Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Wassilie v. State (10/25/2002) ap-1836
Wassilie v. State (10/25/2002) ap-1836
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
HENRY WASSILIE, )
) Court of Appeals No. A-
7266
Appellant, ) Trial Court No.
4BE-S98-24 CR
)
v. ) O P I N I O
N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1836 October
25, 2002]
)
Appeal from the Superior Court, Fourth Judi
cial District, Bethel, Dale O. Curda, Judge.
Appearances: Kathleen A. Murphy, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Maarten
Vermaat and Kenneth M. Rosenstein, Assistant
Attorneys General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
Henry Wassilie was convicted of one count of second-
degree assault1 for assaulting his mother, Mary Wassilie, and one
count of fourth-degree assault2 for assaulting his father, Evan
Wassilie. During the trial, Evan was asked if he spoke to the
village police about the assaults. He answered that he didnt see
police officers at his house on night of the assault. Wasillies
attorney interrupted Evans direct examination by the State to
consult with his client. After that consultation, the defense
attorney spoke with the prosecutor, and they both told the court
that Evan was released. The State later introduced as prior
inconsistent statements Evans statements to Village Police Chief
Steven Alexie that Henry Wassilie hit and kicked both him and
Mary.
When this case first appeared before us, we remanded
for further findings on the circumstances of Evan Wassilies
dismissal as a witness at trial.3 Superior Court Judge Dale O.
Curda found on remand that Wassilies defense counsel made a
tactical decision not to cross-examine Evan and that both parties
consented to Evans dismissal.
The remaining legal issue in this case is whether the
trial court properly admitted Evans out-of-court statement to
Chief Alexie as a prior inconsistent statement under Alaska Rule
of Evidence 801(d)(1)(A). Evidence Rule 801(d)(1)(A) provides:
A statement is not hearsay if . . . the
declarant testifies at the trial or hearing
and the statement is inconsistent with the
declarants testimony.
Wassilie argues that Evans statement to the police should have
been excluded because the prosecutor did not lay a sufficient
foundation for admissibility under Evidence Rule 801(d)(1)(A).
He also claims that the statement should have been excluded
because Evans genuine loss of memory at trial was not
inconsistent with his prior statement for purposes of the rule.
Evans testimony was translated from Yupik to English.
During direct examination, the State asked Evan whether his wife,
Mary, was injured the previous winter, and Evan testified that
she was injured. However, he could not answer how she was
injured. He also could not remember when she was injured. Evan
said it was hot out and the sun was up at the time of the
assault, but the assault actually occurred on January 8, 1998.
Evan also testified that he could not remember the last
time Henry Wassilie, the defendant, was at his house. When the
State asked him what time of year Wasillie last lived at his
house, he answered, 1917. He was a little boy. But he was
always out on the tundra hunting. The State then asked when
Henry was born, and Evan answered, I think it was in 67, but I
dont think I have it right, its on the papers. At that point,
the following exchange occurred:
Prosecutor: Do you remember talking to Chief
Alexie about the last time your wife lived in
your home? . . . Do you remember the police
coming to your house this winter, Chief
Alexie and VPO Jerry Wassilie? Chief Steven
Alexie and VPO Jerry Wassilie.
Evan: Yes. I didnt see any of those guys.
Prosecutor: Does Henry Wassilie live at your
house any more?
Evans translator: He just said, I cant do it.
At this point, Wassilies attorney consulted with
Wassilie and informed the State that Evan could be released from
further testimony. The State agreed to end questioning, and the
court excused Evan with both parties consent.
Later in the trial, the State called Chief Alexie and
asked him if he interviewed Evan on the night of the alleged
assault. Wassilie objected on hearsay grounds. Judge Curda
found that Evan had a loss of memory and admitted the statement
to Chief Alexie as a prior inconsistent statement under Evidence
Rule 801(d)(1)(A).
Chief Alexie testified as follows:
Prosecutor: What did Evan tell you
happened that night?
Alexie: That both he and Mary got beat up
by Henry.
Prosecutor: Okay. Did he describe it to
you at all?
Alexie: Yes. By hitting with his fists and
sometimes kicking also.
Chief Alexie also testified that Evan said he kept his eyes
closed to try to avoid the beatings, said that Mary was crying
and wailing aloud during the beatings, and said that during the
beatings Henry announced that he was getting fed up with all of
them.
We first address Wassilies claim that the foundation
for Evans prior statement was inadequate. Evidence Rule
801(d)(1)(A) sets out the foundation requirement for prior
inconsistent statements:
Unless the interests of justice otherwise
require, the prior statement shall be
excluded unless (i) the witness was so
examined while testifying as to give the
witness an opportunity to explain or to deny
the statement or (ii) the witness has not
been excused from giving further testimony in
the action.
Wassilie argues that Evan was not so examined while testifying as
to give [him] an opportunity to explain or deny the [prior
inconsistent] statement.
During its direct examination, the State did not
directly confront Evan with his prior statement and ask him to
explain or deny it. However, the State did ask Evan if he
remembered the police coming to his house (at which time Chief
Alexie took Evans statement) and asked him if he remembered
talking to the police about the last time his wife lived in his
home. Evan testified that he did not see Chief Alexie and
Village Police Officer Wassilie at his house. The defense then
interrupted the examination and asked the prosecutor to stop
questioning Evan, apparently because Wassilie was concerned about
Evans health.
In McMaster v. State,4 the Alaska Supreme Court
reviewed the sufficiency of the foundation for a prior
inconsistent statement under former Alaska Rule of Civil
Procedure 43(g)(11)(c),5 the predecessor of Evidence Rule
801(d)(1)(A).6 The court announced that the foundational
requirement should not be mechanically applied in every
instance.7 The witness whose prior statement was admitted in
McMaster was five years old.8 The court noted that a trial court
must be given wide latitude when a young child is called as a
witness. The testimony of the child in question in McMaster
highlighted the problem of a young witness because the transcript
showed that the child gave unresponsive answers to straight-
forward questions and inconsistent answers to questions put by
both parties.9 Although the foundation for the childs prior
statement did not technically comply with the rule, the court
held that the trial court did not abuse its discretion by
overruling McMasters foundational objection.10
In this case, Evan was not a child of tender years but
was over 90 years old. The State asked Evan if he remember
talking with the officers, and Evan responded that he didnt see
the officers. We note from our examination of the transcript
that at points during his examination, Evan was not able to
answer straight-forward questions and some of his answers were
inconsistent. And because of apparent concerns about Evans
health, the defense urged that Evan be excused during the
prosecutors direct examination. Thus, Evans advanced age and
apparent poor health presented similar challenges for the
superior court as did the testimony of the five-year-old in
McMaster. And there is no question of bad faith on the
prosecutors part by agreeing to Wassilies request for Evans
discharge. Under these circumstances, we conclude that the
superior court did not abuse its discretion when it admitted
Evans prior inconsistent statement with the minimal foundation
presented.11
Wassilie next argues that Evans prior statement is not
inconsistent when, as the trial judge found, Evan had no memory.
In Richards v. State,12 the Alaska Supreme Court held that a
videotape in which a witness re-enacted the offense was
admissible as a prior inconsistent statement after the witness
testified that he could not remember much of what happened on the
night of the offense.13 The court stated, When [the witness]
testified at trial that he had forgotten much of what he had seen
that night, the tape was admissible as a prior inconsistent
statement.14 The court did not address the distinction between
feigned and genuine memory loss.
In Van Hatten v. State,15 we held that feigned memory
loss at trial is inconsistent with an earlier statement for
purposes of Rule 801.16 Van Hatten had argued that a witnesss
prior statement was not inconsistent for purposes of Rule 801,
because a witnesss feigned inability to remember amounts to a
refusal to testify. However, we concluded that the Richards
decision implicitly adopted a broad definition of inconsistency17
and determined that there was no reason to adopt a stricter
standard when a witness feigned a memory loss. And in Brandon v.
State,18 we upheld the admission of a witnesss prior statements
as inconsistent even though the witness had no memory at trial of
those prior statements.19
Also, it is noteworthy that most federal circuit courts
have not distinguished between actual and feigned memory loss in
interpreting Federal Rule of Evidence 801(d)(1)(A) which is
similar to Alaska Rule of Evidence 801(d)(1)(A) but only applies
to prior statements made under oath.20 Three circuits have held
that if a witness testifies not to remember the prior statement
at trial, the prior statement is inconsistent for purposes of
Rule 801(d)(1)(A).21 Those circuits did not address the
distinction between feigned and genuine memory loss. In United
States v. Gajo,22 the Seventh Circuit declined to limit Rule
801(d)(1)(A) to cases of turncoat witnesses and held that [i]n
some cases, a witnesss genuine lack of memory may be inconsistent
with his prior testimony.23
Only two circuits have implied that there may be a
distinction between cases of feigned and genuine memory loss.
The Fifth Circuit has left open the issue of whether Rule
801(d)(1)(A) applies to genuine memory loss.24 And, the Third
Circuit has implied in dicta that a prior statement may not be
inconsistent with genuine memory loss at trial.25 However, the
Third Circuits decision was issued in 1981, and the position it
stated in dicta has not been adopted by the court.
Consistent with the majority view of the federal
circuits involving cases of memory loss, we confirm that the rule
announced in Richards extends to cases of genuine as well as
cases of feigned memory loss. If a witness claims not to
remember the substance of a prior statement at trial, the
witnesss trial testimony is inconsistent with the prior statement
for purposes of Rule 801(d)(1)(A). It is irrelevant for purposes
of the rule whether the claimed memory loss is genuine or feigned
because the claimed lack of memory at trial (whether genuine or
feigned) is inconsistent with the witnesss earlier claim to
remember. We conclude that the superior court did not abuse its
discretion by ruling that Evan Wassilies prior statements were
inconsistent with his genuine lack of memory at trial.
Conclusion
The judgment of the superior court is AFFIRMED.
_______________________________
1 AS 11.41.210(a)(1).
2 AS 11.41.230(a)(1).
3 See Wassilie v. State, Memorandum Opinion and Judgment No.
4492, 2-6 (Alaska App., November 14, 2001).
4 512 P.2d 879 (Alaska 1973).
5 Former Alaska R.Civ.P. 43(g)(11)(c) which was applicable
to criminal proceedings under former Criminal Rule 26(a) at the
time of McMasters trial provided:
Prior Inconsistent Statement. A witness may be
impeached by evidence that he has made at other
times statements inconsistent with his present
testimony. The statements must first be related
to him, with the circumstances of times, places,
and persons present, and the witness shall be
asked whether he has made such statements and,
if so, shall be allowed to explain them. If the
statements are in writing, they shall be shown
to the witness before he is asked any question
concerning them.
6 See McMaster, 512 P.2d at 882-84.
7 Id. at 882.
8 Id. at 880.
9 Id. at 883-84.
10 Id. at 884.
11 See id. at 884; Richards v. State, 616 P.2d 870, 871-72
(Alaska 1980); Bodine v. State, 737 P.2d 1072, 1074 (Alaska App.
1987).
12 616 P.2d 870 (Alaska 1980).
13 See id. at 871.
14 Id. at 871.
15 666 P.2d 1047 (Alaska App. 1983).
16 Id. at 1051.
17 Id.
18 839 P.2d 400 (Alaska App. 1992).
19 Brandon, 839 P.2d at 411-12.
20 See United States v. Gajo, 290 F.3d 922, 930-32 (7th Cir.
2002); United States v. Milton, 8 F.3d 39, 46-47 & n.9 (D.C. Cir.
1993); United States v. Russell, 712 F.2d 1256, 1258 (8th Cir.
1983); United States v. Distler, 671 F.2d 954, 958 (6th Cir.
1981); United States v. Marchand, 564 F.2d 983, 999 (2d Cir.
1977); see also Comment, The Forgetful Witness, 60 U.Chi.L.Rev.
167, 189-90 (1993). But see United States v. Bigham, 812 F.2d
943, 946-47 & n.2 (5th Cir. 1987) (leaving open whether Rule 801
applies to cases of genuine memory loss); United States v.
Palumbo, 639 F.2d 123, 128 n.6 (3d Cir. 1981) (implying in dicta
that a prior statement is not inconsistent with genuine memory
loss at trial).
21 See Milton, 8 F.3d at 46-47 & n.9; Russell, 712 F.2d at
1258; Distler, 671 F.2d at 958.
22 290 F.3d 922 (7th Cir. 2002).
23 Gajo, 290 F.3d at 930-32.
24 See Bigham, 812 F.2d at 946-47.
25 See Palumbo, 639 F.2d at 128 n.6.
