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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. ) OPINION ON REHEARING
)
STATE OF ALASKA, )
) [No. 1425 - August 11, 1995]
Appellee. )
______________________________)
Appeal from the Superior Court, Fourth
Judicial 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
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
In Linton v. State, 880 P.2d 123 (Alaska App. 1994), we
affirmed the first-degree murder conviction of Lance D. Linton.
We held, in relevant part, that a hearsay statement made by
Linton's father, John Linton, had properly been admitted at trial
under Alaska Rule of Evidence 804(b)(3), the statement-against-
penal-interest exception to the hearsay rule.1 Linton, 880 P.2d
at 129.
Shortly before our Linton opinion was published, the
United States Supreme Court decided Williamson v. United States,
____ U.S. ____, 114 S.Ct. 2431 (1994). In Williamson, the Court
interpreted the word "statement" as used in Federal Rule of
Evidence 804(b)(3), the federal counterpart to Alaska's statement-
against-penal-interest exception.2 114 S.Ct. at 2434-37. Linton
petitioned this court for rehearing based on Williamson. We
granted the petition, directing the parties to submit additional
briefs discussing: 1) whether Alaska's exception should be
interpreted consistently with Williamson's interpretation of
F.R.E. 804(b)(3); 2) which, if any, statements of John Linton's
would have been excludable under the Williamson interpretation;
3) whether Linton properly raised the issue of severability
below; and 4) whether he adequately briefed that issue on appeal.
We now address the issues upon which we granted rehearing.
In Williamson, the United States Supreme Court adopted
a narrow definition of the word "statement," as used in F.R.E.
804(b)(3), concluding that, for purposes of the federal statement-
against-penal-interest exception, a "statement" includes "only
those declarations or remarks within [a] confession that are
individually self-inculpatory." 114 S.Ct. at 2434-35. The
Williamson Court stated that Rule 804(b)(3) "does not allow
admission of non-self-inculpatory statements, even if they are
made within a broader narrative that is generally self-
inculpatory. The [trial] court may not just assume for purposes
of Rule 804(b)(3) that a statement is self-inculpatory because it
is part of a fuller confession[.]" Id. at 2435. Rather,
according to the Court, each declaration or remark in a hearsay
narrative must be scrutinized to determine if it is self-
inculpatory. Id. at 2437. The Court nevertheless emphasized
that
whether a statement is self-inculpatory
or not can only be determined by viewing it
in context. Even statements that are on
their face neutral may actually be against
the declarant's interest. . . . The question
under Rule 804(b)(3) is always whether the
statement was sufficiently against the
declarant's penal interest "that a reasonable
person in the declarant's position would not
have made the statement unless believing it
to be true," and this question can only be
answered in light of all the surrounding
circumstances.
Id. at 2436-37 (footnote omitted).
The out-of-court statements at issue in the present
case were made by John Linton to Stephen Pieroni, who in turn
reported those statements to the troopers. In our original
opinion, we described the statements as follows:
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."
Linton, 880 P.2d at 125.
In his supplemental brief, Linton urges us to adopt
Williamson's definition of "statement" for purposes of applying
A.R.E. 804(b)(3). Linton maintains that only one portion of John
Linton's hearsay statement could be deemed admissible as a
statement against penal interest under Williamson's narrow
interpretation of Rule 804(b)(3). According to Linton, "`I
helped carry Elfie to the van,' is the only portion of [John's]
narrative that tended to subject him to criminal liability."
Linton also argues that he adequately raised this issue below and
preserved it on appeal.
The state, in response, argues that Williamson's
definition of "statement" is artificially constrictive and should
not be adopted. The state argues, alternatively, that, even
under Williamson, virtually all of John Linton's hearsay
narrative would be self-inculpatory. Finally, the state insists
that the sever-ability of John Linton's narrative was not raised
below or raised in a timely manner on appeal.
We need not decide whether Williamson's interpretation
of F.R.E. 804(b)(3) should be adopted in applying Alaska's
statement-against-penal-interest exception. In our view, the
state correctly argues that Linton failed to raise the issue
below or preserve it on appeal.
Below, Linton treated John Linton's entire confession
to Pieroni as a single statement and objected to the confession
as a whole. He argued that the entire confession should be
excluded because Pieroni was not a credible witness and because
John Linton was delusional when he made the statement and had no
reason to expect that Pieroni would turn him in to the police.
Linton also argued that the confession was not against John
Linton's penal interest, since the statute of limitations for
tampering with evidence had run. At no point did Linton suggest
that portions of the narrative were severable or that the various
discrete statements contained therein should be analyzed
separately to determine their admissibility under A.R.E.
804(b)(3). In his initial brief to this court, Linton renewed
these arguments, again failing to suggest that the disputed
hearsay be treated as containing multiple severable statements
for purposes of the statement-against-penal-interest exception.
Overruling "[a] general objection to evidence as a
whole . . . is not reversible error if some part [of the
evidence] is admissible." Brown v. J.C. Penney Co., 667 P.2d
1047, 1050 (Or. App. 1983). Furthermore, appellate courts
ordinarily will not consider on rehearing an argument that was
not raised in the parties' briefs on appeal. Rosson v. Boyd, 727
P.2d 765, 767-68 n.6 (Alaska 1986). Linton nevertheless
maintains that an exception should be made here because the issue
of severability is "critical to a proper and just" resolution of
his case. See Vest v. First National Bank of Fairbanks, 659 P.2d
1233, 1234 n.2 (Alaska 1983). We disagree for three reasons.
First, as the state correctly points out, while the
specific outcome Williamson reached in interpreting Federal Rule
of Evidence 804(b)(3) may to a certain extent be novel, the issue
of severability itself is not new and has long been recognized
and discussed in the context of the statement-against-penal-
interest exception. See, e.g., Garroutte v. State, 683 P.2d 262,
265-66 (Alaska App. 1984); 2 John W. Strong, McCormick on
Evidence § 319, at 344-45 (4th ed. 1992); 5 John H. Wigmore,
Evidence § 1465 (Chadbourn rev. 1974).3 Second, as Linton openly
acknowledges in his brief on rehearing, his failure to raise the
issue of severability below may well have been tactical, and not
the result of a failure to recognize the issue due to its
subtlety or novelty.
Third, and perhaps most significant, there appears to
be a strong possibility that application of the Williamson test
to Linton's case would yield no change in the result we reached
in our original opinion. In arguing that Williamson would
require exclusion of all but explicitly self-inculpatory remarks
included in John Linton's hearsay confession, Linton makes the
mistake of considering the various statements that comprise the
narrative in isolation; he ignores Williamson's admonition that
"whether a statement is self-inculpatory or not can only be
determined by viewing it in context[,]" 114 S.Ct. at 2436, that
is, "in light of all of the surrounding circumstances." Id. at
2437. In its brief on rehearing, the state argues forcefully and
persuasively that each of the individual statements comprising
John Linton's hearsay narrative is self-inculpatory when viewed
in the context of the narrative as a whole, as required by
Williamson. We think it highly likely that John Linton's entire
narrative would be admissible under Williamson. For this reason,
deciding whether Williamson's definition of "statement" should be
adopted for purposes of interpreting Alaska's statement-against-
penal-interest exception does not appear to us to be "critical to
a proper and just decision" in this case. Vest, 659 P.2d at 1234
n.2.
Having considered the parties' arguments on rehearing,
we conclude that the United States Supreme Court's decision in
Williamson v. United States provides no occasion for modifying
our original opinion on appeal. Accordingly, we REAFFIRM the
decision in Linton v. State, 880 P.2d 123 (Alaska App. 1994).
_______________________________
1. 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.
2. The language of Federal Rule of Evidence 804(b)(3) is
identical to that of A.R.E. 804(b)(3).
3. Indeed, the potential severability of statements
against penal interest is implicit in the treatment Rule
804(b)(3) prescribes for self-incriminatory statements that
exculpate another person: "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."
