Sanders v. State , 364 P.3d 412 ( 2015 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
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THE SUPREME COURT OF THE STATE OF ALASKA
RYAN JOHN SANDERS, )
) Supreme Court No. S-15403
Petitioner, ) Court of Appeals No. A-10943
)
v. ) Superior Court No. 3AN-07-00018 CR
)
STATE OF ALASKA, ) OPINION
)
Respondent. ) No. 7058 – October 9, 2015
)
Petition for Hearing from the Court of Appeals of the State of
Alaska, on appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage, Michael Spaan,
Judge.
Appearances: Michael Schwaiger, Assistant Public
Defender, and Quinlan Steiner, Public Defender, Anchorage,
for Petitioner. Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions & Appeals,
Anchorage, and Michael C. Geraghty, Attorney General,
Juneau, for Respondent.
Before: Fabe, Chief Justice, Stowers, Maassen, and Bolger,
Justices, and Matthews, Senior Justice.* [Winfree, Justice,
not participating.]
FABE, Chief Justice.
BOLGER, Justice, with whom STOWERS, Justice, joins,
dissenting in part.
*
Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
I. INTRODUCTION
A criminal defendant on trial for two murders sought to admit a recording
of a phone call to the police, placed by a young woman who had since died. On the
recording, the young woman told a police officer that one of the victims had told her that
both victims were conspiring to attack and rob the defendant. In support of his motion
to admit the recording, the defendant argued that the recording was critical to his
defense, which centered on justified self-defense and heat of passion. The defendant
invoked the hearsay exceptions for a declarant’s then existing state of mind, an
unavailable declarant’s statement against penal interest, and the residual exception for
unavailable declarants, as well as his constitutional right to present a defense. The
superior court denied the motion. The jury, presented with no evidence of the alleged
conspiracy to attack and rob the defendant, convicted him of first- and second-degree
murder. He appealed, and the court of appeals affirmed his conviction.
We granted the defendant’s petition for hearing to decide whether the
deceased witness’s statement should have been admitted at trial. We conclude that it
should have been admitted, and we therefore reverse the defendant’s convictions and
remand for a new trial.
II. FACTS AND PROCEEDINGS
A. Facts
1. The incident
On New Year’s Eve 2006, Ryan Sanders shot and killed Travis Moore and
Ashlee Richards at his home. Sanders had invited Moore to a gathering at Sanders’s
apartment after Moore called him several times that evening. Moore arrived in an SUV
with Richards, Raven Ketzler, and his girlfriend, Sherrell Porterfield. Moore, who was
carrying an unloaded 9mm caliber Beretta pistol, entered Sanders’s apartment with
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Porterfield and Richards, who was carrying a push knife.1 The three left a machete in
their SUV along with Ketzler, who did not come into Sanders’s apartment during the
more than thirty minutes the other three were inside. Nine people were present in
Sanders’s apartment: Sanders; Moore; Richards; Porterfield; Sanders’s brother, Joseph;
Sanders’s one-year-old daughter; Sanders’s girlfriend, Melissa; Sanders’s girlfriend’s
brother, Jeremy; and Jeremy’s girlfriend, Mary Jane.
According to Sanders’s statement to the police, he was talking in his
bedroom with his brother and Moore when Moore pulled out his Beretta and hit
Sanders’s head with it, splitting open the skin above his eyebrow. Sanders fell to the
ground between his bed and the wall, reached for a nearby .38 caliber revolver, and shot
at Moore four or five times. Two bullets struck Moore. According to Sanders, everyone,
including Moore, ran from the shots. Moore collapsed and died outside the apartment
alongside the walkway leading to the front door.
Sanders, who claimed he was unsure whether he had hit Moore, grabbed
a .40 caliber Glock semi-automatic handgun and ran outside. He saw “a black coat with
fur on it running towards [the] SUV” and remembered that Moore had been wearing a
“big black jacket” with fur on it. Sanders stated that he pursued and shot at the running
person, not noticing Moore’s body as he ran past it. The running person was Richards.
Sanders shot Richards nine times, and a tenth bullet grazed her hand. Richards was
pronounced dead at the hospital.
Sanders claimed that he stopped shooting after Richards fell and that he was
five to ten feet away. Forensic evidence and some witness testimony, however,
suggested that some shots were fired into Richards after she fell. Sanders also stated that
1
A push knife is a weapon designed to be grasped so the blade sticks out
from the front of the fist. See People v. Owens, 2d Crim. No. B248606, 2014 WL
3667199, at *1 n.3 (Cal. App. July 24, 2014).
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he did not realize that he had been shooting at someone other than Moore until after it
was over, when he approached Richards and saw her hair and then saw Moore’s body
for the first time while returning to the apartment. Richards was an overweight
Caucasian woman with hair past her shoulders. Moore was a fit African-American man
with short-cropped hair.
Back in his apartment, Sanders put down his Glock and waited. Before the
police arrived Sanders asked his girlfriend’s brother, Jeremy, to get the .38 out of the
apartment. Jeremy hid the .38 in a parking lot underneath a car, where the police later
found it.
The first police officer arriving on scene had to swerve to miss the SUV in
which Moore arrived and which was pulling out of the driveway. After stopping for a
moment when it almost hit the first officer’s car, the SUV continued to try to leave. The
second officer to arrive blocked the street, stopping the SUV from leaving.
Sanders, holding a “really bloody” towel to his head, told the first officer
that he had been hit in the head with a pistol and then shot two people and that his Glock
was inside on the coffee table. While being questioned later at the police station, Sanders
denied that any weapons other than a disassembled rifle, Moore’s Beretta, and Sanders’s
Glock had been in the apartment. When the police stated that someone had gotten rid of
a gun and they had recovered it, Sanders then admitted that the .38 was involved and that
he had asked Jeremy to remove it from the apartment. Sanders said that he did so and
lied about it only because he had recently bought the .38 under questionable
circumstances. Sanders also stated that he had no idea why Moore attacked him, but that
Moore and Joseph, Sanders’s brother, had “real problems” because some people,
including Joseph, had been at Moore’s house and “some money [came] up missing.”
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2. Carmela Bacod’s statement to the police
Two days after the shootings Detective Mark Huelskoetter, the lead
detective in the case, received a phone call from Carmela Bacod, which he recorded.2
The 17-year-old Bacod described a series of events stretching back “about two weeks
now,” which had started when “Ryan Sanders, he stole money from one of our friends.”
She explained that Richards had been her best friend since third grade, that she had
known Moore “for a couple months,” and that she had met Ketzler once. She stated that
she had never met Sanders. Bacod reported that she “was supposed to go with them to
their house . . . that night,” and correctly stated that Ketzler and Porterfield, both of
whom she physically described, had been present along with Moore and Richards.
Bacod described a phone call with Richards “about a week and a half ago,”
in which Richards told Bacod that Richards, Moore, Ketzler, and Porterfield had been
hanging out with Sanders one night when they all fell asleep and woke up to discover
Sanders gone, along with money that had belonged to Ketzler. Bacod told Detective
Huelskoetter that “they wanted to go beat him up to get the money back,” and that
“Ashlee [Richards] just told me that they wanted the money back, and then they were
gonna jump ‘em for it.” Bacod also told Detective Huelskoetter that Richards “told me
that earlier they tried before or something like that, and Ryan’s brother got mad or
something and pulled a gun on [Raven Ketzler’s] face, or something like that.” And she
answered affirmatively when Detective Huelskoetter asked her, “[Y]ou know that Travis
[Moore] wanted to beat Ryan [Sanders] up over the money?” and “[W]hen they were
goin’ over there that was pretty much the idea, is that Travis [Moore] was gonna beat
[Sanders] up?”
2
A transcript of the call follows this opinion as an appendix.
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Later in the call, Bacod was more circumspect. When Detective
Huelskoetter asked her if she “knew that kinda the plan was that Travis [Moore] and his
girlfriend and Ashlee [Richards] and — and some other girl named Raven [Ketzler] were
gonna go over there and essentially jump them to get their money back,” Bacod stated,
“Not — not jump, like, you know, like, talk.” She then stated, “But obviously they’re
young, so, you know, there’s gonna be violence in it. But I couldn’t stop them.”3
Bacod gave Detective Huelskoetter her name, date of birth, phone number,
and address. She took his name and direct phone number, which she recorded with a pen
she requested from her mother, and told him she would call if she thought of anything
else.
Sanders was not informed of Bacod’s call to Detective Huelskoetter until
March 2008, more than a year later. Before trial and less than three months after Sanders
had learned of her call, Bacod was killed in a car accident.
B. Proceedings
1. Charges
Ten days after the shootings Sanders was indicted on five counts:
first-degree murder of Moore (Count I), first-degree murder of Richards (Count II),
second-degree murder of Moore (Count III), second-degree murder of Richards
(Count IV), and tampering with physical evidence (Count V).
2. Motion in limine to admit Bacod’s statement
In February 2009 Sanders filed a motion in limine to admit Bacod’s
statement at trial. Sanders argued for admission based upon his due process right to
present a defense and Alaska Rules of Evidence 803(3) (the state of mind exception to
3
According to the transcript, Bacod and Detective Huelskoetter were talking
over one another during this exchange.
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hearsay) and 804(b)(3) (the exception for statements against an unavailable declarant’s
interest) for Richards’s statement to Bacod, and 804(b)(5) (the unavailable declarant
residual hearsay exception) for Bacod’s statement to Detective Huelskoetter.
The superior court denied Sanders’s motion, stating that “Ms. Richards’[s]
statements to Ms. Bacod regarding her intention to go to the Defendant’s residence with
Mr. Moore are not admissible under Rule 803(3) as circumstantial evidence that either
Ms. Richards [or] Mr. Moore planned to rob and assault the D efendant.” The superior
court stated its understanding of the specifics of Richards’s statement:
There is no evidence Ms. Richards actually stated she or
Mr. Moore planned to assault and rob the Defendant. In the
recorded statement, Ms. Bacod extrapolates the inevitability
of violence from Ms. Richards’[s] statements. . . . As earlier
noted, Ms. Bacod states that Ms. Richards told them they
were going over to the Defendant’s residence to talk.
Ms. Bacod added that there would likely be violence, but she
does not state that Ms. Richards affirmatively stated their
intention was to rob or assault the Defendant.
Regarding the applicability of Rule 804(b)(5) to Bacod’s statement, the
superior court stated that “[t]he trustworthiness of the statement may not be established
by corroborating evidence” — citing Ryan v. State,4 which in turn cited the United States
Supreme Court case Idaho v. Wright5 — and therefore did not consider any extrinsic
corroborating evidence. The superior court stated its understanding of the specifics of
Bacod’s statement:
The relationship between Ms. Bacod, the Defendant,
and the shooting victims in this case is essentially unknown.
It is clear that all four parties were in the same social circle,
but the only evidence of their relationships to one another is
4
899 P.2d 1371, 1375 (Alaska App. 1995).
5
497 U.S. 805, 822-24 (1990).
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contained in the recording itself. . . . The lack of evidence in
this respect does not indicate any motivation for Ms. Bacod
to lie in the Defendant’s favor, but neither does it explain her
motivation for calling the police to speak against her fallen
friends.[6]
While it is true Ms. Bacod made her statement to a
government agent, Ms. Bacod was not under oath and there
were no subsequent interviews where Detective Huelskoetter
or any other government agent could cross-examine
Ms. Bacod regarding her statements or otherwise test her
knowledge and veracity. The Detective merely took
Ms. Bacod’s statements and indicated he might contact her
again. Ms. Bacod gave her statement telephonically and
there is no way to tell where she was or who else was in the
room when she made the call. The statements simply are not
“so trustworthy that adversarial testing would add little to its
reliability.”21
_______________________________________________
21
Ryan, 899 P.2d at 1375 (quoting Idaho v.
Wright, 497 U.S. at 821); see also Vaska v. State, 135 P.3d
1011, 1020 (Alaska 2006).
3. Trial
Trial took place in August 2010. None of the nine adults who were at the
house testified. No evidence was presented regarding Richards’s push knife or the
machete in the SUV.7 Bacod’s statement was not introduced, and no evidence was
6
We note the conundrum created by the court’s statement that the lack of
extrinsic evidence regarding the relationship between Bacod, Sanders, and others
counted against Bacod’s statement’s admission, given the court’s prior conclusion that
extrinsic evidence could not be considered when determining the statement’s
trustworthiness.
7
On the first day of trial the State moved for a protective order preventing
Sanders from mentioning the push knife and machete during voir dire and his opening
(continued...)
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presented that Ketzler stayed in the SUV. The superior court instructed the jury
regarding five defense theories: justified self-defense, heat of passion, defense of
premises, defense of a third person, and reasonable mistake of fact (regarding Richards’s
identity).
During opening statements and closing arguments, the State maintained that
self-defense and defense of others did not apply because Sanders’s actions were
excessive. The State painted Sanders as a liar who also had others lie for him, and it
questioned whether Moore had actually been the first aggressor. The State contended
that even if the heat of passion defense initially applied, Sanders had time to cool down
while he grabbed the second gun and chased Moore out of the apartment. The State also
contended that no justification could defend against the first-degree murder of Richards
because it would be an unreasonable mistake of fact to believe that she was Moore or that
she was armed.
During opening and closing arguments, counsel for Sanders argued that
Sanders had been truthful, stating that he immediately took responsibility for the two
deaths, waited quietly for the police, put down the Glock in a safe place, and answered
the police officer’s questions. Sanders’s counsel argued that Sanders quickly told the
truth about the .38 and that he had lied at first only because he was worried about that
gun’s provenance. Counsel for Sanders argued that Sanders committed no crime in
killing Moore, who had attacked him without warning in his home, because it was self-
defense. His counsel also argued that even if Sanders had not acted in self-defense, he
7
(...continued)
statement. The court granted this request because there was no evidence that “the knife”
was brandished at Sanders or that he knew of “the knife,” and it admonished Sanders’s
counsel not to mention either weapon in voir dire or his opening argument. The court
indicated it would take up the issue later if evidence of either the knife’s or machete’s
relevance developed during the trial.
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acted in the heat of passion. Counsel further argued that he had made a reasonable
mistake of fact regarding Richards’s identity, given the low lighting outside, the
similarity of Richards’s and Moore’s coats, and the fast-paced, frenetic situation.
The jury found Sanders not guilty of first-degree murder of Moore, but
guilty of the lesser included second-degree murder of Moore under Count I. The jury
also found Sanders guilty of the remaining counts, as charged: first-degree murder of
Richards, second-degree murder of Moore under a different theory,8 second-degree
murder of Richards, and tampering with physical evidence. By returning these verdicts,
the jury rejected all five defense theories.9
4. Appeal to the court of appeals
On appeal Sanders argued that the superior court had erred by refusing to
allow him to introduce Bacod’s statement at trial.10 The court of appeals concluded that
8
Different second-degree murder theories were used for the lesser-included
second-degree murder offenses under Counts I and II and the second-degree murder
offenses charged directly in Counts III and IV.
9
The jury was instructed that justified self-defense was a complete defense
to first-degree murder, second-degree murder, and manslaughter. If the jury believed
Sanders killed Moore in justified self-defense, it would have found Sanders not guilty
of all charges related to Moore’s death. Instead, the jury found Sanders guilty of the
second-degree murder of Moore under two theories.
The jury also was instructed that heat of passion was a defense to the lesser
included second-degree murder theories but not the direct second-degree murder charges.
The jury found Sanders guilty of all second-degree murder offenses, demonstrating that
it did not believe Sanders killed Moore or Richards in the heat of passion.
10
See Sanders v. State, Mem. Op. & J. No. 5991, 2013 WL 6229377, at *1
(Alaska App. Nov. 27, 2013). Sanders also argued that the superior court erred by
allowing the State to introduce his girlfriend’s and his brother’s false statements to the
police: Detective Huelskoetter testified that Sanders’s girlfriend said that Sanders’s
(continued...)
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the superior court “did not abuse [its] discretion” by finding Bacod’s statement
inadmissible, stating:
Bacod told the police that Richards said to her that they were
going to go over to Sanders’s residence to confront him.
Bacod added that she thought the confrontation was likely to
be violent.
....
In the present case, Sanders offered Bacod’s
out-of-court statements for the purpose of proving that
Richards and Moore went to Sanders’s house intending to use
violence to retrieve money from Sanders or his brother. But
even according to Bacod, Richards never said that she or
Moore intended to use violence; instead Richards said that
they wished to talk to Sanders about the money. In Bacod’s
statements to the police, she acknowledged that the
possibility of violence was only her speculation, or her after­
the-fact gloss on her conversation with Richards.[11]
Like the superior court, the court of appeals quoted Ryan v. State for the
proposition that “evidence admitted under the residual hearsay exceptions must possess
‘particularized guarantees of trustworthiness’ making it ‘so trustworthy that adversarial
testing would add little to its reliability.’ ”12 The court added, “[T]here was essentially
10
(...continued)
brother fired a rifle inside the apartment; he also testified that Sanders’s brother said that
Moore fired at Sanders first. Id. at *1, *5-6. The State labeled both statements “lies” in
its closing argument while questioning Sanders’s veracity and whether Moore was the
first aggressor. The court of appeals concluded that the admission of these statements
was error, but was harmless. See id. at *1, *7.
11
Id. at *1, *5.
12
Id. at *5 (quoting 899 P.2d 1371, 1375 (Alaska App. 1995)).
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no evidence regarding Bacod’s potential motivation for contacting the police.”13 The
court of appeals upheld the trial judge’s ruling.14
Regarding Sanders’s argument that the exclusion of Bacod’s statement
violated his due process right to present a defense, the court of appeals stated, “[I]n
general, a trial court does not commit error by properly applying the evidence rules.”15
The court of appeals then concluded: “We have previously pointed out the lack of
reliability of Bacod’s recorded statement to establish the proposition for which it was
offered. We conclude that the trial court’s proper application of the evidence rules did
not unfairly limit Sanders’s ability to present a defense.”16
Chief Judge Mannheimer concurred with the court’s opinion, writing
separately to point out that Sanders wished to introduce Richards’s statement to prove
Moore’s future actions.17 Chief Judge Mannheimer cited the Commentary to Rule 803(3)
(the state of mind hearsay exception) to explain that the Rule “does not allow a litigant
to introduce one person’s statement about their current mental state (including their
current plans) for the purpose of proving another person’s future actions.”18 This
13
Id.
14
Id.
15
Id.
16
Id.
17
See id. at *7-10 (Mannheimer, C.J., concurring).
18
Id. at *8 (emphasis in original).
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provided, in his view, an additional reason that the contested statements were not
admissible.19
5. Petition for hearing
Sanders filed a petition for hearing with this court, and we granted it, in
part, on “whether exclusion of Carmela Bacod’s hearsay statement to the investigating
detective was reversible error.”
Sanders argues that Bacod’s statement was admissible under the Rules of
Evidence — using both Rule 803(3) (the state of mind hearsay exception) and
Rule 804(b)(5) (the unavailable declarant residual hearsay exception) — to show
Richards’s intent and conduct in going to Sanders’s apartment on New Year’s Eve.
Sanders also argues, based on his constitutional right to present a defense, that Bacod’s
statement was admissible to show both Richards’s and Moore’s intent and conduct in
going to Sanders’s apartment. Sanders argues that the failure to admit the statement
under these theories was error and that the error was not harmless.
III. STANDARD OF REVIEW
A trial court’s “[f]actual findings are reviewed for clear error. We will
reverse . . . factual findings only when, after a review of the entire record, we are left
with a definite and firm conviction that a mistake has been made.”20 When the
admissibility of evidence “turns on a question of law, such as the ‘correct scope or
interpretation of a rule of evidence,’ we apply our ‘independent judgment . . . .’ ”21
19
See id. at *8-10.
20
Lee v. Konrad, 337 P.3d 510, 517 (Alaska 2014) (footnote and internal
quotation marks omitted).
21
Barton v. N. Slope Borough Sch. Dist., 268 P.3d 346, 350 (Alaska 2012)
(quoting City of Bethel v. Peters, 97 P.3d 822, 825 (Alaska 2004)). In contrast, when we
(continued...)
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Under the de novo standard of review, we adopt the rule of law that is “most persuasive
in light of reason, precedent and policy.”22 We also review constitutional interpretation
issues de novo.23
IV. DISCUSSION
“Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.”24 As a general rule hearsay is not admissible,25 but the Rules of Evidence
contain exceptions26 and define certain types of out-of-court statements as not hearsay.27
The proposed evidence in this case contains two levels of hearsay, each of which must
be individually admissible for the exclusions Sanders challenges to have been
21
(...continued)
review a trial court’s decision to admit or exclude evidence solely as an application of
a correctly interpreted rule of evidence to the facts of the instant case, we apply the abuse
of discretion standard of review. See Greene v. Tinker, 332 P.3d 21, 31, 37-38 (Alaska
2014) (evaluating for abuse of discretion a trial court’s decision to admit testimony of
late-identified witness).
22
Barton, 268 P.3d at 350 (internal quotation marks omitted); see also
ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc., 322 P.3d 114, 122
(Alaska 2014).
23
See Khan v. State, 278 P.3d 893, 896 (Alaska 2012).
24
Alaska R. Evid. 801(c).
25
See Alaska R. Evid. 802.
26
See Alaska R. Evid. 803-04.
27
See Alaska R. Evid. 801(d).
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erroneous.28 If either Richards’s statement to Bacod or Bacod’s statement to Detective
Huelskoetter was inadmissible, the proposed evidence was entirely inadmissible.
A. Richards’s Statement To Bacod Was Admissible As Evidence of
Richards’s Then Existing State Of Mind Under Alaska Rule Of
Evidence 803(3).
Under Alaska Rule of Evidence 803(3), “[a] statement of the declarant’s
then existing state of mind, emotion, sensation, or physical condition (such as intent,
plan, motive, design, mental feeling, pain, and bodily health) offered to prove the
declarant’s present condition or future action,” is not excluded by the hearsay rule.
Sanders argues that Richards’s statement to Bacod was admissible to show Richards’s
intent and conduct in going to Sanders’s apartment. We agree.
The superior court found that “[t]here is no evidence Ms. Richards actually
stated she or Mr. Moore planned to assault and rob [Sanders].” Instead, the superior
court concluded, “Ms. Bacod extrapolates the inevitability of violence from
Ms. Richards’s statement.” The court of appeals agreed, stating that “even according to
Bacod, Richards never said that she or Moore intended to use violence; instead Richards
said that they wished to talk to Sanders about the money.”29 The court of appeals also
concluded that “[i]n Bacod’s statements to the police, she acknowledged that the
possibility of violence was only her speculation, or her after-the-fact gloss on her
conversation with Richards.”30
We disagree with this interpretation of Bacod’s statement. Bacod’s first
recorded words to Detective Huelskoetter were, “Everything happened, and she told me,
28
See Alaska R. Evid. 805.
29
Sanders v. State, Mem. Op. & J. No. 5991, 2013 WL 6229377, at *5
(Alaska App. Nov. 27, 2013).
30
Id.
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like, actually it’s been goin’ on for like, about two weeks now. Um, the — Ryan
Sanders, he stole money from one of our friends, and they wanted to go beat him up to
get the money back.” (Emphasis added.) Bacod later stated, “Ashlee just told me that
they wanted the money back, and then they were gonna jump ‘em for it,” and said “[s]he
told me that earlier they tried before or something like that.” (Emphasis added.) She also
answered in the affirmative when Detective Huelskoetter twice asked her direct questions
verifying that Moore was planning to go beat up Sanders:
Q. So — but you know that Travis [Moore] wanted to
beat Ryan [Sanders] up over the money?
A. Yeah.
Q. And that when they were goin’ over there that was
pretty much the idea, is that Travis [Moore] was gonna beat
[Sanders] up?
A. Yeah.
Only after verifying with Detective Huelskoetter that Porterfield and
Ketzler, who were both still alive, had been present the night of the shooting did Bacod
partially backtrack:
Q. So, now, just let me see if I understand correctly, that
you knew that kinda the plan was that Travis [Moore] and his
girlfriend and Ashlee [Richards] and — and some other girl
named Raven [Ketzler] were gonna go over there and
essentially jump them to get their money back?
A. Not - not jump, like, you know, like, talk.
....
A. [T]hey’re young, so, you know, there’s gonna be
violence in it.
....
A. But, I couldn’t stop them.
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Q. Right. So, they — they — I mean basically the only
reason they were going over there was to get the money back.
A. Probably.
The State does not forcefully contest that Richards told Bacod about the
plan to confront Sanders. Instead it argues that Richards’s statement was not of her own
intent, but instead the intent of “an unidentified ‘they.’ ” But the “they” in question is
not unidentified. Bacod named the four people involved, including Richards. When
Detective Huelskoetter summarized what Bacod had told him — “the plan was that
Travis [Moore] and his girlfriend and Ashlee [Richards] and — and some other girl
named Raven [Ketzler] were gonna go over there and essentially jump them to get their
money back” — Bacod did not say that Richards was not part of the group making the
plan. The State’s argument that only Moore, and not Richards, intended to beat up
Sanders fails for similar reasons: Bacod, in recounting her conversation with Richards,
said multiple times that “they” — not just Moore — were going to beat up Sanders.
The State argues that the statements regarding Sanders stealing money are
inadmissible hearsay because they are being offered to prove that Sanders stole money.
But Sanders offered the statements about the theft to show Richards’s motive, not
whether Sanders actually stole money. Richards’s belief that the theft was committed
by Sanders explained her motive in going to Sanders’s apartment.31
31
The State also argues that Richards’s statements regarding Sanders’s theft
of money may not have been based upon her own personal knowledge and thus would
be inadmissible under Alaska Rule of Evidence 602, which permits a witness to testify
only to matters about which she has personal knowledge. But the statements were being
offered to prove Richards’s belief that Sanders stole the money as her motive to attack
him. Richards had personal knowledge regarding her own belief, just as she had
personal knowledge regarding her own plan to beat up Sanders.
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The State also contends the word “jump” as used by Bacod meant “talk,”
not assault. The State argues that Bacod “expressly defined jump for her purposes.”
This is contradicted by the statement itself. Before using the word “jump,” Bacod stated
that the group was planning to “beat [Sanders] up.” Bacod twice answered in the
affirmative Detective Huelskoetter’s direct questions verifying that Moore was planning
to go “beat up” Sanders.
Bacod stated that Richards directly expressed her intent to beat up Sanders
and her motive for doing so. This statement of Richards’s intent and motive was
admissible under Rule 803(3) to show her future action.32 Because we conclude that the
superior court’s factual finding that Bacod merely extrapolated violence from Richards’s
statement to her was clearly erroneous, we must reverse the court of appeals’ decision
upholding the superior court’s Rule 803(3) ruling.
B. Richards’s Statement To Bacod Was Admissible As Evidence of
Moore’s Future Actions Under Alaska Rule Of Evidence 803(23).
Although Richards’s statement to Bacod was relevant to explain some of
Richards’s conduct at Sanders’s home, its greater potential relevance was to explain
Moore’s conduct, which, according to Sanders, included pistol-whipping Sanders
without provocation. However, as Chief Judge Mannheimer noted in his concurring
opinion below, “the Commentary to Evidence Rule 803(3) explains that Rule 803(3)
32
Sanders’s stated purpose in requesting admission of Richards’s statement
of her own motive and intent includes showing “Richards’[s] conduct at Sanders’[s]
home” — that “she would have behaved like Moore would have behaved after Sanders
fought him off” and in particular that she chose to flee Sanders’s home to get to the
“getaway car” (instead of “fighting, hiding, staying in place, or withdrawing”) and “did
nothing to rescue Sanders from his assailant.” Sanders also states that “evidence of
Richards’[s] robbery plot would have show[n] that Richards shared Moore’s escape route
— Porterfield’s SUV” and that “Richards ran because she had made the mistake of
bringing a knife to attack a man with a gun.”
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does not allow a litigant to introduce one person’s statement about their current mental
state (including their current plans) for the purpose of proving another person’s future
actions.”33 Thus, if Richards’s statement to Bacod was admissible only to demonstrate
Richards’s future actions, and not Moore’s, its probative value might have been
outweighed by the danger of unfair prejudice,34 making it proper for the trial court to
exclude it or subject it to a limiting instruction.35 But the circumstances in this case
demonstrate that Richards’s statement was admissible not only to prove Richards’s intent
and conduct, but also Moore’s.
The Commentary to Rule 803(3) explains that “[f]or the statements of one
person as to his mental or emotional condition to be used against another, [Evidence
Rule 803](23) must be satisfied.”36 Rule 803(23) is a residual hearsay exception. It
permits the admission of a statement that would otherwise be excluded as hearsay if it
has “circumstantial guarantees of trustworthiness” that are “equivalent” to the listed
exceptions, and “if the court determines that (a) the statement is offered as evidence of
a material fact; (b) the statement is more probative on the point for which it is offered
than any other evidence which the proponent can procure through reasonable efforts; and
(c) the general purposes of these rules and the interest of justice will best be served by
admission of the statement into evidence.”
33
Sanders, 2013 WL 6229377, at *8 (Mannheimer, C.J., concurring)
(emphasis in original).
34
See Alaska R. Evid. 403.
35
Cf. Linton v. State, 880 P.2d 123, 130-31 & n.6 (Alaska App. 1994)
(affirming introduction of murder victim’s hearsay statements, with limiting instruction,
under Rule 803(3) even though the statements concerned the victim’s fear of the
defendant and the defendant’s alleged threats to the victim).
36
Commentary Alaska E. R. 803(3).
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In this case, the party seeking to introduce a statement under the residual
exception is a criminal defendant. This fact is important in two interrelated ways. First,
Sanders, like all criminal defendants, enjoys a constitutional right to due process of law
before he is convicted of a crime.37 “Although it is not absolute, a defendant’s right to
present a defense is a fundamental element of due process.”38 Evidentiary rulings can
so infringe this right to present a defense that they constitute a violation of the guarantee
of our constitution’s due process clause,39 which requires admission even of evidence
that the legislature has specifically barred if its exclusion “substantially limits the right
to present a defense.”40 Here, however, as we explain below, it is an incorrect
application of the evidence rules that encroaches on this right.
Sanders presented five defense theories to the jury: justified self-defense,
heat of passion, defense of premises, defense of a third person, and reasonable mistake
of fact (regarding Richards’s identity). The credibility of each of these theories was tied
to the jury’s willingness to believe Sanders’s account of Moore striking him without
provocation, an account that the State argued “doesn’t make any sense” during closing
argument. The exclusion of Richards’s statement to Bacod effectively excluded all
evidence of the alleged conspiracy to rob Sanders and thus excluded critical evidence
relevant to the credibility of Sanders’s account of the events that preceded the shootings.
The jury was left with an account in which, as the State put it in closing argument,
Sanders “tells us for no reason, no reason whatsoever, no reason that he’s willing to
admit, Mr. Moore whacks him on the head and causes that gash, that gash above his eye,
37
See Alaska Const. art. I, § 7.
38
Smithart v. State, 988 P.2d 583, 586 (Alaska 1999) (citation omitted).
39
See id.
40
Valentine v. State, 215 P.3d 319, 326 (Alaska 2009).
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for no reason whatsoever.” The exclusion prevented the jury from hearing the only
available evidence of the missing “reason” the State rhetorically lamented.41
The second way that Sanders’s status as a criminal defendant is important
is the fact that the State likely could have used Richards’s statement against Moore if it
had sought to prosecute Moore for conspiracy to commit robbery.42 Alaska Rule of
Evidence 801(d)(2)(E) provides that a statement is not hearsay if it “is offered against
a party and is . . . a statement by a co-conspirator of a party during the course and in
furtherance of the conspiracy.” Richards told Bacod about an on-going plan to rob
Sanders — a plan that Richards shared with Moore and which they had already
attempted to put into action, only to be resisted by Sanders’s armed brother. Bacod was
apparently supposed to join her four friends when they went to Sanders’s house on the
night of the shootings. Moore’s actions, including going to Sanders’s home with the
other alleged participants in the conspiracy while carrying a pistol and, according to
Sanders’s account, striking Sanders in the face, corroborate his connection to the
conspiracy Richards described.43
Rule 801(d)(2)(E) is not directly applicable to this case because Moore is
not a party to the State’s prosecution of Sanders and thus Richards is not a party’s co-
conspirator. But Rule 803(23), which must be satisfied “[f]or the statements of one
41
Cf. Keith v. State, 612 P.2d 977, 982-83 (Alaska 1980) (“If the superior
court’s refusal to admit the journal did, in fact, substantially limit Keith’s opportunities
to prove his innocence affirmatively, the due process right to a fair trial would have been
denied him.”).
42
See AS 11.31.120 (conspiracy); 11.41.500 (robbery in the first degree).
43
Cf. Stewart v. State, 756 P.2d 900, 904-05 (Alaska App. 1988) (discussing
evidence that corroborated a defendant’s connection to a plan described in a
co-conspirator’s statement).
-21- 7058
person as to [her] mental or emotional condition to be used against another,”44 allows for
the admission of statements that have “circumstantial guarantees of trustworthiness” that
are “equivalent” to the other exceptions to the bar on hearsay. Statements made by a co-
conspirator in furtherance of a conspiracy were traditionally defined as an exception to
the hearsay rule, but under the revised Alaska Rules of Evidence they are defined as
nonhearsay.45 Their characterizaion as nonhearsay is largely predicated on expectations
of trustworthiness, just like the exceptions listed in Rule 803.46 Richards’s statement
establishing Moore’s participation in a conspiracy to rob Sanders did not become less
trustworthy because Sanders, rather than the State, sought to introduce it.
The “interest of justice” factor identified in Rule 803(23) dovetails in this
case with the right to present a defense. In light of this factor, Richards’s statement fits
within the residual hearsay exception even as it pertains to Moore’s future actions. Here
the only reasonably available evidence explaining Moore’s alleged unprovoked assault
on Sanders was his co-conspirator’s statement that she, Moore, and others “wanted to go
beat [Sanders] up to get the money back.” Richards’s statement to Bacod was therefore
admissible.
44
Commentary Alaska E. R. 803(3).
45
See Hawley v. State, 614 P.2d 1349, 1357 n.20 (Alaska 1980); Commentary
Alaska E. R. 801(d)(2) (“[I]f these rules [—801(d)(2)(C),(D), and (E)—] were written
on a clean slate without reference to the Federal Rules, admissions would be treated as
exceptions to the hearsay rule and placed under Rule 803.”).
46
See M ODEL CODE OF EVIDENCE , Rule 508 cmt. b (1942) (“[T]he tendency
in the authorities is to receive evidence of all declarations of a conspirator concerning the
conspiracy when made during its pendency. These statements are likely to be true, and
are usually made with a realization that they are against the declarant’s interest.”).
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C. Bacod’s Statement To Detective Huelskoetter Was Admissible As
Evidence Of Richards’s Statement Under Alaska Rule Of Evidence
804(b)(5).
1. The superior court and court of appeals excluded Bacod’s
statement to Detective Huelskoetter based on an overly
demanding test for determining sufficient trustworthiness under
the unavailable declarant residual hearsay exception.
Alaska Rule of Evidence 804(b)(5) is, like Rule 803(23), a residual hearsay
exception. It permits the admission of a statement by an unavailable declarant that would
otherwise be excluded as hearsay if it has “circumstantial guarantees of trustworthiness”
that are “equivalent” to the listed exceptions, and “if the court determines that (A) the
statement is offered as evidence of a material fact; (B) the statement is more probative
on the point for which it is offered than any other evidence which the proponent can
procure through reasonable efforts; and (C) the general purposes of these rules and the
interests of justice will best be served by admission of the statement into evidence.”47
The superior court stated that Bacod’s statement did not fall within
Rule 804(b)(5)’s residual exception because it was not “so trustworthy that adversarial
testing would add little to its reliability.” The court of appeals agreed, and quoted the
same language in support of its conclusion that the superior court did not abuse its
discretion in excluding Bacod’s statement.48 The quoted standard is from the court of
47
Alaska R. Evid. 804(b)(5).
48
See Sanders v. State, Mem. Op. & J. No. 5991, 2013 WL 6229377, at *5
(Alaska App. Nov. 27, 2013).
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appeals’s decision in Ryan v. State,49 which in turn was quoting the United States
Supreme Court’s decision in Idaho v. Wright.50
Both Wright and Ryan are Confrontation Clause cases.51 They were
decided based on the precedent established in Ohio v. Roberts, under which even
testimonial hearsay could be admissible against a criminal defendant as long as it fell
“within a firmly rooted hearsay exception” or bore “particularized guarantees of
trustworthiness.”52 Both cases considered “residual” hearsay evidence offered by the
government against a criminal defendant protected by the Confrontation Clause, and both
erected a demanding standard for admission: The courts would only allow a criminal
defendant to be tried based on the word of a declarant he could not confront if the
statement was “so trustworthy that adversarial testing would add little to its reliability.”53
49
899 P.2d 1371, 1375 (Alaska App. 1995).
50
497 U.S. 805, 821 (1990).
51
See id. at 808 (“This case requires us to decide whether the admission at
trial of certain hearsay statements made by a child declarant to an examining pediatrician
violates a defendant’s rights under the Confrontation Clause of the Sixth Amendment.”);
Ryan, 899 P.2d at 1375 (“Because the hearsay issue in this case arises in the context of
a criminal prosecution, the hearsay must satisfy not only the requirements of Evidence
Rule 804(b) but also the requirements of the Confrontation Clauses of the Federal and
Alaska Constitutions (the Sixth Amendment to the United States Constitution and
Article I, Section 11 of the Alaska Constitution).”).
52
448 U.S. 56, 66 (1980).
53
Wright, 497 U.S. at 821; see also Ryan, 899 P.2d at 1375. The United
States Supreme Court disapproved the Ohio v. Roberts approach in Crawford v.
Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006), which
established that “hearsay evidence may violate a defendant’s right of confrontation even
though that evidence might be admissible under the hearsay rules.” Clark v. State, 199
P.3d 1203, 1210 (Alaska App. 2009). By decoupling the Confrontation Clause and the
(continued...)
-24- 7058
In contrast, in this case it was Sanders, rather than the State, who sought to
admit Bacod’s statement. The State is, of course, not protected by the Confrontation
Clauses in the Alaska and United States Constitutions. And the State has not identified
any case in which the test the superior court used has been applied to evidence
introduced by a criminal defendant. The superior court thus erred by applying the
heightened reliability standard that limited the residual hearsay exception in
Rule 804(b)(5) to evidence “so trustworthy that adversarial testing would add little to its
reliability” to Bacod’s statement. Instead, the superior court should have applied the test
set out in Evidence Rule 804(b)(5) itself: A statement by an unavailable declarant is
admissible if (1) “the statement is offered as evidence of a material fact,” (2) “the
statement is more probative on the point for which it is offered than any other evidence
which the proponent can procure through reasonable efforts,” (3) “the general purposes
of these rules and the interests of justice will best be served by admission of the
statement into evidence,” and (4) the statement has “circumstantial guarantees of
trustworthiness” that are “equivalent” to the guarantees of trustworthiness that justify the
enumerated hearsay exceptions when a declarant is unavailable.
Importantly, the enumerated exceptions to which Rule 804(b)(5) refers are
those that apply only when the declarant is unavailable. “The traditional exceptions to
the hearsay rule form two general classes: (1) those statements which are so inherently
reliable that cross-examination is thought unnecessary (Rule 803); and (2) those
statements which are sufficiently reliable to be admitted in light of their great evidentiary
53
(...continued)
rules of evidence, Crawford and Davis removed the need to erect a demanding residual
hearsay standard to serve the purposes of the Confrontation Clause. Cf. Whorton v.
Bockting, 549 U.S. 406, 413-14 (2007) (“Roberts potentially excluded too much
testimony because it imposed Confrontation Clause restrictions on nontestimonial
hearsay not governed by that Clause.”).
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value when the declarant is unavailable (Rule 804).”54 The exceptions to which
804(b)(5) refers all have circumstantial guarantees of trustworthiness, such as the
unavailable declarant’s belief of her impending death 55 or admission to civil or criminal
liability,56 but they are not necessarily “so trustworthy that adversarial testing would add
little to [their] reliability.” In fact, the limitation of these exceptions to circumstances in
which the declarant is unavailable suggests that cross-examination would add to their
reliability, and would be required if it were possible.57 Thus, the superior court’s
application of the demanding “adversarial testing would add little” standard to Sanders’s
efforts to admit Bacod’s statement under Rule 804(b)(5) was a legal error.
2. It was legal error for the superior court to refuse to consider
evidence that corroborated Bacod’s statement to Detective
Huelskoetter.
The superior court ruled that “[t]he trustworthiness of [Bacod’s] statement
[to Detective Huelskoetter] may not be established by corroborating evidence.” The
54
In re A.S.W., 834 P.2d 801, 804 (Alaska 1992) (emphasis added).
55
See Alaska R. Evid. 804(b)(2).
56
See Alaska R. Evid. 804(b)(3).
57
See Commentary Alaska E. R. 804(b) (“Rule 803 . . . is based upon the
assumption that a hearsay statement falling within one of its exceptions possesses
qualities which justify the conclusion that whether the declarant is available or
unavailable is not a relevant factor in determining admissibility. [Rule 804(b)] proceeds
upon a different theory: hearsay which admittedly is not equal in quality to testimony
of the declarant on the stand may nevertheless be admitted if the declarant is unavailable
and if his statement meets a specified standard. The rule expresses preferences:
testimony given on the stand in person is preferred over hearsay, and hearsay, if of the
specified quality, is preferred over complete loss of the evidence of the declarant.”).
-26- 7058
court of appeals did not specifically consider this claim of error.58 The superior court’s
ruling on this point is legal error and is inconsistent with our cases interpreting Evidence
Rule 804(b)(5).
The superior court cited Ryan v. State in support of its no-corroborating­
evidence rule. As discussed above, Ryan was a Confrontation Clause case. Like the
heightened reliability requirement for unavailable declarant hearsay testimony, the
requirement that “[t]he required ‘guarantees of trustworthiness’ may not be established
by showing that the hearsay statement is corroborated by other evidence” was based on
the court of appeals’ interpretation of Idaho v. Wright.59 The court of appeals in Ryan
limited this holding to cases implicating the Confrontation Clause.60 The application of
the prohibition on corroborating evidence to a criminal defendant’s attempt to introduce
hearsay evidence is error,61 particularly in light of a criminal defendant’s constitutional
58
See generally Sanders v. State, Mem. Op. & J. No. 5991, 2013 WL
6229377 (Alaska App. Nov. 27, 2013).
59
See Ryan v. State, 899 P.2d 1371, 1375 (Alaska App. 1995) (citing Idaho
v. Wright, 497 U.S. 805, 822-24 (1990)).
60
See id. (“In Idaho v. Wright, the United States Supreme Court held that, at
least for Confrontation Clause purposes, a hearsay statement’s ‘guarantees of
trustworthiness’ must be ‘inherent’ in the statement.” (quoting Wright, 497 U.S. at 822)).
61
See Brumley v. Albert E. Brumley & Sons, Inc., 727 F.3d 574, 578 (6th Cir.
2013) (“[Wright’s] requirement that the truthfulness of a statement be so clear [from only
the circumstances surrounding the statement] that the test of cross-examination be of
marginal utility is specific to the Confrontation Clause; thus, the requirement is
inapplicable in this [civil] case.”); United States v. NB, 59 F.3d 771, 776 n.5 (8th Cir.
1995) (“Wright has no effect on hearsay analysis when there is no Confrontation Clause
issue.”); 5 CHRISTOPHER B. M UELLER & LAIRD C. K IRKPATRICK , FEDERAL EVIDENCE
§ 8:141, at 286-88 (4th ed. 2013) (“Obviously Wright does not affect use of the catchall
[hearsay exception] in civil cases, nor limit defense use of the catchall in criminal cases,
(continued...)
-27- 7058
right to present a defense.
In cases that do not feature the specific protections of the Confrontation
Clause, extrinsic corroborating evidence often supports the admission of evidence
offered under the residual hearsay exceptions in Evidence Rules 804(b)(5) and 803(23).62
Permitting trial courts to consider extrinsic corroboration appears to be the majority rule
in jurisdictions which have specifically addressed the issue. 63 This
61
(...continued)
and in these settings independent corroboration continues to count in assessing
trustworthiness.”).
62
See, e.g., Kristen L. v. Benjamin W., Mem. Op. & J. No. 1502, 2014
WL 2716842, at *3 (Alaska June 11, 2014) (corroborating notes supported admission
of counselor’s testimony about children’s statements under the catchall hearsay
exception); In re T.P., 838 P.2d 1236, 1241-42 (Alaska 1992) (approving of trial court’s
admission of minor’s hearsay statement under Evidence Rule 804(b)(5) partially because
a reference in the statement to the location of an alleged sexual touching was
corroborated); cf. Matanuska Elec. Ass’n v. Weissler, 723 P.2d 600, 610 n.17 (Alaska
1986) (approving of trial court’s ruling that the fact that a hearsay “statement also
corroborates other testimony” makes it more appropriate to admit under Evidence
Rules 804(b)(5) and 803(23)).
63
See United States v. Turner, 718 F.3d 226, 233-34 (3d Cir. 2013) (“[When
determining] whether a document is sufficiently trustworthy to be admitted under [the
residual hearsay exception] . . . , the district court may not rely exclusively on
corroborating evidence.” (emphasis added) (citation omitted)); United States v.
Redlightning, 624 F.3d 1090, 1118 (9th Cir. 2010) (concluding that a hearsay statement
lacked “circumstantial guarantees of trustworthiness” under residual hearsay exception
in part because it was uncorroborated and in part because extrinsic evidence contradicted
it); United States v. Hunt, 521 F.3d 636, 643-44 (6th Cir. 2008) (finding hearsay
statements lacked “circumstantial guarantees of trustworthiness” because they were
uncorroborated); United States v. Abreu, 342 F.3d 183, 191 (2d Cir. 2003) (finding
hearsay statements lacked “circumstantial guarantees of trustworthiness” in part because
they were “uncorroborated”); United States v. Hall, 165 F.3d 1095, 1110-11 (7th Cir.
1999) (stating relevant factor when determining “circumstantial guarantees of
(continued...)
-28- 7058
63
(...continued)
trustworthiness” is “whether the declarant’s statement was insufficiently corroborated”);
United States v. Panzardi-Lespier, 918 F.2d 313, 316-17 (1st Cir. 1990) (listing
corroboration as one factor in determining “circumstantial guarantees of trustworthiness”
and using extrinsic corroboration, after Wright); State v. Allen, 755 P.2d 1153, 1164
(Ariz. 1988) (“We do not require corroboration under the residual hearsay exceptions,
but its existence is nevertheless helpful.”); Martin v. State, 57 S.W.3d 136, 142
(Ark. 2001) (concluding in the context of determining “circumstantial guarantees of
trustworthiness,” that details from the accomplice’s post-crime hearsay statements,
including “the detailed directions to the abandoned house, the fact that [the victim’s] face
and mouth had been duct-taped, and the fact that her arms and legs were hogtied[, ]were
highly indicative of the truthfulness of [the] statements . . . .”); Cabrera v. State, 840
A.2d 1256, 1268 (Del. 2004) (“[The] statements fail to satisfy the . . . circumstantial
guarantees of trustworthiness [requirement under the residual hearsay exception] for the
same reasons that they were not admissible under [the statement against penal interest
exception] — they were not supported by sufficient corroborating evidence.”); State v.
Weaver, 554 N.W.2d 240, 248 (Iowa 1996), overruled on other grounds by State v.
Hallum, 585 N.W.2d 249 (Iowa 1998) (“Factors to consider in making a trustworthiness
determination under [the residual hearsay exception] include: . . . corroboration . . . .”);
People v. Katt, 662 N.W.2d 12, 24 n.12 (Mich. 2003) (“[C]orroborative evidence may
be used to determine the trustworthiness of statements [offered under the residual
hearsay exceptions] . . . [if] the Confrontation Clause is not implicated.” (emphasis
omitted) (citations omitted)); State v. Griffin, 834 N.W.2d 688, 693 (Minn. 2013) (listing
corroborating evidence as a relevant factor for determining “circumstantial guarantees
of trustworthiness” under a residual hearsay exception); State v. Cottier, 755 N.W.2d
120, 131 (S.D. 2008) (“[F]actors for a trial court to consider in assessing trustworthiness
of hearsay offered under the residual hearsay rule . . . include: . . . the existence of
corroborating evidence . . . .”); State v. Lopez, 843 N.W.2d 390, 437 (Wis. 2014) (stating
that factors to consider in determining “circumstantial guarantees of trustworthiness”
under a residual hearsay exception include “the existence of other corroborating
evidence”); Lafond v. State, 89 P.3d 324, 339 (Wyo. 2004) (“[C]ircumstantial guarantees
of trustworthiness . . . may be established . . . through other corroborating evidence . . . .”
(quoting Johnson v. State, 930 P.2d 358, 366 (Wyo. 1996))); 2 G EORGE E. D IX ET AL.,
M C CORMICK ON EVIDENCE § 324, at 565-66 (Kenneth S. Broun ed., 7th ed. 2013)
(“[E]ven before Crawford v. Washington eliminated the precedential value of Wright,
some lower courts used corroboration as a factor establishing trustworthiness of hearsay
(continued...)
-29- 7058
interpretation makes sense, as a court testing a statement’s admissibility under the
residual hearsay exceptions is concerned with the trustworthiness of the specific
statement at issue, rather than the category of statements to which the statement belongs.
There is no logical reason that extrinsic corroborating evidence cannot contribute to
creating “circumstantial guarantees of trustworthiness.”64 Indeed, one of the unavailable
63
(...continued)
admitted under a catchall exception when the confrontation issue was otherwise
eliminated.”); 5 FEDERAL EVIDENCE , supra note 61, § 8:141, at 286-88; H EARSAY
H ANDBOOK §§ 47:1-2 (4th ed. 2014); 5 JACK B. W EINSTEIN & M ARGARET A. BERGER ,
W EINSTEIN ’S FEDERAL EVIDENCE § 807.03[2][b], at 807-15 to -18 (Joseph M.
McLaughlin ed., 2d ed. 2014).
But see United States v. El-Mezain, 664 F.3d 467, 498 (5th Cir. 2011) (“The
determination of trustworthiness is ‘drawn from the totality of the circumstances
surrounding the making of the statement, but it cannot stem from other corroborating
evidence.’ [United States v.] Ismoila, 100 F.3d [380,] 393 [(5th Cir. 1996)] (citing Idaho
v. Wright, 497 U.S. 805, 820-22 (1990)).”); Vasquez v. People, 173 P.3d 1099, 1106-07
(Colo. 2007) (relying upon Wright to conclude that extrinsic corroboration is not
appropriate consideration when determining “circumstantial guarantees of
trustworthiness” under residual hearsay exception); State v. Aaron L., 865 A.2d 1135,
1144 n.20 (Conn. 2005) (“Only factors related to the circumstances surrounding the
making of the challenged statement may be considered to support the reliability of the
hearsay statement at issue.” (emphasis in original)); Larchick v. Diocese of Great
Falls-Billings, 208 P.3d 836, 845 (Mont. 2009) (“[The residual hearsay exception] looks
to the circumstances surrounding a hearsay statement when it is made — the
circumstantial guarantees of trustworthiness that lend reliability to the hearsay statement
in lieu of cross-examination.” (internal quotation mark omitted)); State v. Johnson, 557
S.E.2d 811, 817 (W. Va. 2001) (“Reliability must be shown from the circumstances
surrounding the making of the statement.”).
64
The State argues that the word “circumstantial” in “equivalent
circumstantial guarantees of trustworthiness” means only the immediate circumstances
of the statement, not any extrinsic corroborating circumstances. But the word
“circumstantial” could just as easily include any circumstances indicating
trustworthiness, including extrinsic corroboration. The wording of Rule 804(b)(5) does
(continued...)
-30- 7058
declarant hearsay exceptions to which evidence offered under the residual hearsay
exception is compared contemplates the use of extrinsic evidence to support the hearsay
statement,65 and another, in some circumstances, requires it.66 We therefore agree with
the majority of jurisdictions that extrinsic corroborating evidence may properly be
considered in determining whether a statement proffered under Rule 804(b)(5)’s residual
hearsay exception exhibits “circumstantial guarantees of trustworthiness” equivalent to
the other unavailable declarant hearsay exceptions.
64
(...continued)
not exclude the consideration of extrinsic evidence, and we will not read such a
prohibition into the rule. See State v. Robinson, 718 N.W.2d 400, 409 n.4 (Minn. 2006)
(“Nor does the residual exception itself prevent us from considering corroborating
evidence. The rule contains no specific limitation . . . .”).
The State additionally argues that the presence of extrinsic corroboration
precludes the statement from being “more probative on the point for which it is offered
than any other evidence which the proponent can procure through reasonable efforts.”
Though it is possible that extrinsic corroborating evidence could be more probative than
the hearsay statement it supports, this will not always be the case.
65
See Alaska R. Evid. 804(b)(4)(B) (exception for statement of personal or
family history about a person other than the unavailable declarant “if the declarant was
related to the other by blood, adoption, or marriage or was so intimately associated with
the other’s family as to be likely to have accurate information concerning the matter
declared”).
66
See Alaska R. Evid. 804(b)(3) (Although statements against interest are
generally admissible, “[a] statement tending to expose the declarant to criminal liability
and offered to exculpate the accused is not admissible unless corroborating
circumstances clearly indicate the trustworthiness of the statement.”). The State argues
that Rule 804(b)(3)’s explicit inclusion of corroborating evidence means that the drafters
of the rules intended to disallow the use of corroborating evidence for the other hearsay
exceptions, including Rule 804(b)(5). But the requirement of corroboration in one area
does not necessarily entail its prohibition in another. The drafters of Rule 804(b)(5)
could have stated that no extrinsic corroboration could be used to find “equivalent
circumstantial guarantees of trustworthiness,” but they did not.
-31- 7058
3. In light of the correct test of admissibility and the proffered
corroborating evidence, Bacod’s statement to Detective
Huelskoetter should have been admitted.
As discussed above, a statement by an unavailable declarant is admissible
if (1) “the statement is offered as evidence of a material fact,” (2) “the statement is more
probative on the point for which it is offered than any other evidence which the
proponent can procure through reasonable efforts,” (3) “the general purposes of these
rules and the interests of justice will best be served by admission of the statement into
evidence,” and (4) the statement has “circumstantial guarantees of trustworthiness” that
are “equivalent” to the guarantees of trustworthiness that justify the enumerated hearsay
exceptions when a declarant is unavailable.67 The State contests two of these
requirements: the circumstantial guarantees of Bacod’s statement’s trustworthiness and
whether the statement is more probative on the point for which it was offered than other
evidence Sanders could have reasonably procured.
a. Bacod’s statement to Detective Huelskoetter had the
required circumstantial guarantees of trustworthiness.
Whether a particular hearsay statement offered under the residual hearsay
exception at Rule 804(b)(5) has sufficient circumstantial guarantees of trustworthiness
is necessarily a case-by-case question. Many courts focus upon idiosyncratic aspects of
the particular proffered statement which suggest trustworthiness.68 Particularly
significant relevant factors relied on by multiple jurisdictions include:
whether the declarant had a motivation to speak truthfully or
otherwise; the spontaneity of the statement, including
whether it was elicited by leading questions, and generally
67
Alaska R. Evid. 804(b)(5). The Rule also requires adequate notice to the
opposing party, a requirement not at issue in this case.
68
See M C CORMICK ON EVIDENCE , supra note 63, § 324, at 561-66.
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the time lapse between event and statement; whether the
statement was under oath; whether the declarant was subject
to cross-examination at the time the statement was made; the
relationship between the declarant and the person to whom
the statement was made; whether the declarant has recanted
or reaffirmed the statement; whether the statement was
recorded and particularly whether it was videotaped; and
whether the declarant’s firsthand knowledge is clearly
demonstrated.[69]
And, as discussed above, in cases that do not implicate the Confrontation Clause it is
appropriate to consider extrinsic corroborating evidence.
The State correctly notes that the residual hearsay exceptions apply “only
on rare occasions,”70 and are not invitations to discard the general prohibition on the
admission of hearsay. But in this case at least five factors — Bacod’s motivation to
speak truthfully, the spontaneity of her statement, the professional relationship between
her and Detective Huelskoetter, the fact that her statement was recorded, and the clear
demonstration of her firsthand knowledge of Richards’s plan — argue in favor of the
statement’s trustworthiness, as does the extrinsic corroborating evidence. The particular
guarantees of trustworthiness attached to Bacod’s statement to Detective Huelskoetter
convince us that, given the importance of the statement to Sanders’s defense, the
statement should have been admitted.71
69
Id.
70
In re A.S.W., 834 P.2d 801, 804 (Alaska 1992).
71
See id. (explaining that the unavailable declarant hearsay exceptions in
Rule 804 relate to “statements which are sufficiently reliable to be admitted in light of
their great evidentiary value”); see also Smithart v. State, 9 88 P.2d 583, 586 (Alaska
1999) (recognizing that exclusion of evidence proffered by a criminal defendant can
violate the defendant’s due process rights).
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i. Motivation to speak truthfully
Bacod’s statement provides no reason to believe she was speaking
insincerely in an effort to help Sanders. She told Detective Huelskoetter that she had
known Richards, whom she described as her “best friend,” since the third grade, and that
she had known Moore for months. She connected her social life to theirs, telling
Detective Huelskoetter that she was supposed to have been with Richards, Moore,
Ketzler, and Porterfield on the night of the shooting. In contrast, she explained that she
had never met Sanders. Despite this asymmetry of bonds, she relayed information that,
whether she knew it or not, would have been helpful to Sanders’s defense and implicated
her friends in a conspiracy to commit robbery. The fact that Sanders did not learn of the
call until the State disclosed its existence fifteen months after Bacod placed it further
diminishes the chances that Bacod was somehow lying for Sanders’s benefit.
ii. Spontaneity
It is also relevant that Bacod initiated the call to Detective Huelskoetter.
The fact that she sought Detective Huelskoetter out rather than vice versa diminishes the
chances that she was telling him what she thought he wanted to hear. Bacod answered
Detective Huelskoetter’s open-ended questions and stated that she told him everything
she knew about the events. She invited him to call her back if he had any further
questions, in the process giving him her full name, home address, and phone number.
And she apparently did all of this in the presence of her mother.
The dissent complains that “the most relevant portion” of Bacod’s statement
“was obtained through the detective’s leading questions.”72 But only after Bacod
72
Dissent at 44.
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reported what she had learned about the plan from her conversation with Richards73 did
Detective Huelskoetter ask the two follow-up questions cited by the dissent. Both
questions were posed immediately after Bacod stated, “I can’t think right now,” and they
are therefore best interpreted not as leading questions but as attempts to elicit
clarification of Bacod’s previous statements.
iii. Under oath
Bacod’s statement to Detective Huelskoetter was not under oath. But
because Bacod was speaking with a peace officer about a crime, knowingly providing
false information in this call could have possibly subjected Bacod to criminal liability.74
This possibility, much like an oath, provided a strong incentive to be truthful.
iv. Cross-examination
Bacod was not subject to cross-examination when she made the statement.
Although Detective Huelskoetter asked some clarifying questions, this was no substitute
for cross-examination. This factor does not weigh in favor of her statement’s
admissibility.
73
“[Sanders] stole money from one of our friends, and they wanted to go beat
him up to get the money back . . . .” Bacod then stated, “Ashlee [Richards], . . . Raven
[Ketzler], . . . Travis [Moore], and Travis’s fiancée Sherrell [Porterfield]. . . woke up with
money gone, and they were guessing it was [Sanders] . . . .”
74
See AS 11.56.800(a)(1)(A) (“A person commits the crime of false
information or report if the person knowingly gives false information to a peace officer
with the intent of implicating another in an offense.”). The State argues that Bacod could
not have faced charges for false information or report because “it was Richards who
supposedly suggested that others intended to commit a crime,” while “Bacod was merely
a conduit for that information.” But this section applies as readily to “conduits” as to
primary souces, so long as the requisite knowledge and intent are present.
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v. Relationship
The fact that Detective Huelskoetter was the police officer charged with
investigating the recent shooting deaths of two of her friends strongly favors Bacod’s
statement’s admissibility. Bacod provided the detective background information about
what she believed “triggered it to happen.” These serious circumstances invited careful
and somber reflection and explanations. Indeed, as discussed above, knowingly lying
to Detective Huelskoetter could have subjected Bacod to criminal liability.
vi. Recantation and reaffirmation
The record does not contain any evidence that Bacod ever recanted or
reaffirmed her statement to Detective Huelskoetter. The dissent charges that Bacod
“changed her account in real time in response to what she learned” in the interview with
Detective Huelskoetter.75 But Bacod initially indicated, without any prompting from the
detective, that Moore, Richards, Ketzler, and Porterfield wanted to“beat . . . up” Sanders.
And while Bacod later added that the four of them were going to “try to talk . . . it out,”
the dissent omits Bacod’s very next statement to the detective: “But . . . obviously. . .
they’re young, so . . . there’s gonna be violence in it.” And for most of the time between
Bacod’s statement and her death Sanders was not aware that she had called and spoken
with Detective Huelskoetter.
vii. Recording
Detective Huelskoetter recorded Bacod’s statement when she called him.
If the only record of the statement was Detective Huelskoetter’s recollection and
testimony there would be risks that he misunderstood or misremembered the
conversation. The fact that the jury could have heard the statement eliminates those
75
Dissent at 43.
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risks, although it does not eliminate the risks of Bacod’s faulty perception or memory of
her conversation with Richards.
viii. Clear demonstration of firsthand knowledge
Bacod’s statement to Detective Huelskoetter demonstrated her firsthand
knowledge of the plan and conflict Richards described. Bacod listed the number of her
friends that went to Sanders’s house and provided their names. She identified the
relationships among them. Her close ties with Richards, whom Bacod described as her
“best friend,” and whom Bacod was supposed to join on the night of the shooting,
provides further reassurance that Bacod had firsthand knowledge of the conversation
with Richards.
ix. Corroboration
Extrinsic corroborating evidence provides further circumstantial guarantees
of trustworthiness in this case. Bacod correctly identified the group of four people that
went to Sanders’s home together on the night of the shootings without assistance from
Detective Huelskoetter. Bacod stated that “they wanted to go beat [Sanders] up to get
the money back,” and that because the four were young “there’s gonna be violence in it.”
On the night of the shooting, little more than a week after Bacod reported she spoke with
Richards, those four people traveled to Sanders’s house with a pistol, a push knife, and
a machete. According to Sanders, one of them struck him with the pistol without
warning, an action consistent with the plan to “jump” Sanders that Bacod described.
Taken together, the “idiosyncratic factors”76 surrounding Bacod’s statement
to Detective Huelskoetter convince us that it had the circumstantial guarantees of
trustworthiness that Evidence Rule 804(b)(5) requires. Bacod’s statement was essential
to the defense theories Sanders had a constitutional right to present, and it, like the rest
76
M C CORMICK ON EVIDENCE , supra note 63, § 324, at 561.
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of the Rule 804 exceptions for unavailable declarants, was “sufficiently reliable to be
admitted in light of [its] great evidentiary value.”77
b. Bacod’s statement to Detective Huelskoetter was more
probative on the point for which it was offered than other
evidence Sanders could have reasonably procured.
The State also argues that Bacod’s statement to Detective Huelskoetter was
inadmissible because Porterfield and Ketzler were available to testify, “and both would
have presumably known about the purported plan.” It follows, the State argues, that the
statement Sanders sought to introduce was not “more probative on the point for which
it is offered than any other evidence which the proponent can procure through reasonable
efforts,” as Rule 804(b)(5) requires.78
Although it is difficult to precisely define the scope of “the point for which
[evidence] is offered,” it is clear that Bacod was in a unique position in this case. She
had allegedly learned about an ongoing conspiracy from a close friend, but she did not
join in the enterprise. This gave her crucial insight into the aims of the acting parties
without exposing her to the threat of criminal liability that would normally silence a
participant in a criminal scheme. The record contains no hint of another witness
prepared to testify that Richards and Moore planned to “jump” Sanders or of any other
person who was aware of the plan but not participating in it. The State acknowledges
in its brief that Porterfield, one of the witnesses it faults Sanders for not interviewing,
denied knowledge of any plan to rob and beat up Sanders. And the fourth alleged
confederate, Ketzler, similarly denied any role in, or knowledge of, a plan to rob Sanders
77
In re A.S.W., 834 P.2d 801, 804 (Alaska 1992).
78
The State also alludes to the availability of Sanders’s brother, Joseph, to
testify that Moore attacked Sanders first, but Bacod’s statement was probative of more
than just Moore’s physical actions in Sanders’s bedroom and came from a source much
less likely to fabricate testimony on Sanders’s behalf.
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when questioned by police. Moreover, Bacod learned about the plan from Richards, one
of the victims and one of the three people whose states of mind, intentions, and actions
were central to the case.
Under these circumstances, and again informed by Sanders’s constitutional
right to present a defense, we do not believe that Sanders could have reasonably procured
any evidence more probative on the points for which Sanders offered Bacod’s statement
to Detective Huelskoetter. We therefore reject the State’s argument that Bacod’s
statement was inadmissible for this reason and, in conjunction with our determination
above that the statement had the required circumstantial guarantees of trustworthiness,
and the State’s well-reasoned concession that admission of the statement would serve the
interests of justice, hold that it should have been admitted under Evidence
Rule 804(b)(5).79
D. The Exclusion Of The Two Statements Was Not Harmless.
Although the superior court’s exclusion of Richards’s statement to Bacod
and Bacod’s statement to Detective Huelskoetter was erroneous, it is not a basis for
reversing Sanders’s conviction if the error was harmless.80 The trial record in this case
79
In its respondent’s brief, the State clarified that “[t]he state does not dispute
the potential materiality of the report by Bacod — it refers to the purported statements
by Richards, which if admissible, would be relevant. Nor does the state dispute that
admission of Bacod’s report would be consistent with the evidence rules and the interests
of justice. The state, however, disputes that Bacod’s report is more probative than other
reasonably available evidence.”
80
See Alaska R. Crim. P. 47(a) (“Any error, defect, irregularity or variance
which does not affect substantial rights shall be disregarded.”).
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indicates that the exclusion was not harmless because we cannot “fairly say that the error
did not appreciably affect the jury’s verdict.”81
The State argues that the evidence that Richards and Moore had conspired
to attack and rob Sanders would not have appreciably affected the jury’s verdict because
the focus of the State’s case was on the excessiveness of Sanders’s response, not whether
Sanders or Moore was the initial aggressor. The State focuses particularly on the
prosecutor’s rebuttal argument, during which he appeared to implicitly concede that
Moore struck Sanders first. But the strength of the prosecutor’s concession was
significantly undercut by its context. Just before those statements, the prosecutor noted
that he was arguing based on “words from [Sanders’s] mouth,” but he did not tell the
jury to accept them as true. Indeed, much of the prosecutor’s first closing argument
provided the jury with reason not to credit Sanders’s account, including Sanders’s
explanation of what had provoked the shootings. The prosecutor was hardly conceding
that Sanders was credible when he told the jury that Sanders “tells us for no reason, no
reason whatsoever, no reason that he’s willing to admit, Mr. Moore whacks him on the
head and causes that gash, that gash above his eye, for no reason whatsoever.” The
prosecutor rhetorically asked the jury, “[W]ould it make any sense for Mr. Moore to
whack somebody in the head with an unloaded gun when the other guy’s got two loaded
81
Love v. State, 457 P.2d 622, 634 (Alaska 1969). Sanders argues that, given
the constitutional nature of his claim of error, the State is required to demonstrate that the
error was harmless beyond a reasonable doubt. See, e.g., Adams v. State, 261 P.3d 758,
773 (Alaska 2011) (“A constitutional violation will always affect substantial rights and
will be prejudicial unless the State proves that it was harmless beyond a reasonable
doubt. An error that is not constitutional in nature will be prejudicial if the defendant
proves that there is a reasonable probability that it affected the outcome of the
proceeding.”). Because we find that the error was not harmless under the less-
demanding standard for non-constitutional errors, we need not determine whether the
error was harmless beyond a reasonable doubt.
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guns right there on the bed? That makes no sense.” The prosecutor also told the jury
that “[w]e know intuitively” that Sanders told the other witnesses to the events that “[t]he
story will be he hit me first.” And the prosecutor told the jury that Sanders had “a motive
to lie to the detectives to make himself look good and to leave out the parts of the story
that make it look like . . . the shooting of Mr. Moore had a lot more to do with preexisting
animosity than we discovered in this case.”
In light of the extensive argument against Sanders’s account that the State
presented during closing argument, we cannot fairly conclude that the exclusion did not
have an appreciable effect on the jury’s verdict.
V. CONCLUSION
Because the excluded evidence should have been admitted and because its
exclusion was not harmless, we REVERSE Sanders’s convictions and REMAND for a
new trial.
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BOLGER, Justice, with whom STOWERS, Justice, joins, dissenting in part.
I. INTRODUCTION
I agree with the general legal framework the court uses to decide this case.
I am troubled, however, by the court’s conclusion that Carmela Bacod’s statement to
Detective Huelskoetter was so trustworthy that the superior court was required as a
matter of law to admit it under Alaska Evidence Rule 804(b)(5).1 Even considering
corroborating evidence, I would hold that Bacod’s statement does not evince the
“circumstantial guarantees of trustworthiness” required for admission under
Rule 804(b)(5), and I would affirm the superior court’s evidentiary ruling. In the
alternative, I would remand to allow the superior court to exercise its discretion in
making this determination under this court’s newly announced standard.2
II. DISCUSSION
The court adopts nine “[p]articularly significant relevant factors”3 for
determining whether a proffered hearsay statement, despite failing to meet any of the
enumerated hearsay exceptions, is nevertheless sufficiently trustworthy to be admitted
into evidence.4 The court concludes that “at least five” of these factors favor the
1
Op. at 28, 39.
2
See Patterson v. GEICO Gen. Ins. Co., 347 P.3d 562, 568 (Alaska 2015)
(“We . . . review the superior court’s application of the evidence rules . . . for abuse of
discretion.”).
3
See Op. at 32.
4
The court adopts eight of these factors from 2 G EORGE E. D IX ET AL.,
M C CORMICK ON EVIDENCE § 324, at 565-66 (Kenneth S. Broun ed., 7th ed. 2013) and
analyzes evidence of corroboration as a final, standalone factor. See Op. at 32-38.
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statement’s admission.5 But for the reasons discussed below, I am not persuaded by the
court’s analysis, and I would conclude that, on the record before us, only one of these
nine factors — the recording of the statement — unambiguously favors admission, while
the remaining eight either cut against the statement’s trustworthiness or provide little
insight into the trustworthiness of the statement.
A. Motivation To Speak Truthfully
The court concludes that “Bacod’s statement provides no reason to believe
she was speaking insincerely in an effort to help [Ryan] Sanders.”6 But while I agree
that Bacod had no reason to lie for Sanders, Bacod’s broader motivations for speaking
with Detective Huelskoetter remain unknown. If anything, Bacod’s statement suggests
that Bacod contacted Detective Huelskoetter partly to determine what the police
knew about the shooting,7 and it is undisputable that she changed her account in real time
in response to what she learned.8 This casts some doubt on the idea that Bacod called
Detective Huelskoetter for the civic-minded purpose of providing a truthful statement to
help the police with their investigation. I would therefore conclude that this factor
weighs neither for nor against finding Bacod’s statement sufficiently trustworthy.
5
Op. at 33.
6
Op. at 34 (emphasis added).
7
Specifically, Bacod asked Detective Huelskoetter:
• “[W]ere you there at the scene?”
• “Was . . . it just [Richards] and [Moore] alone?”
• “[W]as there other people with [Moore] and . . . [Richards]? . . .
Were there two females there?”
8
Bacod initially indicated that Travis Moore, Ashlee Richards, Raven
Ketzler, and Sherrell Porterfield wanted to “jump” and “beat . . . up” Sanders, but she
later said “[t]hey were . . . gonna try to talk . . . it out.”
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B. Spontaneity
In discussing spontaneity, the court focuses primarily on the fact that Bacod
initiated the call to Detective Huelskoetter and states that the detective’s questions to her
were “open-ended.”9 But though it is true that much of Bacod’s statement was made in
response to open-ended questions, the most relevant portion — Bacod’s claims about
Travis Moore’s intent10 — was obtained through the detective’s leading questions.
Bacod never independently stated (or even implied) that Moore was the ringleader of the
alleged assault. She indicated this only by affirmatively answering two very leading
questions: (1) “So . . . you know that [Moore] wanted to beat [Sanders] up over the
money?” and (2) “[W]hen they were goin’ over there[,] [it] was pretty much the idea . . .
that [Moore] was gonna beat him up?”11 I do not think that Bacod’s responses to the
detective’s leading questions on this critical issue can be considered spontaneous, and
I would conclude that this factor weighs against the trustworthiness of Bacod’s
statement.
C. Under Oath
Bacod’s statement was not sworn testimony. Accordingly I would conclude
that this factor weighs against the statement’s trustworthiness.
D. Cross-examination
Bacod’s statement was not subjected to thorough cross-examination.
Although Detective Huelskoetter asked several leading questions, none was particularly
9
Op. at 34.
10
Moore’s intent was important and perhaps critical to the admissibility of
Bacod’s statement, as the court notes. Op. at 18-19.
11
Moreover, this second question would have been objectionable if it had
been asked at trial because Bacod had no personal knowledge of Moore’s state of mind
at the moment “when [the alleged conspirators] were goin[g]” to Sanders’s apartment.
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pointed or intended to cast doubt on Bacod’s truthfulness, as the State’s questions would
have been had Bacod been able to testify at trial. Indeed, cross-examination would have
been particularly helpful in clarifying this particular statement, because it might have
shed light on whether Richards actually told Bacod that the alleged conspirators were
planning to “jump” and “beat . . . up” Sanders or merely indicated an intent to “talk” with
him. Because the State was unable to press Bacod on this point, I would conclude that
this factor weighs against the trustworthiness of Bacod’s statement.
E. Relationship
The court concludes that Bacod’s decision to talk to a police officer
investigating the deaths of two friends strongly favors the trustworthiness of Bacod’s
statement.12 The court also notes that knowingly providing false information to the
police could have subjected Bacod to criminal liability.13 And elsewhere in its analysis,
the court suggests that Bacod’s statement was more trustworthy because she made it in
the presence of her mother.14 But as a general matter, I suspect police officers and
parents of teenagers would be skeptical of the court’s reasoning, since it is not
uncommon for individuals to lie to the police, or teenagers to their parents. And as noted
above, the idea that Bacod was highly motivated to tell the truth — either by the death
of her friends or by the potential for criminal liability — is somewhat belied by the fact
that she changed her account halfway through her statement.
For these reasons, I would conclude that the relationship between Bacod
and Detective Huelskoetter provides, at best, weak support for trustworthiness. I do not
think there is enough information in the record about Bacod’s relationship with her
12
Op. at 36.
13
Op. at 36.
14
Op. at 34.
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mother and with Detective Huelskoetter (or police officers in general) to support the
conclusion that these relationships “strongly favor” her statement’s trustworthiness.
F. Recantation Or Reaffirmation
There is no evidence to suggest Bacod recanted or reaffirmed her statement
after talking with Detective Huelskoetter, and she died before the evidence of her
statement came to light. As already noted, however, Bacod walked back a critical part
of her account — namely, that Moore, Richards, Ketzler, and Porterfield intended to
assault Sanders — midway through her statement. Although it seems likely that Bacod’s
reason for changing her narrative was to protect Ketzler and Porterfield once she learned
they had been present at Sanders’s house during the shootings, Bacod’s shift of narrative
was indisputably a “partial[] backtrack,”15 as the court puts it, or a partial recantation, as
I would put it. For this reason, I would conclude that this factor weighs against finding
Bacod’s statement trustworthy.
G. Recording
Bacod’s statement was recorded. As the court correctly concludes,16 this
weighs in favor of the statement’s trustworthiness.
H. Firsthand Knowledge
The court notes that Bacod had firsthand knowledge of her conversation
with Richards, which seems indisputable.17 Nevertheless, I am not persuaded that this
factor favors admissibility. It is difficult to imagine proffered evidence of hearsay within
15
See Op. at 16.
16
See Op. at 33.
17
See Op. at 37. The court also notes that Bacod had close ties w ith Richards
and knew the identities of the other three alleged conspirators. Id. For the reasons
discussed in the next section, however, I am unpersuaded that this corroborating
evidence supports the trustworthiness of Bacod’s statement.
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hearsay where the out-of-court declarant will not have firsthand knowledge of the second
declarant’s statement, so this factor would appear to support the admission of hearsay
within hearsay in most cases. But each level of hearsay compounds the risk that the
original statement was miscommunicated or misunderstood, and a factor that usually or
always favors the admission of hearsay within hearsay seems an unreliable indicator of
whether the statement is trustworthy. Therefore, while firsthand knowledge (or lack
thereof) seems a particularly relevant factor in determining whether a typical hearsay
statement should be considered reliable,18 I would conclude that this factor has little or
no weight in determining the trustworthiness of hearsay-within-hearsay statements,
including Bacod’s.
I. Corroborating Evidence
Finally, the court concludes that corroborating evidence supports the
trustworthiness of Bacod’s statement. The court highlights Bacod’s identification of
Moore, Richards, Ketzler, and Porterfield early in her statement without prompting from
Detective Huelskotter.19 And the court notes that the four friends had three weapons in
their possession the night of the shootings: (1) Richards’s push knife, (2) the machete
in the car, and (3) Moore’s unloaded pistol.20
But the fact that Bacod could identify the alleged conspirators provides
minimal corroboration for Bacod’s statement, since Bacod’s statement suggests that the
friends regularly spent time together, and Bacod did not actually know whether Ketzler
18
See United States v. Hall, 165 F.3d 1095, 1111 (7th Cir. 1999) (holding
third-party suspect’s confession unreliable where it was “clear” that suspect “knew
nothing about the specifics of the crime”).
19
Op. at 36.
20
Id. at 37.
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and Porterfield visited Sanders the night of the shootings. Moreover, Bacod’s
identification of her friends does not corroborate the critical portion of Bacod’s
statement: her explanation for why those friends visited Sanders’s apartment.
Likewise, the existence of the three weapons adds little corroborative force
to Bacod’s statement. The push knife and machete are conditionally relevant only if the
weapons were intended to be used to assault Sanders,21 but there is no evidence of such
intent. To the contrary, Richards never brandished the push knife and the machete
remained in the car.22 And while Moore’s pistol provides some corroboration for the
general thrust of Bacod’s statement, the weapon’s existence rebuts the portion of
Bacod’s statement that specifically addresses Moore’s relationship with firearms. When
asked whether she had ever observed Moore with a gun, Bacod responded: “No, . . . no.
I can’t imagine [Moore] with a gun.”23 Bacod further speculated that Ketzler was the
only one of the alleged conspirators who might have had a gun, but there is no evidence
in the record suggesting that Ketzler possessed a firearm either on the night of the
shootings or in general.
For these reasons, I do not share the court’s confidence that Bacod’s
identification of the group of friends who visited Sanders on the night of the shootings
— or the existence of the friends’ three weapons — significantly corroborates Bacod’s
statement. I would conclude that the corroborating evidence here provides only weak
support for the statement’s trustworthiness.
21
See Alaska R. Evid. 104(b).
22
Indeed, Sanders was not aware of either weapon, and the superior court
concluded they were irrelevant and inadmissible.
23
It also seems odd that Moore would take an unloaded weapon to Sanders’s
house if he intended to assault Sanders.
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III. CONCLUSION
I disagree with the court’s conclusion that Bacod’s statement was
sufficiently trustworthy to be admissible under Rule 804(b)(5), and I am especially
troubled by the court’s holding that Bacod’s statement was so trustworthy that it must be
admitted as a matter of law.24
The court attempts to narrow the breadth of this holding by stating that the
residual hearsay exceptions apply “only on rare occasions,” should not be treated as
“invitations to discard the general prohibition on the admission of hearsay,” and must be
applied on a “case-by-case” basis.25 But litigants — both criminal and civil — will no
doubt cite this case to support the admission of hearsay statements under the residual
hearsay exceptions. And Bacod’s unsworn, telephonic statement seems less trustworthy
than evidence from sworn affidavits or in-person interviews if such evidence can be
partially corroborated. Though the court has not previously held that these types of
hearsay evidence should be admissible at trial, I fail to see why today’s ruling will not
lead to the regular admission of such statements.
I fear the court will come to regret its expansion of the residual hearsay
exceptions, and I respectfully dissent.
24
See Op. at 39.
25
See Op. at 32-33.
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Anchorage Police Department Transcript
Q - DETECTIVE M. HUELSKOETTER
A - CARMELA BACOD
A. Everything happened, and she told me, like, actually it’s been goin’ on for like,
about two weeks now. Um, the - Ryan SANDERS (Phonetic), he stole money
from one of our friends, and they wanted to go beat him up to get the money back,
‘cause it was pretty much a lot of money, and I think that’s what like, triggered
it (clears throat) to happen.
Q. Do you know who, uh - which friend had the money stolen?
A. I don’t know her last name. I’ve met her just one time. Her name is RAVEN
(Phonetic), though.
Q. Okay. So, what - what exactly do you know about the s - stealing of the money?
A. Um, well, ASHLEE (Phonetic) told me, uh, like about a week and a half ago, she
told me on the phone that hi - her, RAVEN, and TRAVIS (Phonetic), and
TRAVIS’s fiancée SHERRELL, (Phonetic) and RYAN were all hangin’ out, and
then RYAN ended up the one only awake. Everyone was sleeping and they woke
up with money gone, and they were guessing it was him, ‘cause he was the only
one awake, and he was gone when they came - when they woke up.
Q. Humph.
A. So, they assumed that he had stolen the money and ASHLEE told me that she
heard around that RYAN had bought, uh, marijuana and alcohol and other drugs
with the money.
Q. Uh-huh.
BACKGROUND NOISE
A. So, that’s what I’ve heard.
BACKGROUND NOISE
Q. Okay. Do you - do you know of any other, uh, bad blood between RYAN and
TRAVIS and that group? Any other things goin’ on?
BACKGROUND NOISE
A. Um, I don’t know RYAN - I’ve never met RYAN, but his name sounds really
familiar, and I’ve known TRAVIS for a couple months, and I’ve known
ASHLEE, she - she was my best friend, and I’ve known her since third grade.
Q. Okay.
A. But, that was pretty much what she told me.
Q. So, what did . . .
Appendix - 1 of 6 7058
A. She . . .
Q. . . . they tell you about, uh, wanting to go, uh, beat them up over this? I mean,
what specifically do you know about that? What was the plan?
BACKGROUND NOISE
A. (Clears throat) Um, actually he had - he wanted to hang out with them . . .
Q. He, as in TRAVIS?
A. Uh, RYAN. He wanted to hang out with all of us. I was supposed to go with
them to their house . . .
Q. Oh, okay.
A. . . . that night. (Clears throat) Um, I really don’t know, like - oh, I can’t think right
now.
Q. Okay.
A. Sorry.
Q. So - but you know that TRAVIS wanted to beat RYAN up over the money?
BACKGROUND NOISE
A. Yeah.
BACKGROUND NOISE
Q. And that when they were goin’ over there that was pretty much the idea, is that
TRAVIS was gonna beat him up?
BACKGROUND NOISE
A. Yeah. Um, were you there at the scene?
Q. I’ve - I was at the scene.
BACKGROUND NOISE
A. Was, uh - was it just ASHLEE and TRAVIS alone?
Q. I - I’m sorry?
A. Like, um, was there other people with TRAVIS and SHERRELL, like - I mean,
ASHLEE?
Q. Yeah. There were.
A. Were there two females there?
Q. Yes.
BACKGROUND NOISE
Q. So, do you know somethin’ about that?
A. Well, um, RAVEN, she’s a Native. I don’t know if that was one of her females,
but, she had long hair . . .
Q. ‘Kay.
A. . . . that’s RAVEN. SHERRELL’s a Black female.
Q. Uh-huh.
A. She was, uh, TRAVIS’s fiancée.
Appendix - 2 of 6 7058
Q. Okay.
BACKGROUND NOISE
A. Um, ASHLEE just told me that they wanted the money back, and then they were
gonna jump ‘em for it. But, uh, she told me that earlier they tried before or
something like that, and RYAN’s brother got mad or something and pulled a gun
on RAVEN’s face, or something like that. I don’t know. She didn’t tell me much
about that.
Q. So, uh, [your] name’s CARMELA, is that right?
BACKGROUND NOISE
A. Yes.
BACKGROUND NOISE
Q. So, now, just let me see if I understand correctly, that you knew that kinda the
plan was that TRAVIS and his girlfriend and ASHLEE and - and some other girl
named RAVEN were gonna go over there and essentially jump them to get their
money back?
A. Not - not jump, like, you know, like, talk.
Q. Okay. They were . . .
A. But . . .
Q. . . . gonna try to talk . . .
A. . . . obviously . . .
Q. . . . it out, or . . .
A. . . . they’re young, so, you know, there’s gonna be violence in it.
Q. Okay.
A. But, I couldn’t stop them.
Q. Right. So, they - they - I mean basically the only reason they were going over
there was to get the money back.
BACKGROUND NOISE
A. Probably.
Q. Okay. Alright.
BACKGROUND NOISE
Q. Um, you ever see TRAVIS with a gun?
BACKGROUND NOISE
A. No, he - no. I can’t imagine TRAVIS with a gun.
Q. You can’t imagine TRAVIS with a gun?
A. No. He’s so nice.
Q. Is he?
BACKGROUND NOISE
Q. (Sighs) Um, who on that side would - would have had a gun?
Appendix - 3 of 6 7058
BACKGROUND NOISE
A. Definitely not ASHLEE.
Q. Okay.
BACKGROUND NOISE
Q. Anyone else that you can think of that mighta had a gun?
BACKGROUND NOISE
A. I can’t really, like - I don’t know RAVEN that much, but probably she could. I’ve
only met her once.
Q. Okay.
A. And I don’t know her.
BACKGROUND NOISE
Q. Okay. I - is there anything else that, uh . . .
BACKGROUND NOISE
Q. . . . you think I should know?
BACKGROUND NOISE
A. That’s - I told you everything I know.
Q. Okay. CARMELA, what’s your last name?
BACKGROUND NOISE
A. BACOD.
Q. Can you spell . . .
A. B...
Q. . . . that?
A. B as in boy . . .
Q. Uh-huh.
A. . . . A-C-O-D as in dog.
Q. B-A-C-O-D?
BACKGROUND NOISE
Q. BACOD?
A. Yeah.
Q. What’s your date of birth?
A. [Bacod provided her date of birth]
BACKGROUND NOISE
Q. Um, and how do I get a hold of you again, just call this number?
BACKGROUND NOISE
A. This is my mom’s cell phone.
Q. Okay. You have your own cell phone, then?
A. Yeah.
Appendix - 4 of 6 7058
Q. Okay. And, uh, is that, uh, [Detective Huelskoetter recited Bacod’s phone
number]?
BACKGROUND NOISE
A. Yeah.
Q. Okay.
BACKGROUND NOISE
Q. And where do ya live?
BACKGROUND NOISE
A. Um, [Bacod provided her home address] . . .
....
Q. . . . Alright. If, uh, if I have any other questions, can I, uh, give you a call back
or come see you?
BACKGROUND NOISE
A. Yeah.
Q. Okay. And, uh, do you have somethin’ to write my name and number down with?
BACKGROUND NOISE
A. Mom, can I get a pen?
Q. ‘Cause I’ll give you my direct number.
BACKGROUND NOISE
A. Okay.
Q. Okay, my first name is MARK.
BACKGROUND NOISE
Q. My last name, I’ll spell it for you, ‘cause it’s really long. It’s spelled H-U-E-L-S­
K-O-E-T-T-E-R.
BACKGROUND NOISE
Q. And my telephone number is [Detective Huelskoetter provided his phone number]
BACKGROUND NOISE
A. Okay.
Q. Okay?
A. Thank you.
Q. So, if you think of anything that - that I should know about, will you please give
me a call?
A. Yes.
Q. Alright, well thank you very much.
A. You’re welcome.
Q. We’ll talk to you later.
Appendix - 5 of 6 7058
A. Alright.
Q. ‘Bye.
A. ‘Bye.
BACKGROUND NOISE
RECORDER SHUTS OFF
END OF PHONE CONTACT
Appendix - 6 of 6 7058