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Smith v. State (12/12/2003) ap-1909
Smith v. State (12/12/2003) ap-1909
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
RONALD SMITH, )
) Court of Appeals No.
A-8017
Appellant, )
Trial Court No. 1JU-00-105 CR
)
v. ) O P I N I O
N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1909 - December 12, 2003]
)
Appeal from the Superior Court, First Judi
cial District, Juneau, Larry D. Weeks, Judge.
Appearances: Averil Lerman, Assistant Public
Advocate, and Brant McGee, Public Advocate,
Anchorage, for Appellant. John A.
Scukanec, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
A jury convicted Ronald Smith of murder in the second
degree,1 robbery in the first degree,2 and assault in the first
degree.3 Superior Court Judge Larry Weeks sentenced Smith to a
composite term of 85 years. Smith appeals, raising several
issues. In his main issue on appeal, Smith contends that Judge
Weeks erred in admitting the hearsay statements of Zachary Brown.
Smith contends that Browns statements were inadmissible hearsay
and that admission of the statements violated his rights under
the Confrontation Clause of the Sixth Amendment to the United
States Constitution and under Article 1, Section 11 of the Alaska
Constitution. We agree with Smith that Browns statements were
erroneously admitted and reverse his convictions.
Factual background
The grand jury charged Smith and Rey Soto with the
second-degree murder of Kenneth Thomas, the first-degree assault
of Alfred Torres, and robbery in the first-degree.
Torres and Thomas lived in a trailer home in an area
known as The Village in Juneau, Alaska. In the early morning
hours of January 25, 2000, Torres testified that he, his
girlfriend Stephanie Sanders, Thomas, and a friend, Mark Paddock,
were watching a movie when they heard a knock at the door.
Torres testified that after he unlocked and opened the door, a
black man (later determined to be Smith) wearing a ski mask and
dark-colored clothes, rushed through the door pointing a silver
pump-action shotgun at him. Torres testified that another man
(later determined to be Soto) followed Smith wielding a baseball
bat.
Torres stated that as he tried to grab the shotgun and
wrest it from Smith, Soto hit him with the bat. As Torres and
Smith struggled, Thomas ran to help Torres and Soto hit Thomas in
the head. Torres attempted to run away, but according to Torres,
Smith caught him and beat him with the shotgun. At this point,
according to Torres, Smith ordered Torres and the other occupants
of the trailer to give him money and stuff. Torres testified
that he complied and gave Smith his wallet containing $20 and a
coffee mug containing approximately six grams of marijuana.
Smith and Soto left and Torres and Paddock witnessed a dark car
leave the area.
Torres and his friends then took Thomas to the
hospital. On the way, they observed the dark car, noted the
license number and reported the incident to the police. Thomas
died at the hospital from a massive skull fracture. Torres
suffered a dislocated shoulder, head lacerations, and a possible
concussion.
Based on the report, the police stopped Smith and Sotos
car and arrested them. The police found a baseball bat, two ski
masks, a small baggie containing marijuana, and a blood spattered-
coffee mug. The shotgun was not found in the car. Based on a
tip, the police later located the shotgun in the woods. Smith
and Soto had blood on their clothing and shoes and some currency
found in Sotos pocket had blood on it as well. Alaska State
criminalist Abirami Chidambaram testified that the blood on
Smiths and Sotos clothing, the bat, the coffee mug, and the
currency from Sotos pocket matched the DNA profiles of Thomas and
Torres.
Smith initially denied any involvement in the crime and
stated that he knew nothing about the shotgun or the ski masks.
When asked about the blood on his clothing, Smith told the Juneau
Police Department that he had been in a fight a couple of days
before and had not changed his clothes.
At trial, Smith testified that he did not go to Torress
residence to rob, but to purchase marijuana. He claimed he and
Soto did not bring a shotgun, a bat, or wear ski masks. He went
to The Village to buy a gram of marijuana from Torres for $25.
According to Smith, after Torres offered the baggie of marijuana
to him, he protested because he believed the baggie did not
contain a full gram of marijuana. At this point, Torres left the
door of the trailer, apparently to get more marijuana. When
Torres returned, carrying a baseball bat, Smith testified that
Torres was singing a nursery rhyme, something like, my darling
dearest adorable one, now you must pay for the shit you have
done, and proceeded to attack Smith with the bat. Smith
testified that the bat belonged to Torres. Smith testified that
in the course of defending himself, he wrested the bat from
Torres and tossed it aside. Soto then picked the bat up and
struck Thomas. Smith stated that he and Torres exchanged blows
until he and Soto retreated to the car and left.
Soto testified similarly. Specifically, Soto testified
that he went to Smiths aid when he witnessed Torres and Thomas
attack Smith. Soto claimed he hit Thomas with the bat in self
defense because Thomas was running at him. Soto testified that
he retreated to the car with his bat and kept the bat so that
neither he nor Smith could be attacked with it. Soto also denied
that he and Smith wore ski masks or had a shotgun.
The jury convicted Smith and Soto of murder in the
second degree, robbery in the first degree, and assault in the
first degree.
Zachary Browns hearsay statements
At trial, the State sought to admit statements that an
unavailable witness, Zachary Brown, allegedly made to his
girlfriend, Caroline Gerken. According to Gerken, she had a
private conversation with Brown on January 25, 2000, between 2:00
and 4:00 p.m. (The incident that led to the robbery, murder, and
assault charges took place during the early morning hours of
January 25, 2000.) According to Gerken, she told Brown that she
was concerned about him because of the police crime scene tape
that she had seen near his residence. Brown told her that he had
spoken to the police earlier in the day. Gerken then testified
that she asked Brown if he knew anything about the investigation.
She testified:
A. He said that he was woken up about 4:15, 4:30 in the morning
by Rey [Soto] and Ron [Smith], and they asked if they could
borrow his shotgun for a minute. They said theyd be back in five
minutes, and left. He took all the bullets out of it, and they
left. Then excuse me he remembered them coming back around
5:00 ... or so and just left it, and they left right away.
Q. Okay. He remembered that they came back at 5:00 and you
said just left it.
A. Yeah, they just put it back against the wall.
Q. And then what did he say?
A. He fell back to sleep, and woke up in the morning, looked at
his gun, said he saw what appeared to be dried blood, just very,
very few splatters on it, on the gun, and he got really freaked
out and scared, didnt know what happened, and he cleaned the gun.
Gerken then testified that Brown told her that he took
the pistol grip off the gun and disposed of it in the channel.
Gerken stated that Brown had told her that Kyle [Nalan] had
offered to say that he was there when they came in to get the
gun, and he agreed. According to Gerken, Brown stated that
because Nalan had offered to say that he had been present, Brown
was also going to say that Nalan had been present.
Later in the day Gerken spoke to Nalan. Nalan told
Gerken that, although he had not been present at Browns residence
when Smith and Soto had allegedly obtained the shotgun, he was
going to testify that he had been at Browns residence, slept on
the couch, and had witnessed the incident. Gerken testified that
she did not know if Brown knew Torres or Thomas.
At trial, Nalan testified that he was present when
Smith and Soto picked up the shotgun. David Shaw, who identified
himself as a friend of Nalans, testified that Nalan told him that
he had not been present at Browns residence when Smith and Soto
allegedly picked up the shotgun.
Upon the States motion, the superior court admitted
Browns statements at trial as declarations against interest under
Evidence Rule 804(b)(3). Declarations against interest are not
excluded by the hearsay rule if the declarant is unavailable and
the statement was at the time of its making so far contrary to
the declarants 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 declarants position would not
have made the statement unless believing it to be true.4
Brown was unavailable because he exercised his Fifth
Amendment right to not testify. The State contends that Browns
statements that he gave the shotgun to Smith and Soto shortly
before they used the weapon in the robbery and homicide and that
he later cleaned the blood from the weapon and hid it, qualified
as statements against interest. The State argues that Brown
would not have admitted giving Smith and Soto the shotgun shortly
before their alleged crimes and would not have admitted disposing
of evidence unless these statements were true. According to the
State, Browns statement that he had given the shotgun to Smith
and Soto put him at risk of being charged as an accomplice to the
crimes. Browns statement that he subsequently cleaned and
disposed of the shotgun would subject him to being charged with
tampering with physical evidence.
A problem with the States contention that Browns
statements were a declaration against interest is that Browns
statements that Smith and Soto were the people who picked up the
shotgun does not appear to be necessary to make Browns statements
a declaration against interest. For example, had Brown stated
that he gave the shotgun to Torres (or anyone else involved)
shortly before the incident, that statement would similarly have
been against Browns interest. Therefore, it does not appear that
the part of Browns statement identifying Smith and Soto as the
people who picked up the shotgun and then returned it would
qualify as a declaration against interest.5
It is true that the other portions of Browns statement
about removing the pistol grip off the gun and disposing of it in
the channel clearly subjected him to a charge of tampering with
physical evidence,6 as did his statement that after waking up and
discovering his gun had dried blood splatters on it, he cleaned
the gun. However, in evaluating a declarants statements, courts
must view the statements separately and sever a declarants non-
inculpatory statements before a court admits a declarants
inculpatory statements under Rule 804(b)(3).7
The United States Supreme Court construed Federal Rule
of Evidence 804(b)(3), the federal counterpart to Alaska Evidence
Rule 804(b)(3) in Williamson v. United States,8 and concluded
that courts should 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.9 In explaining the limits of its
decision, the Court noted, however, 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 declarants interest.10 Many states have
followed Williamson,11 but Alaska has never expressly adopted its
holding. Assuming arguendo that the Williamson rule is applicable
in Alaska, nonetheless, when viewed in context with Browns other
statements, Browns statement identifying Smith and Soto is still
not against his interest for the reasons previously stated. In
sum, we conclude that the superior court abused its discretion in
admitting the portion of Browns hearsay statements identifying
Smith and Soto as the ones who borrowed the shotgun.
We must also examine Browns statements under the
Confrontation Clause. Both the federal and state constitutions
guarantee a defendants right to confront the witnesses against
him.12
Under the [C]onfrontation [C]lause, a hearsay
statement is admissible against the accused
only if it bears adequate indicia of
reliability. Reliability can be inferred
without more in a case where the evidence
falls within a firmly rooted hearsay
exception. In other cases, the evidence must
be excluded, at least absent a showing of
particularized guarantees of
trustworthiness.[13]
Declarations against interest are not a firmly rooted hearsay
exception.14 In order to admit hearsay statements under the
Confrontation Clause a court must find that the statements were
so inherently reliable that cross-examination would have been
superfluous.15
Looking at Browns statements in context, Browns
statements do not meet that standard. As we have previously
pointed out, the portion of Browns statement identifying Soto and
Smith as the people who picked up the shotgun does not qualify as
a statement against interest. Furthermore, the part of Browns
statement about Nalan undermines the reliability of Browns
statement. According to Gerkens account of Browns statement, it
appears that Brown suggested that Nalan was going to lie and say
that Nalan had been present when Smith and Soto had allegedly
picked up the shotgun. If giving Smith and Soto the shotgun was
against Browns interest, why would Nalan falsely corroborate that
Brown had done an act which the State argues subjected Brown to
being charged as an accessory? The State could argue that
perhaps Brown and Nalan wanted to minimize Browns willingness to
give Smith and Soto the shotgun. Smith would probably want to
argue that Brown wanted Nalan to lie because the incident never
happened and Brown was trying to frame Smith and help Torres.
But that portion of Browns statement that Nalan was going to
falsely claim he witnessed the shotgun transfer at least suggests
that Brown was not being entirely candid about the incident and
demonstrates that Browns statements were not so inherently
reliable that cross-examination would have been superfluous.
Furthermore, the relationships between Brown, Smith,
Soto, Thomas, and Torres do not show that Brown did not have a
motive to make a false statement implicating Smith and Soto.16
Smith presented some evidence that suggested that Brown was
frequently at the residence of Thomas and Torres and was
therefore acquainted with them. Although Torres denied that he
knew Brown, Torress testimony regarding Brown conflicted with
Deborah Schorrs testimony. Schorr testified that she was a
defense investigator and that during the course of her
investigation, Crystal Ann Williams informed her that Brown was
always over at Torress trailer, suggesting that perhaps Torres
did know Brown and that Torres and Brown might be friends.
Williams testified that she did not know if Brown knew Torres and
Williams. Gerken testified that Brown was unemployed and was
apparently dealing drugs out of his apartment. So apparently
Brown, Thomas, and Torres, as well as Smith and Soto, were
involved in dealing drugs. The facts suggest that the statements
that Brown allegedly made to Gerken were not so inherently
reliable that they should have been admitted without allowing
Smith the opportunity to cross-examine Brown. Consequently, we
conclude that the superior court violated the Confrontation
Clause when it admitted Browns hearsay statements.
The State argues that Smith did not properly object to
Gerkens proposed testimony. But the record reveals that Smith
did object to Gerkens proffered testimony about Browns statements
and argued that the testimony was not admissible as a declaration
against interest and the statements could not be admitted because
Smith did not have the opportunity to confront and cross-examine
Brown regarding his statements. Smiths objection was sufficient
to preserve his claim.
The State also argues that admission of Browns hearsay
statement was harmless error. But Browns hearsay statements were
admitted in violation of Smiths constitutional right to cross-
examine the witnesses against him. Since the evidence was
admitted in violation of Smiths constitutional rights, we cannot
uphold Smiths convictions unless we find that the error was
harmless beyond a reasonable doubt.17 Under this standard, we
are unable to find that the error was harmless.
The central conflict in the case was whether Smith and
Soto went to the trailer to rob the inhabitants or whether Smith
and Soto acted in self-defense when Torres attacked them. A
central part of the States theory that Smith and Soto intended to
commit a robbery was that Smith and Soto went to the trailer
wearing ski masks and armed with a shotgun and a baseball bat.
The people present at the residence testified that Smith and Soto
went to the trailer so armed and wearing ski masks. Smith and
Soto testified that they were not wearing ski masks and did not
bring any weapons. Therefore, Browns statement that, shortly
before the incident, Smith and Soto came to his residence and
borrowed the shotgun, returning it a short time later, was
significant evidence in support of the States theory. If Smith
and Soto did borrow the shotgun from Brown, it contradicted their
testimony and tended to show that they had gone to Torress
trailer intending to commit a robbery.
The State argues that Browns hearsay statement was not
significant because Kyle Nalan testified that Smith and Soto
obtained the shotgun from Brown shortly before the incident. It
is true that Kyle Nalan testified that he was present when Smith
and Soto obtained the shotgun from Brown. But Smith undermined
Nalans testimony by presenting evidence that Nalan lied about
being present. A jury might therefore have had questions about
Nalans credibility.
Smith also presented evidence which placed in question
the States physical evidence that supported the States theory
that Smith and Soto went to Torress residence to commit a
robbery. Kathleen Mazon testified that two weeks prior to the
incident she had observed a baseball bat inside Torress trailer.
This supports the defense theory that the baseball bat belonged
to Torres and that Torres took the baseball bat from his trailer
before he attacked Smith. Also contrary to testimony provided by
the States witnesses, Smiths and Sotos testimony that they were
not wearing ski masks was similarly supported by the physical
evidence. Alaska State Criminalist Kristin Denning analyzed the
ski masks the police found in the car immediately after the
incident and testified that the ski masks did not contain any
hair or other DNA evidence identifying Smith or Soto. Denning
also testified that Smiths clothing and jacket were covered with
blood and blood splatter from the altercation, but the ski masks
did not have any blood on them. Denning also testified that
there was no blood on the shotgun and it did not appear to have
been cleaned thus supporting the defense theory that Smith or
Soto did not bring a shotgun to the trailer or use a shotgun
during the altercation.
Consequently, Browns hearsay testimony that Smith and
Soto obtained the shotgun from him shortly before the incident
might have been critical to the jury in deciding whether Smith
and Soto armed themselves before going to Torress residence. We
are therefore unable to find that the erroneous admission of
Browns hearsay statement was harmless error beyond a reasonable
doubt.
Conclusion
We accordingly conclude that Smiths convictions must be
reversed.
REVERSED.
_______________________________
1 AS 11.41.110(a)(2),(3).
2 AS 11.41.500(a)(3).
3 AS 11.41.200(a)(1).
4 A.R.E. 804(b)(3).
5 See Williamson v. United States, 512 U.S. 594, 600-03,
114 S.Ct. 2431, 2435-37, 129 L.Ed.2d 476 (1994).
6 AS 11.56.610(a)(1).
7 Williamson, 512 U.S. at 602-03, 114 S.Ct. at 2436-37.
8 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994).
9 Id. at 601, 114 S.Ct. at 2435.
10 Id. at 603, 114 S.Ct. at 2436.
11 See, e.g., 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 (Wa. 2000); State v. Mason, 460 S.E.2d 36
(W. Va. 1995); Johnson v. State, 930 P.2d 358 (Wyo. 1996). But
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).
12 U.S. Const. amend. VI; Alaska Const. art. I, 11.
13 Linton v. State, 880 P.2d 123, 129 (Alaska App. 1994)
(quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539,
65 L.Ed.2d 597 (1980)).
14 Lilly v. Virginia, 527 U.S. 116, 134, 119 S.Ct. 1887,
1899, 144 L.Ed.2d 117 (1999); Porterfield v. State, 68 P.3d 1286,
1291 (Alaska App. 2003).
15 Lilly, 527 U.S. at 139, 119 S.Ct. at 1901.
16 See Linton, 880 P.2d at 128 n.5.
17 See Wyatt v. State, 981 P.2d 109, 112 (Alaska 1999).
