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Sipary v. State (05/21/2004) ap-1933

Sipary v. State (05/21/2004) ap-1933

                             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


CLARENCE SIPARY,              )
                              )              Court of Appeals No.
A-7813
                                             Appellant,         )
Trial Court No. 4BE-99-1039 Cr
                              )
                  v.          )
                              )                       O  P  I   N
I  O  N
STATE OF ALASKA,              )
                              )
                                             Appellee.          )
[No. 1933  May 21, 2004]
                              )


          Appeal  from the Superior Court, Fourth  Judi
          cial District, Bethel, Dale O. Curda, Judge.

          Appearances:   Sharon Barr, Assistant  Public
          Defender,   and  Barbara  K.  Brink,   Public
          Defender, Anchorage, for Appellant.  Nancy R.
          Simel, 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.

          MANNHEIMER, Judge.


          This  case involves the rule of completeness, a common-

law   rule  of  evidence  designed  to  prevent  litigants   from

introducing  portions  of an out-of-court  statement  when  these

portions, taken out of context, would tend to be misleading.  The

rule  of  completeness  states that  when  one  party  introduces

portions  of an out-of-court statement (whether oral or written),

an  adverse party is entitled to introduce remaining portions  of

the statement to the extent that this is necessary to correct any

material misimpression that the initially offered portions  might

arguably create.

          The   present  appeal  arises  from  Clarence   Siparys

prosecution  for  first-degree assault.  At  Siparys  trial,  the

prosecuting  attorney  introduced portions of  four  out-of-court

statements made by Sipary.  In these statements, Sipary  admitted

that  he  or  his  friend, Kenneth Tyson, beat  the  victim,  Leo

Stevens.   But Siparys attorney contended that these out-of-court

statements  also included Siparys explanation of  why  he  and/or

Tyson  struck Stevens.  According to the defense attorney, Sipary

explained  that  he and Tyson used force against Stevens  because

Stevens  was  trying to kill them.  The defense  attorney  argued

that  the  prosecutor  should not be able to  introduce  abridged

versions  of  Siparys pre-trial statements when the  abridgements

omitted any mention of Siparys alleged claim of self-defense (or,

regarding  Tysons  use  of  force  against  Stevens,  defense  of

others).

          The trial judge rejected the defense attorneys argument

on  hearsay  grounds.  The judge ruled that, under Evidence  Rule

801(d)(2)(A)  (the rule authorizing admission of statements  made

by  an  opponent), the prosecutor was entitled to introduce  only

those portions of Siparys statements that he wished  and that, to

the  extent Sipary wished to offer any remaining portions of  the

statements,  these remaining portions were barred by the  hearsay

rule (Evidence Rule 802).

          As we explain in this opinion, the rule of completeness

was   potentially  applicable  to  Siparys  case.    If   Siparys

statements  about striking the victim (or about  Tysons  striking

the  victim)  had indeed been directly coupled to  assertions  of

self-defense  (or  defense of others), as  the  defense  attorney

contended,  then  these explanatory assertions  would  have  been

admissible  under the rule of completeness once  the  prosecution

chose to introduce the portions of the statements in which Sipary

admitted that he and/or Tyson struck the victim.

          But  even  though  Siparys  trial  attorney  repeatedly

contended that the State was presenting Siparys statements out of

context,  in  the  sense  that  Siparys   statements  were  being

mischaracterized  by abridgement, the record does  not  bear  out

this contention.  We therefore affirm Siparys conviction.



     The  rule  of completeness, its relationship to  Alaska
     Evidence Rule 106, and its relationship to the  hearsay
     rule
     

               Under the common-law rule of completeness,  a

     party  has  the right to introduce the remainder  of  a

     writing   [or]   statement,   correspondence,    former

     testimony,  or  conversation that his or  her  opponent

     introduced to the extent that this remainder relates to

     the  same  subject matter and ...  tends to explain  or

     shed   light  on  the  meaning  of  the  part   already

     received.1   The purpose of the rule is  to  prevent  a

     selective  and out-of-context presentation of  evidence

     from  misleading the trier of fact2   or, as stated  by

     Wigmore,   to  secure  for  the  tribunal  a   complete

     understanding  of  the total tenor and  effect  of  the

     utterance.3

          The United States Supreme Court addressed the

rule of completeness in Beech Aircraft Corp. v. Rainey,

488  U.S.  153, 109 S.Ct. 439, 102 L.Ed.2d 445  (1988).

In  Beech Aircraft, the Court held that this common-law

rule  survived  the enactment of the Federal  Rules  of

Evidence.  The Court declared it obvious that when  one

party  has  made  use of a portion of a document,  such

that misunderstanding or distortion can be averted only

through  presentation of another portion, the  material

required  for  completeness is ipso facto relevant  and

therefore admissible under [Federal Evidence] Rules 401

          and 402.4

          On  the  other hand, the rule of completeness

does not mean that the entirety of a statement must  be

admitted if a litigant introduces a part.  Rather,  the

admissibility  of  other portions of the  statement  is

limited  to  those  portions that are  necessary  to  a

proper   understanding  of  the   previously   admitted

portions. [O]mitted portions of the statement need  not

be  admitted  if they are not relevant  to  explain  or

clarify  the previously admitted statement.  Stumpf  v.

State, 749 P.2d 880, 899 (Alaska App. 1988).

          Although  Alaska Evidence Rule 106  is  often

referred  to as a rule of completeness, it is  distinct

from  the common-law rule that we are discussing.   The

Supreme  Court stated in Beech Aircraft that,  although

Federal  Evidence Rule 106 (the federal counterpart  to

Alaska Evidence Rule 106) is premised on the common-law

rule of completeness, it only partially codifie[s] this

rule.  The Court meant by this that there are instances

in  which evidence will be admissible under the rule of

completeness  irrespective of whether the  evidence  in

question  also  qualifies for admission  under  Federal

Evidence Rule 106.5

          This  distinction between the common-law rule

of  completeness  and Evidence Rule 106  is  even  more

clearly  delineated in Alaska law.  This court held  in

Stoneking  v. State6 that Alaska Evidence Rule  106  is

not  a  rule  of  completeness in  the  sense  that  it

authorizes the admission of the complementary evidence.

Rather,  the  purpose of Rule 106 is more limited:   it

gives  the  parties  against whom written  or  recorded

evidence has been admitted the power to accelerate  the

timing  of their opportunity to introduce complementary

evidence:

     
          The  plain language of the rule does not
          categorically confer upon one party the right
     to   admission  of  a  complete  written   or
     recorded  statement  when  an  opponent   has
     admitted   only  part.   Instead,  the   rule
     confers  the  limited right to admit  omitted
     portions  of  the  statement  that  ought  in
     fairness   be  considered  contemporaneously.
     The limited purpose of [Alaska Evidence Rule]
     106  is  to  allow a party to  admit  omitted
     portions  of  a partially admitted  statement
     only  when  and only to the extent  that  the
     omitted  portions  are necessary  to  provide
     context  to  the  admitted  portions,  or  to
     explain or clarify them.  ...  The rule  does
     not  make  admissible statements  that  would
     otherwise  be inadmissible; it is meant  only
     to   allow   contemporaneous   admission   of
     evidence   that  would  ordinarily   not   be
     admissible  until later stages of the  trial.
     See  [the] Commentary [to Evidence Rule  106]
     (1979).
     
Stoneking, 800 P.2d at 951-52.

          The  Commentary  to Evidence Rule 106 (upon  which  the

Stoneking  decision relies) states that Rule 106 was designed  to

solve  a  problem of timing, not to enhance the admissibility  of

evidence.   Based on the first paragraph of that  Commentary,  it

appears  that the drafters of Rule 106 assumed that the  standard

rule  [of  completeness]  at common law  survived  under  Alaskas

codified  rules of evidence.  The problem to which  Rule  106  is

addressed  (according to the first and second paragraphs  of  the

Commentary) is that, under the common-law rule of completeness, a

party  who wishes to introduce the complementary evidence  needed

to put things in their proper context must often wait until their

own  case-in-chief, which may not occur until  long  after  their

opponent  introduced the original portion of the statement.   The

second  paragraph of the Commentary points out that  [when]  time

elapses between the offer of part of a statement and the offer of

[complementary parts], the jury may become confused  or  find  it

difficult to reassess [the] evidence that it ... heard earlier in

light of [the later-admitted complementary] material.  Thus, Rule

106  gives the party the option to speed up the admission of  the

complementary evidence.

          But  this  leaves  at  least two questions  unanswered.

First,  because  Rule  106 speaks explicitly  of  writing[s]  and

recorded  statement[s],  does  this  mean  that  the  option   of

accelerated admission does not apply to evidence that complements

oral  statements?  Some federal courts have declared  that,  even

though  Evidence  Rule  106 does not apply  to  oral  statements,

Evidence  Rule 611(a) gives trial judges a similar  authority  to

grant accelerated admission to the complementary parts of an oral

statement.7

          (Evidence Rule 611(a) states, in pertinent part, that a

trial  judge shall exercise reasonable control over the mode  and

order of interrogating witnesses and presenting evidence so as to

...  make  the interrogation and presentation effective  for  the

ascertainment of the truth.)

          Second, if Evidence Rule 106 is not intended to  affect

the  admissibility  of  evidence, but  only  the  timing  of  its

admission,  what of situations where the particular  out-of-court

statement  is  admissible  if  offered  by  one  party,  but  not

admissible if offered by the other?

          For  example,  criminal trials (such as Siparys)  often

present  instances in which the defendants out-of-court statement

is admissible if offered by the State (because it qualifies as  a

statement of a party-opponent under Evidence Rule 801(d)(2)), but

inadmissible  if  offered by the defendant themself  (because  no

hearsay exception applies).  See Marino v. State, 934 P.2d  1321,

1331  (Alaska  App.  1997); Stumpf v. State, 749  P.2d  880,  899

(Alaska App. 1988).

          In   such   situations,  even  though   the   rule   of

completeness  might  otherwise give the defendant  the  right  to

introduce  complementary portions of their out-of-court statement

(to  explain the portions introduced by the State), does the rule

of  completeness  allow the defendant to circumvent  the  hearsay

rule?  Courts are divided on this issue.8

          Although  we have noted these issues, we conclude  that

          Siparys case does not require us to resolve them.  Instead, as we

explain  at  some  length in what follows, we conclude  that  the

facts of Siparys case do not raise an issue of completeness.



     Facts underlying the assault charge against Sipary
     

               On  September 26, 1999, four men traveled  by

     boat  up the Yukon River from Saint Marys to join  Evan

     Kozevnikoff  at his fish camp on Kashanuk Slough,  near

     Pilot  Station.   These four men were Clarence  Sipary,

     his  friend Kenneth Tyson, and two brothers,  Chet  and

     Leo Stevens.

               Before dawn the next morning (September  27),

     three  of  these  men  Sipary, Tyson, and  Leo  Stevens

     arrived  by  boat  at Pilot Station.  Sipary  had  been

     wounded in the foot by a shotgun blast, and he  was  in

     considerable pain.  Leo Stevens had been badly  beaten;

     he  was  lying  curled  up in the boat,  shivering  and

     mumbling.   Both Sipary and Stevens were taken  to  the

     local  clinic  for treatment.  At the  clinic,  Stevens

     stopped breathing and died.

          The  subsequent autopsy revealed that Stevens

had  suffered ten blunt force traumas to his  head,  as

well as an additional ten or eleven blunt force traumas

to  his  back  and  upper body.  The  medical  examiner

concluded,  based on these injuries, that  Stevens  had

been  clubbed  some two dozen times with  one  or  more

solid  objects.  Stevens died because the blows to  his

head injured his brain, causing the brain to bleed  and

swell  and thus exert pressure on the brain  stem   the

portion  of  the  brain  that  controls  breathing  and

heartbeat.

          Based  on  the  results of  a  state  trooper

investigation, the district attorneys office  concluded

that  there  had been a fight at the fish camp  between

Leo  Stevens and his brother Chet, on the one hand, and

Sipary and his friend Tyson on the other.  During  this

fight, Leo Stevens grabbed a shotgun and shot Sipary in

the foot.  Tyson escaped into the woods, but Sipary was

immobilized by his wound, so he was forced  to  sit  on

the  ground  while Stevens held him at gunpoint.   Some

ninety  minutes later, Tyson sneaked up behind  Stevens

and  succeeded in subduing and disarming  him.   Sipary

and  Tyson then took revenge on Stevens by beating  and

clubbing  him repeatedly  first at the fish  camp,  and

then during the boat trip to Pilot Station.

          The  district attorney concluded  that  Tyson

had administered most of this beating, since Sipary was

largely incapacitated by his foot wound.  However,  the

district attorney concluded that Sipary had urged Tyson

to  beat Stevens, both while they were at the fish camp

and  then  later during the boat trip to Pilot Station.

The  district  attorney further concluded that,  during

the  boat  trip to Pilot Station, Sipary had personally

assaulted Stevens by picking up a .30-06 caliber  rifle

and clubbing Stevens three times with the weapon, until

the stock broke.

          Because  the State concluded that  Tyson  had

administered  the major portion of the  beating,  Tyson

was  indicted for first-degree murder, while Sipary was

indicted only for first-degree assault.  Before Siparys

trial,  Tyson  accepted  a plea  bargain  in  which  he

pleaded  no  contest  to  manslaughter  and  agreed  to

testify against Sipary.



Facts   underlying   the  superior  courts   challenged
evidentiary ruling


          Everyone  directly involved in this  incident

was  intoxicated.   In  particular,  Kozevnikoffs  four

guests   Sipary, Tyson, and the Stevens  brothers   had

been  drinking home brew from the time they started  up

the river from Saint Marys, and they continued to drink

after  they arrived at the fish camp.  Kozevnikoff  had

already  retired to his tent before the fight  started,

so he had little relevant testimony to offer.

          The  victims  brother, Chet  Stevens,  was  a

witness to the early stages of the fight.  He testified

that  he  and  his  brother got into an  argument  with

Sipary,  and  then  the argument turned  violent,  with

Sipary  and  his  friend Tyson fighting  Leo  and  Chet

Stevens.

          During the initial stages of this fight, Chet

Stevens  suffered injuries to his face  and  his  ribs,

both  of  which  swelled up and gave  him  considerable

pain. He escaped from further fighting by crawling into

a  tent.  From inside the tent, Chet Stevens could hear

the  sound  of  continued fighting, and he  could  hear

Sipary urging Tyson to beat up Leo Stevens, to kick his

ass. Then Chet passed out.

          He  was awakened a little while later by  the

sound  of  a  gunshot.   He  also  heard  sounds   like

aluminum, ... like fighting in a boat.  Then he  passed

out  again, and he did not remember anything else until

the  following day, when the police arrived at the fish

camp to investigate Leo Stevenss death.

          The only eyewitness to offer a fuller account

of  the  incident  was  Kenneth  Tyson.   As  explained

earlier, Tyson was initially indicted for the murder of

Leo  Stevens,  but he agreed to plead no contest  to  a

reduced charge of manslaughter, upon the condition that

he  testify  at  Siparys trial.  Tyson did  testify  at

trial as he promised, but his testimony favored Sipary.

          In   his  brief  direct  examination,   Tyson

acknowledged  that,  during  the  boat  trip  to  Pilot

Station,  Sipary  struck Leo Stevens  with  a  shotgun,

hitting him three times in succession.  However,  Tyson

suggested  that  Sipary had acted in self-defense:   he

testified that Sipary struck these blows with  the  gun

right after Sipary pulled the gun from Stevenss hands.

          Tyson  gave a more elaborate account when  he

was  questioned  by Siparys attorney.  Tyson  testified

that,  during  the  boat  trip to  Pilot  Station,  Leo

Stevens managed to obtain control of a shotgun and  was

standing  guard  over  Sipary  with  this  weapon.   In

response,  Sipary (who was already shot  in  the  foot)

grabbed the gun and clubbed Stevens with it.

          Tyson further testified that this was not the

only  time that Leo Stevens tried to gain control of  a

firearm  during the boat trip to Pilot Station.   Tyson

asserted that Stevens reached for the firearms  in  the

boat  a  couple  of times, and that he (Tyson)  had  to

strike Stevens to prevent him from gaining control of a

weapon, because he was afraid that Stevens would  shoot

someone  again.  Tyson testified that, other  than  the

three  blows with the rifle, he never saw Sipary strike

Leo Stevens while they were together in the boat.

          During    redirect   examination    by    the

prosecutor,  Tyson  altered his account  somewhat.   He

asserted  that  the events he had just  described   Leo

Stevenss holding a gun on Sipary, and Siparys  acts  of

grabbing  the  gun and then clubbing  Stevens  with  it

occurred on the boat, but not during the ride to  Pilot

Station.   Instead, these events occurred  before  they

pushed off from the beach at the fish camp.

          Thus, Tysons final version of events undercut

the  States theory of the case in two respects.  First,

Tyson  asserted that Sipary never struck Stevens during

the  boat trip to Pilot Station; rather, Sipary  struck

Stevens  while  they  were  still  at  the  fish  camp.

Second, and more important, Sipary struck Stevens  only

three  times,  and  those  blows  occurred  just  after

Stevens  threatened Sipary with the weapon  and  Sipary

wrested the gun from Stevenss hands.

          Given Tysons description of events, and given

the  limitations of Chet Stevenss testimony, the States

case  rested to a large degree on other evidence:   (1)

the  observations of the people who met the boat at the

Pilot Station dock, (2) the results of the autopsy, (3)

Tysons   prior  inconsistent  statements   about   what

happened,   and  (4)  Siparys  out-of-court  statements

concerning the incident.

          With    regard    to   Siparys   out-of-court

statements,  four  witnesses  testified  about  Siparys

descriptions of what had occurred.



          (a)    The  testimony  of  Richard  Nick  and
     Jennifer  Polty; the defense attorneys failure  to
     make  an  offer  of proof as to what  else  Sipary
     allegedly said to these witnesses that might  have
     been  both  (1)  exculpatory  and  (2)  improperly
     excluded


          Richard  Nick,  a resident of Pilot  Station,

was  walking  past  the dock in the  early  morning  of

September  27th when he heard Tyson yelling  for  help.

Nick went down to lend a hand.  He saw that Sipary  was

wounded  and moaning in pain, and that Leo Stevens  was

lying curled up in the boat.  When Nick asked what  had

happened, Sipary said that Stevens shot him and that he

(Sipary)  hit  Stevens in the head three times  with  a

gun.

          Jennifer  Polty was a village police  officer

who was called to the scene.  She testified that Sipary

was  in  considerable pain from his gunshot  wound  and

that  he had a cut to his hand.  Sipary told Polty that

Stevens  had  shot  him,  and that  he  struggled  with

Stevens  for control of the gun.  Sipary said  that  he

sustained the cut on his hand during this struggle.

          In  arguments to the trial judge outside  the

presence  of  the jury, Siparys attorney asserted  that

Sipary  had said more than this to Nick and  to  Polty.

According to the defense attorney, when Sipary spoke to

Nick  and,  later,  to  Polty, he  made  more  explicit

assertions  that he had acted in self-defense  when  he

hit Stevens.

          However, the defense attorney never explained

what  additional, allegedly exculpatory  statements  he

was  referring to.  The defense attorney made only  one

offer  of  proof with regard to Siparys  statements  to

either  Nick  or  Polty.  This offer of proof  occurred

when  the defense attorney questioned Nick outside  the

presence  of  the  jury.  In response  to  the  defense

attorneys voir dire questions, Nick gave answers  that,

if  anything, undercut the defense attorneys  assertion

of  self-defense and instead supported the  prosecutors

assertion that Sipary assaulted Stevens out of  revenge

after all danger had passed.

          Nick testified that Sipary told him that  (1)

Stevens had shot him, that (2) Tyson later took the gun

away from Stevens, and that (3) Sipary then hit Stevens

on the head three times with a rifle.  When the defense

attorney  asked Nick whether (according to Sipary)  the

blows  with  the  rifle  had been  struck  right  after

[Sipary] got shot?, Nick answered, No; it was later on.

          When  (following  this offer  of  proof)  the

defense  attorney and the trial judge discussed whether

Siparys  statements  to  Nick and  to  Polty  might  be

admissible,  their colloquy focused  on  various  legal

theories, but there was no discussion of the details of

Siparys   statements.   Rather,  the  defense  attorney

argued  that all of Siparys out-of-court statements  to

Nick  and  Polty  were admissible   either  as  excited

utterances,   or   as  statements  of   present   sense

impression, or as statements of then-existing mental or

emotional  condition,  or as statements  against  penal

interest.   The  defense attorney did not  tie  any  of

these legal theories to any particular statements  that

Sipary made.

          The  trial judge rejected all of the  defense

attorneys  arguments,  and Sipary renews  only  one  of

these   arguments  on  appeal:   the  claim  that   his

statements to Nick and to Polty were excited utterances

under  Alaska Evidence Rule 803(2).  We deal with  this

claim in a later section of this opinion.

          However, Siparys attorney did make one  other

argument   to  the  trial  judge:   an  argument   that

essentially  restated  the rule of  completeness.   The

defense attorney argued that if the State introduces  a

defendants   out-of-court  statement   in   which   the

defendant admits striking someone who suffers injury or

dies,  it  is  appropriate  to  allow  the  defense  to

introduce  the  remainder  of  that  statement  if   it

contains  the  defendants exculpatory  explanation  for

striking   the  other  person.   The  defense  attorney

asserted  that,  in  Siparys case, the  prosecutor  was

trying  to [introduce] bifurcated, chopped-up parts  of

[Siparys] statements  parts that [were being] taken out

of  context.   He  argued that, in such  circumstances,

Siparys whole statement should be admitted.

          But  when  the trial judge asked the  defense

attorney if he had any legal authority to support  this

proposition, the defense attorney conceded that he  had

none.   Moreover, as we already explained, the  defense

attorney  never offered any specifics to  back  up  his

claim  that  the prosecutor was offering  a  misleading

abridgement of what Sipary said.

          The  trial judge ruled that, except  for  the

portions of Siparys statements that were introduced  by

the  State  as statements of a party opponent,  Siparys

statements were inadmissible hearsay  i.e.,  they  were

out-of-court  statements, offered by the  defendant  to

prove  the  truth  of  the matters  asserted,  with  no

applicable hearsay exception.9

          The defense attorney returned to the issue of

testimonial  completeness at the end  of  that  day  of

trial.  As can be seen from the following colloquy, the

trial  judge  reaffirmed his earlier  ruling,  but  the

judge  also  told  the  defense attorney  that  if  the

prosecutor was truly presenting Siparys statements  out

of  context,  the  defense attorney  should  bring  the

matter up outside the presence of the jury:

     
          Defense  Attorney:   [In  this  case,  a
     prosecution witness] is going to be asked ...
     What  did [Sipary] say?, and the [prosecutor]
     is going to cut it off in mid-sentence.  [The
     witness]  is  going to say that [Sipary  said
     that] ... he hit Leo Stevens and, in the same
     sentence, [said that he] hit him because  [of
     a particular reason].  The reason is going to
     be  given  [in  Siparys statement],  but  the
     court has indicated [that] the reason cant be
     [admitted].
          .  .  .
     
          The Court:  [T]he issue is whether, when
     the State introduces ... one statement, [and]
     there   is   part  of  the  statement   thats
     inculpatory,   that  the   State   wants   to
     introduce,  and  theres ... a second  portion
     thats exculpatory, ... can [that second part]
     be  severed[?]  [Can] the State ... go  ahead
     [and  introduce the inculpatory part]  as  an
     admission  [of  a  party opponent],  and  the
     defense   cannot  get  into  the  exculpatory
     [part]?  ...
     
          Defense Attorney:  Yes sir, I agree that
          [that is the] issue.  And part of the problem
     is   [that]  you  have  to  hear  the  [whole
     statement  in] context before  you  make  the
     ruling.  [But] youve already made the  ruling
     which  would  prohibit  [admission  of]   the
     context.  And thats the problem.  You need to
     hear  [the whole statement] first before  you
     can say that [the exculpatory part] is to  be
     excluded.
     
     The  Court:   Well, theres a  protective
order in effect.  [But] Im not precluding you
from   raising  [this  issue]   again.    And
whatever  the  context shows ...  ,  anything
thats   appropriate,  [if  it   shows]   that
something different is going to be before the
court,   [then]  certainly   but  ...  [your]
application  has  to  be  made  outside   the
presence of the jury.

     Defense  Attorney:  Yes, sir.   And  Ill
make  [my] application at the time that  part
of  [my  clients] statement is  introduced[.]
...   Its  not  like he made a statement  one
minute  and  [then], five minutes  later,  he
made another statement.  Were talking about a
single   statement   which   the   court   is
truncating.

Despite  the  trial  judges  announced  willingness  to

reconsider the issue of testimonial completeness if the

defense  made  an offer of proof, the defense  attorney

never  asked  the  trial judge to revisit  his  rulings

regarding   the  testimony  of  Nick  and  Polty.    In

particular, the defense attorney never made an offer of

proof  as  to how Nick and Poltys testimony might  have

presented Siparys statements out of context.

We   therefore  conclude  that,  with  regard  to   the

testimony  of  these two witnesses,  Sipary  failed  to

preserve  a testimonial completeness challenge  to  the

trial judges rulings.



     (b)  Siparys argument that his statements  to
Nick  and  to  Polty  were admissible  as  excited
utterances


     On  appeal,  Sipary also renews his  argument

that  his out-of-court statements to Nick  and  to

Polty   qualified   for   admission   as   excited

utterances under Alaska Evidence Rule 803(2).   We

reject this claim for two reasons.

     First,  as we explained in the last  section,

the  defense attorney never made an offer of proof

as  to what statements, exactly, he believed  were

admissible as excited utterances.

          Second,  the trial judge ruled that,  in  any

event, Siparys statements to Nick and to Polty did  not

qualify  as  excited utterances.  The  judge  concluded

that  even though Sipary may have been under stress  at

the time he spoke with Nick and with Polty, he also had

time  to reflect, he had time to fabricate, and he  was

not  in such a state of excitement that it stilled  his

capacity  to  fabricate.  The judge pointed  out  that,

according  to Richard Nicks testimony, no  one  in  the

boat seemed very excited.

          When  hearsay  is offered under  the  excited

utterance  exception, the ultimate question is  whether

the  proponent  of  the evidence  has  shown  that  the

circumstances  surrounding the utterance  produce[d]  a

condition of excitement which temporarily still[ed] the

speakers   capacity   of  reflection   and   produce[d]

utterances free of conscious fabrication.10  This is  a

question  of fact, and we will uphold the trial  judges

conclusion  on  this  issue unless that  conclusion  is

shown to be clearly erroneous.11

          Having  reviewed the record in Siparys  case,

we  conclude  that  the  trial judge  was  not  clearly

erroneous   when   he  ruled  that  the   circumstances

surrounding Siparys statements to Nick and to Polty did

not satisfy the test for excited utterances.



          (c)  Siparys argument that his statements  to
     Kenneth   Tyson   were   admissible   as   excited
     utterances


          Before  turning  to Siparys  interviews  with

Troopers  Patterson and DeCoeur, we  must  address  one

last excited utterance claim.  On appeal, Sipary claims

that  his  out-of-court statements to  his  friend  and

erstwhile  co-defendant, Kenneth  Tyson,  qualified  as

excited utterances.

          At  trial,  Siparys attorney asked the  trial

judge  for permission to bring Mr. Tyson back  [to  the

stand]  so  that the defense attorney could  ask  Tyson

whether Sipary ever told him that he (Sipary) acted  in

self-defense  or that he took the gun  away  [from  Leo

Stevens]  to  keep from getting shot.  As an  offer  of

proof,  the defense attorney asserted that [Tyson]  and

[Sipary]  have  talked, and that Sipary said  to  Tyson

that  [he]  thought  he was going to  get  killed,  and

[that]  he took the gun away from Mr. [Stevens] in  the

boat,  ... and thats how [Sipary] believes that he  cut

his hand.

          After  hearing this offer of proof, the trial

judge   stated   that   the  proposed   testimony   was

exculpatory,  ...  self-serving hearsay,  and  that  he

[had]  not  yet  heard  of any hearsay  exception  that

applies  [to  this testimony].  Rather  than  asserting

that  Siparys statements to Tyson qualified as  excited

utterances,  the  defense attorney  replied  simply,  I

understand  your rulings, Judge.  ...  I just  want  to

preserve the record.

          Moreover,  a  few moments later, the  defense

attorney  appears  to have conceded  that  Sipary  made

these  statements to Tyson while they were incarcerated

together.   This  issue came up because the  prosecutor

demanded  to  know what part of the record the  defense

attorney  was referring to when he asserted that  Tyson

would give the testimony outlined above:

     
          Prosecutor:   And [defense]  counsel  is
     saying, ... Mr. Sipary said that as well, and
     thats what I was looking for.  ...  Where did
     Mr. Sipary ever make that version [of events]
     known?   ...   [Defense]  counsel  has   said
     [that]  he wants to question all these people
     about Mr. Siparys version [of events] that he
     made known, and I cant find it.
     
          Defense Attorney:  What counsel [for the
     State]  doesnt  have is a transcript  of  the
     conversations  between  Mr.  Sipary  and  Mr.
     Tyson while they [were] both incarcerated  in
     the  same  facility.  Theres no way  that  he
     would know what they said to each other.

          If,   as   the   defense   attorney

asserted,  Siparys statements to  Tyson  were

made  while  the  two of them  were  in  jail

together,  then  it  is almost  certain  that

Siparys statements did not qualify as excited

utterances.  This is, perhaps, the reason why

the  defense  attorney did not rely  upon  an

excited utterance theory when the trial judge

challenged him to name an applicable  hearsay

exception.



     (d)    The   testimony  of   Trooper   Martin
Patterson; the defense attorneys offer of proof


     On  the  seventh day of trial, the prosecutor

called  Trooper  Martin Patterson  to  the  stand.

Patterson  was  the  law enforcement  officer  who

interviewed  Sipary at the Alaska  Native  Medical

Center  in Anchorage on September 28th (i.e.,  two

days after the incident).

     On  direct  examination, Patterson  testified

that  Sipary  told him that everyone at  the  fish

camp  had  been pretty drunk, and that an argument

had  turned into a fight, during which Sipary  was

shot  in  the  foot.  Sipary also  told  Patterson

that, during the boat trip to Pilot Station, Tyson

(but  not Sipary) hit and kicked Stevens  to  make

Stevens sit down in the boat.

     A  few  moments  later, the defense  attorney

asked for a mistrial, claiming that Patterson  was

mischaracterizing       Siparys        statements.

Specifically, the defense attorney contended  that

Patterson was leaving out the portions of  Siparys

statements in which Sipary explained that  he  and

Tyson were defending [them]selves and that Stevens

was  trying  to  kill  us.  The  defense  attorney

claimed  that  these explanatory  statements  were

contained  in  the  very  same  sentence[s]   that

Patterson had been referring to.

          The  defense attorney gave the trial judge  a

copy  of  the transcript of the interview, so that  the

judge  could see what the defense attorney was  talking

about.   Nevertheless, the trial judge  reaffirmed  his

earlier  ruling  that Sipary could  not  introduce  the

exculpatory hearsay.

          We  have reviewed the submitted transcript of

the  interview,  and  it does not support  the  defense

attorneys contention that Siparys sentences were  being

chopped   up   or   that  Siparys  words   were   being

mischaracterized through the excision  of  portions  in

which  Sipary  claimed  to have acted  in  self-defense

during the boat trip to Pilot Station.

          We  are  about to discuss the content of  the

Patterson-Sipary interview in some detail.  But  before

we do, it will be useful to recall the States theory of

the  case.  As explained above, the prosecutor conceded

that  Leo Stevens shot Sipary and forced Tyson to  flee

into  the  woods.  But Tyson returned to the fish  camp

and  overpowered  Stevens.   Then,  after  Stevens  was

subdued,  Tyson and Sipary took revenge on  Stevens  by

beating and clubbing him repeatedly.  According to  the

prosecutor, Siparys primary role was as the abettor  of

Tysons    assault,   because   Sipary    was    largely

incapacitated   by  his  foot  wound.    However,   the

prosecutor argued that, during the boat trip  to  Pilot

Station, Sipary personally assaulted Stevens by picking

up  a .30-06 rifle and clubbing Stevens with the weapon

until the stock broke.

          Thus,  the States basic approach to the  case

was  that  Tyson and Sipary might have acted  in  self-

defense at the fish camp when they attacked and subdued

Stevens, but then Tyson and Sipary exceeded the  bounds

of  self-defense when they continued to beat Stevens to

exact  retribution for what he had done earlier.   With

this  in mind, we turn to the details of the Patterson-

Sipary interview.

          The  interview  lasted 47  minutes.   At  the

beginning of the interview, Sipary told Patterson about

the  argument  and fight at the fish  camp,  and  about

being  shot by Leo Stevens.  But Sipary made no mention

of  anyone  acting  in self-defense or  in  defense  of

others   at least, anyone other than Chet Stevens,  who

(according  to  Sipary) lay down on top  of  Sipary  to

shield  him, so that Chets brother Leo would not  shoot

Sipary.

          Later in the interview, Sipary told Patterson

that  Kenneth Tyson had beaten Leo Stevens  during  the

boat trip to Pilot Station.  According to Sipary, Tyson

announced his intention to beat [Stevens] up for trying

to  kill  [us].   Later, on the way to  Pilot  Station,

Sipary saw Tyson hit Stevens once or twice, to sit  him

down.  Sipary then mentioned that Stevens was trying to

fight some more.  This led to the following colloquy:

     
          Patterson:   In  what  manner  was  [Leo
     Stevens] trying to do that?
     
          Sipary:  Huh?
     
          Patterson:  In what manner was he trying
     to fight?
     
          Sipary:   Lets see  that, he was  trying
     to kill us.
     
          Patterson:  In the boat?
     
          Sipary:       On      land,       before
     [indiscernible],  because he  was  trying  to
     kill us.
     
          Patterson:  Okay.  [But] why did [Tyson]
     hit [Stevens] while you were in the boat?
     
          Sipary:  Because [indiscernible], I dont
     know.
               .  .  .
     
          Patterson:   Was  [Stevens]  trying   to
     fight?
     
          Sipary:  Im not sure.  ...  I was pretty
     high.
     
          Patterson:  Did you see Leo  get  up  in
     the boat?
     
          Sipary:  No, ... I dont think he got up.
     Patterson:  So youre not sure what   why
[Tyson] hit Leo?

     Sipary:  Because he tried to shoot us.

     Patterson:   Okay, but he didnt  try  to
shoot you while you were in the boat, did he?

     Sipary:  I dont think so.

     Patterson:  Okay.  [So] why was  [Tyson]
hitting  him  on the way back  ...  to  Pilot
Station?  Do you know?

     Sipary:  Pissed off, probably.

     Patterson:   Kenneth [Tyson] was  pissed
off?

     Sipary:  [Because] he got shot at,  too.
[Indiscernible] he ran into the trees.
          .  .  .

     Patterson:  Okay.  And you think Kenneth
[Tyson]  just  hit [Stevens] because  he  was
pissed off?

     Sipary:   Yeah,  probably.   ...   Well,
[Leo  Stevens] was trying to kill  him,  too.
...  Leo was trying to kill [both of] us.

     Patterson:   And thats what [Tyson]  was
ticked off about, and thats why he hit him in
the boat?

     Sipary:  Yeah.

          Thus far in the interview, Sipary had not asserted that

he  used  any force against Leo Stevens, much less that  he  used

force against Stevens in self-defense.  Moreover, Siparys account

of  Tysons actions was consistent with the States theory  of  the

case:  Sipary told Patterson that Leo Stevens attacked Sipary and

Tyson  at  the  fish camp and that, after Tyson subdued  Stevens,

Tyson  beat Stevens repeatedly because he was angry that  Stevens

had shot at him and Sipary.

          Half  an  hour into the interview (that is, about  two-

thirds  of  the  way  through  the interview),  Patterson  paused

briefly to flip the tape over, and then he asked Sipary to give a

fuller  description of the fight at the fish camp.  It  was  then

that  Sipary  made  his first assertion of self-defense.   Sipary

told  Patterson  that, after Stevens shot him  in  the  foot,  he

grabbed  for the gun that Stevens was holding, and that  the  gun

sight  cut  his hand.  Sipary then asserted that he  had  clubbed

Stevens  with a gun.  At one point, Sipary seemingly stated  that

he  used his own gun to hit Stevens; at another point, he claimed

that he wrested the gun from Stevens and hit him with it.  Sipary

was  unable to clearly identify the timing of this event.  He did

say,  however, that his use of force against Stevens occurred  at

the fish camp, not on the boat trip to Pilot Station:

          
               Patterson:   After  [Leo  Stevens]  shot
          you, you hit him?
          
               Sipary:  Yeah, and I think thats  how  I
          got   this   [cut].   I  grabbed   that   gun
          [indiscernible], and it cut me here.
          
               Patterson:  Okay, and ... what  did  you
          hit him with?
          
               Sipary:  My gun.  I clubbed him once.
          
               Patterson:   You hit, clubbed  him  once
          with a gun?
          
               Sipary:  Yeah.
          
               Patterson:  And this was right after  he
          shot you?
          
               Sipary:  Yeah.
          
     Patterson:  Okay.

     Sipary:    But  Im  not  [indiscernible]
still right after, not right away.

     Patterson:  Was it in the boat ...  when
you grabbed the gun?

     Sipary:  Yeah, um, I think thats  how  I
got cut.
          .  .  .

     Patterson:   Okay, so you took  the  gun
away from him and ... hit him with it?

     Sipary:  Yeah, once.  Otherwise, I would
have got shot. I was already shot [once].

     Patterson:  Okay, did you ever  hit  Leo
after that?

     Sipary:  No.
          .  .  .

     Patterson:   Now, did you  see  [Kenneth
Tyson] hit Leo while you were in the boat?

     Sipary:  Yeah.

     Patterson:  Okay.  How many times?

     Sipary:   Couple of times.  Ah,  I  told
[Tyson] to hit him once for me.

     Patterson:  What was Leo doing ...  when
that happened?

     Sipary:  On the boat?

     Patterson:  Yeah.

     Sipary:  Sitting there.

     Patterson:  Was he saying anything?

     Sipary:  Um, I dont think so.

     Patterson:  Was he doing anything?

     Sipary:  Not really.  Um, it was  pretty
dark, so I couldnt see.  I was laying down; I
couldnt even take off my boots right.

     Patterson:   Okay.  ...  Did you  strike
[Leo Stevens] while he was in the boat?

     Sipary:  No.

Sipary went on to say that he struck Leo Stevens with a gun twice

(not  three  times), and that he thought one  of  these

blows  was to Stevenss head while the other was to  his

leg.   Sipary  then reiterated that he had  not  struck

Stevens while they were together in the boat.

When this interview is examined as a whole, it does not

bear  out  the  defense attorneys contention  that  the

prosecutor   or  Trooper  Patterson  were  misleadingly

chopping up Siparys answers to delete any reference  to

self-defense.   It  is  true  that  Sipary   eventually

mentioned self-defense during the interview   but  not,

as  the  defense attorney asserted, in  the  very  same

sentences that Trooper Patterson referred to during his

direct  examination  at  Siparys  trial.   Rather,  the

interview had been going on for more than half an  hour

before  Sipary even admitted that he had struck Stevens

at   all,  much  less  asserted  self-defense  as   his

justification for striking these blows.

          Moreover, the portion of Pattersons testimony that  the

defense attorney objected to  that is, Pattersons assertion  that

Sipary told him that Tyson hit and kicked Stevens during the boat

trip to Pilot Station  was an accurate description of what Sipary

said.  Contrary to the defense attorneys contention when he moved

for  a  mistrial,  Sipary did not couple this statement  with  an

assertion that Tyson acted in self-defense.  Instead (as  can  be

seen  from  the  excerpts of the interview quoted above),  Sipary

asserted that Tyson attacked Stevens during the boat trip because

he  was pissed off at Stevens on account of what Stevens had done

back  at  the fish camp.  In fact, Sipary urged Tyson to continue

this assault, telling him to hit Stevens once for me.

          Finally,  the  use  of  defensive  force  that   Sipary

described  in the interview is not the use of force  that  formed

the  basis  of  the  assault charge.   As  explained  above,  the

prosecutor  alleged that Sipary used a rifle  to  strike  Stevens

during  the boat trip from the fish camp to Pilot Station,  after

Stevens  was subdued and the need for defensive force had  ended.

In  Siparys interview with Patterson, Sipary stated that  he  had

used force against Stevens when they struggled for control of the

gun  at  the  fish camp, but Sipary repeatedly declared  that  he

never struck Stevens during the boat trip.  That is, Sipary never

told  Patterson  that  he acted in self-defense  when  he  struck

Stevens  with  a  rifle  during the boat trip.   Instead,  Sipary

denied striking Stevens in any fashion during that trip.

          This  is,  in fact, the theory of defense that  Siparys

attorney ultimately argued to the jury:  that Sipary had acted in

justifiable self-defense at the fish camp when he used  force  to

disarm  and subdue Stevens  and that, after Stevens was  disarmed

and  subdued, it was Tyson who repeatedly and unjustifiably  beat

Stevens  during  the  boat trip to Pilot  Station.   The  defense

attorney told the jury:  Its a tragedy that Leo Stevens is  dead.

[But] my client didnt kill him.  Ken Tyson beat him to death.

          Thus,  Siparys interview with Patterson does not  raise

an  issue  of testimonial completeness.  To the extent  that  the

trial  judges ruling on this point of law may have been  mistaken

in the abstract, Sipary was not harmed by that mistake.



               (e)   The testimony of Trooper David DeCoeur;
          the  defense attorneys offer of proof;  the  trial
          judges altered ruling
     

               The  States  final witness was Trooper  David

     DeCoeur,  the  law enforcement officer who  interviewed

     Sipary  in  Pilot Station on the morning  of  September

     27th, before Sipary was medivacked to Anchorage.

               DeCoeur  testified that, during his interview

     with  Sipary, he repeatedly asked Sipary whether Sipary

     had  struck  Leo  Stevens with  a  gun.   According  to

     DeCoeur,  Sipary  repeatedly  denied  striking  Stevens

     either  with  a  gun,  or a club, or  even  his  fists.

     DeCoeur  also  stated  that Sipary  never  specifically

     asserted that he had acted in self-defense.

               At  this point, the defense attorney objected

     that  Siparys  statements to DeCoeur were replete  with

     comments  about how he took the firearm away  from  Leo

     Stevens and then acted ... , which any [normal]  person

     would  understand  [as]  acting  in  self-defense.   He

     argued  that  DeCoeur  had  seriously  mischaracterized

     Siparys statement, even though it may technically  have

     been true that Sipary never used the term self-defense.

               The trial judge decided to reserve his ruling

     on this issue until the next day, so that he would have

     the  opportunity to review the transcript  of  DeCoeurs

     interview with Sipary.

          When  the parties returned to court the  next

day,  the prosecutor conceded that Sipary told  DeCoeur

that  Leo  [Stevens]  went crazy,  and  that  they  had

fought,  and  that Sipary punched Stevens once  in  the

face   during  that  fight.   But,  according  to   the

prosecutor, Sipary told DeCoeur that this had  happened

before  Leo Stevens shot Sipary, before Tyson  returned

to  the  fish  camp to disarm and subdue  Stevens,  and

before  the  boat trip to Pilot Station. The prosecutor

asserted  that, in the interview, Sipary  told  DeCoeur

that after he was shot, all he could do was lie on  the

ground  and that it was Tyson who returned to the  fish

camp, disarmed Stevens, and then beat him.

          The  prosecutor told the judge that  none  of

this  suggested  that Sipary had a self-defense  claim.

The  prosecutor stated that the criminal charge against

Sipary  was  not based on any force that  Sipary  might

have  used against Stevens during the initial fight  at

the  fish  camp.   Rather, the assault  charge  against

Sipary  was based on the allegation that Sipary  struck

Stevens  after the shooting and after Stevens had  been

disarmed.

          We   have  examined  the  transcript  of  the

interview,    and    it   supports   the    prosecutors

characterization of what Sipary said.  In his interview

with  DeCoeur, Sipary repeatedly asserted that  he  did

not engage in any fighting or in any other use of force

after he was shot.

          In  particular,  Sipary  told  DeCoeur  that,

after Stevens shot him, Stevens stood over him with the

shotgun pointed at his head; Sipary was wounded, so  he

couldnt  do  nothing  but lie  down  and  wait.   Then,

according  to  Sipary, Tyson returned to the  camp  and

beat  Stevens  for  some length of  time,  perhaps  ten

minutes.   DeCoeur repeatedly asked Sipary  if  he  had

joined  Tyson  in hitting Leo Stevens; Siparys  answers

were  No,  and I couldnt do nothing, and I [lay]  there

and couldnt move.

          But  although Sipary repeatedly told  DeCoeur

that  he  had not personally used force against Stevens

(that   is,  after  he  was  shot),  some  of   Siparys

statements  about Tysons use of force  against  Stevens

were  ambiguous.   Viewed one way,  Siparys  statements

could  be  construed  as  assertions  that  Tyson  beat

Stevens  out  of  revenge, because he  was  angry  that

Stevens  had  tried to kill them.  But  viewed  another

way,   Siparys   statements  could  be   construed   as

assertions  that  Tyson was forced to beat  Stevens  in

defense of himself and Sipary.

          After   the   trial   judge   reviewed    the

transcript,  he concluded that Sipary was  entitled  to

admission of these portions of the interview  not under

the  rubric of testimonial completeness, but rather  as

rebuttal  to  DeCoeurs testimony that  Sipary  had  not

asserted    self-defense    during    the    interview.

Specifically,  the  trial judge  ruled  that  the  jury

should  hear  Siparys statement that Leo  Stevens  went

crazy  for  no  apparent reason,  that  Stevens  almost

killed  Sipary,  that Stevens stood  over  the  wounded

Sipary,   aiming  a  gun  at  his  head,  that  Stevens

threatened to kill Sipary, and that Sipary was  wounded

and could do nothing to help himself.

          On  appeal,  Sipary argues that a  few  other

statements  he made during this interview  should  also

have  been  admitted under the doctrine of  testimonial

completeness.  But we conclude that, even if this  were

true, any error would be harmless in light of the trial

judges  decision to admit the above-described  portions

of the interview.



Conclusion


          Siparys primary contention is that government

witnesses gave testimony that mischaracterized  Siparys

out-of-court   statements   through   abridgement    by

chopping up his sentences to filter out his exculpatory

explanations and leave only his inculpatory utterances.

If  this  had  been true, then Siparys  trial  attorney

would    have    been   entitled   to    correct    the

mischaracterization  by requiring  admission  of  those

omitted  portions that were necessary  to  present  the

true  context of Siparys statements.  But based on  the

record  before us, Sipary has failed to show  that  the

prosecution  witnesses materially mischaracterized  his

out-of-court statements.  Thus, to the extent it  might

be  argued  that  the  trial judge failed  to  properly

acknowledge  the  rule of testimonial  completeness  in

some of his rulings, any error was harmless.

          The  judgement  of  the  superior  court   is

AFFIRMED.



_______________________________
     1 State v. Warren, 732 A.2d 1017, 1019 (N.H. 1999).

     2  Warren, 732 A.2d at 1019, citing J. Strong, McCormick  on
Evidence (4th ed. 1992),  56, Vol. 1 at 225-26.

     3  J.  Wigmore, Evidence in Trials at Common Law  (Chadbourn
rev. 1978),  2113, Vol. 7, p. 653.

4 Beech Aircraft, 488 U.S. at 172, 109 S.Ct. at 451.

5  [Because] the general rules of relevancy permit  a  ready
resolution  [of] this [question], we need go no  further  in
exploring  the scope and meaning of [Federal Evidence]  Rule
106.  Id.

6 800 P.2d 949 (Alaska App. 1990).

7  See,  for  example,  United States v. Castro,  813  F.2d  571,
576  (2nd Cir. 1987); United States v. Li, 55 F.3d 325, 329  (7th
Cir. 1995); United States v. Haddad, 10 F.3d 1252, 1258 (7th Cir.
1993); see also United States v. Mussaleen, 35 F.3d 692, 696 (2nd
Cir. 1994).

     8  In  Phoenix Associates III v. Stone, 60 F.3d 95, 103 (2nd
Cir.  1995);  United States Football League v. National  Football
League, 842 F.2d 1335, 1375-76 (2nd Cir. 1988); United States  v.
Wilkerson, 84 F.3d 692, 696 (4th Cir. 1996), and United States v.
Burreson,  643 F.2d 1344, 1349 (9th Cir. 1981), the  courts  held
that,   because  Evidence  Rule  106  does  not  render  evidence
admissible when it would otherwise be inadmissible, trial  judges
did not abuse their discretion when they refused to allow parties
to use Rule 106 as a way of introducing inadmissible hearsay.

     On  the  other  hand, in United States v. Sutton,  801  F.2d
1346, 1368-69 (D.C. Cir. 1986), the court declared that Rule  106
can  adequately  fulfill  its function  only  by  permitting  the
admission of some otherwise inadmissible evidence when the  court
finds   in  fairness  that  the  proffered  evidence  should   be
considered  contemporaneously.   In  particular,  see  State   v.
Warren,  732  A.2d  1017, 1019-1020 (N.H.  1999),  and  State  v.
Eugenio,  579 N.W.2d 642, 649-652 (Wis. 1998), both holding  that
the rule of completeness allowed criminal defendants to introduce
complementary portions of their out-of-court oral statements even
though that evidence would normally be inadmissible hearsay.

     In  both Echo Acceptance Corp. v. Household Retail Services,
Inc.,  267  F.3d  1068, 1089 n. 12 (10th Cir. 2001),  and  United
States  v. Pendas-Martinez, 845 F.2d 938, 944 & n. 10 (11th  Cir.
1988),  the courts acknowledged that federal circuit courts  have
reached  conflicting decisions on the question of whether Federal
Evidence  Rule  106  makes admissible parts of  a  document  that
otherwise would be inadmissible.

     See also Joseph M. McLaughlin, Jack B. Weinstein, & Margaret
A.   Berger,   Weinsteins  Federal  Evidence  (2nd   ed.   1997),
106.03[1],  at 106-14 (noting that the language of  Federal  Rule
106  is  ambiguous as to whether it authorizes the  admission  of
otherwise  inadmissible  evidence); cf.  Charles  Alan  Wright  &
Kenneth  W.  Graham,  Jr., Federal Practice &  Procedure  (1977),
5071,  Vol. 21, pp. 337-340 (noting that Congress failed to  take
any  action  in response to a Justice Department request  that  a
clause  be  added  to Rule 106 to require that  evidence  adduced
under the Rule be otherwise admissible).

9   Admission  of  a  partys  out-of-court  statement  under
Evidence  Rule 801(d)(2)(A) (which allows admission  of  the
statement  of  a party opponent) is limited to admission  of
the evidence at the request of an opposing party, not at the
request of the party who made the statement.  See Marino  v.
State,  934  P.2d 1321, 1331 (Alaska App. 1997);  Stumpf  v.
State, 749 P.2d 880, 899 (Alaska App. 1988).

10    Blair v. State, 42 P.3d 1152, 1154 (Alaska App. 2002),
quoting Ryan v. State, 899 P.2d 1371, 1378 n. 4 (Alaska App.
1995).

11   Blair, 42 P.3d at 1154-55.