Judge may grant retrial

Manslaughter would be up to new jury to decide

Posted: Friday, April 27, 2007

A judge in Kenai Superior Court will take the weekend to decide whether Shawn Rogers gets a new trial.

A defense motion to acquit Rogers of a manslaughter conviction was denied Thursday and Judge Larry Card took under advisement a motion for a retrial of the case involving a fatal shooting in a Beluga bar in 2004.

Rogers, 33, was convicted in March in the death of Brian Black, 43, of Beluga. Rogers was originally charged with one count of first-degree murder for allegedly shooting Black in Fat Albert’s Tavern and Bunkhouse on July 26, 2004.

A Kenai jury was unable to find beyond a reasonable doubt that Rogers intentionally shot and killed Black, convicting him instead of the lesser charge of manslaughter.

Card, who served as judge pro-tem in the trial, heard arguments from defense attorney Chuck Robinson and assistant district attorney Scot Leaders on Thursday and said, based on the standard that reasonable people can differ, he “must deny the motion for a judgment of acquittal.”

At the end of a 2 1/2-hour hearing on the two defense motions, Card said he would take the motion for a retrial under advisement, make his decision, and hopefully issue his ruling early next week.

“A horrible injustice occurred in this case,” Robinson said in presenting his motion for acquittal.

“Mr. Rogers was indicted for murder in the first degree; the indictment put him on notice for what he was to defend against,” he said.

When the state was unable to convince the jury beyond a reasonable doubt that Rogers was guilty of murder, the state changed its entire theory, saying Rogers recklessly contributed to the shooting of Black, according to Robinson.

He said Leaders opened the state’s case saying Rogers stuck the gun in Black’s side and pulled the trigger, and the state maintained throughout the trial that Rogers intentionally killed Black.

Robinson argued that the state did not have sufficient evidence to get a conviction on first-degree or second-degree murder, and at the end of the trial, asked for a jury instruction from the court that the jury could also consider the lesser included crime of manslaughter, because Rogers’ actions were a substantial factor leading to the death of Black.

The defense argued during the nearly six-week murder trial that Rogers’ gun went off, killing Black, while Black and other tavern patrons struggled to disarm Rogers.

“For the state to come in now and say he didn’t do the shooting ... we don’t operate that way,” Robinson said.

Leaders said it is not uncommon for prosecutors to present their arguments for the most serious of the crimes allowed by state statute.

To also argue for one of the lesser included charges would equate to selling the state’s own case short, he said.

In pleading for a retrial, Robinson said, “The court has made an error. The court can straighten this out without having to go to appeal and have Mr. Rogers sit in jail for two years waiting.

“In terms of justice, the court should grant Mr. Rogers a new trial on the charge of manslaughter,” he said.

Rogers is being held without bail as a convicted class A felon.

Citing numerous examples of Alaska case law, Leaders argued that circumstances that existed in the Rogers case do allow the substantial factors instruction the jurors received.

“We didn’t disavow the theory, we focused on the greater offense,” he said. “There’s no basis for a retrial.”

Card said it is always his intention to make decisions as quickly as possible, and said, “My goal is to get it out by the first of the week.”

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

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