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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
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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.
