Made available by Touch N' Go Systems, Inc. and
This was Gottstein but needs to change to what?
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 274-9493

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.

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

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


              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@  

                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                      



                                                                                                       Court of Appeals No. A-11300  


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


                                                                                                                    O   P   I   N   I   O   N  


                                                      Appellee.                                     No.  2568 -              September   15,  2017  



                              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  


                                                                 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                                                                                                                                                                                                            


                                                                 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                                                                                  


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  




                             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  



                                                                                                     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  



                                                                   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-----------------------


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  



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



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


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



                 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"  


recklessness that is equivalent to purposeful or knowing homicide."  


      1     AS 11.41.110(a)(2).



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


                                                                           - 9 -                                                                       2568

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights