The judge in the Shawn Rogers murder trial in Kenai denied a defense motion to acquit Rogers of the first-degree murder charge.
Jurors were put on hold for more than two hours Tuesday as lawyers presented the customary motion and arguments against it, and addressed a question about a defense expert witness who was scheduled to testify.
In arguing for acquittal, defense attorney Chuck Robinson said he thought the overwhelming evidence is that the shooting was accidental, either on the part of the victim himself or two bar patrons who the defense has argued were part of a struggle to disarm Rogers.
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, July 26, 2004.
Witnesses who testified earlier in the trial said Black and Rogers exchanged words at the bar, Rogers pulled a loaded .45-caliber handgun and pointed it at Black, Black pushed away from his bar stool and went and confronted Rogers, the gun went off twice and Black fell to the floor dead.
Assistant district attorney Scot Leaders rebutted Robinson’s motion Tuesday, saying numerous witnesses made statements that Rogers pointed the gun across the bar; Rogers shot Black; and Rogers fired two shots, one of which entered Black, killing him, while the other bullet fell to the floor.
The witnesses, according to Leaders, said Black and Rogers were the only two people in the corner of the bar where the shooting took place, Rogers was in control of the gun, and rather than holster the gun or get rid of it in some way, he shot.
“The evidence is sufficient to find the defendant guilty of murder in the first degree,” Leaders said.
Robinson countered, saying, “Evidence points to a struggle. The state has not brought evidence that the struggle did not have an effect on the discharge of the gun ... did not prove the intent of Mr. Rogers to kill Mr. Black which is required of the charge of murder in the first degree.”
Retired Anchorage Judge Larry Card, who is serving as judge pro-tem in the trial, said his job is to determine whether reasonable people could differ.
“The evidence is such that reasonable people could differ on whether the state did its job in proving ... the charges,” Card said.
“I must deny the motion,” he said.
Before Card called for the jury to come into the courtroom, Leaders raised a question about an expert witness the defense was planning to call to testify on Rogers’ behalf.
Unable to resolve the question quickly, Card ordered a recess, instructing Leaders and Robinson to work things out.
Their conference began at 8:41 a.m. and ended at 10:30.
As the jury entered, more than two hours after the time they were instructed to report to the court, Leaders said, “The state’s going to rest its case at this time.”
Robinson began the defense by calling Michael Lyman, a professor of criminal justice from Columbia, Mo., and author of seven books on criminal investigation.
After being accepted by the court as an expert witness, Lyman said it was his opinion the Alaska State Troopers failed to conduct a fair, impartial and thorough investigation, failing to include or exclude the possibility of an accidental shooting.
Lyman criticized the trooper investigation for failing to record who gave them a bullet found on the floor of the tavern and exactly where the bullet was found, having a witness hand them the gun he said he picked up and placed atop an unmounted door in the tavern entryway, failing to observe telltale signs of a struggle and failing to take fingerprints and harvest evidence of a gouge mark in the floor and a wood chip possibly caused by a gunshot.
He also said troopers failed to consider statements Rogers made, which were recorded on a 911 tape, regarding his innocence and similar statements he made to trooper Michael Henry while being taken to Wildwood Pretrial Facility after being arrested.
Referring to a phone call made to the Kenai District Attorney the night of the shooting, seeking advice on charges against Rogers, Lyman said, “I believe there was a rush to judgment in this case.”
The trial is expected to resume this morning at 8:30.
Phil Hermanek can be reached at phillip.hermanek @peninsulaclarion.com.
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