Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Kelly v. State (07/08/2005) ap-1992
Kelly v. State (07/08/2005) ap-1992
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
JAMES T.
KELLY,
)
)
Court of Appeals No. A-8712
Appellant,
) Trial
Court No. 4BE-02-743
CR
)
v.
)
O P I N I O
N
)
STATE OF ALASKA,
)
)
Appellee.
) [No. 1992
- July 8, 2005]
)
Appeal from the
Superior Court, Fourth Judicial District,
Bethel, Leonard R. Devaney, III, Judge.
Appearances: Margi A. Mock, 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.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
James T. Kelly was charged with sexual abuse of a minor
in the third degree1 for having sexual contact with K.P., who was
under 16 years of age, and with attempted sexual abuse of a minor
in the second degree,2 for attempting to engage in sexual
intercourse with her. Kelly defended on the ground that he
reasonably believed that K.P. was 16 years old or older.3 Kelly
attempted to introduce the testimony of Stephan Andrews that, on
the evening that Kelly was with K.P., Kelly had stated to Andrews
that he believed that K.P. was 16 years old. Kelly argued that
this statement was admissible to show his state of mind at the
time of the offense that he believed that K.P. was 16 years old.
Superior Court Judge Leonard R. Devaney, III excluded this
statement on the ground that it was inadmissable hearsay. Kelly
appeals from this ruling. We conclude that Stephan Andrewss
testimony about Kellys statement at the time of the alleged
offense should have been admitted under Evidence Rule 803(3) as a
statement of Kellys state of mind at the time of the alleged
offense. We conclude that the trial courts failure to admit
Andrewss testimony prejudiced Kellys ability to present his
mistake-of-age defense. We accordingly reverse Kellys
conviction.
Factual and procedural background
During the summer of 1999, K.P. accompanied her friend
T.E. to the village of Emmonak. At that time, K.P. was 13 years
old and T.E. was 16 years old. Around midnight, the girls
arrived at the home of the defendant, James Kelly, age 19.
T.E. was visiting her boyfriend Stephan Andrews, who was staying
at Kellys home. K.P. was familiar with Kelly, but did not
personally know him. This was K.P.s first visit to Kellys house.
K.P., T.E., Andrews, and Kelly listened to music in the
living room. K.P. did not tell Kelly or Andrews her age, and
neither asked. After visiting in the living room, T.E. and
Andrews went into a bedroom. Kelly and K.P. went into a
different bedroom. K.P. and Kelly sat on a bed and listened to
music. Kelly touched K.P. on her breasts and legs. She asked
him to stop, but he did not. Kelly removed K.P.s pants and
attempted to initiate sexual intercourse. K.P. pushed Kelly
away, replaced her pants, and left the house. She then knocked
on the outside window of the bedroom where T.E. and Andrews were
located. K.P. told T.E. she was leaving and began walking away
from the house.
Shortly thereafter, T.E. picked K.P. up with her four
wheeler and the two girls went to K.P.s sisters house. K.P. told
T.E. why she left, but she did not tell her sister or anyone else
in Emmonak about the incident.
T.E. died from exposure in September 1999.
In the summer of 2000, K.P. was living with Lisa Powell
in Homer. During this time, K.P. told Powell of the incident
with Kelly. This was the first report K.P. made about the
incident, other than to T.E. Powell reported the incident to
the local police and K.P. was subsequently interviewed by Trooper
Roberts in May of 2000.
Following an investigation, the State charged Kelly
with third-degree sexual abuse of a minor and attempted second-
degree sexual abuse of a minor in the second degree. Kelly
defended on the ground that he reasonably believed K.P. was 16
years of age or older. The jury deadlocked and the court
declared a mistrial. At Kellys second trial, Kelly attempted to
introduce testimony from Stephan Andrews that Kelly had said,
during the night in question, that he thought K.P. was 16 years
old. The prosecutor objected that the statement was improper
hearsay. Kelly argued that the disputed testimony was admissible
to show his state of mind. Judge Devaney sustained the States
objection. But Judge Devaney did allow Andrews to testify that
he had told the investigating troopers that he (Andrews) believed
K.P. was around 16 years old when the incident took place.
Kelly did not testify. Judge Devaney concluded that
Kelly had not presented sufficient evidence for him to instruct
the jury on the affirmative defense of mistake of age. The jury
convicted Kelly of both charges.
Why we conclude the trial court erred in not
allowing Andrewss testimony about Kellys
statement
The issue before us is whether Judge Devaney committed
reversible error when he refused to allow Andrews to testify that
Kelly made a statement to him, during the evening in question,
that he (Kelly) believed K.P. was 16 years old. The defense
sought to admit this statement under the state of mind exception
to the hearsay rule, Evidence Rule 803(3).
Alaska Evidence Rule 801(c) provides that [h]earsay is
a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted. A defendants out-of-court
assertions of innocence are hearsay if they are offered by the
defendant to prove the defendants innocence.4 Such a statement
is therefore inadmissible unless it falls within an exception to
the hearsay rule.5
Evidence Rule 803(3) allows admission of [a] statement
of the declarants then existing state of mind, emotion,
sensation, or physical condition (such as intent, plan, motive,
design, mental feeling, pain, and bodily health) offered to prove
the declarants present condition or future action, but not
including a statement of memory or belief to prove the fact
remembered or believed[.]
In order for a statement to be admissible under
Evidence Rule 803(3), the statement must be offered for a
permissible purpose: to prove an individuals state of mind or a
plan for a future action.6 Evidence Rule 803(3) requires the
proponent of the evidence to show: (1) that the statement
relates to the declarants then existing state of mind; (2) that
the statement is not offered to prove the fact remembered or
believed ..., and; (3) that the statement relates to a relevant
purpose and is only offered for that purpose.7
The statement related to Kellys then existing state of
mind
In order for Kellys statement that he believed that
K.P. was 16 years old to be relevant, the statement had to show
Kellys state of mind at the time that his sexual contact with
K.P. took place. The State argues that the record fails to show
when Kelly allegedly made the disputed statements to Andrews
about K.P.s age. But the record shows that Kellys attorney
represented to the court that Andrews would testify that Kelly
told him, on the night in question, that he (Kelly) believed that
K.P. was 16 years old. Therefore Kelly represented that, had
Andrews been allowed to testify, Andrews would have testified to
Kellys contemporaneous statement concerning his belief as to
K.P.s age.
Kellys statement of his belief was not
offered to prove the fact believed
In order to be admissible under the state of mind
exception, the statement of memory or belief must not be offered
to prove the fact remembered or believed. But in this case,
Kelly did not offer the statement to show that K.P. was, in fact,
16 years old. The statement was offered to prove Kellys state of
mind at the time the statement was made that he believed K.P.
was 16 years old. Therefore Kellys alleged statement to Andrews
satisfies this requirement.
Kellys statement related to a relevant
purpose and was offered only for that purpose
Kellys statement was offered to prove that he acted
under a reasonable mistake of fact. If the jury concluded that
Kelly reasonably believed that K.P. was 16 years of age or older
and that he had undertaken reasonable measures to verify K.P.s
age, the jury was required to acquit him under the law.8
General observations
The State argues that evidence of Kellys statement to
Andrews was a self-serving, unreliable statement forbidden by
cases such as State v. Agoney.9 Of course it is possible that
Stephan Andrews was not telling the truth about Kellys statement.
But Andrews was available for cross-examination and it was up to
the jury to evaluate his testimony. It is also possible that, if
Kelly made the statement, it did not reflect his true state of
mind. But, as Professor Saltzburg points out in his Federal
Rules of Evidence Manual, Rule 803(3) (unlike 803(6), which
relates to business records) does not contain specific language
excluding untrustworthy statements. Professor Saltzburg
concludes that, generally, a criminal defendants expression of an
innocent state of mind ... is subject to clear attack as to
weight. The lack of sincerity in such a statement can easily be
understood by the jury, so it makes little sense for the Trial
Judge to exclude the evidence on trustworthiness grounds when to
do so is contrary to the language of 803(3).10
Conclusion
We conclude that the trial court erred in refusing to
admit Andrewss testimony that, on the evening in question, Kelly
stated that he believed that K.P. was 16 years of age. We
conclude that exclusion of Andrewss testimony about Kellys
statement undermined Kellys defense that he reasonably believed
that K.P. was 16 years of age or older. We accordingly conclude
that Kelly was prejudiced by the trial courts failure to admit
this evidence and reverse Kellys convictions.
REVERSED.
MANNHEIMER, Judge, concurring.
I write separately to address an issue that the State
raises in its brief: the question of whether a hearsay statement
about the declarants state of mind can be admissible under
Evidence Rule 803(3) even though there is no proof that the
statement was spontaneous.
Kellys attorney offered to prove (through the testimony
of Stephan Andrews) that, on the night in question, Kelly told
Andrews that he believed that K.P. was around sixteen years old.
That is, the defense attorney offered to prove that Andrews heard
Kelly make a statement expressing his contemporaneous belief
concerning K.P.s age.
Under AS 11.41.445(b), Kelly had a defense to the
charge of sexual abuse of a minor if he could prove that he
honestly and reasonably believed that K.P. was sixteen years old
or older. Proof of this defense required proof of Kellys then-
existing state of mind. Thus, Kellys purported out-of-court
statement to Andrews was relevant to this defense.
Because Kellys out-of-court statement was being offered
to prove the truth of the matter asserted in that statement
(i.e., to prove that Kelly in fact believed that K.P. was around
sixteen years old), the out-of-court statement was hearsay.
Nevertheless, because the statement concerned Kellys contempora
neous state of mind (i.e., his state of mind at the time he made
the statement), Kellys statement qualified for admission under
Evidence Rule 803(3).
The State contends, however, that there is one further
requirement for admissibility under Evidence Rule 803(3): that
the out-of-court statement be spontaneous.
The State relies on language from our decision in
Brannen v. State, 798 P.2d 337 (Alaska App. 1990). In Brannen,
the defendant wished to introduce certain out-of-court statements
that he made after the police began investigating him for
sexually abusing a minor. These statements were apparently
exculpatory (i.e., denials of sexual impropriety), and Brannen
claimed that they were admissible because they demonstrated his
state of mind.1 This Court rejected Brannens state of mind
argument with the following language:
Evidence Rule 803(3) exempts hearsay
statements that express [a then-]existing
state of mind, emotion, sensation, or
physical condition to prove the declarants
[contemporaneous] condition. Brannen relies
on this exception. Yet Brannens self-serving
denials ... were not statements expressing a
present condition, nor were they made
spontaneously. Brannen had time to reflect
[on what he would say] and a motive to
fabricate before he made the statements.
Brannen, 798 P.2d at 340-41.
The above-quoted passage seemingly
supports the States argument that hearsay
statements do not qualify for admission under
Evidence Rule 803(3) unless the proponent of
the hearsay demonstrates that the declarant
spoke spontaneously, with no time to reflect.
But this portion of Brannen
actually states two rationales for excluding
the offered hearsay. First, the out-of-court
statements did not qualify for admission
under Rule 803(3) because they did not refer
to Brannens contemporaneous state of mind,
but rather to his state of mind at a prior
time. Second, the out-of-court statements
were made when Brannen had had both an
opportunity for reflection and a motive to
misrepresent his state of mind. I conclude
that this second rationale should be treated
as dictum.
Although dozens of court decisions
refer to spontaneity as the rationale for
admitting hearsay under the federal and state
varieties of Evidence Rule 803(3), these
decisions hardly ever turn on the presence or
absence of spontaneity. Most of them can be
explained on one of three bases: (1) the
hearsay statement contained an assertion
about the declarants state of mind at an
earlier time, rather than an assertion about
the declarants contemporaneous state of mind;
or (2) even though the hearsay statement
contained an assertion concerning the
declarants contemporaneous state of mind, the
relevant issue was not the declarants state
of mind at the time the statement was made,
but rather the declarants state of mind at
some earlier time; or (3) the hearsay
statement was not really offered to prove the
declarants belief or memory, but rather to
prove the truth of the underlying
circumstance or event that the declarant
claimed to believe or remember.
Indeed, when spontaneity or,
rather, lack of spontaneity is the sole
objection to admission of a hearsay statement
under Evidence Rule 803(3), most courts
conclude that the hearsay should be admitted
under Rule 803(3) even though the statement
was not spontaneous. This is the view
espoused by the major commentators on
evidence law: Evidence Rule 803(3) does not
require proof of spontaneity.
Brannens first rationale the fact
that the defendants statement referred to his
prior state of mind rather than his
contemporaneous state of mind was legally
adequate, standing alone, to support this
Courts ruling. Given this fact, and given
the state of the law summarized in the
preceding two paragraphs, I conclude that
Brannen should not be read as imposing an
additional requirement of spontaneity on
hearsay that would otherwise be admissible
under Evidence Rule 803(3).
What the evidence law textbooks have to say on this
issue
As I noted above, many court decisions
declare that spontaneity is a key reason why courts
admit evidence of hearsay statements concerning the
declarants state of mind under Evidence Rule 803(3).
If you search a legal database for 803(3) in the same
paragraph with spontaneous or spontaneity, you will
find dozens of these decisions. Moreover, one of the
major texts on the law evidence, McCormick on
Evidence,2 categorizes Evidence Rule 803(3) as one of
the hearsay exceptions premised on the spontaneity of
the statement. McCormick declares that hearsay
statements describing a persons own contemporaneous
mental or emotional state carry a special assurance of
reliability [because of] their spontaneity and
resulting probable sincerity.3
However, immediately after declaring that the
speakers spontaneity and resulting sincerity are the
rationales for admitting this hearsay evidence,
McCormick backtracks and says that contemporaneousness,
and not probable sincerity, is the crucial requirement:
The guarantee of reliability is assured principally by
the requirement that the statements must relate to a
condition of mind or emotion existing at the time of
the statement.4
The authors then explain that Federal
Evidence Rule 803(3) the basis of Alaskas Evidence
Rule 803(3) does not require proof of spontaneity or
other circumstances demonstrating the speakers
sincerity:
[S]ome formulations of [this hearsay]
exception require that the statement must
have been made under circumstances indicating
apparent sincerity, [but] Federal Rule 803(3)
imposes no such explicit condition.
Id., 274, Vol. 2, p. 217.
The Federal Rules of Evidence Manual5 notes
and rejects [the] argument that state of mind
statements [are admitted because they] are
spontaneous.6 The authors point out that even when a
persons assertion about their own state of mind is
seemingly spontaneous, [a] spontaneity requirement does
not really guarantee sincerity:
It is impossible to tell how spontaneous a state of
mind statement really is, because [the statement]
describes an internal event; a declarants [description
of their] then existing state of mind could well be the
product of days of contemplation and fabrication.
Id., 803.02[4][a], Vol. 4, p. 80323.
The Federal Rules of Evidence Manual
acknowledges that some courts appear to have grafted a
spontaneity requirement onto Rule 803(3), especially in
cases involving exculpatory out-of-court statements
made by criminal defendants.7 But the authors point
out that the text of Evidence Rule 803(3) does not
contain a requirement of spontaneity.
The Federal Rules of Evidence Manual also
acknowledges that there will often be a substantial
risk ... that a declarant will be able to fabricate [a
statement concerning their] state of mind.8 However,
the authors note that
while trustworthiness may be a part of the
rationale for Rule 803(3), the Rule as
written does not contain a provision for
excluding untrustworthy statements that would
otherwise [qualify for admission] in
contrast to some other hearsay exceptions
such as Rule 803(6), which contains explicit
language excluding untrustworthy statements.
All that is required under Rule 803(3) is
that the statement must be of a then existing
state of mind ... . [T]he self-serving
nature of a criminal defendants expression of
an innocent state of mind ... is subject to a
clear attack as to weight. The lack of
sincerity in such a situation can easily be
understood by the jury, so it makes little
sense for the Trial Judge to exclude the
statement [because of its apparent lack of
trustworthiness, when] to do so is contrary
to the language of Rule 803(3).
Id., 803.02[4][d], Vol. 4, pp. 803-30 to 803-
31.
The authors conclude that juries,
not judges, should assess the declarants
potential motive and opportunity to
fabricate. In other words, the hearsay
should be admitted, and the parties can then
argue its credibility or lack of
credibility.9
A third text on the law of
evidence, Federal Practice and Procedure,10
notes that some courts and commentators have
suggested that trial judges could employ
Evidence Rule 403 to exclude hearsay that
would otherwise be admissible under Rule
803(3) if the circumstances of the out-of-
court statement in particular, the
declarants motive to falsify indicate that
the statement was made in bad faith. The
author of Federal Practice and Procedure
concedes that this issue has yet to be firmly
decided by the federal courts, but he
concludes that it is probably impermissible
for courts to exclude hearsay under Rule
803(3) based on the judges perception that
the out-of-court statement should not be
trusted.11 The author explains:
The difficulty is that any consideration
of bad faith would require the judge to
assess the sincerity of the out of court
declarant and sometimes the in court witness,
a function reserved to the trier of fact.
[Normally, when] applying Rule 403, the trial
judge [is] told ... to assume that the
evidence is trustworthy in evaluating [its]
probative value[,] and not to evaluate [the]
credibility [of the evidence]. See United
States v. Arango-Correa, 851 F.2d 54 (2d Cir.
1988). The suggestion that bad faith may be
considered is obviously contrary [to this
normal rule]. ... Instead, the [potential]
self-serving nature of [the] statement is
considered [by the jury] when [it] weighs the
evidence at the conclusion of the trial.
Id., 7044, Vol. 30B, p. 341 n. 16.
In fact, the Advisory Committee
that drafted Federal Evidence Rule 803(3)
declined to follow earlier formulations of
the rule that required the proponent of the
evidence to prove the declarants lack of bad
faith. According to Federal Practice and
Procedure, the Advisory Committee felt that
[the declarants] good or bad faith
essentially bears on credibility and is a
matter for the jury.12
Moreover, the author of Federal
Practice and Procedure agrees with the
authors of the Federal Rules of Evidence
Manual that, although many court decisions
cite the declarants bad faith or the
declarants motive to fabricate as the
rationale for excluding hearsay under Rule
803(3), a large number of these decisions do
not actually involve hearsay that would
otherwise be admissible under Rule 803(3).
The hearsay in these cases was offered, not
to prove the declarants state of mind, but
rather to prove the truth of the event or
circumstance purportedly remembered or
believed a purpose that is impermissible
under Rule 803(3).13
This same issue the effect of the
speakers motive to fabricate on the
admissibility of hearsay under Rule 803(3)
is discussed in McCormick on Evidence as
well.14 The authors of McCormick note that
the federal courts are seemingly in conflict
as to whether a judge has the authority to
exclude hearsay statements offered under
Evidence Rule 803(3) if the judge believes
that the declarant had a questionable motive
for making the statement. However, the
authors conclude that this conflict is more
apparent than real that many of the court
decisions which exclude the offered hearsay
can be explained by the fact that the
disputed evidence did not meet the normal
requirements for admission under Rule 803(3)
or, if the disputed evidence was admissible
under Rule 803(3), the fact that the
declarants state of mind was not relevant.15
The authors of McCormick conclude
that, [a]lthough uncertainty remains, the
principles that govern the admission of
hearsay under Evidence Rule 803(3) are clear.
First, the fact that an out-of-court
statement may be self-serving does not
exclude it from admission under Evidence Rule
803(3).16 Second, trial judges are not
empowered to exclude hearsay statements
because of the judges doubts as to the
credibility of the statement, unless the
particular evidence rule at issue expressly
authorizes the judge to weigh the credibility
of the statement which Rule 803(3) does
not.17 Third, speakers statements about
their state of mind can potentially be
excluded under Evidence Rule 403 if, owing to
the occurrence of intervening circumstances,
the statement has lost relevance because the
speakers current state of mind can not easily
be attributed to the relevant time in the
past.18
The case law on the purported requirement of
spontaneity or lack of reflection
As noted in the Federal Rules of Evidence
Manual, some courts appear to have grafted a
spontaneity requirement onto Evidence Rule 803(3).
See United States v. Reyes, 239 F.3d 722 (5th Cir.
2001), and United States v. Faust, 850 F.2d 575
(9th Cir. 1988). However, most of the cases cited
in the Federal Rules of Evidence Manual
demonstrate that courts do not insist on
spontaneity as a requirement for admission of a
statement under Evidence Rule 803(3).
For instance, in United States v. Lawal,19
the defendant was arrested after drugs were found
in his luggage during a customs search. When the
drugs were found, the defendant made statements
indicating his willingness to co-operate with the
authorities and declaring his anger at being set
up.20 The trial judge ruled that the defendant
was not entitled to present this hearsay evidence
because it was self-serving, but the appellate
court held that these statements were admissible
under Evidence Rule 803(3), despite the obvious
possibility of fabrication.21
Similarly, in United States v. Partyka,22 a
defendant was charged with dealing drugs, and he
defended by asserting that he had been entrapped by a
government informer. The defense attorney attempted to
present hearsay testimony describing a conversation
between the defendant and the informer, in which
(according to the offer of proof) the defendant
repeatedly declared his unwillingness to engage in drug
dealing, but finally acceded when the informer reminded
him of all the favors the informer had done for the
defendants family when the defendant was in prison.23
The trial judge rejected this evidence on the ground
that it was self-serving hearsay, but the appellate
court concluded that Rule 803(3) mandated admission of
the evidence. The appellate court noted that the
proposed evidence did not consist of declarations about
[the defendants] past attitude or state of mind;
rather, it consisted of manifestations of his present
[i.e., contemporaneous] state of mind.24
Another example is found in United States v.
DiMaria,25 where the defendant was on trial for
possession of stolen and contraband cigarettes, and for
conspiracy. The trial judge prevented the defendant
from introducing the statement he made at the time of
his arrest, I only came here to get some cigarettes
real cheap.26 The appellate court concluded that this
ruling was error: the offered statement described the
defendants contemporaneous state of mind, it was
relevant, and it was therefore admissible under
Evidence Rule 803(3) despite the defendants obvious
motive to fabricate.27 In answer to the governments
contention that the defendants statement was classic
false exculpatory statement, the appellate court
replied, False it may well have been[,] but ... it fell
within Rule 803(3), ... [and] its truth or falsity was
for the jury to determine.28
In United States v. Giles,29 the court
concluded that the trial judge erred in excluding the
defendants exculpatory statements concerning his
contemporaneous state of mind. The government argued
that the defendants statements were the product of
reflection an attempt to cover his tracks in case he
got caught.30 The appellate court ruled that this
was an argument for the jury, not a proper ground for
excluding the evidence if it otherwise satisfied the
requirements of Evidence Rule 803(3).31
Similarly, in United States v. Wright,32 the
court held that a statement made by a kidnapper to the
victim, offered in support of the kidnappers defense of
duress, should have been admitted under Rule 803(3)
even though the statement was self-serving.33
In addition, several of the court decisions
which purport to insist on the spontaneity of the
statement, or the declarants lack of time to reflect,
can actually be explained as straightforward
applications of Rule 803(3) as it is written, without
the additional requirement of spontaneity.
For instance, in both United States v.
Cunningham, 194 F.3d 1186, 1199 (11th Cir. 1999), and
United States v. Sayakhom, 186 F.3d 928, 937 (9th Cir.
1999), the defendants exculpatory assertion about their
mental state was not admissible under Rule 803(3)
because the statement was not really offered to prove
the defendants state of mind, but rather to prove the
truth of what the defendant asserted they believed.
Similarly, in United States v. Bishop, 264
F.3d 535, 549 (5th Cir. 2001), the out-of-court
statement was not admissible because the primary
relevance of the evidence was not to establish the
defendants contemporaneous state of mind (a purpose
that Rule 803(3) allows), but rather to establish the
defendants state of mind at a prior time a purpose
that Rule 803(3) does not allow.
Alaska cases since Brannen
As I have explained above, criminal cases
that raise issues under Evidence Rule 803(3) often
involve situations where defendants seek to introduce
their own out-of-court statements because, in these
statements, they assert their innocence or they deny
either the conduct or the culpable mental state that is
an element of the crime charged against them.
Statements of this sort are excluded by Evidence Rule
803(3) not because of the defendants motive to
fabricate, and not because of the defendants
opportunity to reflect on what to say, but rather
because (1) the defendants statement is an assertion
about their mental state at an earlier time, not their
mental state contemporaneous with the making of the
statement, or (2) the issue in dispute is the
defendants mental state at an earlier time, and the
defendants mental state at the time of the statement
has little or no relevance, or (3) the real purpose of
the offered hearsay is to establish the truth of the
prior event or circumstance that the defendant claims
to remember or believe. All of these are independent
bases for refusing to allow the evidence under Rule
803(3), regardless of the statements spontaneity or
lack thereof.
This Court has already explained why hearsay
should be rejected under Evidence Rule 803(3) if the
true purpose of the defendants out-of-court statement
is not to prove the defendants belief, but rather to
prove the truth of what the defendant claims to
believe:
[Evidence] Rule 803(3) does not allow hearsay
testimony about a persons belief when that
testimony is being offered to prove that the
belief was accurate or true. More
specifically, Rule 803(3) would not authorize
[a defendant] to introduce hearsay testimony
that he asserted his innocence if the only
relevance of this testimony was to suggest
(1) that [the defendant] was being honest
when he asserted that he believed himself
innocent of the crimes, and (2) that [the
defendant] would not believe himself to be
innocent unless he was in fact innocent.
Marino v. State, 934 P.2d 1321, 1331 (Alaska
App. 1997).
In Kellys case, however, we are
presented with a situation in which hearsay
evidence was properly offered under Rule
803(3). According to the defense attorneys
offer of proof, Kellys statement described
his mental state at the time the statement
was made (not his mental state at some
earlier time), and Kellys mental state at
that time was relevant to the decision of his
case because Alaska law provides a good-
faith mistake of age defense to a charge of
sexual abuse of a minor.
This Court has never
authoritatively construed the passage from
Brannen that apparently imposes a requirement
of spontaneity on hearsay offered under
Evidence Rule 803(3). However, I note that
the author of Brannen, Judge Alexander
Bryner, later disavowed the suggestion that
Rule 803(3) requires proof of spontaneity or
lack of time to reflect.
In Woodard v. State (unpublished),
Alaska App. Memorandum Opinion No. 3933
(December 9, 1998), 1998 WL 849246, one of
the issues raised on appeal was whether the
trial judge should have allowed the defense
to present evidence of exculpatory statements
made by the defendant statements made to a
police informant during several conversations
in which the informant was wearing a
recording device. In these conversations,
the police informant repeatedly asserted that
Woodard was a participant in a robbery and
murder. Woodard responded by declaring that
he did not know what the informant was
talking about, and that he could not imagine
why the informant was accusing him of these
crimes.34
Relying on Brannen, the trial judge
ruled that Woodards statements were not
admissible under Evidence Rule 803(3)
because, at the time of the statements,
Woodard had both a motive to fabricate and a
prior opportunity to reflect on what he would
say if he was ever accused of complicity in
these crimes.35
Both Judge Bryner and I concluded
that the trial judge committed error when she
excluded this evidence, although I concluded
that the error was harmless, while Judge
Bryner believed that it required reversal of
Woodards conviction.36
A portion of Judge Bryners dissent
echoes the analyses of the three evidence law
textbooks that I have already discussed. He
wrote:
[It is not] proper to justify excluding
the disputed recordings as fabricated or
unreliable the rationale relied on by the
state to argue that these recordings could
not be admitted under the state-of-mind
exception to the hearsay rule. [Alaska
Evidence Rule] 803(3). The express terms of
the state-of-mind exception do not
contemplate judicial screening to ensure
reliability and do not limit admissibility to
statements made under particularly reliable
circumstances. Compare ... [Evidence Rule]
803(2) (excited utterance admissible only if
made while the declarant was under the stress
of excitement caused by the event or
condition).
. . .
Nothing in Brannen v. State ... calls
for a contrary conclusion. ... [T]hat case
is readily distinguishable. It dealt with
detailed, self-serving exculpatory statements
that Brannen offered for the ostensible
purpose of proving what [his] state of mind
was on a later occasion ... .
. . .
We [noted] that ... Brannens initial
statements did not fall within the state-of-
mind exception, because they ... were not
statements expressing a present condition,
nor were they made spontaneously. Brannen
had time to reflect and a motive to fabricate
before he made the statements. Brannen, 798
P.2d at 340-41. Our conclusion thus
obviously centered on the fact that Brannens
statements, ... when he ... made them, did
not purport to describe his then-existing
state of mind, as required by [Evidence Rule]
803(3); instead, they described an event that
had occurred in the past. Statements of this
kind fall outside the express terms of [Rule]
803(3). ...
To be sure, virtually any ostensibly
spontaneous statement of a present sense
impression may be the product of reflection
and may describe a fictive state of mind.
But the state-of-mind exception, as written
in [Rule] 803(3), categorically allows the
admission of such statements because they are
generally reliable and because case-specific
circumstances potentially rendering them
unreliable are relatively easy for parties to
prove and for juries to understand and
evaluate. Woodards statements were neither
categorically less spontaneous nor
categorically more vulnerable to fabrication
than any other type of statement qualifying
under [Evidence Rule] 803(3).
Woodard, Memorandum Opinion No. 3933 at pp.
120-21, 1998 WL 849246 at *55-56 (Bryner,
C.J., dissenting).
My conclusion
As I have explained here, the better-
considered interpretation of Evidence Rule 803(3)
is that it does not require proof of the speakers
spontaneity or the speakers lack of opportunity or
motive to fabricate. Moreover, this Courts
decision in Brannen is independently justifiable
by the fact that the hearsay statements at issue
did not refer to the defendants contemporaneous
state of mind, but rather to his state of mind at
a prior time.
I therefore conclude that, to the extent the
Brannen decision suggests that Evidence Rule
803(3) requires proof of the speakers spontaneity
or lack of opportunity for reflection, this
portion of Brannen should be treated as dictum.
_______________________________
1 AS 11.41.438(a)(1).
2 AS 11.41.436(a)(1) and AS 11.31.100(a)(1).
3 AS 11.41.445(b).
4 State v. Agoney, 608 P.2d 762, 764 (Alaska 1980) (a
defendants self-serving statements are hearsay and cannot be
admitted into evidence unless they qualify under some exception
to the hearsay rule or are used for a non-hearsay purpose);
Marino v. State, 934 P.2d 1321, 1331 (Alaska App. 1997); Stumpf
v. State, 749 P.2d 880, 899 (Alaska App. 1988).
5 Alaska Evidence Rule 802; Agoney, 608 P.2d at 764.
6 Wyatt v. State, 981 P.2d 109, 113 (Alaska 1999).
7 See Stephen A. Saltzburg, Michael M. Martin & Daniel J.
Capra, Federal Rules of Evidence Manual (8th ed. 2002), Rule 803,
Vol. 4, pp. 803-23 to 803-29.
8 AS 11.41.445(b).
9 608 P.2d 762, 764 (Alaska 1980).
10 Id., Vol. 4, pp. 803-29 to 803-31.
1 Brannen, 798 P.2d at 340.
2 John W. Strong, Kenneth S. Broun, George E. Dix, Edward J.
Imwinkelried, D. H. Kaye, Robert P. Mosteller, & E. F.
Roberts, McCormick on Evidence (5th ed. 1999).
3 Id., 274, Vol. 2, p. 217.
4 Id.
5 Stephen A. Saltzburg, Michael M. Martin, & Daniel J. Capra, Federal
Rules of Evidence Manual (8th ed. 2002).
6 Id., 803.02[4][a], Vol. 4, p. 80323.
7 Id., 803.02[4][d], Vol. 4, p. 80330 & n. 41.
8 Id., 803.02[4][d], Vol. 4, pp. 80329 to 80330.
9 Id., 803.02[4][d], Vol. 4, pp. 80330 to 80331.
10Michael H. Graham, Federal Practice and Procedure
(Interim ed. 2000), Federal Rules of Evidence.
11Id., 7044, Vol. 30B, pp. 340-41.
12Id., 7044, Vol. 30B, p. 340 n. 15.
13Id., Vol. 30B, pp. 342-43 n. 15.
14McCormick, 274, Vol. 2, pp. 217-18 n. 8.
15Id.
16Id.
17Id.
18Id.
19736 F.2d 5 (2nd Cir. 1984).
20Lawal, 736 F.2d at 7.
21Id., 736 F.2d at 8-9.
22 561 F.2d 118 (8th Cir. 1977).
23 Partyka, 561 F.2d at 121, 125.
24 Id., 561 F.2d at 125.
25 727 F.2d 265 (2nd Cir. 1984).
26 DiMaria, 727 F.2d at 270.
27 Id., 727 F.2d at 271-72.
28 Id. at 271.
29 246 F.3d 966 (7th Cir. 2001).
30 Giles, 246 F.3d at 974.
31 Id.
32 783 F.2d 1091 (D.C. Cir. 1986).
33 Wright, 783 F.2d at 1099.
34Woodard, Memorandum Opinion No. 3933 at pp. 30-32; 1998
WL 849246 at *14-15.
35Id., Memorandum Opinion No. 3933 at p. 33, 1998 WL 849246
at *16.
36Compare the discussion of this issue in my concurrence,
Memorandum Opinion No. 3933 at pp. 62-69, 1998 WL
849246 at *29-33, with the corresponding discussion in
Judge Bryners dissent, Memorandum Opinion No. 3933 at
pp. 113-122, 1998 WL 849246 at *53-57.
