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Rogers retrial motion denied

Kenai man convicted of manslaughter will go to prison pending appeal

Posted: Tuesday, May 01, 2007

Shawn Rogers will remain in jail at least until the time the Alaska Court of Appeals reviews his case.

Superior Court Judge Larry Card, who served as judge pro-tem in Rogers’ trial, on Monday denied a defense motion for a retrial.

Rogers, 34, 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.

During the trial, Rogers’ defense argued that his gun went off when Black and other bar patrons tried to disarm him.

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

He can be sentenced to between five and 20 years in prison and fined no more than $250,000.

Last week, defense attorney Chuck Robinson argued that Rogers should be acquitted of the charge and asked Card to schedule a retrial specifically on the charge of manslaughter.

Robinson said when Rogers was indicted for first-degree murder, the defense was put on notice that he should defend himself against that charge, not the lesser charge of manslaughter.

Alaska criminal law allows juries to consider lesser included charges of second-degree murder or manslaughter if they cannot reach a unanimous verdict on first-degree murder.

Robinson argued that by giving the jury a special instruction about Rogers being a substantial factor leading to the death of Black, Judge Card confused the jury. Without the instruction, Rogers would be a free man, Robinson said.

Assistant district attorney Scot Leaders said circumstances that existed in this case do allow the substantial factor instruction.

He said the state never disavowed the theory that Rogers caused the death of Black, and “there’s no basis for a retrial.”

“There’s no injustice that’s been done; the state asks the court to deny the motion for a new trial,” Leaders said.

After taking the retrial motion under advisement over the weekend, Card apparently agreed.

“After careful review of the submitted documents as well as the oral argument of the parties, the motion is hereby denied,” he said in the court order signed Monday by Superior Court Judge Charles Huguelet for Card.

Sentencing on the class A felony manslaughter conviction has been rescheduled for 1 p.m. June 18 in Kenai Superior Court.

Rogers remains in custody at Wildwood Pretrial Facility.

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



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