecutor to assert that the defendant is a liar 

when that argument is based on the evidence.39 Rogers confessed to all three shootings, 

telling the police he intended to kill Wenger, Rumsey, and Deak. At trial, he took the stand 

and denied that he intended to kill the victims. The prosecutor's remarks offered the jury 

an explanation for this discrepancy: that Rogers lied in his testimony at trial to make 

himself appear less culpable. 

                 This   argument   responded   directly   to   the   defense   case.   Because   Rogers 

claimed someone else shot Wenger and Rumsey, the attorney's argument hinged on 

convincing   the   jury   that   Rogers   lied   in   his   confession   to   the   police   and   in   his   trial 

testimony when he admitted to the shootings. In his opening statement, Rogers's attorney 

        39  See Smith v. State, 771 P.2d 1374, 1379 (Alaska App. 1989). 

                                                  -  13 -                                               2361 

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said the "lynchpin" of the State's case was Rogers's confessions. He pointed out that "the 

truth [the State is] asking you to believe is coming from someone who is telling you that 

aliens made him do it." "So which is it?" the attorney continued. "Aliens or a self- 

destructive lie?" "[Y]ou are left very likely at the end of this case with the conclusion that 

aliens was a lie and with that lie you maybe need to think about the other things that 

Christopher Erin Rogers [said]." 

               Rogers's attorney continued on this theme in closing argument: "Clearly, 

Mr. Rogers is not an accurate reporter of objective reality";  "[H]e's testifying to you to 

things that are obviously completely wrong";   "You cannot look one another in the eye 

and say that that man is [an] accurate reporter of objective reality, and that's what the State 

is asking you to do." 

               Viewed in the context of this defense, the prosecutor's remark that Rogers 

"sprinkle[d] distortions" in his statements was clearly not aimed at branding Rogers as 

a liar, or at injecting the prosecutor's personal opinion that he was a liar; the State's case 

depended on the jury finding that Rogers's admissions were, in large part, credible. 

Rather, the prosecutor's remarks were aimed   at explaining to the jury why it should 

believe Rogers's confessions to the police but disbelieve his later testimony minimizing 

his culpability for the crimes. This was proper argument - particularly given that Rogers 

made his credibility a central issue in the case. 

               Rogers also complains that, in rebuttal argument, the prosecutor displayed 

a slide in her PowerPoint presentation entitled "You Don't Get to Make Things Up," and 

another slide suggesting that Rogers had fabricated his story that aliens ordered him to 

kill people. This was also proper argument. Rogers's attorney stated more than a dozen 

times in his final argument that the State had "made up" evidence in its closing argument 

and that it was not permissible to "make things up." The State did not commit misconduct 

by using this same rhetorical device to argue that the defense attorney distorted the 

                                            -  14 -                                       2361

----------------------- Page 15-----------------------

evidence in his closing argument. Although a defense counsel's attacks do not give the 

prosecutor      license   to  make    improper    arguments,     reversal    is  not  warranted     if  the 

prosecutor's   remarks   do   "no   more   than   respond   substantially   in   order   to   'right   the 


                The State's slide asserting that Rogers made up his story that aliens forced 

him to shoot people was also not improper. The defense attorney ridiculed Rogers's 

statements about aliens in an effort to discredit Rogers's confessions. The State, for its 

part, argued that Rogers's claim that he had been coerced by aliens did not hold up under 

police questioning, and that his real motivations for the killings could be found in his 

statements conveying his anger toward his father and his fiancée, who were his first 

victims. These were reasonable inferences from the evidence. 

                In his reply brief, Rogers argues that the State's remarks urging the jury to 

believe some of Rogers's statements and to disbelieve others "did damage to the defense 

theory." But Rogers cites no case law holding that it is permissible for the defense attorney 

to attack the defendant's credibility on central issues, but that it is impermissible for the 

prosecutor to do so. We find no plain error. 

                         The prosecutor's assertions that Rogers was callous 

                         and a murderer 

                Rogers next argues that the prosecutor committed misconduct by making 

ad hominem attacks on him, inviting the jury to base its decision on factors outside the 

record. Specifically, Rogers points to the prosecutor's remarks that he was a "murderer" 

and a "callous, heartless, angry man." Rogers also points to the prosecutor's statements 

characterizing his attitude as "devil-may-care," and his motivation as "the thrill of the kill." 

        40  Young, 470 U.S. at 12-13. 

                                                 -  15 -                                              2361 

----------------------- Page 16-----------------------

               The references to Rogers as   a   "murderer" occurred in the prosecutor's 

rebuttal argument. The prosecutor began that argument by stating: 

               The defendant wants you to believe he is either crazy or a liar 

               when, in fact, he is just a murderer. ... [Y]ou don't have to 

               decide [whether he is crazy or a liar]; what you have to decide 

               is whether or not Erin Rogers is a murderer[,] and that's the 

               verdict that you will render today. 

               The primary danger in argument that conveys the prosecutor's opinion as 

to the guilt of the defendant is that "it may suggest to the jury that the prosecutor has 

information, not disclosed at trial, conclusively establishing the defendant's guilt."41 Such 

argument has the potential to "jeopardize the defendant's right to be tried solely on the 

basis of the evidence presented to the jury; and the prosecutor's opinion carries with it 

the imprimatur of the Government and may induce the jury to trust the Government's 

judgment rather than its own view of the evidence." 42 

               The prosecutor's brief references to Rogers as a "murderer" did not present 

these dangers. Viewed in context, the remarks did not convey the prosecutor's personal 

opinion that Rogers was a murderer; rather, the comments were aimed at encouraging 

the jury to focus its inquiry on whether Rogers was guilty of murder, rather than on the 

subsidiary issues emphasized by the defense - Rogers's credibility and sanity. Moreover, 

shortly after the prosecutor referred to Rogers as a "murderer," she underscored that it 

was the jury's job to decide his guilt, stating, "[W]hat you have to decide is whether or 

not Erin   Rogers is a murderer." The prosecutor's remarks were isolated   and   not   so 

inflammatory that they were likely to lead the jury to decide the case based on improper 

factors - particularly given that Rogers had confessed to the shootings. 

        41 Potts , 712 P.2d at 391. 

        42 Id. at 392 (quoting Young, 470 U.S. at 18-19). 

                                             - 16 -                                          2361 

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                 Rogers also argues that the prosecutor acted improperly by calling him a 

"callous, heartless, angry man" in her opening statement, and by suggesting in closing 

argument that Rogers might have been motivated by the "thrill of the kill." The prosecutor 

began her opening statement as follows: 

                 Our town, Anchorage. It's not a big city. For most of us it's 

                just a town. ... It's a town which ... has its share of crime, but 

                 for the most part each one of us feels in our town utterly safe. 

                 ... For Tamas Deak, Elizabeth Rumsey and the family of Jason 

                 Wenger, that illusion was shattered on a pair of December 

                 mornings in 2007. That sense of safety for them was destroyed 

                 when a callous, heartless, angry man came in from the Valley 

                 and first took the life of Jason Wenger and then tried to take 

                 the lives of Tamas Deak, Elizabeth Rumsey, and an Anchorage 

                 Police Department officer. 

                 Ladies and gentlemen, the anger that you're going to hear 

                 about, the hate that you're going to get to witness during the 

                 course    of  this  trial,  came   from    a  callous   devil-may-care 

                 attitude that fueled the conduct of that man ... Erin Rogers. 

The prosecutor's other comment came during her closing argument: 

                 "Why"      is  not  an   element    of  the  offense.    "Why"     is  not 

                 something that the government has to prove. "Why" is not 

                 something that you yourself would ever come to one decision 

                 about. There may be lots of reasons why ... the Anchorage 

                 crimes were committed. Could be just self-preservation. 

                 It   could   be   the   thrill   of   the   kill,   and   I   apologize   if   that   ... 

                 offen[ds] somebody's sensibility, but that might resonate with 

                 some   of   you,   that   this   was   a   devil-may-care   flight,   and   if 

                 somebody took him out at the end, he didn't - the defendant 

                 said,   "I   don't   give   two   squirts   about   that."   That   was   his 

                 attitude on the day that he was apprehended. 

                 In his confession to the police, Rogers admitted that he intended to kill 

Wenger and take his truck. When asked how he felt about shooting Wenger, Rogers said 

he wished he had shot Wenger in a way that had allowed him to take the vehicle. He also 

                                                  -  17 -                                            2361

----------------------- Page 18-----------------------

calmly explained how he used a machete to attack his father and his father's fiancée. He 

showed no obvious emotion when he learned that his father had died in the attack. When 

asked if he felt sorry for what he had done, or if he had regrets, Rogers said he wished 

he had used a gun rather than a machete to attack his father and his father's fiancée 

because it would have been faster and easier. Rogers also expressed a lot of anger toward 

his father and his father's fiancée, calling his father's fiancée "cruel," "mean," and a 

"bitch," and calling his father a "fucking asshole" who was "always out for himself." 

                In his testimony at trial, Rogers recognized how callous he appeared in his 

statement to the police. He testified that he "didn't really want to kill anybody" and that 

he had lied to the police in his "whole attitude about really wanting to do it." He said he 

was not honest in the "cocky shithead way" he described the killings to the police, and 

in "saying things so matter of factly, just cocky and rude. That's not really how I felt." 

He went on: "I seemed like a really cold-hearted dickhead about ... a lot of things that 

happened. ... I had a so-what attitude." 

                Given this record, it was not plain error for the prosecutor to call Rogers a 

"callous, heartless, angry man." Although the jury could have rejected this characterization 

of   Rogers,   there   was   ample    evidence   to   support   it   -  as   Rogers   conceded   in   his 


                The same is true of the prosecutor's assertion that Rogers had a "devil-may- 

care" attitude. Rogers did object to this characterization at trial. But the court allowed the 

remark, apparently agreeing with the prosecutor's argument that "everybody understands 

the colloquial [meaning of] 'devil-may-care,' you know, in for a penny, in for a pound, 

here I go." Rogers has not argued that this phrase means something different. 

        43  See Marrone , 359 P.2d at 981 & n.13 (holding that it was proper to refer to the 

defendant and his witnesses as "hoodlums" where that description was supported by the 


                                                -  18 -                                             2361 

----------------------- Page 19-----------------------

              Rogers essentially admitted to a "devil-may-care" attitude when he testified 

that he expressed a "so-what attitude" in his interview with the police, and that he came 

off as a "cold-hearted dickhead" when he described the killings. Given this record, the 

court did not abuse its discretion by allowing this argument. 

              There is no direct evidence suggesting that Rogers was motivated by the 

"thrill of the kill." Nor did the prosecutor argue, or express her opinion, that this was 

Rogers's motivation. Rather, the prosecutor argued that there "may be lots of reasons" 

to explain Rogers's killing spree, including "self preservation" or "thrill of the kill." 

Rogers has not shown that permitting this argument was plain error. 

                     The court did not abuse its discretion by refusing to grant a 


       Rogers argues that the prosecutor improperly appealed to the jurors' passions by 

suggesting that he would have continued to kill or injure people if he had not been 

apprehended by the police. This argument arises from a slide in   the   State's rebuttal 

PowerPoint presentation that indicated Rogers had "35 bullets left," and the following 

rebuttal argument: 

                     Ladies and gentleman, don't be fooled into believing 

              that absurd positions advocated during the defense closing 

              somehow impact Mr. Rogers' culpability for the crimes that 

              he actually committed.    There are lots of reasons that folks 

              commit crimes. We heard a number of them in this case. The 

              defendant, whether fueled by anger or a thrill or voices or 

              whatever his motivation might have been in Palmer, once he 

              left Palmer he had nothing left to lose. He kept on going as 

              long as he could. He kept on going. He expended a lot of 

              rounds.  And folks, he had thirty-five more bullets left. They 

              were in his pockets. They were at the ready. 

Rogers objected to the slide, and after the prosecutor completed her rebuttal, Rogers asked 

for a mistrial based on the remarks about the thirty-five bullets and other comments, 

                                           -  19 -                                     2361

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discussed below, that he claimed disparaged his defense. Rogers argued that the "clear 

implication" from the reference to the thirty-five bullets was that "he was ready to continue 

going to do more, to break more laws, to do things, aren't we lucky we caught him?" In 

the event the mistrial motion was denied, Rogers asked for an instruction "that these acts 

of misconduct should be held against the State." The court denied both requests. 

                 The superior court ruled that the prosecutor's remarks about the thirty-five 

bullets were relevant to Rogers's state of mind: 

                 If it does prove to the jury that the defendant was ready to 

                 continue   to   commit   crimes,   it   seems   to   me   that's   actually 

                 pretty strong evidence of his potential - not his potential, of 

                 his state of mind regarding the potential that he had an intent 

                 to kill a police officer at the scene, and so I don't think there's 

                 anything   that   is   outrageous   about   commenting   on   it.   It's 

                 actually the evidence that's in the case and it would be a fair 

                 conclusion for the jury to draw. 

                 There was no dispute at trial that Rogers had a revolver with five bullets in 

it at the time he was apprehended. Any marginal relevance the additional thirty-five bullets 

had    to  Rogers's   intent   to   shoot   a   police   officer   was   probably   outweighed      by   the 

argument's potential to distract the jury from its duty to decide the case impartially based 

on the evidence.44 The clear implication from the prosecutor's argument was that Rogers 

intended     to  continue     his  shooting    spree   until   he  either  ran   out   of  bullets  or  was 


                 The State argues that evidence of the thirty-five bullets was admissible to 

show that Rogers's shootings were not accidental. But there was never any argument or 

evidence that the shootings were accidental. The only dispute with respect to Rogers's 

intent was whether he intended to kill his victims - not whether he intended to shoot 


        44  See United States v. Ayala-Garcia , 574 F.3d 5, 8, 18 (1st Cir. 2009). 

                                                  - 20 -                                                2361 

----------------------- Page 21-----------------------

                 But even if the prosecutor's reference to the thirty-five bullets was improper, 

we conclude that the court did not abuse its discretion by denying the motion for mistrial 

on this ground because it is obvious that the evidence did not prejudice Rogers. The jury 

acquitted   Rogers   of   the   charge   of   attempting   to   kill   a   police   officer.   This   acquittal 

demonstrates that the jury was not unduly swayed by the prosecutor's suggestion that 

Rogers intended to keep shooting until his ammunition was spent. 

                 Rogers also argues that the prosecutor improperly disparaged his defense 

by characterizing it as "absurd," a "fiction," and a "smoke  screen," and by arguing that 

the   jurors   should   be   "offended"   by   the   suggestion   by   Rogers's   attorney   in   closing 

argument that the police officers lied in their testimony. 

                 Rogers objected to the prosecutor's remark that the jury should be "offended" 

by the defense assertion that the police officers lied in their testimony. Following that 

objection, the prosecutor clarified her comment: 

                 No one's here suggesting to you, ladies and gentlemen, that 

                 the defense isn't entitled to stand up and make an argument 

                 on behalf of the defendant. But if you find those arguments 

                 wanting,   if   you   find   those   arguments   unsupported   by   the 

                 evidence,   if   you   find   those   arguments   fly     in  the   face   of 

                 everything that you saw and heard in this case, yes, you are 

                 entitled to be offended by those. 

Rogers   objected       again,   but   the  objection    was   overruled.   He     later  argued    that  the 

prosecutor's remarks supported his requests for a mistrial or a curative instruction. 

                 On appeal, Rogers renews his claim that the prosecutor's argument that the 

jurors should be "offended" by the suggestion of Rogers's counsel that the police officers 

lied was an improper attempt to "bolster the police officers' testimony by suggesting that 

a criminal defendant never has a right to challenge inconsistencies in testimony." This 

claim fails in light of the prosecutor's clarifying remarks. Those remarks made clear that 

the defense was entitled to attack the State's case, and that the jury could reject the defense 

                                                   - 21 -                                              2361

----------------------- Page 22-----------------------

arguments if they were unsupported by the evidence. They   also   made clear that the 

prosecutor was not offering her personal assessment of the officers' credibility or relying 

on information that had not been presented as evidence at Roger's trial.45 

                 Rogers argues that the prosecutor's attacks on his defense as "absurd," "a 

fiction," and a "smoke  screen" "served no other purpose than to delegitimize Rogers's 

attacks on the prosecution's evidence." This claim presents a closer issue. In  Williams 

v. State, we addressed a plain error claim that the prosecutor engaged in misconduct by 

characterizing the defense as "red herrings" in final argument.46 We found no plain error 

because "the challenged remark did not purport to disparage the legitimacy of any legal 

theory   or   defense   asserted   by   Williams;   rather,   it   was   directed   at   the   substance   of 

Williams' testimony and amounted simply to an argument that Williams' version of events 

was not credible."47 

                 In reaching that decision in Williams, we contrasted a Maine case, State v. 

McDonald , where the prosecutor characterized the defendant's claim that he was legally 

insane, because he committed the offense in an alcoholic blackout, as a "very common 

excuse."48     The   prosecutor   also   dismissed   the   evidence   submitted   by   the   defendant 

concerning his mental state as "red herrings" and "smoke screens."49 In reversing the 

defendant's conviction, the Maine court declared that the prosecutor's remarks were 

        45  See Lampley v. Anchorage, 159 P.3d 515, 521 (Alaska App. 2007).

        46   789 P.2d 365, 369 (Alaska App. 1990).

        47  Id.

        48   472 A.2d 424, 425 (Me. 1994);  Williams, 789 P.2d at 359.

        49  McDonald , 472 A.2d at 425.

                                                  - 22 -                                             2361

----------------------- Page 23-----------------------

"clearly designed to awaken in the jury a suspicion that the defenses were merely a 

subterfuge employed by the defendant to evade responsibility for his acts."50 

                 In Rogers's case, the prosecutor was not simply challenging the credibility 

of Rogers's version of events when she characterized his defense as a "fiction" and a 

"smoke screen"; she argued that Rogers's attacks on the State's case were not legitimate 

defenses but rather distractions aimed at shifting the jury's focus from the real issues of 

the case to what (according to the prosecutor) were unfounded claims of police misconduct 

and irrelevant inconsistencies in the State's evidence. On the other hand, as we already 

noted, the prosecutor also made clear that the defense had a right to attack the State's case 

in   this   manner   -   and   that   the   jury   should   reject   those   arguments   if   they   were   not 

supported by the evidence. 

                 The prosecutor's rebuttal came in response to defense argument repeatedly 

accusing the prosecutor of distorting the evidence, including on issues that could only 

be viewed as tangential - whether the police knew at the time they interviewed Rogers 

that he had been caught on a security video buying a beer at Brown Jug, whether Rumsey 

was wearing a hat at the time she was shot, or whether a particular officer arrived at the 

scene of Rogers's arrest first. Although the prosecutor no doubt spoke too strongly when 

she   characterized   Rogers's   defense   as   "absurd"   and   a   "fiction,"   there   was   nothing 

impermissible about her underlying point: that none of Rogers's attacks on the State's 

evidence undercut his culpability for the charged crimes.51 

                 We conclude that Judge Aarseth did not abuse his discretion by denying 

Rogers's motion for a mistrial. We also conclude that the court acted within its discretion 

by denying Rogers's request to instruct the jury "that these acts of misconduct should be 

        50  Id. at 426. 

        51  See People v. Hicks, 427 N.E.2d 1328, 1331 (Ill. App. 1981); People v. Griggs , 

366 N.E.2d 581, 583 (Ill. App. 1977). 

                                                  - 23 -                                                2361 

----------------------- Page 24-----------------------

held against the State." Because Rogers has not shown that the prosecutor made any 

improper argument that undermined the fairness of his trial, we find no merit to his claim 

that   his   convictions   should   be   reversed  based   on   the   cumulative   prejudice   of   the 

prosecutor's remarks. 


                We AFFIRM the superior court's judgment. 

                                               - 24 -                                           2361

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