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Mistrial may be in the making

Judge gives continuance over evidence discovery issues

Posted: Monday, February 12, 2007

The murder trial of Shawn Rogers nearly came to a halt Friday morning, but instead was temporarily delayed as attorneys and the judge sort through court rule violations alleged by the defense.

Rogers is the 33-year-old Kenai man charged with the shooting death of Brian Black, 43, of Beluga, in Fat Albert’s Tavern and Bunkhouse in Beluga in July 2004.

For the third time since the state began presenting evidence Wednesday, previously undisclosed information was brought to the attention of the accused, defense attorney Chuck Robinson said Friday.

Alaska court rules say any written or recorded statements and summaries of statements and the substance of any oral statements made by the accused need to be made known to the accused prior to trial in order to minimize surprise and allow for effective cross-examination.

On Thursday, Robinson told the court he learned that state witness Rex Hunter was going to testify to hearing Rogers say, “I’m sorry; it’s all my fault; I didn’t mean to do it,” on the night of the shooting.

The state’s first witness — Chuck Thome — testified Thursday that he saw Rogers “stick the gun in Hawkeye’s ribs,” also a newly discovered statement. Hawkeye is the nickname of the deceased.

As the trial resumed Friday morning, assistant district attorney Scot Leaders was handed a photocopy of an investigating Alaska State Trooper’s notes made the night of the shooting. Leaders immediately had additional copies made for the defense and the court.

Robinson said attorneys on both sides have been preparing for trial in the case for 2 1/2 years, and now is not the time to be bringing in new information.

Retired Anchorage Judge Larry Card, who is serving as judge pro-tem in Kenai Superior Court, described the incidences of late discovery as “a big deal.”

Speaking about Thome’s statement, Card said, “How it’s done is very critical to this case.”

“One option is a continuance,” Card said. “Mistrials are granted if the defense applies.

“If you wish to put on Sgt. (Barry) Wilson to see why you didn’t get these notes ... “ he said, not completing his sentence.

“What we need at this point, in the very least, is an order from the court to Mr. Leaders to produce any more discovery they have,” said Robinson.

Following a short recess, Robinson told the court the defense reserves any application for a mistrial and requested a continuance “at least until Monday.”

Card asked that the trooper be brought in first thing today to tell the court why his notes were not made available until now.

The judge also told Leaders to have the Kenai District Attorney instruct “whoever is in charge of the troopers here” to be sure all information is in the court.

During Robinson’s continued cross-examination of Thome, the defense attorney had Trooper Sgt. Dane Gilmore demonstrate how the bullet magazine is released from a .45-caliber semiautomatic pistol — the weapon used in the death of Black.

In his opening statement, Robinson had suggested the gun may have gone off during a struggle with the defendant, and was not actually fired by Rogers.

Card instructed jurors to report back to the court at 8:30 this morning.

Phil Hermanek can be reached at phillip.hermanek@peninsulaclarion.com.



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