MEMORANDUM OPINION
Star page 1*1 Daniel Alex Rocero was convicted, following a jury trial, of one count of second-degree murder and one count of tampering with physical evidence.1 Rocero now appeals his convictions, raising two claims.
First, Rocero argues that the prosecutor made several improper remarks during closing arguments. Because Rocero did not object to these statements, he must show plain error. Although we agree with Rocero that some of the prosecutor's statements were improper, we conclude that the statements, considered both individually and as a whole, do not constitute plain error.
Second, Rocero argues that his conviction for tampering with physical evidence constituted a fatal variance because the superior court's response to a jury question regarding the basis for this charge allowed the jury to convict him for a crime that was not presented to the grand jury. Having reviewed the record, we find no fatal variance. To the extent the claim is better understood as challenging the court's response to the jury question, to which Rocero did not object, Rocero has not established plain error.
We therefore affirm the judgment of the superior court.
Underlying facts and trial proceedings
On March 20, 2022, Pretrial Enforcement Department (PED) officers conducted a welfare check on Keenan Wegener after receiving multiple alerts from an ankle monitor he was wearing. The alerts indicated that Wegener was at a residential address and had not moved since the previous morning. When PED officers arrived at Wegener's location and made contact with the owner of the residence, Norma Reece, the officers could hear ankle monitor alerts coming from inside the garage.
The PED officers called the Anchorage Police Department for assistance, and a police officer arrived at the scene. With Reece's permission, the officers entered the house and then the garage, where they discovered Wegener's dead body inside a large tote, hidden behind a white sheet.
Based on an ensuing investigation, officers arrested Daniel Alex Rocero and Adam Pringle. Rocero and Pringle were each indicted on two counts of second-degree murder, one count of manslaughter, and one count of tampering with physical evidence.
The superior court severed Rocero's case from Pringle's, and Rocero's case proceeded to a jury trial.2
At Rocero's trial, the only eyewitness to the events immediately surrounding Wegener's death to testify was Cortni Brown. Brown received immunity in this case in exchange for her testimony. At the time of Wegener's death, Brown had been staying at Reece's house for about a week, making various repairs. Wegener had also been helping Reece out with tasks around her house, although he was not staying there.
Brown testified to periodically seeing Rocero and Pringle around Reece's house during the week leading up to Wegener's death. According to Rocero's former romantic partner, Rocero and Pringle knew each other and had been hanging out “for weeks” prior to then. Brown testified that there had been drug use going on in the house and that she was on drugs at the time she observed the events in this case. Brown also testified that she was facing felony drug charges at the time of trial, but that she had not been offered a plea deal or leniency in that case in exchange for her testimony in this case.
Star page 2*2 Text messages recovered from Rocero's phone revealed multiple outgoing texts and calls made to Pringle in the early morning of March 18, 2022. At 12:44 a.m., Rocero texted Pringle, “That guy that got you is here.” Rocero also sent follow-up messages to Pringle, including: “Call me back,” “Are you coming,” and then, at 1:30 a.m., “He is gone.” The State presented evidence from Wegener's ankle monitor location data showing that Wegener arrived at Reece's house at 12:41 a.m. on March 18 and left right before 1:30 a.m.
Brown testified that later that day, she was working downstairs in the garage at Reece's house when Pringle leaned into the garage and greeted her. She saw Wegener lean in behind Pringle and say something to him. Brown testified that Pringle then asked her for “something heavy,” and he grabbed a sledgehammer (described by Brown as a “homemade sledgehammer”) from the work bench between them. After the two men exited the garage, Brown heard “hysterical” barking coming from the dogs in the hallway.
According to Brown, she moved towards the hallway and observed Pringle swinging the sledgehammer at Wegener, who was lying on the ground on his back. Brown also saw one of the dogs biting Wegener as he lay on the ground. After pulling the dogs away, Brown observed Rocero standing over Wegener with his foot placed on Wegener's neck. Brown testified that Rocero was pressing his arm against his own knee, thus further applying pressure on Wegener's neck.
Brown went back into the garage. When she returned to the hallway minutes later, she observed Wegener's body by the doorway to the stairs, lying “kind of crooked on the floor on his back.”
Brown testified that she then joined Rocero, Pringle, and Reece upstairs in a discussion about whether Wegener was alive and whether they should take him to the hospital. According to Brown, Reece believed Wegener could not have survived “injuries like that” and suggested that they dispose of Wegener's body at Thunderbird Falls, but the group rejected that plan. Brown further testified that she observed Rocero wipe down the wall in the downstairs hallway.
Brown also testified that when she was initially interviewed by the police after the incident, she denied that she had witnessed anything happen to Wegener. She failed to identify Rocero in a photo line-up. However, during subsequent police interviews, Brown told the police more information regarding Wegener's death. She also testified at trial that she had lied to the police during her initial interviews and omitted “as much as [she] could.”
The State presented the testimony of the medical examiner who performed an autopsy on Wegener. The medical examiner testified that Wegener had suffered blunt force injuries to his scalp, forehead, and face, as well as to his torso and extremities, and that his eyes had petechial hemorrhaging, which indicated that there had been pressure to the neck area and asphyxiation. The medical examiner also testified to his opinion that Wegener's neck contained a patterned imprint, consistent with a shoe print. He testified that it was “possible” that some of Wegener's injuries resulted from dog bites but that he did not see anything suggesting that. The medical examiner concluded that the primary cause of Wegener's death was “blunt force injuries of the head and neck with probable traumatic asphyxia.”
The State introduced surveillance videos of Reece's house, which placed Rocero at that location when Wegener was attacked. A DNA analysis of the scene revealed Rocero's DNA on two stains on Wegener's clothes and Wegener's DNA on the hallway door by the garage.3 In the garage, the police found the sledgehammer Brown had described.
Star page 3*3 In his opening statement, defense counsel asserted that Wegener, who was highly intoxicated at the time, entered Reece's house and fell down the stairs, hitting a door at the bottom. But following Brown's testimony about the dog biting Wegener and the medical examiner's testimony that it was possible some of Wegener's injuries resulted from dog bites, Rocero filed a notice of rebuttal expert. Rocero informed the court outside the presence of the jury that he was adapting his defense theory to include dog bites as a cause of Wegener's injuries and that he wished to present the testimony of an expert on dog bites and dog behavior.
The defense expert testified and opined that most of Wegener's injuries, including the markings on his neck, were caused by dog bites or scratches. The expert witness also testified to his opinion that the dogs in the house were territorial and had attacked Wegener as he entered the house, causing him to fall down the stairs.4
In rebuttal, the State recalled the medical examiner, who again testified that, while some of Wegener's injuries could have been caused by dog bites, others (like the petechiae on Wegener's neck) were inconsistent with dog bites.
In closing, the State argued that Pringle beat Wegener with a sledgehammer and Rocero asphyxiated him by applying pressure to his chest and neck. The State argued that Rocero was guilty of second-degree murder under either a principal or accomplice theory. The State also argued that Rocero was guilty of tampering with physical evidence for wiping blood off of the wall. In contrast, Rocero argued that Wegener was drunk and high and had died after being attacked by dogs, falling down the stairs, and hitting his head on the door.
The jury found Rocero guilty of all four counts. The superior court merged the two second-degree murder verdicts and the manslaughter verdict into a single conviction for second-degree murder. Rocero was therefore convicted of second-degree murder and tampering with physical evidence.
Rocero's claims of error regarding the prosecutor's closing argument
Rocero first argues that the prosecutor made a number of improper statements during closing argument and rebuttal that denied him a fair trial. Rocero argues that these comments fall into three categories: (1) improper statements about Rocero's appearance, (2) statements improperly vouching for a witness's credibility, and (3) statements denigrating the defense theory and defense counsel. Rocero further asserts that the cumulative effect of these comments prejudiced him and that his convictions must therefore be reversed.
Because Rocero did not object to these comments at trial, he must show plain error. Plain error is an error that “(1) was not the result of intelligent waiver or a tactical decision not to object; (2) was obvious; (3) affected substantial rights; and (4) was prejudicial.”5
The prosecutor's statements about Rocero's appearance
As we noted above, the tampering with physical evidence charge was based on the allegation that Rocero wiped down the blood in the hallway. During closing argument, defense counsel contested this charge, arguing, “There's no evidence that these guys cleaned anything. They look like cleaners? They're not cleaners. These guys don't clean.”
In rebuttal, the prosecutor responded directly to this argument and said that Rocero did not “look like a cleaner” and instead “look[ed] like a murderer”:
[Defense counsel] told you that they don't look like cleaners. I agree. I mean, he doesn't look like a cleaner. He certainly didn't do a very good job of cleaning up. He does look like a murderer. [Defense counsel] said he's scary.6 The evidence shows he's a murderer. The evidence is what makes him look like a murderer.
Star page 4*4 On appeal, Rocero argues that the prosecutor's comment that Rocero “does look like a murderer” was irrelevant and inflammatory.
We agree with Rocero that it was improper for the prosecutor to argue that Rocero “does look like a murderer.” A prosecutor is prohibited from “expressing a personal belief as to the evidence, from making appeals calculated to inflame passions and prejudices of the jury, and from advancing arguments based ... on issues other than the guilt or innocence of the accused.”7 Specifically, a prosecutor should not make arguments meant to appeal to the prejudices of the trier of fact.8 Suggesting that Rocero looked like a murderer had the potential to inflame the prejudices of the jury and advance an argument that Rocero should be found guilty based on his appearance and not based on the evidence.9
But the prosecutor appeared to recognize the impropriety, immediately couching his remark in the evidence of the case.10 In particular, after saying, in response to defense counsel's argument, that Rocero does not look like a cleaner but instead “look[s] like a murderer,” the prosecutor said, “The evidence shows he's a murderer. The evidence is what makes him look like a murderer.” Rocero was charged with murder, and the prosecutor could properly argue that the evidence supported a conclusion that Rocero committed the murder of Wegener. Indeed, if Rocero had objected, the superior court likely would have given a curative instruction telling the jury that it should look solely to the evidence in the case to determine Rocero's guilt. In context, the prosecutor's remark was “isolated and not so inflammatory” that it was “likely to lead the jury to decide the case based on improper factors.”11
Star page 5*5 Rocero acknowledges on appeal that, in context, this argument on its own does not constitute plain error. Rather, Rocero argues that, when considered cumulatively with the prosecutor's other comments, it rendered Rocero's trial fundamentally unfair.
We therefore proceed to address Rocero's remaining challenges to the prosecutor's closing argument.
The prosecutor's statement regarding Brown's credibility
Rocero also argues that the prosecutor improperly vouched for the credibility of the State's principal witness, Brown. Specifically, Rocero challenges the following statement made by the prosecutor during rebuttal argument: “I don't think that the way [Brown] acted on that stand, just the complete, heartbroken, heartbreaking testimony that she provided over the course of two days, indicates that she was doing this because she thinks that she's going to get some sort of favor.” Rocero argues that this statement was particularly inappropriate because there were reasons to doubt the veracity of Brown's testimony, such as the inconsistencies between her original statements to the police and her testimony at trial.
A prosecutor is prohibited from expressing their personal belief as to the reliability of a witness.12 Vouching for the credibility of a witness may give the impression that there is evidence known to the State that was not presented at trial.13 However, a prosecutor may certainly comment on the credibility of witnesses if the comments are “based on the evidence and facts properly before the jury.”14
The prosecutor's statement about Brown did not give the impression that there was any evidence known to the State regarding Brown's credibility that was not presented at trial. Although the prosecutor used the first person, his underlying argument was that Brown's demeanor, which the jury observed for itself throughout Brown's testimony, lent her testimony credibility.15 And immediately following the statement, the prosecutor referred directly to Brown's testimony, noting that “she's not expecting to get any sort of deal in connection for her testimony” (presumably referring to Brown's testimony that she had not received a plea offer in her pending drug case in exchange for her testimony).
Moreover, the prosecutor made clear that it was the jury's role to evaluate Brown's credibility. He prefaced the disputed remark by directly telling the jury: “Ladies and gentlemen, her credibility is a big issue for you to consider in this. You have to make a credibility determination.” And throughout his closing argument, he discussed the factors the jury should consider in evaluating Brown's credibility, including Brown's attitude and behavior on the stand, and argued that the evidence at trial supported the conclusion that her testimony was credible.
Star page 6*6 We therefore reject Rocero's claim that the prosecutor improperly vouched for Brown's credibility.
The prosecutor's statements about the defense and the defense expert witness
Finally, Rocero argues that the prosecutor's statements throughout his closing argument delegitimized the defense and personally attacked defense counsel. Rocero contends that the prosecutor did this by arguing that defense counsel colluded with the defense expert to present perjured testimony.
We have 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’ of the legal theory or defense asserted by the defendant.”16 A prosecutor may not make statements suggesting that the jury should consider their personal opinion of defense attorneys and the defense strategy.17 Rather, “closing arguments must be restricted ‘to the evidence presented at trial and the inferences that may fairly be drawn therefrom.’ ”18
We agree with Rocero that the prosecutor's choice of words was at times imprudent. For example, the prosecutor's repeated assertion that defense counsel “spoon fed” the defense theory to the defense expert had the potential to disparage the legitimacy of the defense theory. And the prosecutor's assertion that the defense's arguments amounted to “blowing smoke to cover up what happened” risked impugning counsel personally.
But the statements need to be understood in context. From the argument as a whole, it is clear that the prosecutor was grounding these assertions in his overall argument that there was little to no evidence — aside from the defense expert's testimony — to support the defense theory.
Moreover, this case was unusual in that defense counsel expressly told the jury in closing argument that “the trial defense literally changed during trial” after he heard Brown's testimony and determined that dog bites had caused Wegener's injuries. The defense expert testified that, prior to his review of the case, he “was told” by defense counsel that dogs had attacked Wegener before he fell down the stairs, and he acknowledged that he did not hear any other witness testify to that version of events. While the expert testified that he did his own independent review of the photographs, reviewed the medical examiner's report, and did not reach his conclusion based only on what defense counsel told him, he also stated that he had not listened to the testimony of the medical examiner and had no experience evaluating hammer wounds. In short, the prosecutor was not plainly disparaging the legitimacy of Rocero's defense theory generally, but the lack of evidence to support it.
As part of his claim that the prosecutor improperly disparaged defense counsel and the defense expert, Rocero also takes issue with the prosecutor stating during rebuttal, “That's essentially what this comes down to is ‘let's create reasonable doubt by making things up.’ ” As an initial matter, we note that Rocero challenges this comment as if it were made in reference to the defense expert, but this comment was made in a different context — challenging defense counsel's assertion in closing argument that the owner of the dogs was partially to blame for Wegener's death, when there was no evidence that the dogs’ owner was even present at the scene.19
Star page 7*7 In any event, while the statement was certainly inartful in that it could be interpreted as accusing defense counsel personally of “making things up,” as opposed to simply noting inconsistencies between the defense arguments and the evidence, the prosecutor made the statement at the end of a series of responses to the defense closing in which the prosecutor pointed out inconsistencies between the arguments and the evidence. And immediately after making the statement, the prosecutor told the jury that it was “[their] job ... to look at the evidence that has actually been presented, not speculative theories that don't follow along with that evidence.”
As we noted previously, defense counsel did not object to the prosecutor's argument, or seek a cautionary instruction. And, when considered within the broader context of closing argument, Rocero has not established that these statements constitute plain error.
The prosecutor's statements in closing argument, taken as a whole, do not constitute plain error
Rocero argues that the cumulative effect of the improper statements rendered his trial fundamentally unfair, requiring reversal.20
We disagree. The statements regarding Rocero's appearance and Brown's credibility were brief and isolated comments, and in both instances, the prosecutor referred the jury back to the evidence and to their role as factfinders. The prosecutor used problematic language with respect to the defense theory but his overarching argument was grounded in the evidence presented throughout trial and not plainly the prosecutor's personal opinion of defense counsel or the defense theory.21 And here again, the prosecutor emphasized the jurors’ role as factfinders.
The superior court also instructed the jury on its role as factfinders. Specifically, the court instructed the jury that they could not consider the arguments of counsel as evidence and that they were the “sole judges of the credibility of the witnesses.”22
When viewing the disputed statements in the context of the closing arguments as a whole and the evidence presented at trial, we conclude that Rocero has not established that the arguments were prejudicial and constituted plain error entitling him to reversal of his convictions.
Rocero's claim that his evidence tampering conviction suffered from a fatal variance
Rocero next challenges, as a fatal variance, his conviction for tampering with physical evidence, arguing that the jury convicted him of a different act of evidence tampering than that presented to the grand jury.
At the grand jury proceeding, the State presented evidence that Rocero had cleaned up blood in the hallway where Wegener was attacked as the basis for the evidence tampering charge. The prosecutor instructed the grand jury that Rocero should be indicted on this charge if he knowingly “destroyed, mutilated, altered, suppressed, concealed, or removed physical evidence with intent to impair its verity or availability in an official proceeding or a criminal investigation.” The grand jury indicted Rocero.
At trial, the State again relied on evidence that Rocero wiped down the hallway as the basis for the evidence tampering charge. In his opening statement and closing argument, the prosecutor explained that the tampering charge “is based off the cleanup” and “comes from the wipe-down that ... Brown testified about.”
Star page 8*8 The elements instruction for the evidence tampering charge (Instruction No. 23) stated:
To prove that the defendant committed this crime, the State must prove beyond a reasonable doubt each of the following elements:
1) the defendant knowingly destroyed, mutilated, altered, suppressed, concealed, or removed physical evidence; and
2) the defendant did so with the intent to impair the physical evidence's verity or availability in an official proceeding or criminal investigation.
During jury deliberations, the jury sent the following question to the superior court: “If [Rocero] was involved in the [a]lledged [sic] crime, [b]y not preventing the ‘planned’ [d]isposal of [Wegener's] body[,] [d]oes this fact constitute grounds for satisfying the terms of Count #4” (the evidence tampering charge)?
The court convened to discuss an appropriate response to the jury's question. Defense counsel stated, “I think the obvious answer is ‘no,’ but they — seems like they could figure that out.” The court and the parties agreed that the court could not tell the jurors outright that they were prohibited from considering that conduct as the basis for evidence tampering. (As we discuss below, the court could have — and should have — directly answered this question.)
The court ultimately concluded that its response to the jury's question should direct the jury back to the elements instruction for the evidence tampering charge. The court reasoned that the language of the elements instruction required the jury to determine whether the defendant had “proactively tak[en] steps, not just st[ood] by passively,” and thus the answer to the jury's question was “pretty clear from the instruction itself.” Both parties agreed with the court's plan.
The court thus responded to the jury's question: “The court refers you to instruction No. 23 for guidance. It is up to you the jury, as finders of fact, to determine whether or not the [S]tate has proved each element of the crime of Tampering with Physical Evidence beyond a reasonable doubt.” The court received no further questions regarding the evidence tampering charge, and the jury returned a guilty verdict on this count.
On appeal, Rocero argues that the jury convicted him of evidence tampering based on an act different than the one for which he was indicted by the grand jury — failing to prevent the planned disposal of Wegener's body rather than wiping down blood in the hallway — constituting a fatal variance.
Rocero did not preserve this claim in the superior court. In fact, Rocero readily agreed the jury could “figure ... out” on their own that they could not consider the failure to act as the basis for the evidence tampering charge, and the parties agreed that, in response to the jury's note, the court should just refer the jury back to the elements instruction. Rocero must therefore show plain error.23
The doctrine of fatal variance protects a defendant's right to a grand jury finding on every essential element of the offense.24 Generally, “it is improper to convict a defendant based on evidence that is materially different from the evidence that supported the grand jury indictment.”25 Reasonable variations are permitted so long as the evidence is not materially different and involves the same basic criminal act or transaction that was considered by the grand jury in issuing the indictment.26
Star page 9*9 Here, the evidence and elements of the charge presented to the trial jury were the same as those presented to the grand jury.27 The State repeatedly directed the jury to only consider whether Rocero wiped down blood in the hallway as the basis for the evidence tampering charge, just as it had directed the grand jury. The court also referred the jury back to the elements instruction for guidance on the tampering charge. This instruction stated that the jury must determine whether Rocero “knowingly destroyed, mutilated, altered, suppressed, concealed, or removed physical evidence” and thus directed the jury to determine whether Rocero took affirmative action with respect to the physical evidence, not whether he failed to intervene to prevent an act (the planned disposal of Wegener's body) that never happened. This jury instruction was also consistent with how the State instructed the grand jury to consider the charge. We find no obvious “departure in the proof from the indictment sufficiently great to be regarded as a constructive amendment.”28
In its brief, the State contends that this issue is better understood as a claim of error regarding the court's response to the jury's question. Without withdrawing his fatal variance claim, Rocero adopts the State's framing of the issue in his reply brief.
We tend to agree with the State that this issue is better understood as a jury instruction error. But as we noted, Rocero does not raise this claim in his opening brief; it is raised for the first time by the State in its brief. Moreover, both the parties and the court concluded that directing the jurors back to the elements instruction would allow them to reach the proper conclusion that they could not consider Rocero's purported failure to “prevent[ ] the ‘planned’ disposal” of Wegener's body as a basis for their verdict.29 It is difficult to find that Rocero was manifestly prejudiced when his own attorney recognized that the jury could “figure [this] out” on their own.”
We note, however, that we disagree with the apparent belief by the superior court and the parties that the court was precluded from simply saying “no” to the jury's question as to whether Rocero's alleged failure to prevent the planned disposal of Wegener's body could form the basis for the evidence tampering charge. When the jury is confused about a legal issue, the trial court has “a ‘responsibility to give the jury the required guidance.’ ”30 Here, the State elected a single act as a basis for the evidence tampering charge — Rocero's alleged act of wiping down blood. Indeed, the prosecutor told the jury during closing argument that, “even if you think that there are other things that would support a tampering charge in this case, you are only able to find [him] guilty if you determine that Daniel Alex Rocero was cleaning up the blood.”
The court should have instructed the jury that a different act — i.e., the failure to prevent the “ ‘planned’ [d]isposal” of Wegener's body — could not constitute the basis for finding Rocero guilty of tampering with physical evidence. This posed no risk of the court making an implicit factual comment on the evidence; it would simply have recognized, as a legal matter, that Rocero had no notice of that conduct as the basis for the charge.31 Furthermore, there was no factual unanimity instruction requiring the jury to unanimously agree on which of the two separate acts formed the basis for the offense.32
Star page 10*10 However, under the circumstances of this case (and to the extent this claim is even sufficiently raised on appeal), we conclude that failing to more directly respond to the jury's question and instead referring the jury back to the elements instruction was not plain error.33
Conclusion
The judgment of the superior court is AFFIRMED.