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Porterfield v. State (5/2/2003) ap-1870
Porterfield v. State (5/2/2003) ap-1870
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
TODD ERIC PORTERFIELD, )
) Court of Appeals No. A-
7899
Appellant, ) Trial Court No.
4FA-S99-879 CR
)
v. ) O P I N I O
N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1870 May 2,
2003] )
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Charles R.
Pengilly, Judge.
Appearances: Margi A. Mock, Assistant Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Kenneth
J. Diemer, Assistant Attorney 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.
A jury convicted Todd Eric Porterfield of first-degree
murder and first-degree arson1 for starting a fire that killed
Walter Roll. At the trial, the superior court admitted
recordings of statements by Porterfields wife, Michele S.
Porterfield, to a third party and the third partys testimony
describing Mrs. Porterfields unrecorded statement about the fire
and homicide; those statements implicated both Mr. and Mrs.
Porterfield in the arson and homicide. Porterfield argues that
the court abused its discretion when it admitted this evidence.
Based on our review of the record, we conclude that the
superior court did not abuse its discretion when it admitted
evidence of Mrs. Porterfields statements as declarations against
interest. We also conclude that admission of those statements
did not violate Porterfields confrontation rights.
Background facts
On March 21, 1999, a fire in Delta Junction killed
Walter Roll. Roll suffered burns to his upper body, but died of
smoke inhalation. The initial investigation found no indication
that the fire was intentionally set. During the investigation,
Porterfield was arrested on a warrant from Washington State.
Soon after the fire, Diana Knight contacted the Alaska State
Troopers. Knight reported that Porterfields wife told her that
the Porterfields started the fire that killed Roll.
The police obtained a Glass warrant2 and secretly
recorded conversations between Knight and Mrs. Porterfield.
After recording Mrs. Porterfields statements, the State arranged
to have Porterfield released under the guise that Knight and her
husband arranged to post bail. On April 2, the Knights picked
Porterfield up in Fairbanks in a van wired for audio surveillance
and drove toward Delta.
During the drive, Porterfield admitted to the Knights
that he was responsible for the arson and Rolls homicide; the
police recorded this conversation pursuant to a Glass warrant as
well. The troopers stopped the van and arrested Todd. The
troopers advised Porterfield of his rights, and Porterfield
admitted responsibility for the arson and Rolls death.
The grand jury indicted Porterfield and his wife for
first-degree murder, second-degree murder,3 and first-degree
arson. The superior court severed the defendants trials.
Following several pre-trial discussions about the
admissibility of Mrs. Porterfields statements, Superior Court
Judge Charles R. Pengilly admitted edited versions of Mrs.
Porterfields taped statements and Knight testified about Mrs.
Porterfields statement to her the day after the fire. The court
also admitted Porterfields statements to Knight during the drive
and his statement to the troopers just after his arrest. The
jury found Porterfield guilty of first-degree murder and first-
degree arson.
Were Mrs. Porterfields statements admissible as
statements against interest?
The State offered Mrs. Porterfields statements to
Knight as statements against interest under Evidence Rule
804(b)(3). Alaska Rule of Evidence 804(b)(3) allows the
introduction into evidence of an unavailable declarants statement
which, when it was made, so far tended to subject the declarant
to ... criminal liability ... that a reasonable person in the
declarants position would not have made the statement unless
believing it to be true. Judge Pengilly found that Mrs.
Porterfield was unavailable. Porterfield has not challenged that
ruling.
We examined Evidence Rule 804(b)(3) in Linton v.
State.4 Lintons father told his domestic partner that Linton
murdered Lintons wife and admitted that he helped Linton conceal
the wifes body.5 After the father died, his domestic partner
contacted the police, and the police arranged for him to record
some arguably inculpatory statements by the defendant.6
At trial, Linton argued that because the only crime for
which his father might have been guilty was tampering with
evidence,7 and because the statute of limitations had tolled
before his father made the inculpatory statements, the statements
were not against his fathers penal interest and, therefore, were
inadmissible.8 Whether or not the statute of limitations had
run, we observed that the surrounding circumstances did not
indicate that the father was aware of the statute of
limitations.9 Even if Lintons father had known about the statute
of limitations, we reasoned that it was doubtful he would have
felt free to tell people that he helped dispose of the body of a
murder victim.10 We declared that the proper focus of the
inquiry into the surrounding circumstances is the motivations of
the out-of-court declarant.11
In this case, it appears that Mrs. Porterfield had less
reason to believe that her statement would not be reported to the
authorities than did Lintons father. Lintons father revealed his
conduct to his long-term domestic partner; Mrs. Porterfield
admitted her misconduct to Knight, a recent acquaintance who
Porterfield said could be trusted. As was the case in Linton,
Mrs. Porterfield had no apparent reason to fabricate a claim
against her husband when she spoke to Knight, and she had no
reason to believe that the police suspected that she was involved
in the arson and the resulting homicide when they tape recorded
her statements.12 And Mrs. Porterfields statements were made
within a few days of the arson so there was little likelihood
that memory loss or confusion could be attributed to the passage
of time.
After we issued the first Linton opinion, the United
States Supreme Court issued its opinion in Williamson v. United
States.13 Williamson construed Federal Rule of Evidence
804(b)(3) to require that a declarants non-inculpatory statements
be severed before a declarants statement is admitted under that
exception to the hearsay rule:
In our view, the most faithful reading of
Rule 804(b)(3) is that it does not allow
admission of non-self-inculpatory statements,
even if they are made within a broader
narrative that is generally self-inculpatory.
The district 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, and this is especially
true when the statement implicates someone
else.[14]
However, the Court cautioned that the inculpatory nature of such
severed statements can only be determined by viewing [them] in
context. Even statements that are on their face neutral may
actually be against the declarants interest[.]15
We granted rehearing in Linton in light of Williamson,
but reaffirmed the admission of the statement against interest.16
We noted that the severability of non-self-inculpatory statements
from an overall inculpatory narrative was not a new concept and
reasoned that Lintons trial attorney may have decided,
tactically, not to argue severance rather than having failed to
recognize the concept.17 Thus, we concluded that Linton had
waived the issue.18
We also reasoned that the statements appeared to be
admissible even if subjected to the severability requirement
established by Williamson.19 We observed that the individual
statements of Lintons father, when viewed in the context of his
entire narrative, were self-inculpatory.20 Thus, we concluded
that there was no need to decide whether Williamson should guide
our interpretation of Alaska Rule of Evidence 804(b)(3). Most states
addressing the issue have followed or approved of the Williamson analysis of
severability when interpreting their evidence rules;21 a few have not.22
Porterfield raised the severability question below and
argued that statements by Mrs. Porterfield that did not directly
inculpate her but only inculpated Porterfield had to be severed
under a Williamson analysis. Ultimately, Judge Pengilly did not
order severance of any of the statements suggested by
Porterfield. Judge Pengilly analyzed Mrs. Porterfields
statements in context and determined that they were admissible as
statements against interest because the statements implicating
Porterfield establish her complicity in [Porterfields] crime[.]
Although Williamson is followed by a large majority of
the states that have addressed the question, this case does not
require us to decide whether we should follow Williamson when
applying Evidence Rule 804(b)(3) because direct application of
that rule would not change the result in this case.
Judge Pengilly found that the statements by Mrs.
Porterfield that were offered by the State established her
accomplice liability for Porterfields conduct. The record
supports that finding. The evidence showed that Mrs. Porterfield
told Knight how they killed Mr. Roll when Knight spoke with her
shortly after the fire. Knight contacted the troopers, agreed to
help, and wore an electronic device to record more conversations
with Mrs. Porterfield. In the portions of the subsequent tape-
recorded conversations offered by the State, Mrs. Porterfield
said that Porterfield was the person who actually set the fire,
but she admitted that they planned the event the night before;
they both kept Roll entertained and made sure he was intoxicated
and incapacitated before starting the fire. In the
context of all her statements, whenever Mrs. Porterfield
described Porterfields individual actions, that description was
against her penal interest because the description established
her accomplice liability for Porterfields conduct. Thus,
applying Evidence Rule 804(b)(3), Judge Pengilly could reasonably
find that viewing Mrs. Porterfields statements in context, the
statements so far tended to subject [her] to ... criminal
liability ... that a reasonable person in [her] position would
not have made the statement unless believing it to be true.
Thus, Judge Pengilly did not abuse his discretion when he
concluded that Mrs. Porterfields statements were declarations
against interest under Evidence Rule 804(b)(3).
Were Porterfields confrontation rights satisfied?
Although evidence may be admissible under an exception
to the hearsay rule, that evidence must still be excluded if a
defendants confrontation rights are violated.23 Under the
confrontation clause, a hearsay statement is admissible against a
defendant:
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.24
When we decided Linton, we recognized the debate
whether a declaration against interest implicating a third party
was a firmly rooted hearsay exception or not.25 We decided that
the prudent choice was to require that such statements have
particularized guarantees of trustworthiness in order to satisfy
confrontation clause concerns.26 This requirement foreshadowed
the United States Supreme Courts plurality opinion in Lilly v.
Virginia27 that for confrontation clause purposes, a declaration
against penal interest implicating a third party is not a firmly
rooted hearsay exception.28
When deciding whether particularized guarantees of
trustworthiness exist, a court looks at the totality of the
circumstances, but the relevant circumstances include only those
that surround the making of the statement and that render the
declarant particularly worthy of belief.29 Judge Pengilly
discussed Linton and Lilly and decided that admission of Mrs.
Porterfields statements did not violate the confrontation clause.
Judge Pengilly found that the circumstances did not suggest that
Mrs. Porterfield had a motivation to shift blame when she made
the statements, or a reason to anticipate that the statements
would be shared with law enforcement. Mrs. Porterfields initial
statement to Knight shortly after the fire was unprompted. Mrs.
Porterfield informed Knight that Porterfield advised her that she
could trust both Mr. and Mrs. Knight. Mrs. Porterfield then
disclosed to Knight that she and Porterfield had killed Roll by
starting the fire. In that first conversation and in the
following taped conversations, there was no apparent reason for
Mrs. Porterfield to fabricate her admissions. In all her
statements, she described a very recent occurrence. Even though
Mrs. Porterfields account implicated Porterfield in the arson and
murder, Judge Pengilly found that there was no indication that
Mrs. Porterfield minimized her own role or tried to shift blame
to Porterfield. Nothing in the circumstances of the statements
provides a reason why Mrs. Porterfield would falsely implicate
her husband. Significantly, Mrs. Porterfield had no reason to
believe that her statements to Knight would curry any favor with
the police or the State because Judge Pengilly found that she had
no reason to anticipate the statements would be relayed to law
enforcement.
Also, Knight was subject to cross-examination by
Porterfield when she testified at trial about Mrs. Porterfields
statement to her just after the fire. Mrs. Porterfields other
statements offered by the State were tape-recorded and the jury
heard the content of those statements when they were played.
Considering all these circumstances, we agree with
Judge Pengillys conclusion that Mrs. Porterfields statements had
the particularized guarantees of trustworthiness that satisfied
Porterfields confrontation rights.
Conclusion
The judgment of the superior court is AFFIRMED.
_______________________________
1 AS 11.41.100(a) and AS 11.46.400(a), respectively.
2 See State v. Glass, 583 P.2d 872 (Alaska 1978), on
rehg, 596 P.2d 10 (Alaska 1979) (holding that the state
constitution requires police to obtain judicial authorization
before secretly recording a persons private conversations).
3 AS 11.41.110(a).
4 880 P.2d 123 (Alaska App. 1994), affd on rehg, 901
P.2d 439 (Alaska App. 1995), [hereinafter Linton II].
5 Id. at 125.
6 Id. at 125-26.
7 AS 11.56.610.
8 Linton, 880 P.2d at 127.
9 Id.
10 Id.
11 Id. at 128 n.5.
12 See id. at 128.
13 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476
(1994).
14 Id. at 600-01, 114 S.Ct. at 2435.
15 Id. at 603, 114 S.Ct. at 2436-37.
16 Linton II, 901 P.2d at 441-42.
17 Id. at 442.
18 Id. at 441.
19 Id. at 442.
20 Id.
21 See State v. Soto-Fong, 928 P.2d 610 (Ariz. 1996);
People v. Duarte, 12 P.3d 1110 (Cal. 2000); State v. Schiappa,
728 A.2d 466 (Conn. 1999); Smith v. State, 647 A.2d 1083 (Del.
1994); Brooks v. State, 787 So.2d 765 (Fla. 2001); Gabow v.
Commonwealth, 34 S.W.3d 63 (Ky. 2000); State v. Lucky, 755 So.2d
845 (La. 1999); State v. Matusky, 682 A.2d 694 (Md. 1996); State
v. Dukes, 544 N.W.2d 13 (Minn. 1996); Williams v. State, 667
So.2d 15 (Miss. 1996); State v. Sheets, 618 N.W.2d 117 (Neb.
2000); State v. Benavidez, 992 P.2d 274 (N.M. 1999); People v.
James, 717 N.E.2d 1052 (N.Y. 1999); Commonwealth v. Robins, 812
A.2d 514 (Pa. 2002); State v. Pacheco, 763 A.2d 971 (R.I. 2001);
State v. Fuller, 523 S.E.2d 168 (S.C. 1999); State v. Roberts, 14
P.3d 713 (Wash. 2000); State v. Mason, 460 S.E.2d 36 (W.Va.
1995); Johnson v. State, 930 P.2d 358 (Wyo. 1996).
22 See People v. Newton, 966 P.2d 563 (Colo. 1998);
State v. Hills, 957 P.2d 496 (Kan. 1998); State v.
Sonthikoummane, 769 A.2d 330 (N.H. 2000); Chandler v.
Commonwealth, 455 S.E.2d 219 (Va. 1995).
23 See U.S. Const. Amend. VI; Alaska Const. art. I,
11.
24 Linton, 880 P.2d at 129 (quoting Ohio v. Roberts,
448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980)).
25 Id. at 129.
26 Id.
27 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117
(1999).
28 Id. at 134, 119 S.Ct at 1899.
29 Linton, 880 P.2d at 129 (quoting Idaho v. Wright,
497 U.S. 805, 819, 110 S.Ct. 3139, 3148, 111 L.Ed.2d 638 (1990)).
