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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN F. RYAN and )
JEROME TRIGG, III, ) Court of Appeals Nos. A-5181 &
5251
) Trial Court Nos. 2NO-93-297 Cr
Appellants, ) and 2NO-93-298 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1417 - July 14, 1995]
______________________________)
Appeal from the Superior Court, Second Judicial
District, Nome, Michael I. Jeffery, Judge.
Appearances: H. Conner Thomas, Larson, Timbers, & Van
Winkle, Inc., Nome, for Appellant Ryan. Sharon Barr, Assistant
Public Advocate, and Brant G. McGee, Public Advocate, Anchorage,
for Appellant Trigg. James L. Hanley, Assistant Attorney
General, Office of Special Prosecutions and Appeals, Anchorage,
and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and Mannheimer,
Judges.
MANNHEIMER, Judge.
John F. Ryan and Jerome Trigg, III, appeal their
convictions for second-degree sexual assault, AS 11.41.420(a).
The victim of the assault, M.K., committed suicide a few hours
before she was scheduled to testify at grand jury. The State
nevertheless secured indictments against Ryan and Trigg, in large
measure through the testimony of Nome Police Officer Kevin
Michels. Officer Michels described the accounts of the assault
that M.K. had given him in two separate interviews.
Before trial, Ryan and Trigg challenged the
admissibility of this hearsay evidence; they argued that their
indictments should be thrown out, and they asked the superior
court to preclude the State from presenting this evidence at
trial. However, Superior Court Judge Michael I. Jeffery ruled
that M.K.'s statements to the police were admissible under Alaska
Evidence Rule 804(b)(5), one of Alaska's two "residual" hearsay
exceptions.
Following Judge Jeffery's decision that M.K.'s police
interviews were admissible against the defendants, Ryan entered a
Cooksey plea to the sexual assault charge, preserving this
evidentiary issue for appeal. Cooksey v. State, 524 P.2d 1251,
1255-57 (Alaska 1974). As part of the plea bargain, Ryan agreed
to testify against Trigg. Trigg went to trial and was convicted.
Now, Ryan and Trigg renew their challenges to the
admission of M.K.'s statements to the police. As will be
explained below, we dismiss Ryan's appeal for lack of
jurisdiction. However, in Trigg's appeal, we hold that M.K.'s
statements were inadmissible hearsay.
The Hearsay Rule and the Role of the Residual
Exceptions Codified in Alaska Evidence Rules 803(23) and
804(b)(5)
The hearsay rule prohibits a witness from testifying
about statements made by someone else if this testimony is being
offered to prove that what the other person asserted is true.
See Alaska Evidence Rule 801(a)-(c). In the present case, a
police officer was permitted to testify that (1) M.K. said she
had been sexually assaulted by two men and (2) later, in a line-
up, M.K. identified these men as Ryan and Trigg. This testimony
was hearsay. Unless the testimony fell within an exception to
the hearsay rule, it could not be used against Ryan or Trigg
(over their objection).
"The theory of the hearsay rule is that the many
possible deficiencies, suppressions, [and other] sources of error
and untrustworthiness[] which lie underneath the ... untested
assertion of a witness [] may be best brought to light and
exposed by the test of cross-examination." John H. Wigmore,
Evidence (Chadbourn rev'n 1974), 1362, Vol. 5, p. 3. Or, as
stated by Chief Judge Kent in Coleman v. Southwick, 9 Johns. 45,
50 (N.Y. 1812),
Hearsay testimony is from the very nature of
it attended with ... doubts and
difficulties[.] A person who relates a
hearsay [account] is not obliged to enter
into any particulars, to answer any
questions, to solve any difficulties, to
reconcile any contradictions, to explain any
obscurities, [or] to remove any ambiguities;
he entrenches himself in the simple assertion
that he was told so, and leaves the burden
[of explanation] entirely on his dead or
absent author.
(Quoted in Wigmore, 1362, Vol. 5, pp. 6-7.)
By definition, when hearsay testimony is introduced,
the person who actually made the hearsay statements is not
subjected to adverse questioning _ questioning that might reveal
potential inaccuracies in the speaker's perception of the events
being described, or that might reveal the speaker's potential
motives to misrepresent or color his or her description of what
happened. For this reason, the law distrusts hearsay, allowing
it only when the circumstances of the utterance and/or the
motivation of the speaker affirmatively demonstrate good reason
to credit the out-of-court statement.
Various exceptions to the hearsay rule are codified in
Alaska Evidence Rules 801(d), 803, and 804.1 For the most part,
these codified exceptions either come directly from the common
law or are variations on the exceptions recognized at common law.
As the Alaska Supreme Court has observed,
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 value when the
declarant is unavailable (Rule 804).
Matter of A.S.W., 834 P.2d 801, 804 (Alaska 1992).
In addition to these traditional exceptions, both
Evidence Rule 803 and Evidence Rule 804(b) contain "residual"
clauses that authorize courts to allow hearsay testimony even
when it does not conform to any other listed exception. These
two residual clauses, Evidence Rules 803(23) and 804(b)(5), are
founded on the recognition
that there are certain exceptional
circumstances where evidence which is found
by a court to have guarantees of
trustworthiness equivalent to or exceeding
the guarantees reflected by the presently
limited exceptions, and to have a high degree
of probativeness and necessity could properly
be admissible.
Commentary to Alaska Evidence Rule 803(23), first paragraph
(quoting the report issued by the United States Senate Committee
on the Judiciary concerning the corresponding provisions of the
Federal Rules of Evidence). However, even though the Alaska
Supreme Court included these residual clauses in Evidence Rules
803 and 804(b), the court has cautioned trial judges that the
residual exceptions to the hearsay rule "are to be used only on
rare occasions". A.S.W., 834 P.2d at 804. Accord, Brandon v.
State, 778 P.2d 221, 227 (Alaska App. 1989) ("From the
commentary, it appears that it was anticipated that the residual
exceptions were to be used rarely.")
The residual hearsay exception at issue in this case,
Evidence Rule 804(b)(5), reads (in pertinent part):
(b) Hearsay Exceptions. The following
are not excluded by the hearsay rule if the
declarant is unavailable as a witness:
. . . .
(5) Other Exceptions. A statement not
specifically covered by any of the foregoing
exceptions but having equivalent
circumstantial guarantees of trustworthiness,
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 ef
forts; and (C) the general purposes of these
rules and the interests of justice will best
be served by admission of the statement into
evidence.
Under this rule, a court is authorized to admit hearsay evidence
that is not specifically covered by any of the other exceptions
listed in Rule 804(b) if the proponent of the evidence proves
(1) that the person who made the out-of-court statement "is
unavailable as a witness", (2) that the proposed evidence
manifests "circumstantial guarantees of trustworthiness"
equivalent to the guarantees of trustworthiness possessed by the
hearsay covered in the other listed exceptions, (3) that the
evidence is relevant to a "material" fact (an important disputed
fact), (4) that the evidence "is more probative on [that] point
... than any other evidence which the proponent [could] procure
through reasonable efforts", and (5) that "the general purposes
of [the evidence] rules and the interests of justice [would] best
be served by admission of the [hearsay]".
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). The residual hearsay exceptions in Evidence Rules
803(24) and 804(b)(5) are not "firmly rooted hearsay exceptions";
thus, any hearsay admitted under these residual clauses must
demonstrate "particularized guarantees of trustworthiness" to
satisfy the demands of the Confrontation Clause. Idaho v.
Wright, 497 U.S. 805, 817-18; 110 S.Ct. 3139, 3147-48;
111 L.Ed.2d 638 (1990) (citing Ohio v. Roberts, 448 U.S. 56, 66;
100 S.Ct. 2531, 2539; 65 L.Ed.2d 597 (1980)). These
"particularized guarantees of trustworthiness"
must ... be drawn from the totality of circum-
stances that surround the making of the state-
ment and that render the declarant
particularly worthy of belief. ...
[E]vidence admitted under [a residual hearsay
exception] must ... be so trustworthy that
adversarial testing would add little to its
reliability.
Idaho v. Wright, 497 U.S. at 820-21, 110 S.Ct. at 3149.
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. That is, the trustworthiness of the hearsay must
be established solely from the circumstances of the statement and
the mental state of the declarant. The required "guarantees of
trustworthiness" may not be established by showing that the
hearsay statement is corroborated by other evidence. Idaho v.
Wright, 497 U.S. at 822-24, 110 S.Ct. at 3150-51.
The Challenged Evidence in this Case
On the afternoon of June 8, 1993, M.K. came to the
office of the Nome police to report the theft of a four-wheel ATV
(all-terrain vehicle). When M.K. stated that the four-wheeler
had been stolen from a camp at Mile Four on the Nome-Council
Highway, the police told M.K. that she had to make her report to
the Alaska State Troopers because the Troopers had jurisdiction
over the area where the theft occurred. Officer Kevin Michels
was present at the police station when M.K. came to report the
theft, and he overheard this conversation.
M.K. left the police station but she returned a little
while later, this time accompanied by her boyfriend, Tim Powers.
Again, M.K. tried to report the theft of the four-wheeler, and
again the police directed her to the Troopers.
At approximately 4:20 p.m., M.K. and Tim Powers arrived
at the State Troopers' office to report the theft of the four-
wheeler. However, M.K. told the troopers that the vehicle had
been stolen from a location in downtown Nome. When the troopers
heard this, they told M.K. that the Nome police had jurisdiction
over the theft.
In the meantime, while M.K. and Powers were at the
State Troopers' office, the Nome police received a visit from
Diana Freeman, an alcohol counselor. Ms. Freeman came to the
police because one of her clients had told her that he was
involved in, or had witnessed, a sexual assault earlier that
morning. The Al-Anon client (appellant John Ryan) told Freeman
that the assault had occurred at Mile Four on the Nome-Council
Highway, and that, following the assault, he and a companion
(appellant Jerome Trigg) had stolen the woman's four-wheeler.
Ryan had given Freeman the key to the stolen four-wheeler, and
Freeman turned this key over to the police.
Officer Michels heard Freeman's report, and he deduced
that M.K. might have been the victim of the reported sexual
assault. Officer Michels first went to interview Ryan. Ryan
confirmed that he and Trigg had taken a woman to Trigg's camp at
Mile Four of the Nome-Council Highway. Ryan told Michels that he
had held the woman down while Trigg had forcible intercourse with
her. Ryan said that he did not know the woman's last name, but
her first name was "M." According to Ryan, as the act of
intercourse progressed, the woman stopped struggling and appeared
to be enjoying it, so he went to an adjoining room. Ryan denied
having sex with the woman himself.2
While Michels was speaking to Ryan, he received a call
from his dispatcher; the dispatcher told Michels that M.K. had
returned to the Nome police station. Michels went back to the
station, where he conducted a tape-recorded interview with M.K..
When Officer Michels confronted M.K. with his suspicion
that she had been raped, M.K. told him that this was true _ that
she had been raped by two men. M.K. told Michels that she did
not know the names of the two men. However, she was able to
identify photographs of John Ryan and Jerome Trigg, III, when she
was shown a photo-lineup during the interview.
During this first interview with Michels, M.K. denied
that she had been socializing with the two men prior to the
assault. She told Michels that the two men stole the key to her
four-wheeler from her pocket while she was in the Board of Trade
Saloon in downtown Nome. The men then left the bar and drove
away on her four-wheeler. M.K. told Michels that she enlisted
the help of her uncle, who owned a white truck, and together she
and her uncle followed the stolen four-wheeler to Mile Four of
the Nome-Council Highway.
According to M.K.'s first interview, her uncle dropped
her off at the cabin and left. M.K. entered the cabin, where she
found the two men. Both men appeared to be drunk. They ordered
M.K. to take off her clothes. M.K. said that she complied with
their demand because she was scared. M.K. told Michels that both
men sexually assaulted her, inserting both their penises and
their hands inside her. M.K. told Michels that, during the
assault, one of the men pointed a rifle at her, and the men also
hit her with a red-handled Phillips screwdriver.
After the assault, the men left on her four-wheeler,
and M.K. began to walk back to town. She told Michels that she
left a pair of blue socks at the cabin. When she got back to
Nome, M.K. went to a friend's house and showered; then she
contacted her boyfriend, Tim Powers, and started searching for
the four-wheeler.
Michels asked M.K. for her uncle's name, but M.K. could
not recall his name. When Officer Michels asked M.K. why she had
not reported the sexual assault, M.K.'s first response was,
"[Be]cause I was scared and Tim might _ I'm scared". Then, when
Michels asked M.K. to specify what she was scared of, M.K.
asserted that the men had threatened to kill her if she ever told
anyone about the assault. She repeated this assertion several
times during the ensuing interview.
After sending M.K. to the hospital for a physical
examination, Officer Michels obtained a search warrant for
Trigg's cabin. In the cabin, Michels found M.K.'s socks, a red-
handled Phillips screwdriver, and a plastic piece that had broken
off the frame of M.K.'s eyeglasses.
The next day (June 9, 1993), Michels interviewed M.K. a
second time. In this second statement, M.K. altered her previous
account of how she arrived at the cabin. She also altered her
account of how the rape occurred.
In the second interview, M.K. admitted that she had
been socializing with Trigg and Ryan at the Board of Trade.
After the bar closed, she drove the two men out to Trigg's cabin
on her four-wheeler. They took with them a large quantity of
alcohol. M.K. told Michels that, at the cabin, the three of them
continued to drink. At some point, M.K. asserted, things got out
of hand and she was raped by both men.3
During the second interview, Michels showed M.K.
photographs of firearms in order to determine if she could
identify the rifle that she said had been pointed at her during
the assault. The group of photographs shown to M.K. included
photos of guns that had been seized from the Trigg camp during
the execution of the search warrant, as well as photos of weapons
unrelated to the case. M.K. identified an unrelated rifle as
being closest to the type of firearm that had been pointed at
her.
M.K. was scheduled to testify before the Nome grand
jury on June 11, 1993. However, she committed suicide early that
morning by jumping into the ocean.
The Superior Court's Ruling
In spite of M.K.'s death, the grand jury met on June 11
to consider indictments against Ryan and Trigg. The prosecuting
attorney called Officer Michels to tell the grand jury about his
two interviews with M.K.. This hearsay testimony was offered
under two theories: that M.K.'s statements to Michels were
"excited utterances" under Evidence Rule 803(2) and that M.K.'s
statements to Michels constituted a "first complaint of rape"
under the hearsay exception recognized in Greenway v. State, 626
P.2d 1060, 1060-61 (Alaska 1980). The grand jury indicted Ryan
and Trigg for first-degree sexual assault.
Following their indictment, Ryan and Trigg challenged
the admissibility of Michels's hearsay testimony. Judge Jeffery
agreed with the defendants that neither of the prosecutor's
theories of admissibility was valid.
The judge ruled that, under the circumstances of the
case, M.K.'s statements were not excited utterances:
Although the interview tape makes it clear
that M.K. was still under a great amount of
stress from the assault and the threats
allegedly made by the assailants, her
statements cannot be said to be spontaneous
exclamations. She had twelve or more hours,
including several hours in the company of her
boyfriend, to think about the events that
happened to her during the night.
Hearsay statements cannot be considered
admissible "excited utterances" pursuant to
Evidence Rule 803(2) unless it is shown that
"the declarant's condition at the time was
such that the statement was spontaneous,
excited or impulsive rather than the product
of reflection and deliberation". United
States v. Iron Shell, 633 F.2d 77, 86 (8th
Cir. 1980), quoted in Lipscomb v. State, 700
P.2d 1298, 1307 (Alaska App. 1985)[.] ...
Even considering the stress apparently being
felt by M.K. and the nature of the statements
she made to the officer, the Court finds that
the state has failed to show that [her]
statements were spontaneous, excited
utterances.4
Judge Jeffery also rejected the prosecutor's theory
that M.K.'s statements were admissible as a "first complaint" of
rape. The judge correctly noted that evidence of the victim's
first complaint is admitted to rebut the negative inference that
might arise if the trier of fact heard no evidence to indicate
that the victim had complained of the rape prior to trial.
Greenway, 626 P.2d at 1060-61. Judge Jeffery ruled that, because
the rationale of the "first complaint" exception is to
corroborate the victim's testimony, the State can rely on this
exception only when the victim testifies. Because M.K. had not
testified at grand jury and could not testify at trial, her
statements to Michels could not be admitted under the "first
complaint" hearsay exception. See Wigmore, 1136, Vol. 4, p.
310; Baney v. People, 275 P.2d 195, 198-99 (Colo. 1954). The
State does not challenge this ruling on appeal.
However, despite his rejection of the State's initial
theories of admissibility, Judge Jeffery ruled that M.K.'s
statements to Officer Michels were admissible under Evidence Rule
804(b)(5). He found that M.K. was not available as a witness,
that M.K.'s statements dealt with facts material to the
prosecution of Ryan and Trigg, and that M.K.'s statements were
more probative than any other evidence available to the State.
As explained at the outset of this opinion, the
remaining requirements for admissibility of hearsay under
Evidence Rule 804(b)(5) center upon the trustworthiness of the
hearsay. Judge Jeffery ruled that M.K.'s statements were
trustworthy enough to be admitted under Rule 804(b)(5):
[M.K.] was afraid for her life if she
told anyone about the sexual assault. She
showed obvious stress and emotion when
actually discussing the sexual assault. ...
Her state-ments were made in response to the
most limited questioning by the officer,
after she had voluntarily come to the police
station. [Only] approximately twelve hours
had passed since the assault; the incident
was fresh in her mind.
. . . .
The Court acknowledges the defendants'
arguments about the unreliability of M.K.'s
statement: she lied about ... the way she
got out to the Trigg camp, [she lied when she
asserted] that her ATV had been stolen at the
bar in Nome, and [she lied when she asserted]
that the two men dug in her pocket at the bar
and took the key to the ATV. She admitted to
the officer that these untruths were made
because of her feelings about what her boy
friend would say about her use of the ATV to
accompany the two men out to the Trigg camp.
The defendants argue that these false state
ments in the initial interview show M.K.'s
entire statement is suspect. They ... argue
that she had a motive for inventing a sexual
assault story, because she was ... worried
about how her boyfriend would react to her
having sex with other men[.]
[Nevertheless,] the Court finds that the
factors supporting admissibility, including
the Court's evaluation of [M.K.'s] demeanor
while she was making the taped statement,
outweigh the concerns presented by the
defense. Her statements, including [her]
identification [of Ryan and Trigg], have
indicia of reliability roughly equivalent to
the other exceptions to the hearsay rule
stated in Evidence Rule 804(b).
Our Analysis: Admissibility of the Hearsay
Under Evidence Rule 804(b)(5)
We employ an "abuse of discretion" standard to review
the superior court's ruling on the admissibility of Officer
Michels's hearsay testimony. Matter of A.S.W., 834 P.2d at 803
n.3. Accord, United States v. Doerr, 886 F.2d 944, 954 (7th Cir.
1989); United States v. Curro, 847 F.2d 325, 327 (6th Cir. 1988);
Page v. Barko Hydraulics, 673 F.2d 134, 140 (5th Cir. 1982).
This standard of review bids us give considerable deference to
the decision of the trial judge. Nevertheless, having reviewed
the record, we conclude that the challenged hearsay testimony was
not admissible.
As discussed above, the touchstone for determining the
admissibility of hearsay under Evidence Rule 804(b)(5) is its
trustworthiness. The hearsay must possess at least the same
guarantees of trustworthiness that characterize the other types
of admissible hearsay listed in Rules 804(b)(1)-(4).5 To analyze
the degree of trustworthiness possessed by a hearsay statement,
courts have examined "the nature and character of the statement,
the relationship of the [declarant to the other] parties, the
probable motivation of the declarant in making the statement, and
the circumstances under which the statement was made". People v.
Fuller, 788 P.2d 741, 745 (Colo. 1990) (citing Jack B. Weinstein
and Margaret A. Berger, Weinstein's Evidence, 803(24)[01], Vol.
4, p. 803-376).
In judging M.K.'s statements to be trustworthy enough
for admission under Rule 804(b)(5), Judge Jeffery relied in part
on the circumstance that only twelve hours had elapsed since the
events at the camp. From this, Judge Jeffery inferred that
M.K.'s memory of these events was fresh and therefore her account
was inherently more reliable. Compare In re Drake, 786 F.Supp.
229, 234-35 (E.D.N.Y. 1992) (accuracy of the declarant's memory
was inferred, in part, from the short time span between the
events and the declarant's statement).
The shortness of the elapsed time between an occurrence
and a witness's account of it may indicate that the witness has
an accurate memory of the occurrence. However, the real question
is not the accuracy of the witness's memory, but rather the
accuracy of the witness's out-of-court statements. A witness who
has a perfect memory of an occurrence may nevertheless
misrepresent that occurrence when he or she speaks to others
about it. Accurate memory will help ensure the trustworthiness
of the witness's statements only if the witness is motivated to
give an accurate account.
As Judge Jeffery himself noted, M.K. spent many hours
"in the company of her boyfriend" before she gave her account of
the sexual assault, and during this time M.K. had the opportunity
"to think about the events that happened to her during the
night". For these reasons, Judge Jeffery rejected the State's
contention that M.K.'s statements to Officer Michels were
"excited utterances". These factors also suggest a potential
reason why M.K. might have been motivated to misrepresent the
events that happened at the camp.
We note that M.K.'s first response, when asked why she
had not reported the sexual assault earlier, was: "[Be]cause I
was scared and Tim might _ I'm scared". M.K. falsely told the
Troopers and, later, Officer Michels that the four-wheeler had
been stolen from a location in downtown Nome. Her apparent
motivation was to avoid revealing to her boyfriend that she had
gone drinking with two other men. The fact that M.K. may have
altered her account of the theft in anticipation of her
boyfriend's likely reaction to the truth suggests that her
account of the sexual encounter at the camp should be subjected
to scrutiny.
As one might infer from the preceding discussion, the
primary factor used by courts in evaluating the trustworthiness
of hearsay is the potential motivation of the absent speaker
either to speak the truth or, conversely, to withhold or alter
the truth. See Rychart v. State, 778 P.2d at 231 (Alaska App.
1989) (citing United States v. Marchini, 797 F.2d 759, 763 (9th
Cir. 1986)). See also Matanuska Electric Association, Inc. v.
Weissler, 723 P.2d 600, 611 n.17 (Alaska 1986) (upholding the
trial court's decision to admit the affidavit of an unavailable
witness under Evidence Rule 804(b)(5); the trial judge found "a
substantial guarantee of trustworthiness ... in the fact that the
witness has no motive to testify favorably to [the] plaintiff,
and in fact appears to dislike [the] plaintiff.")
A prime illustration of this principle is the decision
in Dallas County v. Commercial Union Assurance Co., Ltd., 286
F.2d 388 (5th Cir. 1961), the case that convinced the Senate
Committee on the Judiciary that the new Federal Rules of Evidence
should include a residual hearsay exception. In Dallas County,
the clock tower of a county courthouse had collapsed, damaging
the courthouse. The collapse occurred a few days after the tower
was struck by lightning. The main factual issue at trial was
whether the collapse had been caused by the lightning strike (in
which case the loss was covered by the insurance policy) or
whether, instead, the collapse was due to pre-existing weakness
and deterioration of the structure (in which case the loss was
not covered). As stated in the Senate Committee's report,
Investigation of the structure revealed the
presence of charcoal and charred timbers. In
order to show that lightning may not have
been the cause of the charring, the insurer
offered a copy of a local newspaper published
over 50 years earlier containing an unsigned
article describing a fire in the courthouse
while it was under construction. The Court
found that the newspaper [article] did not
fit within any ... recognized hearsay
exception. The [c]ourt concluded, however,
that the article was trustworthy because it
was inconceivable that a newspaper reporter
in a small town would report a fire in the
courthouse if none had occurred.
(Quoted in Stephen A. Saltzburg, Michael M. Martin, & Daniel J.
Capra, Federal Rules of Evidence Manual (6th ed. 1994), Vol. 3,
pp. 1580-81.)
The rationale of the Dallas County decision, and indeed
the underlying rationale of the residual hearsay exceptions, is
that hearsay can be deemed trustworthy when all the circumstances
suggest that the speaker had good reason to be truthful and no
apparent reason to falsify or to withhold pertinent information.
In such situations, courts have readily admitted hearsay
statements.
For instance, in State v. Echeverria, 626 P.2d 897 (Or.
App. 1981), a burglary victim prepared a list of the items stolen
from her house to aid the police in identifying and recovering
the property. The victim died of natural causes before the
defendant's trial; nevertheless, her list was admitted under
Oregon's common-law equivalent to Rule 804(b)(5). The court
concluded: "Mrs. McKean had no reason to falsify the list. On
the contrary, she was motivated, except perhaps for the values
she attached to the items, to give as accurate a list as possible
to aid the police in locating her property." Echeverria, 626
P.2d at 900. Also see In re Drake, 786 F.Supp. at 234-35, where
the court admitted a statement given by a woman to the FBI; the
woman was trying to assist the FBI in locating her missing
boyfriend, who had been abducted by mobsters but who she believed
was still alive.
In the present case, many circumstances suggest the
truthfulness of M.K.'s report of sexual assault to Officer
Michels. However, other circumstances suggest that M.K. may have
had a motive to give an inaccurate account of what had happened
to her. Her statements do not carry the same indicia of
trustworthiness as the statements admitted in Dallas County,
Echeverria, and Drake.
Courts have recognized that an alternative mark of
trustworthiness is the speaker's awareness (or at least belief)
that, by cooperating with the police, the speaker is jeopardizing
his or her personal safety. For instance, in United States v.
Accetturo, 966 F.2d 631, 635 (11th Cir. 1992), cert. denied,
Basha v. United States, ___ U.S. ___, 113 S.Ct. 1053, 122 L.Ed.2d
360 (1993), the court allowed the government to introduce out-of-
court statements of a deceased witness who had been in debt to
loan sharks and who had already been threatened with physical
harm when he decided to go to the police. The court concluded
that the man (who was murdered following his police interview)
"would have had no incentive to manufacture a statement that
would cause an investigation and alert the defendants that he had
gone to the police". Accetturo, 966 F.2d at 635 (footnote
omitted). And in United States v. Curro, 847 F.2d 325, 327 (6th
Cir. 1988), the court upheld the admission of the testimony of a
grand jury witness who committed suicide before trial. The court
relied primarily on the fact that the witness had knowingly
placed himself at considerable risk by testifying against
organized crime figures.
In his decision in this case, Judge Jeffery relied
heavily on Accetturo. The judge noted that M.K. had repeatedly
told Michels that she had been threatened with death if she ever
revealed the sexual assault. Judge Jeffery was also strongly
influenced by the degree of emotional distress that M.K.
exhibited on the tape recording of her first interview with
Michels; the judge found that M.K.'s distress corroborated her
assertions that she had been threatened. Based on this evidence,
Judge Jeffery apparently concluded that M.K. had initially
refrained from reporting the sexual assault because she feared
future harm, but then she later found the strength to report the
sexual assault despite her fear. Using Accetturo as a guide,
Judge Jeffery concluded that M.K.'s statements about the sexual
assault were trustworthy.
We, however, do not see such a clear analogy to
Accetturo. The details of M.K.'s interview with Michels suggest
an alternative view of M.K.'s state of mind at the time she
asserted that she had been raped. When M.K. returned to the Nome
police station after visiting the Troopers, she still intended
simply to pursue the theft of the four-wheeler. It was Officer
Michels who questioned M.K. as to whether she might have been
sexually assaulted.
M.K.: Somebody stole the Honda [ATV]
and stole my carton of cigarettes and then
beat me up and bit me right there, too. I
don't know those two guys. They ...
MICHELS: Okay.
M.K.: ... broke my glasses, but I fixed
it. I used Super Glue; I bought some.
MICHELS: I just talked to one of them,
[and he] said [that] the other guy sexually
assaulted you. Is that true?
M.K.: Yeah.
MICHELS: Okay. Do you know either one
of [their] names?
M.K.: I don't even know their names.
They -- they raped me, too.
MICHELS: Both of them?
M.K.: Yeah, both of them.
MICHELS: How come you didn't report
this right away when you first came ...
M.K.: Because ...
MICHELS: ... into the office?
M.K.: Because they took it while I was
at the BOT [Board of Trade] _ they took it,
they took the Honda.
MICHELS: Okay, but I ...
M.K.: They ...
MICHELS: ... but I mean the sexual
assault and that stuff.
M.K.: 'Cause I was scared, and Tim
might _ I'm scared.
MICHELS: Scared of?
M.K.: Those two people.
MICHELS: Those ...
M.K.: Because they _ they said that
they were going to kill me if I tell somebody
some _ if I tell[.]
Judge Jeffery concluded, after listening to the inter
view, that M.K. had been afraid for her life, that she then
overcame her fear and revealed the sexual assault to Michels, and
that therefore her later statements possessed a substantial
guarantee of trustworthiness. This conclusion, while perhaps
reasonable, is not the only plausible explanation for M.K.'s
statements; many of the facts argue against this conclusion.
Even though M.K. ostensibly feared for her life if she
revealed the sexual assault, M.K. unhesitatingly replied "Yes"
the first time Michels asked her if she had been assaulted. A
moment later, apparently to make sure that Michels had understood
her answer, M.K. volunteered, "They raped me, too."
Further, even after M.K. agreed that she had been
sexually assaulted, she continued to mislead Michels about the
theft of the ATV and how she came to be at the remote camp in the
company of Ryan and Trigg. M.K.'s continuing, conscious attempt
to mislead Officer Michels about major details of the occurrence
is at least arguably inconsistent with the superior court's view
of M.K. as a crime victim who, suddenly freed from a stifling
fear, could finally reveal the truth.
We also note that there is a certain circularity in the
superior court's reason for crediting M.K.'s statements. Judge
Jeffery found that M.K. was under emotional stress when she spoke
to Officer Michels. He further found that M.K.'s emotional
stress stemmed from death threats made to her by Ryan and Trigg.
However, in reaching this conclusion, Judge Jeffery seems to have
assumed the trustworthiness of M.K.'s statements concerning the
death threats, then used this assumption as the foundation for
his conclusion that M.K.'s emotional distress stemmed from these
threats - a conclusion that allowed him to draw the analogy to
Accetturo and deem M.K.'s statements trustworthy.
The source of M.K.'s emotional distress is not self-
evident. As the above-quoted excerpt of the interview shows,
when M.K. initially explained why she had failed to report the
sexual assault, she referred to her boyfriend, Tim Powers.
M.K.'s answer to Officer Michels's question was: "'Cause I was
scared, and Tim might _ I'm scared". M.K.'s answer is
undoubtedly ambiguous. The fright she mentions may indeed have
arisen from the threats of death she later described. However,
one can not ignore the possibility that M.K. had other motives
for failing to report a sexual assault.
Moreover, even assuming that M.K. was afraid of harm
when she spoke to Officer Michels, this does not necessarily make
her case analogous to Accetturo and Curro. A speaker's fear does
not, by itself, guarantee the truthfulness of his or her
statements. Indeed, fear often leads people to falsify or to
hold back the truth.
The crucial aspect of Accetturo and Curro is that,
under the circumstances of those cases, the out-of-court speakers
had little to gain and much to lose by providing information
against mobsters who could retaliate against them (either
personally or through a web of associates). By providing
incriminating informa-tion to the police, the speakers placed
themselves at risk and obtained no apparent benefit for
themselves. They therefore might be compared to people who make
statements against their own pecuniary or penal interest; see
Evidence Rule 804(b)(3), which creates a hearsay exception for
statements "so far contrary to the declarant's ... interest ...
that a reasonable person in the declarant's position would not
have made the statement unless believing it to be true".
M.K.'s situation presents a different sort of case.
Although her reluctance to make a report of sexual assault may
have stemmed from her fear of Ryan and Trigg, the circumstances
also suggest other possible reasons why she might have
misrepresented her encounter with the two men.
We are not suggesting that we think M.K. was lying when
she told Officer Michels that she had been sexually assaulted.
Our task is not to determine whether M.K. was telling the truth.
Instead, our duty is to determine whether M.K.'s statements to
Officer Michels are so inherently trustworthy, so free from
possible doubt, that cross-examination of M.K. concerning those
statements would yield negligible benefit to Ryan and Trigg as
they stood trial for sexual assault. Viewing all the
circumstances of this case, we can not say that Ryan and Trigg
would have derived no substantive benefit from cross-examining
M.K. about her statements to Officer Michels.
When the record is examined as a whole, it is clear
that M.K.'s statements to the police did not have "circumstantial
guarantees of trustworthiness" equivalent to the guarantees of
trustworthiness possessed by the hearsay covered in the other
exceptions listed in Evidence Rule 804(b)(1)-(4). We therefore
conclude that Officer Michels's testimony about M.K.'s statements
to him was not admissible under Evidence Rule 804(b)(5).
For similar reasons, we also hold that admission of
M.K.'s statements against Trigg at his criminal trial violated
the Confrontation Clauses of the United States and the Alaska
Constitutions. M.K.'s statements are not so obviously
trustworthy that little would be gained by subjecting them to
inquiry through cross-examination. Idaho v. Wright, 497 U.S. at
821, 110 S.Ct. at 3149.
Conclusion
Ryan and Trigg stand in different procedural postures
on appeal. Because of this, we reach different resolutions of
their two appeals.
In the superior court, Trigg attacked his grand jury
indictment, asserting that Officer Michels's hearsay testimony
was inadmissible. When this attack failed, Trigg went to trial.
During the trial, Trigg again unsuccessfully objected to the
admission of this hearsay. Thus, Trigg preserved the hearsay
issue both for purposes of attacking his indictment and attacking
his conviction.
Ryan also attacked his grand jury indictment. However,
when this attack failed, Ryan chose not to go to trial; instead,
he entered a Cooksey plea. This plea was premised on the
assumption (indeed, the State's stipulation) that the
admissibility of M.K.'s statements was a dispositive issue _ that
the State would have no case against Ryan if M.K.'s out-of-court
statements were ruled inadmissible.
An evidentiary issue is dispositive for Cooksey
purposes only if, following a ruling in favor of the defendant,
the government's remaining evidence would be insufficient to
withstand a defense motion for judgement of acquittal. Miles v.
State, 825 P.2d 904, 906 (Alaska App. 1992). This does not
appear to be the case here.
Ryan confessed that he had helped Trigg commit a sexual
assault upon a woman whose first name was "M.". Ryan also
confessed that he and Trigg had stolen the woman's ATV the next
morning. He possessed and later relinquished the key to the
stolen ATV. M.K. exhibited physical injuries consistent with
having been assaulted. Moreover, when the police searched
Trigg's camp at Mile Four of the Nome-Council Highway, they found
evidence that corroborated Ryan's confession.
This evidence, when viewed in the light most favorable
to the State, appears sufficient to corroborate Ryan's confession
for purposes of the corpus delicti rule. See Castillo v. State,
614 P.2d 756, 758 (Alaska 1980); Armstrong v. State, 502 P.2d
440, 447 (Alaska 1972). Because this evidence, even without the
support of M.K.'s statements, could apparently withstand a motion
for judgement of acquittal, the admissibility of M.K.'s
statements to Officer Michels is not dispositive under Miles.
For similar reasons, Ryan's grand jury challenge is
also not dispositive for Cooksey purposes. As just noted, the
State has sufficient evidence (even without M.K.'s statements) to
make a case against Ryan. Thus, even if we were to overturn
Ryan's indictment because of Officer Michels's hearsay testimony,
the State could still reindict Ryan. Compare Shetters v. State,
751 P.2d 31, 36 (Alaska App. 1988); Wilson v. State, 711 P.2d
547, 550 n.2 (Alaska App. 1985) (A defendant who claims to have
received ineffective assistance of counsel because the defense
attorney failed to attack the grand jury indictment must show not
only that the attack would have succeeded but that the State
thereafter could not have obtained another indictment.). Thus,
Ryan's grand jury issue is not dispositive of the charge against
him, and it can not be litigated by way of a Cooksey plea.
Because the hearsay issue Ryan raises on appeal is not
dispositive of the charge against him, Ryan's Cooksey plea is
invalid. We therefore dismiss his appeal. Heuga v. State, 609
P.2d 547, 548 (Alaska 1980); Miles, 825 P.2d at 907. Because
Ryan has not received the expected benefit of his plea bargain
(the right to litigate the hearsay issue on appeal), Ryan must be
given the opportunity to withdraw his no contest plea.
We now turn to resolution of Trigg's appeal. Because
Trigg went to trial and because the State used M.K.'s out-of-
court statements to secure Trigg's conviction, we reverse Trigg's
conviction. (The State does not argue that the erroneous
admission of M.K.'s statements could be considered harmless
error.)6
We must next address Trigg's claim that his indictment
should be set aside because the grand jury heard the inadmissible
hearsay testimony concerning M.K.'s statements. The test
governing this claim was explained in Stern v. State, 827 P.2d
442 (Alaska App. 1992):
[W]hen a defendant proves that the grand jury
heard improper evidence, the superior court
must engage in a two-part analysis. The
superior court first subtracts the improper
evidence from the total case heard by the
grand jury and determines whether the
remaining evidence would be legally
sufficient to support the indictment. If the
remaining evidence is legally sufficient, the
court then assesses the degree to which the
improper evidence might have unfairly
prejudiced the grand jury's consideration of
the case. The question the court must ask
itself is whether, even though the remaining
admissible evidence is legally sufficient to
support an indictment, the probative force of
that admissible evidence was so weak and the
unfair prejudice engendered by the improper
evidence was so strong that it appears likely
that the improper evidence was the decisive
factor in the grand jury's decision to
indict.
Stern, 827 P.2d at 445-46.
On appeal, Trigg relies primarily on the fact that, in
the superior court, "the State repeatedly acknowledged ... that,
without M.K.'s statements, the State had no case". As we have
just pointed out, the State was wrong, at least for Cooksey
purposes. The grand jury evidence included Ryan's confession as
well as evidence developed during the medical examination of M.K.
and evidence found during the search of Trigg's camp. This
evidence was sufficient to support the grand jury's decision to
indict Trigg.7
However, despite the fact that the State's remaining
evidence, if unexplained and uncontradicted, was sufficient to
obtain an indictment, our review of the grand jury record
convinces us that the grand jury's decision to indict Trigg must
have been heavily influenced by the evidence of M.K.'s statements
to Officer Michels. We therefore set aside Trigg's indictment.
Stern, 827 P.2d at 446.
To summarize:
(1) Ryan's Cooksey plea is invalid because the issues
he preserved for appeal are not dispositive. Ryan's appeal is
DISMISSED and his case is REMANDED to the superior court; Ryan
shall be allowed to withdraw his plea of no contest.
(2) In Trigg's appeal, we hold that M.K.'s statements
to Officer Michels were not admissible under Evidence Rule
804(b)(5). Trigg's conviction for second-degree sexual assault
is REVERSED and his indictment is set aside. If the State
reindicts Trigg, he is entitled to a new trial.
_______________________________
1 To be precise, Alaska Evidence Rule 801(d) declares that various statements
are not "hearsay" even though these statements clearly fall within the
definition of hearsay contained in Rule 801(c). The drafters of the
Federal Evidence Rules had certain philosophical reasons for removing the
types of statements listed in Rule 801(d) from the definition of hearsay.
The drafters of the Alaska Evidence Rules adopted the same approach, partly
from agreement with the federal drafters and partly to avoid a potentially
confusing divergence from the numbering system used in the federal rules.
See Commentary to Alaska Evidence Rule 801(d). However, for most purposes,
the types of statements listed in Rule 801(d) can be thought of as being
admissible despite their hearsay character _ that is, as being exceptions
to the hearsay rule.
2 Ryan's initial statements to Freeman were less equivocal on the issue of
whether M.K. was raped. Ryan told Freeman that he and Trigg "had been
drinking at [Trigg's] camp and that they had a lady with them, and [Trigg]
wanted to have sex and the lady did not[.]" Ryan also told Freeman that,
afterward, he and Trigg took the woman's four-wheeler and drove back to
town, leaving the woman at the camp. Freeman asked Ryan if the woman
"want[ed] this to happen", to which Ryan answered, "No, she fought."
Freeman observed a bite mark on Ryan's hand; Ryan told Freeman that he had
received this mark when the woman bit him as she struggled.
3 In its brief to this court, the State argues that M.K.'s later inconsistent
statements (that is, her confession during the second interview that she
had lied during the first interview) can not be used to determine the
trustworthiness of the statements she made during the first interview. The
State points out that the trustworthiness of a hearsay statement can not be
established by proving that it is corroborated by other evidence. See
Idaho v. Wright, 497 U.S. at 822-24, 110 S.Ct. at 3150-51; Rychart v.
State, 778 P.2d 229, 232 (Alaska App. 1989). The State asserts that, for
similar reasons, the fact that the hearsay declarant has made inconsistent
statements should not be used to evaluate the trustworthiness (or, more
precisely, the untrustworthiness) of a hearsay statement.
The State's argument, while perhaps ingenious, is inconsistent with both the law
and common sense. In judging the reliability of an absent person's
assertion, reasonable people would want to know, and would take into
account, the fact that the same person had made an inconsistent assertion
on another occasion. The case law recognizes and employs this rule of
common sense. See State v. Luzanilla, 880 P.2d 611, 616 (Ariz. 1994),
cert. denied, 1994 WL 752638, 63 USLW 3706 (March 27, 1995) (judging the
trustworthiness of hearsay, in part, by asking whether the declarant has
ever made inconsistent assertions); United States v. Donlon, 909 F.2d 650,
654 (1st Cir. 1990) (judging the trustworthiness of hearsay by asking,
among other things, whether the declarant has ever recanted the assertion);
Wilander v. McDermott Internat'l, Inc., 887 F.2d 88, 92 (5th Cir. 1989)
(same); United States v. Doerr, 886 F.2d 944, 956 (7th Cir. 1989) (citing
United States v. Snyder, 872 F.2d 1351, 1355-56 (7th Cir. 1989)) (same);
United States v. York, 852 F.2d 221, 225-26 (7th Cir. 1988) (same). See
also United States v. Fernandez, 892 F.2d 976, 983 (11th Cir. 1989)
(rejecting the admission of hearsay when the declarant had "an almost
comically unreliable character" for truthfulness).
4 On appeal, the State argues that Judge Jeffery was wrong to reject the
"excited utterance" exception. The State points out that Judge Jeffery
found that M.K. was under "a great amount of stress from the assault" when
she gave her first statement to Officer Michels.
The fact that M.K. may have been under stress is not sufficient, by itself, to
establish the admissibility of her hearsay statements under Evidence Rule
803(2). The question is whether M.K.'s out-of-court statements were the
product of her conscious reflection about what she should say. "The theory
of [Rule 803(2)] is ... that circumstances may produce a condition of
excitement which temporarily stills the [speaker's] capacity of reflection
and produces utterances free of conscious fabrication." Commentary,
Evidence Rule 803(1)-(2), third paragraph (emphasis added).
Judge Jeffery found that M.K. had had ample time to reflect on what she would
say to the police. The record fully supports the judge's conclusion.
M.K.'s statements to Officer Michels concededly contain several conscious
fabrications. Judge Jeffery did not abuse his discretion when he ruled
that these statements were not "excited utterances".
5 These other exceptions are: (1) testimony given at an earlier court hearing
or deposition, if the party against whom this earlier testimony is being
offered had the opportunity and motivation to examine the now-absent
witness on the issues being litigated; (2) a statement made when the
speaker believed that his or her death was imminent, if the statement
concerned the cause or circumstances of the impending death; (3) a
statement so against the speaker's monetary, proprietary, or penal interest
"that a reasonable person in the [speaker's] position would not have made
the statement unless believing it to be true"; and (4) a statement
concerning the speaker's own birth, adoption, ancestry, marriage, or other
similar aspect of his or her personal or family history, as well as
statements concerning similar aspects of a family member's or intimate
friend's family history.
6 Trigg raises two other arguments on appeal, both concerning the State's loss
of evidence before trial. The tape recording of M.K.'s second interview
with Officer Michels and the "rape protocol kit" (the set of physical
samples collected from M.K. during a physical examination) were both lost
before trial. Judge Jeffery found that the loss was caused by police
carelessness, not bad faith.
With regard to the loss of the tape recording of M.K.'s second police interview,
Judge Jeffery ruled that Trigg had not been prejudiced. That ruling is now
moot.
With regard to the loss of the rape protocol kit, Judge Jeffery found that Trigg
had been prejudiced. As a remedy, the judge instructed Trigg's jury that
the physical examination performed on M.K. "showed no evidence linking
Jerome Trigg ... with any sexual penetration or sexual contact [with]
M.K.". Trigg argues that this instruction was not an adequate remedy and
that Judge Jeffery should have dismissed the prosecution against him with
prejudice.
We, however, conclude that Judge Jeffery did not abuse his discretion when he
selected this remedy for the State's negligent loss of evidence. Putnam v.
State, 629 P.2d 35, 43-44 (Alaska 1980) (selection of an appropriate
sanction when the government has lost evidence relevant to a criminal trial
"is best left to the sound discretion of the trial judge"). Trigg's
defense at trial was that he had engaged in consensual sexual intercourse
with M.K.. Given this defense, Trigg suffered no prejudice from the loss
of the rape protocol kit.
7 Alaska Statute 12.45.020, which requires corroboration of an accomplice's
testimony to sustain a criminal conviction, does not apply to grand jury
proceedings. Merrill v. State, 423 P.2d 686, 695 (Alaska 1967).
