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THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL P. SHAKESPEARE, )
) Court of Appeals No. A-3294
Appellant, ) Trial Court No. 1JU-S88-1349CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Duane K. Craske, Judge.
Appearances: Margaret W. Berck, Assistant
Public Defender, Juneau, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
Eric A. Johnson, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Michael P. Shakespeare was convicted by a jury of
Misconduct Involving a Controlled Substance in the Third Degree
for possessing cocaine with intent to deliver. AS
11.71.030(a)(1). He appeals his conviction on several grounds.
We reverse.
Shakespeare was arrested along with several other
individuals on November 24, 1988. The arrests stemmed from an
investigation conducted by Juneau and Ketchikan police into a
cocaine distribution organization based in Seattle and headed by
Patty Hunt. November 24 marked the culmination of this
investigation, as it was the date set for a large, undercover
purchase of cocaine orchestrated by police in an attempt to draw
Hunt personally to Alaska. To monitor the transaction, the
police posted officers at the Seattle and Juneau airports, at the
Super 8 Motel in Juneau (where agents had rented rooms and the
purchase was to occur), and near a Garnet Street residence in
Juneau known to be used by members of the Hunt group.
Police watched Hunt leave the Seattle airport and
observed her arrive in Juneau. Hunt was accompanied by Michelle
Rowe, a dealer from whom police had previously purchased cocaine.
At the airport, Hunt and Rowe were met by Donald Powell, a man
known by police to be an integral member of the Hunt
organization. Police followed the three to the Garnet Street
residence. Soon Shakespeare arrived, driving a Ford Bronco.
Hunt and Powell then left Garnet Street in a red
Chevrolet Sprint and drove to the Alpine Apartments, where the
group was believed to maintain a safehouse. From there they
drove to the parking lot of the Fred Meyer store. Shakespeare
and Rowe arrived a short time later in Shakespeare's Bronco.
Hunt and Rowe switched vehicles, so that Hunt was with
Shakespeare in the Bronco, and Rowe was with Powell in the
Sprint.
The two cars left the parking lot and drove toward the
Super 8 Motel. Powell and Rowe stopped at the motel; Hunt and
Shakespeare continued to drive, apparently monitoring the area
for police activity. Rowe entered the motel and spoke with an
undercover agent regarding the cocaine sale. Originally, the
agent had agreed to buy a pound of cocaine in a single transfer.
However, Rowe informed the agent that her source wanted to
stagger the delivery. She offered to deliver one ounce
immediately with the remainder to follow in two installments.
The agent agreed and handed Rowe $1600. Rowe went out to the
Sprint and returned with an ounce of cocaine. The agent gave
Rowe $10,000, and Rowe agreed to return with seven ounces.
Rowe and Powell left the motel and joined Shakespeare
and Hunt at the Fred Meyer parking lot. There, Hunt and Rowe got
into a heated argument about the price of the cocaine and whether
to continue the transaction. The two women again changed cars.
Hunt left with Powell and travelled to the Alpine Apartments,
then returned to Fred Meyer, rejoining Rowe and Shakespeare.
Hunt and Rowe changed cars again, and both cars left the parking
lot.
Rowe and Powell returned to the Super 8 Motel, where
Rowe gave the undercover agent more cocaine. The agent gave Rowe
more money, and Rowe agreed to return with the final installment.
Rowe and Powell were arrested as Rowe left the motel.
Meanwhile, police had arrested Shakespeare and Hunt
near the Fred Meyer parking lot. Officers observed a large
amount of cash (later found to total $1600) on the floor of the
truck in front of the passenger seat. During an inventory search
of the car, police found a bag containing cocaine and an
additional $10,000 in cash.
Shakespeare testified on his own behalf at trial. He
did not dispute the observations made by the police on the night
of November 24. Rather, Shakespeare maintained that he was an
unwitting accomplice to the Hunt scheme. He claimed that he had
returned to Juneau on the night of the 24th from a week at
Green's Creek, that he had heard that Hunt -- an old childhood
friend --was in town, and that he had sought her out, hoping to
obtain a loan.
Shakespeare claimed that as he drove Hunt around, they
reminisced about old times while Hunt smoked marijuana and
directed him from one place to the next. He denied knowing that
a drug transaction was occurring until he overheard the argument
between Hunt and Rowe during the second meeting in the Fred Meyer
parking lot. At that point, Shakespeare claimed, he wanted to
leave, but could do so only after calming Rowe, with whom he had
been left by Hunt. Shakespeare testified that he did not know
that contraband was in his car until Hunt told him shortly after
the police signalled for him to stop.
During the investigation that followed the November 24
arrests, the police discovered evidence linking Shakespeare's
wife, Yvette, to a cocaine purchase from one of Hunt's dealers in
Juneau. A ledger entry indicated that Yvette owed $800 for the
buy. Police interviewed Yvette in early December, 1988. During
the interview, Yvette acknowledged a prior purchase of cocaine.
Yvette also stated that Shakespeare had introduced her to Hunt,
that he was aware that Hunt was a "big time" drug dealer, and
that he had arranged Yvette's purchase of cocaine from the Hunt
organization.
At trial, the state sought to question Yvette about
these statements in order to establish that Shakespeare knew of
Hunt's involvement in drug activity prior to November 24.
Shakespeare, however, asserted the spousal privilege. See Alaska
Rules of Evidence 505; 512(b).1 Superior Court Judge Duane K.
Craske upheld the assertion.
The state then sought to present Yvette's statements
through the testimony of Juneau Police Officer Clarence
Bloodworth, who had interviewed her. Shakespeare objected on
grounds of hearsay. In response, the state argued that
Bloodworth's testimony was admissible under the statement against
interest exception to the hearsay rule, A.R.E. 804(b)(3), or,
alternatively, under A.R.E. 804(b)(5), the residual exception
clause. Judge Craske agreed with the state and allowed
Bloodworth to testify. On appeal, Shakespeare argues that
admission of this evidence was error.
The admissibility of evidence is largely within the
discretion of the trial court; we will not disturb an evidentiary
ruling absent an abuse of discretion. Wortham v. State, 689 P.2d
1133, 1140 (Alaska App. 1984).
Alaska Rule of Evidence 804(b)(3) provides:
(b) Hearsay Exceptions. The following are
not excluded by the hearsay rule if the
declarant is unavailable as a witness:
. . . .
(3) Statement Against Interest. A statement
which was at the time of its making so far
contrary to the declarant's pecuniary or
proprietary interest, or so far tended to
subject him to civil or criminal liability,
or to render invalid a claim by him against
another, that a reasonable man in his
position would not have made the statement
unless he believed it to be true. 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 statement against interest exception rests on the
assumption "that persons will not make damaging statements
against themselves unless they are true." J. Weinstein and M.
Berger, 4 Weinstein's Evidence 804(b)(3)[01], at 804-123
(1991). The validity of this assumption becomes questionable,
however, when a statement is against the declarant's interest
only in a literal sense -- that is, when the objective
circumstances surrounding the giving of the statement make it
clear that a reasonable person in the declarant's shoes would
have perceived little actual risk of danger or disadvantage from
the statement, regardless of its truth. In recognition of this
point, A.R.E. 804(b)(3) expressly requires a statement to be "so
far contrary" to the interest of the declarant at the time of its
making "that a reasonable man in his position would not have made
the statement unless he believed it to be true."
Thus we have held that where the declarant is aware
that he is not subject to prosecution for crimes revealed in a
statement, the statement lacks trustworthiness and should not be
construed as one against penal interest. Wortham v. State, 689
P.2d at 1140. See also Garroutte v. State, 683 P.2d 262, 266
(Alaska App. 1984). Further, we have recognized that statements
given in the context of a plea bargain, where the defendant may
have an incentive to implicate others, are inherently suspect and
not subject to the statements against interest exception.
Newcomb v. State, 779 P.2d 1240, 1242-43 (Alaska App. 1989).
In the present case, Officer Bloodworth testified about
the circumstances surrounding the interview in which Yvette
implicated Shakespeare. He stated that Yvette was initially
reluctant to answer questions and was persuaded to talk openly
only by assurances that her statements would not be held against
her. Bloodworth candidly testified:
She was very concerned about her proba-tion
being revoked because of her involvement with
cocaine. So she started out not wanting to
tell us the truth. She told us that she
borrowed the money from Patty Hunt and that
was all there was to it. But we convinced
her that we weren't going to take any action
against her if she told us the truth.
. . . .
. . . I asked her the one thing that I
think turned it around, is John or I, one of
us, asked her whether she believed she'd go
back to jail and she said yes. And then
John, I think, talked to her and said, you
know, we're not interested in prosecuting
you. What we're interested in is the
information you have about Patty Hunt. And
at that point she believed that we weren't
going to throw her in jail if she started
telling us the truth.
From this testimony it is evident that when Yvette made the
disputed statements, she believed that she was not subject to
prosecution.
The state argues that Yvette's belief is irrelevant,
since no formal immunity agreement was entered into between
Yvette and the state. However, even if we assume that the
promises made by the interviewing officers did not bind the state
-- an issue expressly left undecided by the supreme court in
Closson v. State, 812 P.2d 966, 971 n.6 (Alaska 1991) -- this
does not end the inquiry. Rule 804(b)(3) requires us to focus
upon whether the statement so far tended to subject Yvette to
criminal liability that a reasonable person in her position would
not have made the statement unless she believed it to be true.
Under this formula, the crucial inquiry is not whether the police
had authority to confer immunity or whether a formal immunity
agreement was reached; rather, the inquiry is whether a
reasonable person in Yvette's shoes would have believed that the
police would not prosecute.
We believe that a reasonable person would have
construed the interviewing officers' assurances as a promise
against prosecution and would not have perceived the disputed
statements as being against penal interest. Bloodworth's
testimony expressly confirms this conclusion. According to
Bloodworth, Yvette did not begin to talk openly until she became
convinced she would not jeopardize herself by doing so. It
follows that the rationale of A.R.E. 804(b)(3) does not apply to
Yvette's situation.
Our conclusion finds ample support from other
jurisdictions. In United States v. Magana-Olvera, 917 F.2d 401
(9th Cir. 1990), the state sought to admit statements made during
the in-custody interrogation of an accomplice who implicated
himself and the defendant in drug activity. The accomplice
indicated a willingness to cooperate with the government; the
interviewing officer intimated a corresponding leniency in
prosecution. The court found that a reasonable person in the
declarant's shoes may have made the statements even if they were
not true. The court stated that the declarant had "a powerful
incentive to minimize the damage of an almost certain criminal
conviction. That incentive becomes nearly irresistible when the
[interviewing officer] uses a federal indictment as a stick, and
a promise of leniency as a carrot." Id. at 407-08.
In United States v. Boyce, 849 F.2d 833, 836 (3d Cir.
1988), the court overturned the admission of statements, made by
a co-defendant while in custody and prior to consultation with an
attorney, which implicated both himself and the defendant. The
court found that since nothing in the record indicated that the
declarant "was not motivated by a desire to curry favor with the
FBI agent and police officer interrogating him," the statements
were unreliable and not admissible as statements against
interest. See also United States v. Johnson, 802 F.2d 1459, 1464-
65 (D.C. Cir. 1986); State v. Hansen, 312 N.W.2d 96, 101 (Minn.
1981); State v. Whelchel, 801 P.2d 948 (Wash. 1990).
Judge Craske based the admission of Yvette's statements
upon a determination that the statements were in fact trustworthy
-- a determination that he made after listening to an audiotape
of the interview:
My original feeling kind of (indiscern-
ible), and I really have changed my mind --
was going to change my mind, frankly, but the
range of the discussion and her commentary, I
think she was genuinely trying to I suppose
protect herself, say -- say what she needed
to say, and that she was under pressure on
the one hand to be indicted; on the other
hand to have the probation revoked, she was
going both directions. But I think she was
under that kind of punitive pressure that
would cause a reasonable person in her
position to make the statement to be true.
She -- the officers had said that they knew
everything about it, which is the typical
officer's gambit, I suppose, and -- but
that's what they said. And they -- her
sincerity and trustworthiness, I think, came
from her own state of mind of fear.
The error in this approach is the substitution of a subjective
analysis of the trustworthiness of Yvette's statements for the
objective analysis of the circumstances surrounding the making of
the statements, which is required by Rule 804(b)(3). As we noted
above, a reasonable person in Yvette's position would have
thought that the assurances offered by the police immunized the
declarant against prosecution stemming from the statements. In
such a context, fear and self-interest are as likely to induce
dishonest responses as truthful ones.
Here, the possibility that Yvette's statements were
motivated by fear and self-interest stems not only from the
assurances of immunity from prosecution that the police gave in
return for cooperation, but also from the possible revocation of
Yvette's probation if Yvette did not cooperate. At trial the
following exchange occurred between Shakespeare's counsel and
Bloodworth:
Q:And what exactly did you say or overhear
said to her about probation revocation?
A:That we were not interested in revoking her
probation. . . .
Q:And she expressed serious concern that her
probation would be revoked?
A: Yes.
Q:Okay. Isn't it a fact that during that
conversation that the interviewing officer
said that he could go and talk to Diane
Shriner, the probation officer and that it
would go either way, depending on what Yvette
said to him?
A:I don't remember him saying that. I
remember him saying that he would be happy to
call her and tell her that Yvette had
cooperated with us.
In Newcomb v. State, 779 P.2d at 1242-43, citing the
Commentary to A.R.E. 804(b)(3), we recognized that statements
which inculpate others and are given in the context of plea
bargaining are inherently unreliable. The unreliability stems
from the fact that one who has been placed in the position of
bargaining with the government, particularly when liberty is at
stake, has every incentive to inculpate others for personal
benefit.
There is little distinction between a typical plea
bargain situation and the situation Yvette was in when questioned
by Bloodworth. Yvette had the option of giving the officers
information they wanted against Shakespeare (as to which she had
been assured immunity), or risking the negative ramifications of
silence: a threatened probation revocation action. Under these
circumstances, Yvette's statements implicating Shakespeare were
no more dependable than the statements we found untrustworthy in
Newcomb. In both cases, the declarant had a strong incentive to
give damaging information against others, regardless of whether
the information was truthful.
Indeed, we note that a strong argument has been made
that all statements given during a police interrogation which
implicate both the declarant and the accused should categorically
be excluded from the statement against interest exception to the
hearsay rule, because such statements always involve a great
danger that the declarant may be motivated by an express or
implied threat of prosecution or promise of leniency. J.
Weinstein and M. Berger, 4 Weinstein's Evidence 804(b)(3)[03],
at 804-150 (1991). This is one factor that led the original
drafters of Federal Rule 804(b)(4) to include the following
clause in the statement against interest exception:
This exception does not include a statement
or confession offered against the accused in
a criminal case, made by a codefendant or
other person implicating both himself and the
accused.
Id. Eventually, this language was deleted from the rule on the
basis that it was not needed, which, according to Weinstein,
"means that the Rule should be interpreted to include this
language." Id. at 804-151.2
Finally, we note that there are other circumstances in
this case undermining the trustworthiness of Yvette's statements.
Officer Bloodworth testified that, during the interview, Yvette
attached "a great deal of blame for her difficulties upon
[Shakespeare]," and that this struck him as "self-serving."
Bloodworth acknowledged that Yvette gave inconsistent statements
during the interview. Also, at the time of the interview, Yvette
and Shakespeare were apparently experiencing marital difficulties
and had separated. Given the totality of the circumstances
surrounding Yvette's police interview, we are unable to say that
a reasonable person in her position "would not have made the
statement unless [she] believed it to be true." A.R.E.
804(b)(3). Accordingly, we conclude that the trial court abused
its discretion by admitting evidence of Yvette's statement under
the statement against interest exception.
Judge Craske alternatively ruled that even if Yvette's
statements were not admissible under A.R.E. 804(b)(3), their
admission was warranted under A.R.E. 804(b)(5). Rule 804(b)(5)
is a residual provision, which allows the admission of hearsay
statements not otherwise admissible under an enumerated
exception. This residual exception, however, is one of rare
application and is not meant to be used as a catch-all for the
admission of statements falling just outside the borders of
recognized exceptions. Brandon v. State, 778 P.2d 221, 227
(Alaska App. 1989). Under A.R.E. 804(b)(5) an independent
analysis must be undertaken to see if the case involves
"exceptional circumstances where the court finds guarantees of
trustworthiness equivalent to or exceeding the guarantees
reflected in the present exceptions to the hearsay rule." Id.
The finding of trustworthiness upon which admission of the
statement is predicated is not a procedural formality; it is a
substantive requirement. Rychart v. State, 778 P.2d 229, 233
(Alaska App. 1989). Here, we have found Yvette's statement
inadmissible under A.R.E. 804(b)(3) precisely because it lacked
circumstantial indicia of trustworthiness. This lack of
trustworthiness necessarily precludes the statement's admission
under A.R.E. 804(b)(5).
At trial, Shakespeare's defense was based on his
claimed lack of knowledge of the events transpiring around him.
Yvette's hearsay statement directly undercut this defense,
indicating that Shakespeare knew that Hunt was a cocaine dealer
and that he had bought drugs from her in the past. The admission
of the hearsay statement thus cannot be dismissed as harmless
error and requires reversal of Shakespeare's conviction.
We briefly address Shakespeare's remaining contentions.
Shakespeare claims that the trial court erred in admitting the
two packages of cocaine that Michelle Rowe delivered to the
undercover officers at the Super 8 Motel. The cocaine was
clearly relevant, since Shakespeare claimed that he had no
knowledge of the illicit nature of his actions, and the cocaine
served as circumstantial evidence having some tendency to support
the inference that he did in fact know that contraband was being
exchanged. See Denison v. Anchorage, 630 P.2d 1001, 1003 (Alaska
App. 1981). Further, the evidence was not unduly prejudicial.
At trial, police offered a verbal description of the seized
cocaine. The admission of the physical evidence served merely as
incremental proof of the nature of the contraband. Judge Craske
did not abuse his discretion by admitting the two cocaine
packages.
Finally, Shakespeare argues that the trial court erred
in denying his motion for a judgment of acquittal. Shakespeare
claims that the state failed to present sufficient evidence to
establish that he possessed the requisite mental state of the
offense. However, at trial, the state offered undisputed
evidence that on the night of November 24, 1988, Shakespeare was
present throughout the various stages of a large and complex drug
sale. The state's evidence further showed that cocaine and cash
totalling $11,600 were found in Shakespeare's car. Viewing this
evidence in the light most favorable to the state, a jury could
easily infer that Shakespeare had knowledge that he was
facilitating a drug transaction and that he knowingly possessed
cocaine. Since reasonable persons could differ as to whether
guilt had been established beyond a reasonable doubt, see Adams
v. State, 598 P.2d 503, 509 n.8 (Alaska 1979), the trial court
did not err by denying Shakespeare's motion for judgment of
acquittal.
The conviction is REVERSED.3
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. From the record, it is difficult to ascertain whether
Shakespeare invoked the spousal immunity privilege, A.R.E.
505(a), the confidential marital communications privilege, A.R.E.
505(b), or both. The state now questions the validity of the
trial court's ruling insofar as it held that the confidential
communications privilege applied. However, the state did not
object to the court's grant of the privilege when it was
asserted. We therefore assume, without deciding, that Judge
Craske correctly ruled on the privilege issue.
2. Some states have nonetheless retained the provision in
the text of their rules. See Ark. Stat. Ann. 28-1001 Uniform
Rules of Evidence, Rule 804(b)(3)(Noncum. Supp. 1976); Fla.
Stat. Ann. Evidence Code 90.804(2)(c)(Supp. 1976); Nev. Rev.
Stat. tit. 4 51.345 (1973) as amended by A 1979, 44; N.D.
Rules of Evidence, Rule 804(b)(3) (1977); Vt. Rules of Evidence,
Rule 804(b)(3) (1983).
3. Shakespeare raises a number of additional issues pro
se. He first argues that the admission of Yvette's statements
violated his spousal immunity and marital communications
privileges. We note that since Yvette's interview was conducted
after Shakespeare's arrest, it could conceivably be viewed as a
stage of an "action[], case[], and proceeding[]" to which the
privileges apply. See A.R.E. 101(b); Walstad v. State, 818 P.2d
695, 698 (Alaska App. 1991). However, Shakespeare failed to
object to admission of the statements on this basis. In any
event, Shakespeare's claim is rendered moot by our decision that
the statements were inadmissible hearsay.
Second, Shakespeare challenges the sufficiency of the
indictment. Shakespeare raises this issue for the first time on
appeal, and we will therefore not consider it. Anthony v. State,
521 P.2d 486, 496 (Alaska 1974).
Third, Shakespeare claims a denial of due process
because the state failed to preserve and present him with an
audio tape of a second police interview with Yvette.
Shakespeare's claim is groundless, as the record does not support
the inference that such a tape ever existed.
Finally, Shakespeare claims that the trial court erred
by admitting cumulative evidence. In light of our disposition of
this case on the hearsay issue, we need not decide Shakespeare's
cumulative evidence claim.
