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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA


DEVIN M. ROSSITER,
                                                       Court of Appeals No. A-11300
                            Appellant,                Trial Court No. 1KE-11-197 CR

                     v.
                                                              O P I N I O N
STATE OF ALASKA,

                            Appellee.                 No. 2568 — September 15, 2017



              Appeal 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).
               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
cigarettes.
               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
knife.
               Based on this incident, Rossiter was indicted for second-degree murder and
tampering with evidence. 1 At his trial, Rossiter’s attorney argued that Rossiter should


   1
         AS 11.41.110(a)(1)-(2) and AS 11.56.610(a)(1), respectively.

                                            –2–                                      2568

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. 2
              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
charge.
              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

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

                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
Stachelrodt”:

                        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

       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

             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
             argument.

             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

of the legal theory or defense asserted by the defendant. 4 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
his acts.” 5 This is not permitted.
              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
murder.




   4
       See Williams v. State, 789 P.2d 365, 369 (Alaska App. 1990).
   5
       State v. McDonald, 472 A.2d 424, 425-26 (Me. 1994), discussed in Rogers v. State,
280 P.3d 582, 594 (Alaska App. 2012).
   6
       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

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
human life” 1 — i.e., that Rossiter’s actions constituted “the type of heightened
recklessness that is equivalent to purposeful or knowing homicide.” 2




   1
       AS 11.41.110(a)(2).

   2
       Jeffries v. State, 169 P.3d 913, 917 (Alaska 2007).


                                           –9–                                     2568

