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opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
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Courts:
303 K Street, Anchorage, Alaska 99501
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| DANIEL D. DAVIS, | ) |
| ) Court of Appeals No. A-8416 | |
| Appellant, | ) Trial Court No. 3AN-00-6342 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2042 April 14, 2006 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Colleen A. Libbey, Libbey Law
Offices, Anchorage, for the Appellant.
Timothy W. Terrell, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and David W. M rquez,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Daniel D. Davis appeals his convictions for two counts
of third-degree assault, reckless driving, and driving without a
license. Davis contends that his trial was not held within the
time limits of Alaskas speedy trial rule, Criminal Rule 45; and
he alternatively argues that his constitutional right to a speedy
trial was violated. Davis further contends that his trial judge
erroneously allowed the State to introduce hearsay testimony in
violation of both the Alaska Evidence Rules and the confrontation
clause of the United States Constitution, as interpreted in
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d
177 (2004).
For the reasons explained here, we conclude that Davis
was brought to trial within the time limits of Alaska Criminal
Rule 45, and that his constitutional right to a speedy trial was
not violated. However, with respect to the challenged hearsay,
we conclude that this testimony was improperly admitted. We
further conclude that this testimony may well have affected the
jurys decision. Accordingly, we reverse Daviss conviction; he is
entitled to a new trial.
Underlying facts
Davis was charged with several criminal
offenses all stemming from a collision between Daviss
truck and a motorcycle.
On the afternoon of July 25, 2000, as Davis
was driving eastbound on Sixth Avenue in Anchorage, he
became embroiled in an altercation with Damien Owens, a
motorcyclist. According to Owens and several other
witnesses, this altercation began when Owens stopped at
a red light and Davis pulled his truck so closely
behind Owens that Owens could turn around and touch the
truck. Owens was upset by this, and he said so to
Davis. Davis then pulled his truck up next to Owens,
and the two men began a heated exchange.
This verbal exchange continued as the light
turned green and the two drivers began to accelerate
down the street. However, Owens soon tried to pull
over and end the confrontation. But as Owens slowed
down to negotiate a turn, Davis (who was now in front
of Owens) swerved his truck and almost hit Owens. To
elude Davis, Owens then tried to pass Davis on the
left. As Owens accelerated his motorcycle, Davis
veered suddenly in Owenss direction, striking both
Owens and his motorcycle. Pieces of the motorcycle
broke off from the impact, and Daviss vehicle struck
Owens in the leg and the hand. As a result of this
collision, Owens was pushed into the center turn lane,
where he encountered oncoming traffic. After dodging
this oncoming traffic, Owens was able to drive off the
road.
Anchorage Police Officer Jeff Hobson was on
traffic patrol when this episode occurred. Hobson
witnessed the entire incident, and after Daviss truck
veered into Owens, the officer pulled Davis over and
arrested him for felony assault.
After a backup officer arrived, Hobson turned
his attention to the passenger in Daviss vehicle,
Terrell W. Hodge. During Hobsons interview of Hodge,
Hodge told the officer that basically ... Davis
snapped and was totally out of control. Meanwhile, the
backup officer observed open beer cans in Daviss truck
and smelled alcoholic beverages on Daviss person. The
backup officer also learned from Davis that he had
smoked marijuana earlier that day.
At trial, Davis offered an exculpatory
version of these events. He contended that only Owens
became enraged during their encounter at the traffic
light. Davis claimed that he himself only wished to
peacefully distance himself from Owens. Davis conceded
that he had driven his truck to the right toward Owenss
lane of travel, but he claimed that this movement was
not an attempt to strike Owens. Rather, Davis
testified that he believed Owens was slowing down,
preparing to make a right turn, and Davis moved his
truck into the right lane ahead of Owens in an attempt
to pass a slow-moving motor home that was directly
ahead of him. Davis further claimed that when his
truck veered toward Owens the second time (this time,
veering to the left), he (Davis) was not in control of
the truck. Instead, according to Davis, the truck
veered to the left because his passenger, Hodge,
grabbed the steering wheel in a misguided effort to
prevent Daviss truck from hitting Owens on the right.
Davis further testified that his vehicle did not
actually hit the motorcycle; rather, he claimed that
the only contact between Owens and Daviss truck
occurred when Owens angrily punched the side-view
mirror of Daviss truck as he drove by.
After listening to these two competing
versions of events, the jury found Davis guilty on all
charges.
Daviss Rule 45 claim
The speedy trial clock in this case began
running on July 26, 2000, when Davis was served with an
information charging him with various offenses stemming
from his encounter with Owens the previous day. Daviss
trial did not begin until February 4, 2002.
Daviss case involves many different periods
of time that the superior court found to be excluded
from the Rule 45 calculation. Davis challenges several
of the superior courts rulings. However, the two
crucial events for Rule 45 purposes occurred on
November 22, 2000, and on April 9, 2001.
Using July 26, 2000 as a starting date, the
120 days allowed by Rule 45 for bringing Davis to trial
would have expired on November 23, 2000. But Davis
filed several motions during that four-month period
that tolled the running of Rule 45. Most importantly,
Davis filed a motion for co-counsel status on November
14, 2000, and a suppression motion on November 22,
2000. Daviss motion for co-counsel status was not
decided until January 30, 2001, and his suppression
motion remained undecided in early April 2001 even
though Daviss trial was scheduled for April 9th.
The superior court planned to hold an
evidentiary hearing on April 4, 2001, (i.e., five days
before Daviss scheduled trial). But on April 4th,
Daviss attorney notified the superior court that Davis
wanted to schedule a change-of-plea hearing. Based on
this announcement, the superior court canceled the
evidentiary hearing and set a change-of-plea hearing
for April 9th (the day on which Daviss trial was
supposed to have commenced).
But at the change-of-plea hearing, Daviss
attorney declared that he had not been successful in
arranging a package deal that included a negotiated
disposition of some other misdemeanor charges that
Davis was facing in Palmer. Because of this, Daviss
attorney said that there would be no change of plea
that day, and he asked the superior court to set
another pre-trial conference for the following week.
Obviously, Daviss case never settled; instead, Davis
went to trial.
Under this Courts decision in Mostafoski v.
State, 954 P.2d 1042, 1044 (Alaska App. 1998) a
decision now codified in Criminal Rule 45(c)(5) Daviss
announcement on April 9th that he did not intend to
change his plea had the effect of re-setting the Rule
45 clock to 0. Thus, April 10, 2001 became Day 1 for
Rule 45 purposes.
Indeed, on the day after the aborted change-
of-plea hearing, Superior Court Judge Larry D. Card
issued an order in which he notified the parties that,
based on Daviss having scheduled a change-of-plea
hearing, and then having failed to change his plea, the
judge intended to re-start the Rule 45 calculation at
Day 1. Judge Card gave the parties five days to object
to his ruling; neither party objected.
With a new Day 1 of April 10, 2001, the 120
days allowed for bringing Davis to trial would normally
have expired on August 7, 2001. However, it must be
remembered that Daviss suppression motion was still
pending. Thus, even though the Rule 45 clock had been
re-set, it still had not commenced running again.
Moreover, on July 2, 2001, Davis asked the
superior court to remove his court-appointed counsel
from the case. Daviss request for a new attorney was
not resolved until August 23rd, when the superior court
appointed a new attorney to represent Davis.
In part because of the dispute concerning
Daviss legal representation, the evidentiary hearing on
his suppression motion was not held until November 29,
2001. Judge Card issued his ruling on the suppression
motion the next day.
In sum, even though the Rule 45 clock was re-
set to 0 on April 9, 2001, the clock did not begin
running again until December 1, 2001 (the day after
Judge Card decided the suppression motion). And, as
explained above, Daviss trial commenced on February 4,
2002 that is, 65 days later. Davis was therefore
brought to trial within the time limits of Criminal
Rule 45.
Davis presents two major objections to the
foregoing analysis.
First, Davis asserts that his attorney
unreasonably delayed filing the suppression motion of
November 22, 2000. Davis argues that if his attorney
had been diligent and had paid proper attention to
Daviss case, this suppression motion could have been
filed much earlier.
The primary answer to this contention is that
Criminal Rule 45 does not concern itself with such
matters. As the Alaska Supreme Court and this Court
have repeatedly said, Rule 45 must be interpreted so
that the speedy trial calculation rests on objectively
ascertainable events such as the filing of a
suppression motion.1 This policy would be defeated if
we allowed defendants to challenge Rule 45 calculations
by raising after-the-fact attacks on the diligence of
their attorneys or the reasonableness or competence of
their attorneys actions.
A second answer to Daviss argument is found
in the particular facts of Daviss case. At a pre-trial
hearing on October 12, 2000 (that is, approximately six
weeks before the suppression motion was filed), Daviss
attorney informed the superior court that she needed
more time to file pre-trial motions, including a motion
to suppress. At that time, Daviss trial was scheduled
for October 23rd only eleven days in the future.
Thus, to honor the defense attorneys request for
additional time, the superior court necessarily had to
delay the trial.
Judge Card asked Daviss attorney if she was
willing to waive the additional time under Rule 45, and
the defense attorney agreed to waive 42 days, thus
allowing Daviss trial to be rescheduled for December 4,
2000. But Davis objected to this delay. Davis told
Judge Card that his attorney had failed to act
diligently, and that she should have filed the pre-
trial motions long before. Davis asserted that his
attorneys lack of diligence was essentially forcing
Davis to waive his speedy trial rights.
After listening to Davis express this
dissatisfaction with his attorneys conduct, Judge Card
informed Davis that he had two options: Davis could
direct his attorney to waive any further pre-trial
motions, thus regaining the October 23rd trial date, or
Davis could agree to have his attorney pursue these
motions, with the result that Daviss trial would be
delayed.
Despite this invitation from Judge Card,
Davis never expressed a desire to waive the
contemplated motions. As noted above, the suppression
motion was filed on November 22, 2000. And five days
later, when the parties assembled in court to address
the pre-trial motions, Davis stated that he did not
want his attorney to withdraw those motions even
though, by that point, the superior court had
rescheduled Daviss trial to mid-January 2001.
For both of these reasons, we conclude that
Davis can not attack the amount of time it took his
attorney to research, draft, and file the November 22nd
suppression motion.
Daviss second major objection to our Rule 45
analysis involves the aborted change-of-plea hearing on
April 9, 2001, and the consequent re-setting of the
Rule 45 clock to 0. Davis argues that he should not be
bound by his attorneys act of requesting a change-of-
plea hearing. Davis contends that he was never willing
to change his plea, that his attorney scheduled the
change-of-plea hearing without his consent, and that
Judge Card committed error by never asking Davis to
personally ratify his attorneys action.
There was no error. Rule 45(c)(5) does not
require the trial court to obtain a defendants personal
assent before acting on a defense attorneys request to
schedule a change of plea. Nor does the rule require
the court to address the defendant personally to
ascertain the defendants position when the defense
attorney subsequently announces that no plea agreement
has been reached.
The facts of Mustafoski v. State are
instructive. In Mustafoski, the defense attorney told
the superior court that the defendant intended to
change his plea, but the attorney wanted to delay the
entry of the plea until he could investigate whether a
conviction would affect Mustafoskis immigration
status.2 The following month, the defense attorney
told the court that he and the State were still
negotiating the resolution of the case.3 After another
two months, the defense attorney finally announced that
there would be no plea bargain, and that the case would
go to trial.4 We held that, under these facts, the
Rule 45 clock was re-set to 0 on the day that the
defense attorney announced that there would be no
negotiated settlement of the case.5
Daviss case presents similar facts. On the
day of a scheduled evidentiary hearing, and only five
days before Daviss scheduled trial, Daviss attorney
asked the superior court to schedule a change-of-plea
hearing. In reliance on that request, the superior
court canceled the evidentiary hearing and set a change-
of-plea hearing in place of the previously scheduled
trial. But at the change-of-plea hearing, Daviss
attorney declared that Davis would not be changing his
plea that day because the attorney had not been
successful in arranging a package deal that would
resolve not only Daviss pending Anchorage charges, but
also some other misdemeanor charges that Davis was
facing in Palmer.
These are essentially the same circumstances
that led us to re-set the Rule 45 clock in Mustafoski,
and we reach the same result here.
Davis points out that the pertinent portion
of Criminal Rule 45(c)(5) refers to the defendant
rather than to the defense attorney:
When a defendant who previously informed the
court of an intention to plead guilty or nolo
contendere notifies the court that the
defendant now intends to proceed to trial,
the time for trial shall run from the date of
that notification.
Based on this wording, Davis argues that this
rule only takes effect when the defendant
personally informs the court that they intend
to plead guilty or no contest, and then
later personally informs the court that they
now wish to go to trial.
We do not believe that the Alaska
Supreme Court intended Rule 45(c)(5) to be
read in this fashion. Even though the text
of Rule 45(c)(5) refers to the defendant
rather than to the defense attorney, the
Alaska court rules often use the term
defendant to mean, or at least to include,
the defense attorney (unless the context
indicates a narrower meaning).
For example, Criminal Rule 45(c)(2)
declares that if a criminal charge is
dismissed upon motion of the defendant, the
speedy trial calculation shall begin running
from the date of service of any renewed
charge. Obviously, most motions to dismiss
are filed by defense attorneys rather than by
the defendants themselves. There has never
been an appellate decision suggesting that
Rule 45(c)(2) applies only after the trial
court addresses the defendant personally and
ascertains that the defendant has personally
assented to the filing of the motion to
dismiss.
We further note that several other
provisions of the criminal rules employ the
word defendant when the context clearly
suggests defense attorney.6
We therefore conclude that Criminal
Rule 45(c)(5)s use of defendant instead of
defense counsel does not bespeak an intention
on the part of the Alaska Supreme Court to
require the defendants personal intervention
or the defendants express ratification of
their attorneys statements to the court.
Accordingly, we affirm Judge Cards
ruling that Davis was brought to trial within
the time limits of Criminal Rule 45.
Daviss alternative claim based on the constitutional
right to speedy trial
In addition to attacking his trial date on
Rule 45 grounds, Davis also argues that the 19-
month interval between the day he was charged
(July 26, 2000) and the day his trial began
(February 4, 2002) violated his constitutional
right to a speedy trial. We reject this
contention because, as explained above, the major
portion of this delay is attributable to Daviss
own actions or the actions of the attorneys
representing him.
Davis relies primarily on Glasgow v. State,
469 P.2d 682 (Alaska 1970), where the Alaska
Supreme Court declared that a delay of 14 months
violated the defendants constitutional right to a
speedy trial.7 But a careful reading of Glasgow
shows that the supreme court, in calculating this
delay of 14 months, [e]xclud[ed] those periods of
time that [could] properly be attributed to the
[defendant].8
A year after Glasgow, the supreme court
explicitly reiterated this principle in Rutherford
v. State, 486 P.2d 946, 952 n. 15 (Alaska 1971).
This rule that defendants can not base speedy
trial claims on delays attributable to themselves
has been the accepted Alaska law on this subject
ever since.9
Accordingly, we reject Daviss claim that he
was denied his constitutional right to a speedy
trial.
The admissibility of the hearsay testimony describing
the out-of-court statements of Terrell Hodge
As explained above, Terrell Hodge was the
passenger in Daviss pickup truck during the incident in
question. Hodge was therefore a potential witness at
Daviss trial. However, after Hodge consulted an
attorney, he decided to claim his privilege against
self-incrimination, and the superior court upheld this
claim of privilege.
Following this ruling, the prosecutor
announced that he wished to introduce hearsay testimony
concerning certain statements that Hodge made when he
was interviewed by Officer Hobson a few minutes after
the collision. Specifically, the prosecutor made an
offer of proof that, during this on-the-scene
interview, Hodge told Hobson that Davis had gotten into
an argument with the motorcyclist and that Davis had
snapped, succumbing to an uncontrollable case of road
rage.
The prosecutor argued that Hodges out-of-
court statements were admissible under either of two
hearsay exceptions: the present sense impression
exception (Alaska Evidence Rule 803(1)) or the excited
utterance exception (Alaska Evidence Rule 803(2)).
Daviss attorney responded that neither hearsay
exception applied to Hodges statements. The defense
attorney also argued that admission of this hearsay
would violate Daviss constitutional right to confront
the witnesses against him.
After the two attorneys staked out their
respective positions, the prosecutor called Officer
Hobson to present foundational testimony in support of
the proposed hearsay.
Hobson testified that, after the backup
officer arrived on the scene and took custody of Davis,
Hobson returned to the pickup truck and interviewed
Hodge. Hobsons conversation with Hodge occurred within
five to ten minutes after the traffic stop.
When the prosecutor asked Hobson to relate
what Hodge had told him, Hobson responded:
Hobson: [Hodge said] basically that Mr.
Davis had a fit of road rage; [he] snapped.
... [Hodge] said [that] the motorcyclist had
gotten in an argument with Davis; Davis just
snapped and had an uncontrollable case of
road rage. [Hodge] said that Davis had [had]
a similar case of road rage once before, but
[that] he, Hodge, had been able to talk him
out of it, and nothing [had] happened
[before] such as what happened on this day.
The prosecutor then asked Hobson to
describe Hodges demeanor during this
interview. Hobson replied that Hodge was
calm and pleasant.
Based on Hobsons description of the
interview, Judge Card ruled that Hodges out-
of-court statements were definitely
admissible as statements of present sense
impression, and perhaps also as excited
utterances:
The Court: There is no question ...
that [Hodge had] time for reflective thought,
[and that fact goes] into the calculations of
the court. But [Hodge] is now unavailable,
[and he] did perceive the events [in
question]. He was a passenger in Mr. Daviss
vehicle, and he made this statement
immediately after sensing whatever this
occurrence was, and his statement describes
[the cause of] that occurrence. Now, that
means that his statement [is] not ...
excluded by the hearsay rule.
. . .
[The hearsay exception for] present
sense impression, unlike the excited
utterance [exception], does not require that
the declarant be emotional [or even]
emotionally affected ... by the occurrence.
Instead, its the spontaneity, ... and also
the consequent lack of time for reflective
thought, [and also] safety from memory lapse,
[that] are considered sufficient under the
rules to establish the statements
reliability.
Judge Card recognized that Hodges
statements were not, strictly speaking,
spontaneous, since they were elicited by
Hobsons questions. Nevertheless, Judge Card
concluded that the two hearsay exceptions
applied:
The Court: [Even] if [the statements
were elicited in response to] a question, if
it comes in as a [statement of] present sense
impression, which would be more likely
[here], it can also come in as an excited
utterance because I think [that] this event,
as I heard the description by Mr. Owens and
the other witnesses who have testified, [this
event] was something extraordinary that
happened in a very short period of time. So
it was a startling event. [And] this
statement [described] Mr. Hodges mental
impressions ... shortly thereafter.
. . .
[The] statement was made shortly after
the incident occurred, so it is at least a
present sense impression.
. . .
Based upon what Ive heard, Im going to
let [the testimony] in as a [statement of]
present sense impression. It could also be
considered [an] excited utterance; they are
so closely related. The spontaneity is
there. The requirements of [Evidence Rules]
803(1) and (2) [are] met.
(Judge Card prohibited the
prosecutor from eliciting testimony regarding
Hodges statement about the alleged prior
incident in which Davis lost control of his
temper, and the judge also prohibited any
reference to the term road rage, because he
concluded that this term was too imprecise
and potentially prejudicial.)
Following this ruling, Officer
Hobson took the stand again (this time in the
presence of the jury) and related the
statements that Hodge made during the post-
collision interview (with the redactions
described in the preceding paragraph).
In this appeal, Davis renews his
contention that this hearsay testimony was
not admissible under either Evidence Rule
803(1) (statement of present sense
impression) or Evidence Rule 803(2) (excited
utterance). In addition, Davis argues that
admission of the challenged testimony
violated his right to confrontation as
interpreted by the United States Supreme
Court in Crawford v. Washington, 541 U.S. 36,
124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We
do not reach the confrontation issue because
we agree with Davis that the testimony was
not admissible under either of the suggested
exceptions to the hearsay rule.
(a) Explanation of the two hearsay exceptions at
issue in this case
The two hearsay exceptions at issue here for
statements of present sense impression, and for
excited utterances are based on similar
rationales, and hearsay statements relating to
startling occurrences (such as the motor vehicle
collision at issue in this case) are often
admissible under both theories. But Daviss appeal
requires us to examine those two exceptions
separately.
An out-of-court statement is a statement of
present sense impression if it describes or
explains an event, and if it was made while the
declarant was perceiving the event ... , or
immediately thereafter. Alaska Evidence Rule
803(1). The defining characteristic of a
statement of present sense impression is its
spontaneity the speakers lack of reflection about
what he or she should be saying. Under Rule
803(1), the presumption of spontaneity (and, thus,
the presumption of trustworthiness) arises from
the fact that the speaker utters the statement
while observing the event or condition at issue,
or immediately thereafter. In other words, there
is hardly any interval between the observation and
the statement describing the observation and,
thus, no time for reflection.
As explained in the Commentary to the Alaska
Evidence Rules, the underlying theory of [Rule 803(1)]
is that [the] substantial contemporaneity of event and
statement negate the likelihood of deliberate or
conscious misrepresentation.10
Unlike excited utterances, statements of
present sense impression do not have to be inspired by
exciting or startling occurrences.11 Of course, a
startling event may inspire a statement of present
sense impression: Look at that! That truck just ran a
red light. But an utterance relating to a much more
mundane (and potentially boring) observation could also
qualify as a statement of present sense impression:
See that herd of cows? All of them are white. It is
not the emotional state of the speaker, but rather the
lack of an appreciable interval between the observation
and the statement, that gives rise to the presumption
that the statement is trustworthy.
In contrast, an out-of-court statement is
admissible as an excited utterance if it was made while
the declarant was under the stress of excitement caused
by the event or condition to which the statement
relates. Alaska Evidence Rule 803(2). As is true with
statements of present sense impression, the defining
characteristic of an excited utterance is its
spontaneity the speakers lack of reflection about what
he or she should be saying. But under Rule 803(2), the
presumption of spontaneity (and, thus, the presumption
of trustworthiness) arises from the fact that the
speaker is laboring under the emotional stress
engendered by the event.
As stated in the Commentary to the Alaska
Evidence Rules, [t]he theory of [Rule 803(2)] is ...
that circumstances may produce a condition of
excitement which temporarily stills the [speakers]
capacity for reflection and produces utterances free of
conscious fabrication.12 Thus, when an out-of-court
statement is offered as an excited utterance, the key
factual question is not the interval between the event
and the statement, but rather the duration of the
[speakers] state of excitement.13
(b) Analysis of Hodges out-of-court statement as a
potential statement of present sense impression
As explained above, the key factor in
deciding whether Hodges out-of-court statement should
be deemed a statement of present sense impression is
the assessment of whether there was substantial
contemporaneity between the event being explained (the
collision) and Hodges explanatory statement.
Here, there was no strict contemporaneity;
rather, there was an interval of five to ten minutes
between the event and the statement. But as explained
above, the Commentary to Evidence Rule 801(1) does not
speak of strict contemporaneity; rather, it speaks of
substantial contemporaneity. And the Federal Rules of
Evidence Manual takes the approach that, for purposes
of assessing substantial contemporaneity, there is no
fixed limit on the interval between the event and the
explanatory statement:
While contemporaneity is critical to
[the statements] admissibility, there is ...
no talismanic time period for admission [of a
statement] as a present sense impression.
Admissibility is determined on a case-by-case
basis, [with the judge] investigat[ing] the
circumstances of the statement to determine
whether the declarant had significant time
for reflection.
Stephen A. Saltzburg, Michael M. Martin, and
Daniel J. Capra, Federal Rules of Evidence
Manual (8th ed. 2002), 803.02, Vol. 4, p.
80315.
Another text on the law of
evidence, John W. Strong et alia, McCormick
on Evidence (5th ed. 1999), appears to
advocate a tighter definition of the present
sense impression hearsay exception.
Referring to Evidence Rule 803(1)s
requirement that the statement be made while
the speaker was actually perceiving the event
or immediately thereafter, McCormick
declares:
While [the] principle [of this hearsay
exception] might seem to call for [its]
limitation to [statements that share] exact
contemporaneity [with the event being
described or explained], some allowance must
be made for the time needed for translating
observation into speech. Thus, the
appropriate inquiry is whether sufficient
time elapsed [between the event and the
explanatory statement] to have permitted [the
speaker to engage in] reflective thought.
Id., 271, Vol. 2, p. 203.
We acknowledge that there are some
court decisions that have allowed the
admission of present sense impression
statements that were made as much as twenty
minutes after the event described or
explained.14 But, as stated in both the
Federal Rules of Evidence Manual and
McCormick on Evidence, the issue is not the
exact amount of time between the event and
the statement. Rather, the issue is whether,
under the circumstances of the particular
case, the interval between the event and the
statement gave the speaker a significant
opportunity to reflect on what he or she
should say. If so, then the hearsay
statement does not qualify for admission
under the present sense impression exception.
In the present case, Officer Hobson
happened to be on the scene to witness the
collision between Daviss truck and the
motorcycle. He stopped Daviss vehicle almost
immediately. And Hobson interviewed Hodge
some five to ten minutes after this traffic
stop. Thus, the interval might be viewed as
relatively short. Nevertheless, during this
interval, Hodge sat in the truck and watched
while Hobson handcuffed Davis and placed him
under arrest. It was obvious that Davis was
in trouble that the police believed that
Davis had just committed a crime.
Moreover, the testimony presented
by the prosecution suggested that, in the
moments leading up to the collision, Hodge
was actively involved in discussions with
Davis concerning what to do about, or to,
Owens. Owens testified that, during his
moments next to the truck, Davis and Hodge
were talking back and forth and looking at
Owens. And Officer Hobson testified that,
during the exchange between Owens and the two
occupants of the truck, the passenger that
is, Hodge was jabbering at Owens, and there
was a lot of arm swinging [by both Hodge] and
[Owens].
In other words, even though Hodge
was interviewed within five to ten minutes
after the traffic stop, he was sitting alone
during this time, he had been personally
involved in the event under investigation, he
was able to observe what was happening to his
friend Davis, and he had time to reflect on
his own situation. Under the circumstances
of this case, those five to ten minutes
offered Hodge a significant opportunity to
reflect on what he should say to the police
in order to avoid sharing criminal or civil
liability for what had happened.
For these reasons, we conclude that
Judge Card abused his discretion when he
ruled that Hodges statement could be admitted
under the present sense impression exception
to the hearsay rule.
(c) Analysis of Hodges out-of-court statement as a
potential excited utterance
As explained above, the interval between the
collision and Hodges statement is not so critical
when deciding whether Hodges statement qualifies
as an excited utterance. Rather, our inquiry
focuses on whether Hodge was under the stress of
excitement caused by the collision when he made
his statement.
In this case, the problem for the State is
that there is no evidence that Hodge was under the
stress of excitement when he made the statement.
Clearly, as Judge Card noted, the collision would
have been an exciting or startling event for most
people. But there is no evidence that Hodge was
still feeling excitement when he gave his
statement to Hobson. In fact, Hobson testified
that Hodges demeanor was just the opposite that
Hodge was calm and pleasant when Hobson was
questioning him.
See Beech Aircraft Corp. v. Harvey, 558 P.2d
879, 884 (Alaska 1976), where our supreme court
ruled that certain out-of-court statements were
not admissible under the excited utterance hearsay
exception because the out-of-court statements were
a deliberative narration of past events, and the
speaker was not emotionally upset when questioned,
but rather appeared calm.
For this reason, we conclude that Judge Card
abused his discretion when he ruled that Hodges
statement could be admitted under the excited utterance
exception to the hearsay rule.
(d) Why we reject the States argument that the
admission of Hodges out-of-court statement was
harmless error
The State argues that even if Hodges out-of-
court statement to Officer Hobson should not have been
admitted, the admission of this evidence was
nonetheless harmless error. We disagree. The crucial
factual dispute in this case was not the physical
interaction between Daviss truck and the motorcycle.
Rather, Daviss trial centered on two other issues:
Daviss state of mind during the encounter with the
motorcyclist, and whether Davis was personally in
control of his vehicle when it veered to the left and
struck the motorcycle.
Hodge was the only person, other than Davis,
who had direct knowledge of the facts pertinent to
these issues. We note, moreover, that during the
States summation to the jury, the prosecutor expressly
relied on Hodges statement that Davis had snapped.
Given the importance of this evidence to the main
factual dispute at Daviss trial, we conclude that the
jurys decision was substantially affected by the
hearsay evidence that Hodge, when interviewed shortly
after the collision, told the police that Davis had
snapped and that Davis was totally out of control.
Conclusion
For the reasons explained here, we hold (1)
that Davis was brought to trial within the time limits
of Alaska Criminal Rule 45, but (2) that Daviss trial
was flawed by the introduction of the hearsay evidence
describing Hodges post-collision statement to Officer
Hobson. Accordingly, the judgement of the superior
court is REVERSED. Davis is entitled to a new trial.
_______________________________
1 See, e.g., Deacon v. State, 575 P.2d 1225, 1228-29 (Alaska
1978); Snyder v. State, 524 P.2d 661, 663-64 (Alaska 1974);
State v. Clouatre, 516 P.2d 1189, 1191 (Alaska 1973);
Wardlow v. State, 2 P.3d 1238, 1244 (Alaska App. 2000);
State v. Angaiak, 847 P.2d 1068, 1072-73 (Alaska App. 1993);
Russell v. Anchorage, 626 P.2d 586, 589 (Alaska App. 1981).
2 Mustafoski, 954 P.2d at 1044.
3 Id.
4 Id.
5 Id.
6 Other examples of this broader usage include: Criminal
Rule 6(m) (a defendants right to listen to the
electronic record of the grand jury proceedings, to
obtain a transcript of those proceedings, and to
examine the exhibits presented to the grand jury);
Criminal Rule 11(b) (a defendants right to request a
reasonable delay to decide what plea to enter);
Criminal Rule 12(e) (the effect of a defendants failure
to raise defenses or objections that, by law, must be
made before trial); Criminal Rule 16(b)(1)(B)
(requiring the prosecuting attorney to inform the
defendant of the names and addresses and curricula
vitae of expert witnesses, as well as summaries of
their proposed testimony); Criminal Rule 16(c)(4)
(requiring the defendant to inform the prosecuting
attorney of the same sorts of information concerning
expert witnesses); Criminal Rule 16(c)(5) (requiring
the defendant to notify the prosecuting attorney of
certain intended defenses); Criminal Rule 18(e) (a
defendant may move for a change of venue to an
alternate approved court location); Criminal Rule
27(a)(2) (describing the defense opening statement:
The defendant, or the defendants counsel, may then
state the defense, and may briefly state the evidence
[that] the defendant expects to offer in support of
it.); Criminal Rule 29(a) (allowing the trial judge to
grant a judgement of acquittal on motion of a
defendant).
7 Glasgow, 469 P.2d at 688-89.
8 Id. at 688.
9 See Alvarez v. Ketchikan Gateway Borough, 91 P.3d 289,
295 (Alaska App. 2004); Springer v. State, 666 P.2d
431, 435 (Alaska App. 1983).
10 Commentary to Alaska Evidence Rules 803(1) and (2),
second paragraph. See also the Federal Advisory Committees
Note to proposed Federal Evidence Rule 803(1), quoted in
Stephen A. Saltzburg, Michael M. Martin, and Daniel J.
Capra, Federal Rules of Evidence Manual (8th ed. 2002),
803.02, Vol. 4, p. 80314.
11 See John W. Strong et alia, McCormick on Evidence (5th
ed. 1999), 271, Vol. 2, p. 202. Two famous scholars of
evidence law, John Henry Wigmore and James Bradley Thayer,
disagreed concerning the admissibility of non-excited
statements of present sense impression. Wigmore took the
position that the out-of-court statement should not be
admitted unless the speaker was under the stress of
excitement, while Thayer took the position that even a non-
excited statement should be admitted, so long as it was made
contemporaneously with the event or condition perceived.
For a critique of Wigmores approach to this topic, and an
explanation of how the position espoused by Thayer
ultimately carried the day, see McCormick, 271, Vol. 2, pp.
200-02.
12 Commentary to Alaska Evidence Rules 803(1) and (2),
third paragraph (citing J. Wigmore, Evidence in Trials at
Common Law, 1747, Vol. 6, p. 135).
13 Commentary to Alaska Evidence Rules 803(1) and (2),
fifth paragraph.
14See United States v. Beck, 122 F.3d 676, 681-82 (8th Cir.
1997); United States v. Blakey, 607 F.2d 779, 785-86
(7th Cir. 1979); United States v. Mej¡a-V‚lez, 855
F.Supp. 607, 614 (E.D. N.Y. 1994); Miller v. Crown
Amusements, Inc., 821 F.Supp. 703, 706 (S.D. Ga. 1993);
State v. Odom, 341 S.E.2d 332, 335-36 (N.C. 1986). But
see Hilyer v. Howat Concrete Co., 578 F.2d 422, 426 n.
7 (D.C. Cir. 1978) (interval of at least 15 minutes
held too long for the out-of-court statement to qualify
as a statement of present sense impression).
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