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THE COURT OF APPEALS OF THE STATE OF ALASKA
LANCE D. LINTON, )
) Court of Appeals No. A-4834
Appellant, ) Trial Court No. 4FA-S91-3388CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1367 - August 26, 1994]
Appellee. )
________________________________)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Niesje J.
Steinkruger, Judge.
Appearances: Dick L. Madson, Law Offices of
Dick L. Madson, Fairbanks, for Appellant.
Eric A. Johnson, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Lance D. Linton was convicted of first-degree murder by
a jury. Linton appeals, contending that the trial court erred in
admitting hearsay evidence at trial and in denying Linton's
pretrial motions to suppress evidence and to dismiss his indict
ment. We affirm.
FACTS
In 1972, Linton married Elfriede Goltz in Germany,
where Linton was stationed with the Army. In the years that
followed, Linton and Elfriede had two children. Linton was
eventually transferred to Fort Wainwright, Alaska. In 1980, as a
means of obtaining a hardship discharge, Linton convinced
Elfriede to dissolve their marriage and give him sole custody of
their children. After the Army discharged Linton, Elfriede
joined Linton again; the couple occupied a trailer near Fair
banks. Linton's father, John Linton, and John's domestic part
ner, Stephen Pieroni, lived in another trailer a short distance
away.
By all accounts, Linton's relationship with Elfriede
deteriorated after the dissolution of their marriage. In early
June of 1982, Elfriede disappeared from home. Because Elfriede
had few friends in Alaska, her disappearance drew little
attention. After the disappearance, various people, including
the police, inquired of Linton about Elfriede's whereabouts.
Linton gave conflicting explanations, telling some people that
she had gone home to Germany and others that she had run off with
another man.
Approximately seven years later, in August of 1989,
Linton's father died, apparently of natural causes. Several
months afterward, in November of 1989, Pieroni and Lance Linton
came under investigation as a result of their involvement in a
fraudulent pull-tab scheme. The Alaska State Troopers obtained
and executed a search warrant for Pieroni's trailer. Trooper
Sergeant James McCann interviewed Pieroni during the search. At
the conclusion of the interview, McCann urged Pieroni to contact
the troopers if Pieroni had anything else to tell them.
A short time later, Pieroni contacted the troopers with
information indicating that Linton had murdered Elfriede in 1982.
Among other things, Pieroni reported having a conversation with
John Linton one morning in June of 1989, about two months before
John's death. According to Pieroni, he and John had been
drinking and celebrating Pieroni's birthday the night before the
conversation. In the morning, Pieroni noticed that John was
upset: "Tears were coming down [John's] face." John said that he
had something to tell Pieroni, but "it's going to be rough."
John went on to say that "Lance killed Elfie and . . . I helped
transport the body." Pieroni responded, "what are you telling me
this for? I don't want to hear this." John answered, "to get it
off my chest. I've got to tell you." Pieroni told John to "just
calm down and tell me anything you want."
John then told Pieroni that, in the summer of 1982,
Linton had come over in the evening hours and asked to borrow
John's van; John asked why, and Linton told him that he needed to
transport Elfriede. Linton said that he had poisoned Elfriede by
placing cyanide in either her milk or tea. He needed John's help
because Elfriede was a large woman. John helped Linton load
Elfriede into the van. According to Pieroni, John said that,
"[j]ust as they were lifting her into the van her arm flopped out
of the wrapper." John also told Pieroni that Linton had buried
Elfriede on their property, somewhere behind the trailer. John
warned that "if Lance learned [that John told Pieroni] he would
kill both of us."
After telling the troopers about his conversation with
John, Pieroni agreed to testify before a magistrate for a warrant
authorizing electronic monitoring of conversations between
Pieroni and Linton. Based on Pieroni's testimony, Magistrate
John C. Hessin granted the warrant. The troopers subsequently
monitored and recorded a telephone call between Pieroni and
Linton in which Pieroni brought up the topic of Elfriede's
disappearance. During the call, Linton was reluctant to discuss
Elfriede but made several arguably inculpatory statements. In
particular, when Pieroni informed Linton that he knew Elfriede
was "buried out back," Linton became "quite angry" and asked
Pieroni, "if that's true, how much do you value your life?"
The troopers later obtained a warrant to search the
property around Linton's residence. On June 30, 1990, searchers
discovered a human cranium -- the upper portion of a skull --
embedded in moss in a thickly vegetated area; the cranium had
apparently been moved to its resting place by animals long before
its discovery. Extensive searching yielded no other evidence.
Forensic examination positively identified the cranium as
Elfriede's and established that Elfriede had died between five
and twenty years previously.
Linton was eventually indicted for first-degree murder.
Prior to trial, he moved to dismiss his indictment, contending
that the state had presented the grand jury with inadmissible
hearsay: Pieroni's testimony relating John Linton's description
of the disposal of Elfriede's body and the testimony of several
witnesses stating that, prior to her 1982 disappearance, Elfriede
had told them she was afraid of Linton. Linton also moved to
suppress all evidence derived from the warrant that authorized
electronic monitoring of Pieroni's telephone conversation with
him, contending that the warrant was issued without probable
cause.
Superior Court Judge Niesje J. Steinkruger denied
Linton's motions. At trial, much of the disputed hearsay was
admitted over Linton's objection, as was the evidence obtained as
a result of the contested warrant. Upon conviction, Linton filed
this appeal.
DISCUSSION
A. Suppression
On appeal, Linton first contends that the trial court
erred in failing to suppress evidence seized pursuant to the
warrant authorizing electronic surveillance of Pieroni's
telephone call to Linton. Linton argues that the warrant was
issued without probable cause because the state failed to
establish Pieroni's credibility in accordance with the Aguilar-
Spinelli1 doctrine.
Linton's challenge to the state's failure to establish
Pieroni's credibility lacks merit, since it fails to recognize
that the Aguilar-Spinelli test deals exclusively with situations
in which the police seek to obtain a warrant by presenting the
magistrate with the hearsay statements of an informant; the
truthfulness of a witness who personally appears before the
issuing magistrate and testifies under oath need not be
corroborated under the Aguilar-Spinelli test". See Kvasnikoff v.
State, 804 P.2d 1302, 1306 n.3 (Alaska App. 1991); Hodsdon v.
State, 698 P.2d 1224, 1226-27 (Alaska App. 1985).
As with any other similarly situated witness,
the informant's willingness to submit to an
oath, and his personal presence and the
availability for questioning by the
magistrate provided adequate procedural
safeguards to assure a sound basis for
assessing veracity and reliability. No
independent corroboration was required under
the circumstances.
McLaughlin v. State, 818 P.2d 683, 686 (Alaska App. 1991).
Here, Pieroni appeared personally before Magistrate
Hessin and testified under oath in support of the disputed
warrant. The magistrate was presented with pertinent information
relating to Pieroni's credibility and had an ample basis to
determine the truthfulness of his testimony. The magistrate did
not abuse his discretion in accepting Pieroni's testimony as
credible and in issuing the warrant in reliance thereon.2
B. Hearsay
1. John Linton's confession
Linton next argues that the trial court erred in
admitting the hearsay statement of John Linton via Pieroni's
testimony at trial. In allowing Pieroni to testify about John
Linton's statement, Judge Steinkruger reasoned that, by telling
Pieroni about the assistance he gave his son in the disposal of
Elfriede's body, John Linton had essentially admitted committing
the offense of tampering with evidence. The judge found this
statement to be substantially against John Linton's penal
interest and, accordingly, concluded that it was admissible under
Alaska Rule of Evidence 804(b)(3) as a statement against penal
interest.
a. A.R.E. 804(b)(3)
Alaska Rule of Evidence 804(b)(3) creates an exception
to the hearsay rule when an unavailable declarant makes
[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 the declarant to civil or
criminal liability, or to render invalid a
claim by the declarant against another, that
a reasonable person in the declarant's
position would not have made the statement
unless believing 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.
On appeal, Linton concedes John Linton's unavailability but
disputes the trial court's hearsay ruling on several grounds.
Linton notes that, by the time John Linton made his
statement to Pieroni in 1989, approximately seven years had
elapsed since Elfriede's death. Linton asserts that the five-
year statute of limitations3 for tampering with evidence had thus
expired and that, for this reason, John Linton's statement did
not tend to subject him to criminal liability and was not against
his penal interest. As a matter of law, however, it is far from
clear that the applicable statute of limitations for tampering
with evidence had already expired when John Linton made the
disputed statement to Pieroni.4 More to the point, nothing in
the record suggests that John Linton was aware of or influenced
by the possible expiration of the statute of limitations when he
spoke to Pieroni. Nor do we think it fair to say that a
reasonable person in John Linton's position, even if aware of the
possibility of a statute of limitations defense, would have felt
free to speak to others about participating in the disposal of a
murder victim's body.
Linton also maintains that John Linton's statements
exposed him to no realistic threat of criminal liability, because
the statements were made to an intimate companion who was unlike
ly to divulge them to the authorities. Linton analogizes his
situation to that in Shakespeare v. State, 827 P.2d 454, 458-60
(Alaska App. 1992), where we held A.R.E. 803(b)(3) inapplicable
to a statement made to the police by an arrestee admitting
participation in a crime and implicating the defendant. In
Shakespeare, we reasoned that, once an arrest occurs and police
questioning begins, the arrestee is likely to see little to lose
in admitting the offense and much to gain in falsely implicating
another person as an accomplice. Id. at 459-60. We concluded
that, under such circumstances, it was unrealistic to view the
disputed statements as being against the declarant's penal
interest. Id.
The situation in the current case is obviously distin
guishable from Shakespeare, since there is utterly no reason to
suppose that John Linton was motivated to fabricate a claim
against his own son when he spoke to Pieroni.5 Moreover, unlike
the situation in Shakespeare, John Linton had no reason to
believe that the information he disclosed to Pieroni was already
known to the police.
While it is true that John Linton may not have had much
reason to fear that an intimate companion like Pieroni would
actually report John Linton's confession to the police, neither
did John Linton have any assurance that Pieroni would safeguard
his confidences. Most courts have been willing to find a suffi
cient risk of incrimination under such circumstances to trigger
the statement against penal interest exception:
A relation of trust and confidence between
speaker and listener arguably militates
against awareness that the making of the
statement might be against declarant's inter
est. . . . [However], [t]he always-existent
possibility of disclosure appears to be
enough. In fact, the existence of a friendly
relationship is on occasion mentioned as a
factor supporting admissibility.
2 John W. Strong, McCormick On Evidence 319 at 345-46 (4th ed.
1992)(footnotes omitted). See, e.g., United States v. Goins, 593
F.2d 88, 92 (8th Cir. 1977) (statement to daughter could be
against declarant's penal interest); United States v. Lang, 589
F.2d 92, 97 (2d Cir. 1978) (statement to cellmate could be
against declarant's penal interest); United States v. Bagley, 537
F.2d 162, 165 (5th Cir. 1976) (same); People v. Petros, 499
N.W.2d 784, 791 (Mich. App. 1993) (statement to friend qualifies
as a statement against penal interest). But see United States v.
Battiste, 834 F.Supp. 995, 1006-07 & n.11 (N.D. Ill.
1993)(statement to brother did not qualify as a statement against
penal interest).
In short, the trial court could properly find that,
despite the potential statute of limitations problem and despite
the fact that John Linton made his disclosures to an intimate
companion, his statements "so far tended to subject [him] to . .
. criminal liability . . . that a reasonable person in [his]
position would not have made the statement unless believing it to
be true." A.R.E. 804(b)(3).
b. Confrontation
Linton separately asserts that the admission of John
Linton's statements violated his constitutional right to confron
tation. U. S. Const. amend. VI; Alaska Const. art. I, 11.
Even when admissible under an exception to the hearsay rule, an
out-of-court statement offered against the accused in a criminal
prosecution must be excluded if it impinges upon the accused's
right of confrontation. Under the confrontation clause, a
hearsay statement is admissible against the accused
only if it bears adequate "indicia of
reliability." Reliability can be inferred
without more in a case where the evidence
falls within a firmly rooted hearsay
exception. In other cases, the evidence must
be excluded, at least absent a showing of
particularized guarantees of trustworthiness.
Ohio v. Roberts, 448 U.S. 56, 66 (1980); see also Hawley v.
State, 614 P.2d 1349, 1358 (Alaska 1980); Charles v. State, 780
P.2d 377, 382 (Alaska App. 1989).
There currently appears to be much confusion as to
whether the declarations against penal interest exception to the
hearsay rule is "firmly rooted" for confrontation clause
purposes. Compare, e.g., United States v. Flores, 985 F.2d 770,
780 (5th Cir. 1993), and United States v. Battiste, 834 F.Supp.
995, 1001 (N.D. Ill. 1993), with United States v. York, 933 F.2d
1343, 1363 (7th Cir. 1991), and United States v. Innamorati, 996
F.2d 456, 474 n.4 (1st Cir. 1993). At least as to the confession
of an accomplice implicating a criminal defendant, the issue
appears settled that the exception is not firmly rooted. See Lee
v. Illinois, 476 U.S. 530, 544 n.5 (1986). In the present case,
the prudent choice is clearly to assume that declarations against
penal interest do not comprise a firmly rooted exception to the
hearsay rule and that "particularized guarantees of
trustworthiness" must be shown before the requirements of the
confrontation clause can be met.
For purposes of determining whether "particularized
guarantees of trustworthiness" exist in a given case, the
totality of the circumstances must be considered, but "the
relevant circumstances include only those that surround the
making of the statement and that render the declarant
particularly worthy of belief." Idaho v. Wright, 497 U.S. 805,
819 (1990). Evidence that is not intrinsically related to the
circumstances in which a hearsay statement was made but merely
corroborates the statement's truthfulness cannot properly be
considered, since "the use of corroborating evidence to support a
hearsay statement's 'particularized guarantees of
trustworthiness' would permit admission of a presumptively
unreliable statement by bootstrapping on the trustworthiness of
other evidence at trial." Id. at 823.
Here, the circumstances surrounding John Linton's
statement provide ample assurance of the reliability of his
statement implicating Linton as Elfriede's murderer. John
Linton's statement to Pieroni was in the nature of a spontaneous
confession and was from all appearances prompted by Linton's
inability to cope with the guilt he felt for his role in the
incident. The statement was made to an intimate and trusted
companion in the absence of any apparent reason for deception.
Although the events related by John Linton were not recent, they
were not the kind of events that would ordinarily fade or become
confused with the passage of time. Moreover, while John Linton's
account of his own actions implicated another person in the
commission of a crime, there is no indication that he attempted
to minimize his own role or shift blame. Significantly, the
person John Linton implicated was his own son. The record
reveals no basis for believing that John Linton had even the
slightest reason to accuse his son falsely. To the contrary, all
of the evidence at trial established that John Linton and his son
enjoyed a close and harmonious relationship throughout the course
of John's life.
Of course, the truthfulness and accuracy of Pieroni's
testimony concerning John Linton's out-of-court statement was
open to question. But Pieroni testified personally and was
thoroughly cross-examined; his credibility was an issue
"'exclusively within the province' of the trier of fact."
Broderick v. Kings Way Assembly of God Church, 808 P.2d 1211,
1220 (Alaska 1991)(quoting Grasle Electric v. Clark, 525 P.2d
1081, 1083 (Alaska 1974). The jury obviously found his testimony
believable. Accepting Pieroni's testimony as true, we think it
fair to say that "the declarant's [that is, John Linton's]
truthfulness is so clear from the surrounding circumstances that
the test of cross-examination [as to John Linton] would be of
marginal utility" and would add little to his reliability.
Wright, 497 U.S. at 820. Under these circumstances, admission of
the hearsay statement did not violate Linton's right to
confrontation.
2. Elfriede's State of Mind
Linton next contends that the trial court erred in
allowing the jury to hear the testimony of three witnesses
describing Elfriede's fear of Linton prior to her disappearance.
The disputed testimony was elicited from three of Elfriede's
friends, Ingrid Pierce, Ann Schuyler and Linda Castor. At trial,
over Linton's objection, Pierce testified that Elfriede was
afraid of Linton and had expressed a desire to leave him. Pierce
told the jury that she purchased an airline ticket for Elfriede
to come to Michigan and that, although Elfriede initially agreed
to come, she called Pierce back and said "She couldn't leave
because she . . . couldn't leave her kids."
Ann Schuyler testified that Elfriede was at times
afraid of Linton and slept with a knife under her pillow.
Elfriede particularly feared that Linton might have her deported
and keep custody of their children. According to Schuyler,
Elfriede would never have left the children voluntarily. Linda
Castor, another friend of Elfriede, testified that Elfriede told
her that Linton had "offered to pay her ticket, [to] go back to
Germany but she wasn't allowed to take the children with her."
According to Castor, Elfriede remarked that Linton "would get the
kids over her dead body."
Judge Steinkruger ruled this evidence admissible to
show Elfriede's state of mind under A.R.E. 803(3), which allows
admission of
[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 his present
condition or future action, but not including
a statement of memory or belief to prove the
fact remembered or believed[.]
Linton contends that the court erred in relying on this
rule to justify the admission of this evidence. Linton points to
authorities holding that evidence of a murder victim's
expressions of fear of the accused is generally inadmissible to
prove the accused's identity as the murderer or to establish the
accused's motive. See State v. Charo, 754 P.2d 288 (Ariz. 1988);
People v. Ruiz, 749 P.2d 854 (Cal. 1988).
These authorities, however, merely recognize the
general proposition that, even when evidence of a victim's state
of mind qualifies under A.R.E. 803(3), the evidence must be
directly relevant to some genuinely disputed issue before it is
properly admissible. The corollary proposition is that such
state-of-mind evidence is inadmissible if its only relevance is
as circumstantial evidence of the accused's conduct, that is, if
its probative value depends on the impermissible inference that,
because the victim feared the accused, the accused likely did
something or planned to do something to justify the fear.
Both of these propositions flow in turn from the
explicit language of A.R.E. 803(3) prohibiting the use of "a
statement of memory or belief to prove the fact remembered or
believed," a limitation "necessary to avoid the virtual destruc
tion of the hearsay rule which would otherwise result from
allowing state of mind, provable by a hearsay statement, to serve
as the basis for an inference of the happening of the event which
produced the state of mind." Alaska Evidence Rules Commentary
803(3). As the state correctly points out, courts have had
little difficulty admitting evidence of a murder victim's fear of
the accused when the victim's fear was relevant to a material
issue other than "the happening of the event which produced the
state of mind." See, e.g., State v. Christensen, 628 P.2d 580,
584 (Ariz. 1981).
Here, the disputed evidence relating to Elfriede's fear
of Linton was not used to prove "the happening of the event that
produced the state of mind." In the aftermath of Elfriede's
disappearance, Linton made a number of conflicting statements
indicating that Elfriede had left him for another man or that she
had returned home to Germany. At trial, the state attempted to
establish the falsity of these explanations by proving that
Elfriede would never have considered leaving Linton without her
two children. Indeed, under the state's theory of the case,
Elfriede's refusal to leave provided Linton with the motive to
kill her.
In support of this theory, the state introduced
evidence to show that Linton's marriage to Elfriede had
deteriorated and was failing by the time Linton was discharged
from the Army. The state's evidence indicated that Linton wanted
Elfriede to return home to Germany and that he wanted to retain
sole custody of their two children; Elfriede, however, refused to
leave her children behind. The state's evidence further tended
to show that, during the year preceding Elfriede's disappearance,
Linton engaged in conduct aimed at frightening Elfriede away;
despite these efforts, Elfriede would not leave. Various
prosecution witnesses, including Ingrid Pierce, Ann Schuyler and
Linda Castor, insisted that, although Elfriede had in fact become
frightened of Linton, she would never have considered leaving him
without taking her children.
Viewing the disputed state-of-mind evidence against
this evidentiary backdrop makes it apparent that the state did
not offer the testimony concerning Elfriede's fear of Linton to
prove that Linton had in fact previously harmed her or to support
the impermissible subsidiary inference that Linton's past acts of
harm toward Elfriede made it more likely that he was her killer.6
Rather, the state offered this evidence to suggest a plausible
motive for Linton's commission of the alleged crime: that Linton
resorted to murder when his attempts to talk Elfriede into
leaving and his attempts to drive her away -- including his
apparent success at frightening her -- had failed. For this
purpose, the disputed evidence was admissible under A.R.E.
803(3). The trial court's decision to admit it did not amount to
an abuse of discretion.
C. Dismissal
Linton lastly argues that the trial court erred in
denying his motion to dismiss his indictment. Linton's dismissal
motion, however, was largely predicated on his contention that
Pieroni's testimony concerning John Linton's confession and the
testimony of Ingrid Pierce, Ann Schuyler and Linda Castor
concerning Elfriede's fear of Linton amounted to inadmissible
hearsay. Our holding that the testimony of these witnesses was
admissible at trial thus disposes of Linton's challenge to the
validity of his indictment.7
CONCLUSION
Finding no error, we AFFIRM the conviction.
_______________________________
1. Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v.
United States, 393 U.S. 410 (1969).
2. Linton separately argues that the magistrate erred in
relying on Pieroni's description of John Linton's statements
concerning the disposal of Elfriede's body. Linton contends that
his father's statements were inadmissible hearsay and should have
been disregarded. This argument, however, loses sight of the
fact that the rules of evidence do not apply in the context of
search warrant proceedings. See A.R.E. 101(c)(2). Moreover, as
we conclude in subsequent portions of this decision, Pieroni's
testimony concerning John Linton's statements was not
objectionable on hearsay grounds.
3. See AS 12.10.010.
4. See AS 12.10.020(a). This statute allows an extension
of the usual five-year statute of limitations for up to three
years for the prosecution of an undiscovered offense that
includes a material element of fraud. As the state notes in its
brief, the crime of tampering with evidence arguably includes a
material element of fraud. Cf. Rozier v. Ford Motor Co., 573
F.2d 1332, 1339 (5th Cir. 1978). It is thus conceivable that
John Linton remained vulnerable to prosecution for tampering with
evidence when he made his statement to Pieroni.
5. Linton suggests that it was Pieroni, not John Linton,
who had the strong motivation to fabricate in this case and that,
for this reason, additional scrutiny should have been given to
his testimony before it was admitted. In evaluating the
reliability of out-of-court declarations for hearsay purposes,
however, the proper focus is on the motivations of the out-of-
court declarant, not on the witness who testifies about the out-
of-court statement. Because the person who witnesses the out-of-
court statement appears personally, testifies under oath, and is
subject to cross-examination, the jury can gauge for itself the
truthfulness of the witness' claims: "The fact that the witnesses
to [the] statements . . . may be unreliable or motivated by
selfish interests is irrelevant to evaluation of the reliability
of the [out-of-court] statements themselves." Broderick v. Kings
Way Assembly of God Church, 808 P.2d 1211, 1220 (Alaska 1991).
See United States v. Seeley, 892 F.2d 1, 3 (1st Cir. 1989);
United States v. Katsougrakis, 715 F.2d 769, 777 (2d Cir. 1983);
United States v. Atkins, 558 F.2d 1333, 1335 (3d Cir. 1977). See
generally, 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's
Evidence 804(b)(3)[02] at 804-147-48 (1994).
To the extent Linton suggests that additional scrutiny
should be given to statements against penal interest implicating
third parties when, as here, admission is sought against the
third parties, his point may have merit. A number of cases
dealing with Federal Rule of Evidence 804(b)(3) indicate that the
trustworthiness of a statement against penal interest should be
corroborated before the statement is admitted against a third
party collaterally implicated therein. See, e.g., United States
v. Flores, 985 F.2d 770, 774 n.10 (5th Cir. 1993); United States
v. Taggart, 944 F.2d 837, 840 (11th Cir. 1991); United States v.
Garcia, 897 F.2d 1413, 1420 (7th Cir. 1990); United States v.
Boyce, 849 F.2d 833, 836 (3d Cir. 1988); United States v.
Stratton, 779 F.2d 820, 828 n.7 (2d Cir. 1985); United States v.
Riley, 657 F.2d 1377, 1384 (8th Cir. 1981). Such a requirement
would in effect parallel the requirement of "corroborating
circumstances clearly indicat[ing] the trustworthiness of the
statement" that A.R.E. 804(b)(3) expressly imposes as a condition
of admitting statements against penal interest by third parties
exculpating the accused.
Assuming such a corroboration requirement applies to
the present case, we find abundant corroboration of the
trustworthiness of John Linton's out-of-court statement,
including, most notably, the discovery of Elfriede's cranium on
Linton's property.
6. It is equally apparent that the state did not attempt
to use the evidence of Elfriede's state of mind as proof of
Linton's state of mind in order to establish his likely conduct -
- that is, the state did not attempt to prove that Elfriede's
fear of Linton indicated that Linton was in fact planning to harm
her and that he therefore probably did so. Such use would have
been equally impermissible under A.R.E. 803(3). See Alaska
Evidence Rules Commentary 803(3) ("For the statements of one
person as to his mental or emotional condition to be used against
another, Subdivision (23)[A.R.E. 803(23)] must be satisfied.")
Notably, Judge Steinkruger offered Linton a cautionary instruc
tion to inform the jury that the testimony of Pierce, Schulyer,
and Castor could not be considered for the truth of the matters
asserted therein.
7. To a certain extent, the grand jury testimony of
Pierce, Schuyler and Castor was broader than their trial
testimony and included statements that are arguably
objectionable. In denying the motion to dismiss, however, Judge
Steinkruger found that any error was harmless, since, even if the
entirety of the testimony offered by these witnesses were
excised, sufficient evidence would remain in the grand jury
record to support Linton's indictment. Although Linton's failure
to include a transcript of the grand jury hearing as part of the
record on appeal precludes definitive review of Judge
Steinkruger's harmless error finding, nothing in the record
currently before this court or in the briefs submitted by the
parties provides a basis for questioning this finding.
