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NOTICE
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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
MECHELE K. LINEHAN,
Appellant, Court of Appeals No. A-10190
Trial Court No. 3AN-06-10140 Cr
v.
STATE OF ALASKA, O P I N I O N
Appellee.
End of Caption No. 2253 February 5, 2010
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Philip R. Volland,
Judge.
Appearances: Susan Orlansky, Jeffrey M.
Feldman, and Alexander O. Bryner of Feldman
Orlansky & Sanders, Anchorage, for the
Appellant. Diane L. Wendlandt, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Richard A. Svobodny, Acting Attorney General,
Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
MANNHEIMER, Judge.
COATS, Chief Judge, concurring.
Mechele K. Linehan appeals her conviction for first-
degree murder. She challenges three evidentiary rulings made by
the trial judge.
First, Linehan argues that the trial court improperly
allowed the State to introduce evidence of a letter written by
the victim of the homicide shortly before he was killed. In this
letter, the victim asserted that if he died under suspicious
circumstances, Linehan would probably be responsible for his
death.
Second, Linehan contends that the trial court
improperly allowed the State to introduce evidence that Linehan
expressed admiration for, and a desire to emulate, the evil and
manipulative female protagonist of the movie The Last Seduction.
Third, Linehan argues that the trial court improperly
allowed the State to introduce evidence that, during a portion of
the time period involved in this case, Linehan made her living as
an exotic dancer that is, as a stripper.
For the reasons explained in this opinion, we conclude
that it was error to allow the State to introduce evidence
concerning the accusatory statements in the victims letter and
we further conclude that this error requires reversal of Linehans
conviction.
In addition, to clarify matters for any retrial, we
conclude that it was error to allow the State to introduce
evidence of Linehans statements about The Last Seduction.
Finally, with regard to the evidence that Linehan
worked as an exotic dancer, we conclude that this evidence was
admissible to explain the relationship of the main actors in this
case, and we further conclude that any potential error in the
trial judges ruling on this issue was harmless.
Underlying facts
Between mid-1994 and mid-1996 Mechele Linehan
(whose | name was then Mechele Hughes | ) maintained romantic relationships with several men, three of whom are important to this case: Scott Hilke, John Carlin, and Kent Leppink. Linehans romantic relationships with these three men were essentially simultaneous, and all three men were aware (to a greater or lesser extent | ) of the nature of the others relations with Linehan. Indeed, for several months, Linehan, Carlin, and Leppink all lived in the same house in Anchorage. (Hilke lived in California. | ) |
| On the morning of May 2, 1996, Leppink was found shot to death outside of the small town of Hope (about 90 miles by road from Anchorage | ). According to the pathologists investigation, Leppink was killed sometime between 6 hours and 48 hours before his body was discovered that is, sometime between mid- day on April 30th and the early morning hours of May 2nd. | ||
| When the Alaska State Troopers investigated this homicide, they interviewed Linehan, Carlin, and Hilke. However, the troopers were not able to identify any culprits, and the case remained unsolved for several years. In 2004, the state trooper Cold Case Unit re-opened the investigation. Based on a review of the earlier investigation, plus new witness interviews and a forensic examination of the e-mails and other materials recovered from two computers, the troopers concluded that Carlin had lured Leppink to Hope and had shot him there. | |||
| The troopers further concluded that Linehan was Carlins accomplice not that she physically assisted Carlin during the shooting, but rather that she solicited Carlin to commit this murder, and that she also helped Carlin compose a note that would be left for Leppink to find, and that would make Leppink want to go to Hope (by falsely making him think that Linehan was staying there in a cabin with another man | ). | ||
| In March and April 2007, the State successfully prosecuted Carlin for this murder.1 Following Carlins conviction, the State brought Linehan to trial. Linehans trial took place in the Anchorage superior court over the course of six weeks in September and October 2007. | |||
| The States case was lengthy and detailed, but it was primarily circumstantial. In an effort to convince the jury to view the circumstantial evidence in a light that would support Linehans conviction for murder, the State offered two pieces of evidence that had no direct relevance to the events being litigated, but which strongly suggested that Linehan was the kind of person who would conspire to have Leppink murdered. | |||
| The first of these pieces of evidence was a letter that Leppink sent to his parents on April 30th, shortly before his death. This letter was sealed inside another package, and Leppink instructed his parents to open the letter only in the event that he died under suspicious circumstances. | |||
| In this letter, Leppink told his parents that if he was found dead, Mechele Hughes (i.e., Mechele Linehan | ), John Carlin, and/or Scott Hilke would probably be the ones responsible. Leppink told his parents that Linehan had a split personality, and that the part [he] fell in love with is very beautiful, but Leppink also admonished his parents to take Mechele down, to [m]ake sure she is prosecuted, and to [m]ake sure they [i.e., Linehan, Carlin, and/or Hilke] get burned. | ||
| The second piece of evidence was the testimony offered by Lora Aspiotis, who was Linehans co-worker and friend until they had a falling out at the end of February 1996. According to Aspiotis, she and Linehan would often watch movies together, and one of these movies was The Last Seduction. | |||
| In her testimony, Aspiotis described the plot of this movie as follows: | |||
| [The story is about] a woman whos married to a doctor, and she ... talked him into doing [an illegal] drug deal, selling pharmaceutical cocaine, and he got $700,000. ... [Later,] while he was in the shower, she stole the money, [and she] took off and went to a small town where a young man lived that she met at a bar. And she could tell right away that he was very naive, ... just [a] pretty innocent guy. And eventually she talked him into trying to murder her husband for the insurance. ... [In the movie, the innocent young man] ended up in prison, and she went free with all the money. | |||
| According to Aspiotis, after she and Linehan watched this movie, Linehan told her that the protagonist was her heroine, and that she wanted to be ... just like her. | |||
Why we conclude that it was
error for the superior court to let the State
introduce the accusatory statements contained in
Leppinks letter to his parents
We turn first to the question of whether the
State should have been allowed to introduce the
portions of Leppinks letter to his parents in which
Leppink asserted that Linehan had a split personality,
and that if he died under suspicious circumstances,
Linehan, Carlin, and/or Hilke would probably be the
ones responsible.
Under Alaska Evidence Rule 803(3), hearsay
evidence may be introduced concerning a persons
assertion about their own current state of mind (i.e.,
their state of mind at the time they made the
assertion). In other words, evidence of such an
assertion is admissible as proof of the matter asserted
i.e., proof that the other person really did have that
self-declared state of mind at the time they made the
out-of-court assertion.
Sometimes, a persons state of mind will be an
element of the claim being litigated for example, a
defendants intent or knowledge, or a victims
apprehension of danger. In such cases, statements
reflecting the pertinent aspect of the persons state of
mind will be direct proof of a matter being litigated.
Generally, however, when hearsay evidence of
a persons state of mind is relevant, that relevance
will rest upon an inference about the persons related
conduct. In some instances, evidence of the persons
state of mind will be relevant because it tends to
prove or disprove some assertion about the persons
ensuing actions (or the persons failure to act). In
other instances, evidence of the persons state of mind
will be relevant because it tends to explain the nature
of the persons actions in the sense that the evidence
tends to prove or disprove some assertion about the
intent or knowledge with which the person acted.
Even though Evidence Rule 803(3) authorizes
hearsay evidence of a persons statements concerning
their own then-existing state of mind, the rule
expressly declares that hearsay testimony concerning a
persons beliefs is not admissible if it is offered to
prove the truth of those beliefs. Such hearsay
testimony is admissible only if it does not matter
whether the persons belief was true or false when the
important point is the fact that the person held this
belief (generally, again, because the fact that the
person held the belief is relevant to proving or
explaining their actions).
This second principle that hearsay evidence
of a persons belief is not admissible to prove the
truth of that belief is especially important in
homicide prosecutions where there is evidence that the
victim expressed apprehension that the defendant might
do them harm.
As our supreme court stated in Wyatt v.
State, 981 P.2d 109, 113 (Alaska 1999), [e]vidence of a
murder victims fear of the accused is inadmissible if
its only relevance is as circumstantial evidence of the
accuseds conduct. (Emphasis added) That is, the
evidence is not admissible if its probative value
depends on the impermissible inference that, because
the victim feared the accused, the accused likely did
something [in the past] or planned to do something [in
the future] to justify the fear.2
Evidence of the victims statements expressing
fear of the defendant, or expressing the belief that
the defendant would harm them, is not admissible unless
the State demonstrates that this evidence is directly
relevant to some [other] genuinely disputed issue.
Wyatt, 981 P.2d at 113.3 Normally, this means that the
State must show that the fact that the victim held this
belief (whether the belief was well-founded or not) is
directly relevant to prove or explain the victims
actions (or failure to take action). In addition, the
State must show that there is a genuine dispute between
the parties concerning the aspect of the victims
conduct to which this belief pertains.
Thus, in Wyatt, a case in which the defendant
was prosecuted for murdering his wife, the States
theory of the case hinged on the premise that Wyatts
wife was about to divorce him and that, in response,
Wyatt killed her because he feared losing control over
his wife and over her money.
At trial, the State introduced evidence that
the wife had expressed a fear of death at the
defendants hand if she pressed forward with her plans
for a divorce. Id. at 111. The supreme court held
that, even though this evidence tended to suggest that
Wyatts past actions provided good reason for his wife
to fear him, or that Wyatts subsequent actions
conformed to his wifes fear (both improper purposes),
the evidence was nevertheless admissible for a
separate, proper purpose: it was relevant to prove
the victims subsequent conduct: [The victims]
fearfulness of [Wyatts] reaction served as a tangible
measure both of how serious she was about obtaining a
divorce[,] and of the likely imminence of her action.
Id. at 114.
The supreme court further concluded that this
evidence was directly relevant to a genuinely disputed
fact because, at trial, Wyatt actively disputed that
his wife was serious about divorcing him. Id. Thus,
the evidence met the test for admissibility.
Similarly, in Linton v. State, 880 P.2d 123
(Alaska App. 1994), another case where a defendant was
prosecuted for murdering his wife, this Court upheld
the admission of evidence that the wife had told
friends that she was afraid that Linton might do her
harm, or that he might cause her to be deported to her
home country but she refused to leave him because she
would not leave her children behind. Id. at 130.
We concluded that these out-of-court
statements were admissible because they were directly
relevant to a genuinely disputed issue other than the
happening of the event[s] which produced the [victims]
state of mind. Id.
As we explained in our opinion, after Lintons
wife disappeared, Linton made a number of conflicting
statements indicating that [his wife] had left him for
another man[,] or that she had returned home to
Germany. Id. at 131. At trial, the State attempted to
show that Lintons explanations were false by proving
that Lintons deceased wife would never have considered
leaving without her two children. Id. The States
theory of the case was that Lintons wifes refusal to
leave was the thing that motivated him to kill her
because their marriage was deteriorating and Linton
wanted his wife to go home to Germany, leaving him with
sole custody of their children. Id.
Given this evidentiary backdrop, we concluded
that the challenged evidence of the wifes state of mind
was relevant to prove her ensuing conduct, and Lintons
reaction to that conduct:
[I]t [is] apparent that the state did
not offer the testimony concerning [Lintons
wifes] fear of Linton to prove that Linton
had in fact previously harmed her or to
support the impermissible subsidiary
inference that Lintons past acts of harm
toward [his wife] made it more likely that he
was her killer. Rather, the state offered
this evidence to suggest a plausible motive
for Lintons commission of the alleged
[homicide]: that Linton resorted to murder
when his attempts to talk [his wife] into
leaving and his attempts to drive her away
... failed. For this purpose, the disputed
evidence was admissible under [Evidence Rule]
803(3).
Linton, 880 P.2d at 131.
In other words, in Linton as in
Wyatt, (1) the victims state of mind was
relevant to prove the victims own ensuing
conduct, and (2) the nature of the victims
ensuing conduct was actively disputed at
trial.
With this discussion as a preface,
we turn now to the evidence that is
challenged in Linehans case: the statements
contained in the letter that Kent Leppink
sent to his parents shortly before his death.
For purposes of this appeal,
Leppinks letter contained two major
accusatory assertions. The first of these
assertions was Leppinks statement that, if he
died under suspicious circumstances, Linehan,
Carlin, and/or Hilke would be the ones
responsible for his death. The second
assertion was Leppinks statement that Linehan
had a split personality, and that one part of
her personality the part [he] fell in love
with was very beautiful. The clear
implication of this second assertion was that
Leppink believed that Linehan also had a
darker, murderous side to her nature.
Indeed, while Leppink professed his
continuing love for Linehan, he urged his
parents to do everything in their power to
take Mechele down.
Despite the fact that these two
assertions are contained in the same letter,
the admissibility of each assertion was
litigated at a separate time during the
trial.
(a) The admissibility of Leppinks assertion that, if
he died under suspicious circumstances, the guilty
parties were probably Linehan, Carlin, and/or
Hilke
The admissibility of the first accusatory
assertion in the letter Leppinks statement that,
if he died under suspicious circumstances,
Linehan, Carlin, and/or Hilke would be the guilty
parties was litigated at a pre-trial hearing
shortly before the trial, and the trial judge
announced his final ruling on this issue just
before the parties delivered their opening
statements to the jury.
During the parties arguments on this issue,
the prosecutor conceded that Leppinks statement could
not be admitted to prove that Linehan probably had a
hand in Leppinks death. Nevertheless, the prosecutor
argued that, as was true in Wyatt and Linton, Leppinks
statements about his own beliefs and fears were
relevant to prove his ensuing conduct, or the reasons
for his ensuing conduct.
Specifically, the prosecutor told the trial
judge:
Prosecutor: [Leppinks fear that Linehan
and Carlin might kill him] ... tells us
something about whats going [in Mr. Leppinks]
mind with respect to these other people. ...
We have a man that is so obsessed, so
adamant, so persistent about his relationship
with [Linehan], and ... making [that
relationship] work, that even though [Mr.
Leppink] believes [that] its very dangerous
to him, hes [still] going to pursue it.[4]
Linehans attorney argued that the
accusatory statement in Leppinks letter
should not be admitted, even if that
statement might reveal something about
Leppinks mental state, because Leppinks
mental state was not going to be contested at
trial and thus the accusatory statement did
not tend to prove, or refute, any dispute
concerning Leppinks mental state or ensuing
conduct.
The defense attorney explicitly
told the trial judge that no one is disputing
[Leppinks] state of mind, and that the
defense did not intend to raise[] any
challenge to [Leppinks] relevant mental state
[no challenge to the fact that], at the time
that he went to Hope, he was in love with
her, confused, wanted her back. In
particular, the defense attorney stated that
Linehan would not dispute that Leppink was
confused, and was looking for her in Hope,
nor would Linehan dispute that there were
problems in their relationship at the time
... , [and] Leppink [believed] that they were
engaged, [and] then he couldnt find her, and
[he believed that] she was off with somebody
else and, as not atypical in [situations] of
either jealousy or [doubt], he went and
looked for her.
After hearing these arguments, the
trial judge ruled that the State would be
allowed to introduce Leppinks accusatory
statement from the letter. The underlying
problem with the trial judges ruling on this
issue is that the judge focused exclusively
on the fact that Leppinks out-of-court
accusatory statement was probative of his
mental state, and the judge neglected to
address the other aspects of the Wyatt-Linton
test whether the statement tended to prove
anything about Leppinks mental state or his
related conduct that would actually be
disputed at trial.
In his preliminary ruling on this
issue, the trial judge declared that Leppinks
letter (including the accusation that Linehan
and Carlin would be responsible for his
death) [was] a clear reflection of [Leppinks]
emotional state at the time [he wrote the
letter]. The judge pointed out that Leppinks
statements in the letter tended to show that
he was torn between ... believing [that
Linehan and Carlin] may be out to get him,
and at the same time still wanting to
reconcile with Ms. Linehan. The judge
concluded that Leppinks statements in the
letter were relevant because his emotional
state at the time ... explains, or at least
in part explains, or helps the jury
understand, why hes maybe going to Hope
trying to find out things in Hope. Why,
maybe, hes lured there by Mr. Carlin.
One week later (just before the
parties opening statements), the trial judge
revisited this question and issued his final
ruling. In this final ruling, the judge
confirmed his earlier conclusion that
Leppinks out-of-court statement was
admissible:
The Court: [A] central question in this
case ... is the [susceptibility] of Mr.
Leppink to be lured or manipulated because of
his feelings about Ms. Linehan. ... Its
something that goes directly to both
Mr. Leppinks actions [and] the defendants
actions in this case. And that
[vulnerability] to be lured or manipulated
... can only be understood ... in the context
of the letter he writes to his parents. ...
[I]n the letter[, not only] does he express
an unrequited love for Ms. Linehan, [but] he
also expresses this belief that Ms. Linehan
is one of the people who might do him harm.
... And that reflects a depth of ...
commitment to Ms. Linehan, and I think makes
it understandable how he can be manipulated
to put himself in a vulnerable position, or
to be lured to Hope, as the State argued in
[Mr. Carlins] trial.
... I am persuaded by [the fact that]
in Wyatt ... the court held that evidence of
[Mrs. Wyatts] determination to divorce [her
husband, the defendant], despite [her] fear
of a lethal situation, demonstrated the
seriousness of her purpose and intent, and,
therefore, was probative of her state of mind
and plan for future action. You substitute a
few words here, and we have the same
situation [in this case]. Evidence of Mr.
Leppinks determination to pursue and stay in
a relationship with Ms. Linehan, despite ...
the fear of a lethal situation coming from
her, demonstrates the seriousness of his
purpose and intent, and is, therefore,
probative of his state of mind and plan for
future action.
In other words, the trial judge
concluded that Leppinks statement asserting
his belief that Linehan and Carlin might try
to kill him was relevant because (1) the fact
that Leppink would put aside this fear
demonstrated the depth of his infatuation
with Linehan, and (2) the depth of Leppinks
infatuation with Linehan the seriousness of
his purpose and intent was probative of his
plan for future action and helped to explain
how he [could] be manipulated to put himself
in a vulnerable position, or to be lured to
Hope.
As we noted earlier, the problem
with the trial judges analysis is that, under
Wyatt and Linton, the fact that Leppinks out-
of-court statement revealed something about
his emotional state, or revealed his
conflicted feelings about Linehan, is not
sufficient, by itself, to justify the
admission of Leppinks accusatory statement.
Our law requires the proponent of this type
of evidence to show that the particular state
of mind revealed by the victims out-of-court
statement is relevant to a disputed issue in
the case.
In particular, under Wyatt and
Linton, the proponent of the evidence must
show that the victims state of mind tends to
prove that the victim engaged (or did not
engage) in specific conduct that will be
disputed at trial, or that the victims state
of mind tends to prove that the victim
performed this conduct with a particular
intent, motive, or knowledge that will be
disputed at trial.
When the parties argued this issue,
the defense attorney affirmatively declared
that the defense would not be disputing any
aspect of Leppinks mental state or conduct
that the State was trying to prove with the
accusatory out-of-court statement. Under
Wyatt and Linton, after the defense attorney
declared that the challenged evidence was not
relevant to any disputed issue, the judge had
to resolve this question before the judge
could decide whether the evidence was
admissible.
If the judge believed that the
defense attorney was wrong that is, if the
judge could already identify a disputed issue
to which the challenged evidence was relevant
the judge could point out this disputed
issue. Alternatively, the judge might not
know enough about the case (i.e., enough
about how the parties intended to litigate
the case) to be able to identify which
factual issues would be disputed. In that
event, the judge could ask the prosecutor to
expressly identify the victims actions or
mental states that the State intended to
prove with the out-of-court statement, and
then the defense attorney either could
concede that these actions or mental states
would be disputed, or expressly confirm that
they would not be disputed. And, of course,
another possibility is that the judge might
agree with the defense attorney that the
challenged evidence was not relevant to any
disputed issue in which case the judge would
exclude the evidence.
But in Linehans case, the trial
judge did none of these things. Even though
the defense attorney expressly argued that
the proposed evidence was not relevant to any
disputed issue, the trial judge failed to
resolve this question.
This error might have turned out to
be insignificant if the trial evidence had,
in fact, revealed a genuine dispute about
Leppinks feelings toward Linehan, or about
Leppinks ensuing actions. But the opposite
is the case.
As we explained above, a victims
mental state is sometimes relevant because
that mental state is an element of the States
proof but that was not the case here. A
charge of first-degree murder does not
require proof that the victim had any
particular mental state. Thus, if Leppinks
mental state had relevance, that relevance
had to lie in the fact that Leppinks mental
state was circumstantial evidence tending to
prove or disprove his ensuing actions, or
tending to explain the nature of his actions
(i.e., the intent, motive, or knowledge with
which he engaged in those actions).
When the trial judge explained why
he concluded that the State should be allowed
to introduce the accusatory statement in
Leppinks letter, the core of that ruling
(which we quoted more fully earlier) was the
trial judges conclusion that, if Leppink was
willing to continue his relationship with
Linehan despite his fear that Linehan and
Carlin might kill him, this demonstrated a
depth of ... commitment to Ms. Linehan [that]
makes it understandable how he [could] be
manipulated to put himself in a vulnerable
position, or to be lured to Hope, as the
State argue[s].
The fact that Leppink was
infatuated or even obsessed with Linehan was
obviously relevant to explain why he would go
to Hope looking for her, and why he might
risk taking Carlin along with him on his
second trip to Hope. But there was no
dispute that Leppink engaged in these actions
no dispute that Leppink was lured to Hope, or
that he was manipulated into asking Carlin to
accompany him to Hope on his second trip,
thus putting himself in a vulnerable position
that allowed Carlin to murder him.
In particular, there was no dispute
that Leppink went to Hope on two occasions
shortly before his death the first time, on
the weekend of April 27th-28th, and the
second time, on April 30th or May 1st. There
was no dispute that, on both occasions,
Leppink was looking for Linehan, and that his
motivation for doing so was jealousy,
frustration, and doubt about their
relationship. And there was no dispute that,
on the second occasion, Leppink allowed
Carlin to accompany him and that Carlin
murdered him. The disputed issue was whether
Linehan was Carlins accomplice in this
murder.
Moreover, there was no dispute at
trial concerning the depth of Leppinks
infatuation with Linehan. The record is
replete with evidence that Leppink was
infatuated with Linehan and that he
repeatedly refused to abandon his
relationship with her, even though he knew
that she was seeing other men, and even
though his lawyer and members of his family
advised or warned him that he should end the
relationship.
Leppinks lawyer, Brian Brundin,
testified that Leppink came to see him
several times in April 1996 (i.e., the last
month of his life). On April 18th, Leppink
revised his will to make Linehan the primary
beneficiary of his estate. (Up until that
time, the primary beneficiaries had been
Leppinks parents.)
The next day, April 19th, Leppink
returned to Brundins office, asking about the
possibility of suing North Star Hospital (a
mental care hospital in Anchorage).
According to Brundin, Leppink said that he
visited North Star Hospital because he had
heard that Linehan was getting counseling
there, and he wanted to check up on her. The
hospital staff told Leppink that they could
not discuss another persons treatment with
him and then the hospital staff apparently
alerted Linehan that Leppink had been making
inquiries about her. This upset Leppink; he
believed that the hospital staff had violated
some duty of confidentiality by revealing
that he had come to the hospital asking
questions about Linehan.
During this same April 19th visit,
Leppink informed Brundin that Linehan was
having an affair with Carlin, a man who lived
in the same household with Leppink and
Linehan. (Brundins notes refer to this man
as Callin, but the reference to Carlin is
obvious.)
Although Leppink referred to
Linehan as his fianc‚e when he spoke about
her to Brundin, it seemed to Brundin that
this was not a good relationship for Leppink,
and that this would not be a happy marriage.
Brundin told Leppink his thoughts on this
matter.
One week later, on April 26th,
Leppink returned to Brundins office, and he
was again angry. He told Brundin that
Linehan had left, that he did not know where
she was, and that his expensive computer was
missing, along with some rugs and a bronze
statue that Leppink asserted was worth at
least $4000. Leppink told Brundin that he
had just removed Linehan as the beneficiary
of his life insurance policy, and now he
wanted to remove her as the beneficiary of
his will (the one he had just signed eight
days earlier). Acting on Brundins advice,
Leppink tore up the April 18th will in
Brundins presence thus reactivating the
earlier will that made Leppinks parents the
beneficiaries of his estate.
The statements and events of
Leppinks visit to Brundins office on April
26th might appear to indicate that Leppink
had considered Brundins warning and had
decided to take Brundins advice and end his
engagement to Linehan. But the next day (or
perhaps the day after), Leppink was down in
Hope, showing people a photograph of Linehan
and asking if they had seen her. He told
people that the photograph was of his
fianc‚e.
Leppinks mother, Betsy Leppink,
also testified about conversations she had
with Leppink in April 1996. Mrs. Leppink
testified that she received a telephone call
from her son toward the end of April.
Leppink told her that he was calling from
Girdwood, and that he was on his way to Hope.
He added, Mom, you know [that] often I cant
find Mechele. Shes missing again, and I want
to find her; I need to find her. And I have
learned that shes in Hope.
Leppinks mother tried to talk him
out of it. She said, Kent, have you even
been in Hope? ... [I]ts [just] a little ...
village. Theres just nothing there. Where
would she be in Hope? Leppink replied that
Linehan was in a cabin, and when his mother
continued to protest, he added, Well, I have
reason to believe thats where she is, and
thats where Im going.
Later in the same conversation,
Leppink mentioned that he had received his
first wedding gift: a million-dollar
insurance policy on his life, purchased by
Linehans grandfather. Leppinks mother
testified that she was shocked at this news:
Mrs. Leppink: I said, What are you
saying? And he repeated [what he had said],
and I said, Kent, thats sick, thats
absolutely sick. Ive never heard of such a
thing in all my life. And I said, And now
youre going to Hope [but] she cant be in
Hope; theres nothing there but a little
fishing village. And I was afraid for him,
and I told him that. I said, Dont go; dont
go alone; and just get out of there.
As we explained a few paragraphs
earlier, Leppink disregarded his mothers
warnings and proceeded to Hope, where he
asked about Linehan and showed her photograph
to people. That was the weekend of April
27th-28th. Mrs. Leppink spoke to her son
after he returned to Anchorage. She asked
him if he had found Linehan, and he told her
that he had not. But then he added, John
Carlin knows where she goes, and he wont tell
me.
Then, on the morning of April 30th
(which was either the day of Leppinks death,
or the day before it), Leppink called his
brother Craig in Michigan, and they spoke for
about an hour and a half. In this
conversation, Leppink expressed concern that
he could not find Linehan; he told his
brother that he hadnt seen her in a week,
[and he] didnt know where she was. Leppink
also told his brother that Linehan had taken
his laptop computer and bronze statue.
Leppinks brother told him that
there were other fish in the ocean in other
words, that if Leppinks relationship with
Linehan was not working out the way he
wanted, there were other women. But
according to his brothers testimony, Leppink
was very adamant about not wanting any other
woman. He told his brother, No, I really
love [Linehan]; I really love this lady.
Leppinks brother testified that Leppink was
goofy about Linehan that he was like a love-
struck puppy.
There was yet additional testimony
suggesting that Leppink was aware of Linehans
relationships with the other men and that,
despite this knowledge, he remained caught up
in his relationship with her.
When the troopers searched Leppinks
vehicle following his death, they found one
of Scott Hilkes business cards and a
reservation in Hilkes name at a hotel in
Natchez, Mississippi. And during Hilkes
testimony, he described an incident that
occurred while he and Linehan were spending
time together in Metairie, Louisiana (outside
of New Orleans): Leppink showed up in
Metairie unexpectedly and he even served
coffee to Hilke and Linehan when they were in
bed together.
None of the foregoing testimony was
disputed by Linehans attorneys at the trial.
In other words, there was no genuine dispute
concerning Leppinks infatuation with Linehan,
or the conflicted nature of Leppinks feelings
toward Linehan, or the actions that Leppink
took which were motivated in whole or in part
by those feelings.
We further note that when the
prosecutor delivered his summation to the
jury, he never asserted (either in his
opening summation or his rebuttal) that the
contents of Leppinks letter proved anything
about Leppinks actions or about Leppinks
state of mind. In fact, the prosecutor did
not even mention Leppinks letter, or any
statement contained in that letter, in this
context. (The prosecutor did mention
Leppinks letter in another context, which we
explain later in this opinion.)
For these reasons, we conclude that
it was error for the trial judge to allow the
prosecutor to present evidence of the first
accusatory statement in Leppinks letter to
his parents Leppinks assertion that, if he
died under suspicious circumstances, Linehan,
Carlin, and/or Hilke would probably be the
ones responsible for his death.
(b) The admissibility of Leppinks assertion that
Linehan had a split personality
The error with respect to the first
accusatory statement in the letter was compounded by
the trial judges decision to allow the prosecutor to
present evidence of the second accusatory statement in
Leppinks letter Leppinks assertion that Linehan had a
split personality.
The admissibility of this statement was not
litigated at the same time as the first. Rather, the
defense raised this issue during the fourth week of
trial (on Monday, October 8, 2007), when the State
called Leppinks mother to the stand and proposed to
have her read the text of Leppinks letter into the
record.
At this point, the trial judge had already
ruled that Leppinks first accusatory statement could be
presented to the jury, but the defense asked the trial
judge to redact Leppinks comment in the letter about
Linehan having a split personality. The trial judge
denied the defense attorneys request. Here is the text
of the judges ruling:
The Court: I dont take [the split
personality] statement as some kind of
medical or clinical diagnosis of Ms. Linehan
that Mr. Leppink was making even [if it]
were being offered for the truth [of the
matter asserted], which its not.
[Mr. Leppinks assertion that Ms. Linehan
has a split personality] strikes me as the
kind of comment that people in relationships
often make about one another. And certainly
Mr. Leppink had enough of a relationship
[with Ms. Linehan] to have observations about
Ms. Linehan, and he shared them in this
letter. ...
In the context of [the letter], I dont
find [this assertion to be] unduly
prejudicial to Ms. Linehan at all. And it
sort of sets in context [Mr. Leppinks] own
kind of split reaction to her: on the one
hand, accusing her of being involved in his
death, [and] on the other hand, expressing
his undying affection toward her and asking
[his] parents to continue to visit her, even
if she goes to jail matters that I thought
were relevant to his own state of mind. So
the objection ... to [the split personality]
statement is overruled.
This ruling suffers from the same
flaw as the trial judges earlier ruling
regarding the first accusatory statement. It
may be true that Leppinks assertion that
Linehan had a split personality revealed
something about Leppinks state of mind. But
this assertion revealed nothing about any
issue that was disputed at trial.
Moreover, the trial judge was wrong
when he concluded that this split personality
assertion posed no danger of unfair prejudice
to Linehan. Viewed in the context of the
other assertions that Leppink made in this
letter, Leppinks assertion that Linehan had a
split personality posed a clear danger of
unfair prejudice.
Leppink was obviously asserting
that Linehan had two distinct and
contradictory sides to her personality. In
his letter, Leppink described one side of
Linehans personality as beautiful, and he
declared that this was the part [he] fell in
love with. Leppink did not expressly
characterize the second side of Linehans
personality. But given the context of the
other assertions that Leppink made in his
letter, Leppinks clear implication was that
the other side of Linehans personality was
conniving and homicidal.
This is not the kind of comment
that people in relationships often make about
one another. It is an assertion of Linehans
fundamental immorality or duplicity, and it
significantly enhances Leppinks accusation of
murder. Moreover, Leppinks assertion about
Linehans purported split personality
constituted an implicit warning to the jurors
not to give any credence to the exculpatory
explanations that Linehan or her attorneys
might offer to the murder charge.
For these reasons, we conclude that
it was error for the trial judge to allow the
prosecutor to present evidence of this second
accusatory statement in Leppinks letter to
his parents.
(c) Whether these errors require reversal of
Linehans murder conviction
The State argues that any error in the trial
judges rulings was harmless because there was an
independent basis for admitting Leppinks first
accusatory assertion (Leppinks statement that, if
he died under suspicious circumstances, Linehan,
Carlin, and/or Hilke were probably responsible).
(The State fails to offer any alternative
justification for the trial judges decision to
admit Leppinks second accusatory assertion the
split personality statement.)
According to the State, Leppinks first
accusatory statement was admissible to explain
Linehans state of mind more specifically, to
explain her apparent willingness to cooperate
during her May 5th interview with the state
troopers.
To establish that the accusatory out-of-court
statement was probative on this point, the State
relies on the testimony of Leppinks brother, Lane
Leppink.
Lane Leppink (who lived in Michigan)
testified that he learned of his brothers death on
May 4, 1996. Because he knew that Linehan was his
brothers fianc‚e, Leppink called Linehan to make
sure that she knew about his brothers death.
According to Lane Leppinks testimony, he spoke to
Linehan by telephone that day (May 4th), as well
as several more times during the following days.
In his testimony about his May 4th
conversation with Linehan, Lane Leppink was asked if he
indicate[d] to her that she should be careful because
[his] parents would blame her. His answer was,
Conversation like that did get spoken, yeah. However,
it is apparent from Lane Leppinks testimony that his
May 4th comment to Linehan (about his parents blaming
Linehan for the death) was not based on the accusatory
statement contained in his brothers letter because
Leppink repeatedly stated that he did not learn about
his brothers letter until the next day, May 5th.
Lane Leppink did testify that, after he
learned about his brothers letter, he had further
conversations with Linehan in which he mentioned his
brothers accusation. But neither the defense attorney
nor the prosecutor asked Leppink to clarify exactly
when he told Linehan about this accusation.
At the end of the trial, when the parties
made their arguments to the jury, the prosecutor did
not once mention Leppinks letter during his opening
summation. The prosecutor made one mention of the
letter during his rebuttal summation, in the context of
trying to explain why Linehan was apparently so
forthcoming with information when she was interviewed
by the state troopers on May 5th. Here is the
prosecutors argument:
Prosecutor: Now, [about] the [defense
attorneys] reference to [Linehan]
volunteering information about the life
insurance, and volunteering information about
the Hope note [during her May 5th interview
with the troopers]: There is no reference by
her to either one of those things, the Hope
note or the life insurance, until her
interview on May the 5th.
Youll recall that on May the 4th shes
had extensive conversations with Lane
Leppink. And Lane Leppink has learned about
the package that [his brother] Kent sent
home, [the letter that was] in it, and what
the allegations are. So by the time
[Linehan] is interviewed on May the 5th, she
knows very well that the police know about
life insurance, and that everybody knows he
was down in Hope when he was killed. And
[the troopers] havent [yet] found the Hope
note, remember. ... So this woman is not
without brains. This is an intelligent ...
woman who ... knows exactly when she should
admit, and when she should not admit.
The prosecutors argument rests on two major
misstatements of the evidence.
First, as we have just explained,
the testimony does not support the
prosecutors assertion that Lane Leppink
informed Linehan on May 4th about the
accusation contained in his brothers letter.
In fact, the testimony contradicts the
prosecutors assertion. Lane Leppink
testified that he himself was not aware of
the letter and its accusation until May 5th.
(As we noted earlier, Lane Leppink
did testify that, after he learned of his
brothers letter on May 5th, he informed
Linehan about the letter in a later
conversation. But neither attorney asked
Leppink to specify the date or time of that
later conversation.)
Second, the troopers had found the
Hope note by the time they interviewed
Linehan on May 5th. According to the
testimony of Trooper David Tullis, the
troopers found the note in the glove
compartment of Kent Leppinks car when they
searched the car on May 4th.
We note, moreover, that the
prosecutors argument runs contrary to the
various cautionary instructions that the
trial judge gave to the jurors about the
contents of Kent Leppinks letter. Both
during the presentation of the evidence and
at the end of the trial (following the
summations of the parties), the trial judge
instructed the jurors that they could use the
assertions in Leppinks letter for only one
purpose: these assertions could be
considered only to the extent that they
revealed Leppinks state of mind. Here, for
example, is the instruction that the jurors
received at the very end of the trial:
The Court: Evidence of a letter Kent
Leppink wrote to his parents was introduced
for the purpose of showing his state of mind
close to the time of his death. You have
previously been instructed that the letter
could be considered only for the limited
purpose of deciding Kent Leppinks state of
mind. As previously instructed, you may not
consider that evidence for any other purpose.
It may not be considered as proof of whether
John Carlin III, Mechele Linehan, or Scott
Hilke did in fact participate in the murder
of Kent Leppink. Do not consider or discuss
[this] evidence for any other purpose. It
would [be] improper and unfair for you to do
this.
Under the terms of this cautionary
instruction, the jurors were forbidden from
considering the assertions in Leppinks letter
for the purpose that the prosecutor argued
that is, for the purpose of assessing
Linehans state of mind or her strategy when
dealing with the troopers.
In its brief to this Court, the
State again argues that the accusatory
statement in Leppinks letter to his parents
was independently admissible to explain why
Linehan appeared to be cooperative with the
troopers during the May 5th interview. The
State concedes that Lane Leppink did not know
about his brothers letter when he spoke to
Linehan on May 4th. However, the State
asserts that the trial testimony shows that
Lane Leppink told Linehan about the letter on
the following day, May 5th.
This is not accurate. The trial
testimony shows that Lane Leppink informed
Linehan of the accusation contained in his
brothers letter, and that he might have
informed Linehan about this accusation as
early as May 5th. But, as we have already
explained, Leppinks testimony contains no
information as to exactly when he first spoke
to Linehan about the letter. And because
this question of fact was never presented to
the trial judge, we have no ruling as to
exactly when Lane Leppink first informed
Linehan of the accusation contained in his
brothers letter.
On appeal, the appellee (that is,
the party seeking to defend the lower courts
decision) is entitled to argue for affirmance
of the trial courts ruling on any ground
revealed by the record.5 However, when the
appellee argues that the trial courts ruling
should be upheld on alternative grounds, the
appellees argument must rest on undisputed
facts.6
Here, the States alternative
argument is that the accusatory statement in
Leppinks letter was relevant because Linehans
knowledge of this accusatory statement helps
to explain Linehans conduct during her May
5th interview with the state troopers. This
argument hinges on the assertion that Linehan
learned of the accusatory statement in
Leppinks letter before she was interviewed by
the troopers on May 5th. Because the States
proposed alternative ground for affirming the
trial judges ruling rests on a factual
assertion whose truth is not obvious from the
record, and which the trial judge had no
occasion to address or resolve, we must
reject the States argument.
This brings us, then, to the
question of whether the erroneous admission
of the two accusatory statements in Leppinks
letter to his parents was so prejudicial to
the fairness of Linehans trial that we must
reverse the jurys verdict.
To answer this question, our first
task is to identify the applicable standard
for assessing whether the error requires
reversal.
Linehan asserts that the erroneous
admission of the accusatory statements in
Leppinks letter violated her Sixth Amendment
right of confrontation as defined in Crawford
v. Washington,7 and thus we must apply the
standard that governs cases of constitutional
error: that is, we must reverse her
conviction unless we conclude that the error
is harmless beyond a reasonable doubt.8
Given our conclusion that Leppinks
out-of-court accusation was not admissible
for any proper purpose, and given the fact
that Leppink obviously intended for his
parents to convey his accusation to the
authorities, there is an argument to be made
that Leppinks out-of-court accusation should
be deemed testimonial hearsay under Crawford,
and that we should therefore reverse Linehans
conviction if we are not convinced that the
error was harmless beyond a reasonable doubt
that is, if we believe that there is any
reasonable possibility that the error
affected the jurys verdict.
However, we conclude that we need
not resolve the question of whether the
accusatory statements in Leppinks letter were
testimonial hearsay because we conclude that
the error in admitting these statements
requires reversal of Linehans conviction even
under the standard that applies to non-
constitutional errors. Under this standard,
we must reverse Linehans conviction unless we
are able to fairly say that the error did not
appreciably affect the jurys verdict.9 For
the reasons we are about to explain, we
conclude it is likely that the error did
appreciably affect the verdict in this case.
Many courts have noted the
extremely prejudicial and inflammatory nature
of a victims accusatory statements from the
grave. See, e.g., People v. Coleman, 695
P.2d 189, 198; 211 Cal.Rptr. 102, 111 (Cal.
1985); State v. Prudden, 515 A.2d 1260, 1263
(N.J. App. 1986); State v. Downey, 502 A.2d
1171, 1178 (N.J. App. 1986). Even in cases
where the victims accusatory statement was
found to be properly admitted to prove or
explain the victims ensuing actions,
appellate courts have acknowledged that this
type of evidence is fraught with inherent
dangers, and that it requires rigid
limitations on its admission and its use by
the jury. See United States v. Brown, 490
F.2d 758, 766 (D.C. Cir. 1973).
When the victim of a murder was
involved in a close relationship with the
person accused of the murder, and when the
jury hears evidence that the victim feared or
predicted that they would meet death at the
hand of the defendant, it is a natural
tendency for the jury to surmise (in the
words of our supreme court in Wyatt) that
[if] the victim feared the accused, the
accused likely did something [in the past] or
planned to do something [in the future] to
justify the fear.
In Linehans case, when the
prosecutor delivered his opening statement,
the prosecutor informed the jurors of the
accusation contained in Leppinks letter.
Thereafter, the prosecutor asked several
witnesses to confirm that Leppink had accused
Linehan and Carlin of being the ones
responsible for his death. We note,
specifically, the testimony of retired state
trooper Ron Belden, the testimony of Leppinks
mother, Betsy Leppink, and the testimony of
Leppinks brother, Lane Leppink.
It is true that, in Linehans case,
the trial judge instructed the jurors that
the accusatory statements in Leppinks letter
could be considered only for the purpose of
ascertaining Leppinks state of mind near the
time of his death. The prosecutor likewise
reminded the jurors of this limitation. But
the repeated incantation of state of mind
could not cure the prejudice of this
evidence.
No one ever explained to the jurors
how, or why, Leppinks belief or suspicion
that Linehan and Carlin might conspire to
kill him had any bearing on the jurys
decision of the case. Indeed, as we have
explained at length in this opinion, Leppinks
accusation had no bearing on the jurys
decision of the case except for the improper
inference that, if Leppink had an intimate
relationship with Linehan, and if he feared
her or suspected her of wanting to kill him,
then there must have been some good reason
for his fears or suspicions.
We note that courts of other
jurisdictions have generally rejected the
claim that the erroneous admission of this
type of evidence is harmless. See, e.g.,
Clark v. United States, 412 A.2d 21, 30 (D.C.
App. 1980); State v. Ulvinen, 313 N.W.2d 425,
427-28 (Minn. 1981); People v. Lew, 441 P.2d
942, 945-46; 69 Cal.Rptr. 102, 105-06 (Cal.
1968); People v. Hamilton, 362 P.2d 473, 481;
13 Cal.Rptr. 649, 657 (Cal. 1961);10 People
v. Coleman, 451 N.E.2d 973, 977 (Ill. App.
1983).
In Shepard v. United States, 290
U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933),
the Supreme Court reversed the defendants
conviction for the murder of his wife because
the trial judge permitted the prosecutor to
introduce a statement made by the wife three
weeks prior to her death, in which she
accused the defendant of poisoning her. The
Supreme Court rejected the governments
various theories as to why this evidence was
properly admissible, although the Court
conceded that the wifes statement might have
been relevant to negate any suggestion that
she had purposely committed suicide.11
In spite of this possible
relevance, the Court held that the admission
of the wifes out-of-court accusation was
prejudicial error. The Court stated:
It will not do to say that the jury
might accept the [wifes] declarations for any
light that they cast upon the [wifes will to
live], and reject them to the extent that
they charged [her] death to [someone] else.
Discrimination so subtle is a feat beyond the
compass of ordinary minds. The reverberating
clang of those accusatory words would drown
all weaker sounds.
Shepard, 290 U.S. at 104-06, 54 S.Ct. at
25-26.
Likewise, in State v. Prudden, the
New Jersey appellate court rejected the
argument that the trial judges limiting
instruction was sufficient to prevent the
jurors from improperly using the victims out-
of-court accusation as proof of the
defendants likely conduct: [W]e are
convinced that even had more precise limiting
instructions been given, they would have been
to no avail. The reverberating clang of the
accusatory words contained in the [victims]
letter would drown all weaker sounds.
Prudden, 515 A.2d at 1263 (quoting Shepard,
290 U.S. at 104, 54 S.Ct. at 25).
Or, as the California Supreme Court
stated in People v. Coleman,
Although the trial court ruled [that]
the letters contents [were] admissible only
for the limited purposes of impeaching [the]
defendants credibility and to explain and
challenge the basis for the opinions of the
psychiatric experts, and [although the trial
court] carefully instructed the jury on these
limited proper uses for the letters, we agree
with [the] defendant that these instructions
did not and could not adequately insure
that the letters would not be considered as
proof of the truth of the hearsay accusations
they contained.
. . .
How could the jury possibly disentangle the
charges in [those] letter[s] and treat the
letter[s] only as evidence of state of mind,
and forget about the substance of the
charges?
Coleman, 695 P.2d at 196, 198.12
In the present case, we likewise
find that the trial judges limiting
instructions were ineffective to cure the
prejudice of the erroneously admitted
evidence. The jury heard several witnesses
testify that, shortly before Leppink was
killed, he wrote a letter accusing Linehan of
complicity in his murder essentially, an
accusation from the grave. Moreover, the
States evidence was not limited to witnesses
characterizations of the letter. During the
prosecutors direct examination of Leppinks
mother, Betsy Leppink, the prosecutor and
Mrs. Leppink read the text of the letter
aloud to the jury.
As we have already noted, neither
the prosecutor nor the trial judge ever
offered the jury any explanation as to how or
why the state of mind revealed by the two
accusations in Leppinks letter (Leppinks
assertions that Linehan and Carlin might
murder him, and that Linehan had a split
personality) made any difference to any
aspect of the jurys decision in this case.
This being so, it is almost inevitable that
the jurors would view Leppinks assertions as
at least circumstantial proof of the matters
asserted. In other words, the jurors would
suspect that Leppink probably knew what he
was talking about and that, if Leppink
believed that Linehan had a split personality
and was capable of plotting to murder him,
there was probably some good basis for those
beliefs.
The unfair prejudice of this type
of evidence is most acute in a prosecution
like this one, where the States case is based
almost entirely on circumstantial evidence.
The States ability to secure a guilty verdict
hinged on convincing the jury to view a large
number of ambiguous facts in the light most
favorable to Linehans guilt. In this
situation, the evidence of Leppinks
posthumous accusations may well have been the
weight that tipped the jurys decision.
As we explained earlier, we must
reverse Linehans conviction unless we are
able to fairly say that the error did not
appreciably affect the jurys verdict. Here,
we believe there is a substantial possibility
that the error did affect the verdict.
Accordingly, we reverse Linehans conviction.
Although we have concluded that
Linehans conviction must be reversed because
of the improper admission of the accusatory
statements contained in Leppinks letter, we
will also address the other two evidentiary
rulings that Linehan challenges in this
appeal, to provide guidance to the superior
court in the event that Linehan is retried.
Why we conclude that it was error for the superior
court to let the State introduce testimony that
Linehan admired and wished to emulate the
protagonist of the movie, The Last Seduction
Linehan challenges the trial judges decision
to allow the prosecutor to introduce evidence that
Linehan admired and wished to emulate the
homicidal protagonist of the movie, The Last
Seduction. In order to explain our analysis of
this question, we must first describe the trial
evidence concerning Leppinks life insurance.
In mid-1995, and again in early 1996, Linehan
told Leppink that she would marry him. In
February 1996, Linehan and Leppink visited an
insurance agent and applied for insurance policies
on their lives. Initially, they wished to
purchase $1,000,000 insurance on each of their
lives, but the insurance company would only insure
Linehans life for $150,000. On April 1, 1996,
after the underwriting was complete and the
company had agreed to issue the policies, Linehan
paid the premium for both policies. Leppink was
the sole beneficiary of Linehans policy (i.e., he
would receive a death benefit of $150,000), and
Linehan was an 80-percent beneficiary of Leppinks
policy (i.e., she would receive a death benefit of
$800,000). (The remaining 20 percent was to go to
Leppinks parents.)
During the month of April, Leppink returned
to the insurance agent several times to change the
beneficiary designation on his policy. On April 22nd,
Leppink removed Linehan as a beneficiary and instead
designated his parents as the sole beneficiaries. The
next day, April 23rd, Leppink removed his parents as
beneficiaries and made Linehan the sole beneficiary.
On that same day, Leppink asked the insurance agent
about canceling the policy and getting his money back.
Then, three days later (April 26th), Leppink
again removed Linehan as a beneficiary and designated
his father, his mother, and his brother Ransom as the
three beneficiaries. This was the status of the policy
when Leppink died a few days later.
(a) A description of the challenged evidence and
of the trial judges rulings on this evidence
It was the States theory that Linehan
conspired to have Leppink murdered so that she could
collect the life insurance. To support this theory,
the prosecutor asked the trial judge for permission to
present the testimony of Lora Aspiotis, a woman who was
Linehans friend from 1994 through February 1996.
The prosecutor told the trial judge that
Aspiotis would testify that, in late 1995 or early
1996, she and Linehan watched the movie The Last
Seduction together. According to the prosecutor,
Aspiotis would testify that Linehan declared that the
protagonist [of this movie] was her heroine, and that
she wanted to be just like her. The prosecutor argued
that Aspiotiss testimony on this point was probative of
Linehans guilt because the protagonist of The Last
Seduction was very manipulative, and because the movie
told the story of a woman who [set] up a husband to be
murdered by getting involved with another man who is
manipulated into believing [that] the circumstances are
not what they [really] are.
When the defense attorney objected to this
proposed evidence, arguing that it was prohibited
evidence of Linehans bad character, the trial judge was
openly skeptical of the defense attorneys assertion.
The judge repeatedly challenged the defense attorney to
explain how a persons act of watching a movie, or even
a persons act of declaring that they identified with an
evil character in a movie, qualified as a bad act under
Evidence Rule 404. The trial judge also challenged the
defense attorney to identify how the proposed evidence
would create a risk of unfair prejudice, or how the
proposed evidence would have any tendency to lead the
jurors to decide Linehans case on an improper basis.
The trial judge ultimately ruled that the
prosecutor would be allowed to present Aspiotiss
proposed testimony:
The Court: I dont think the remark by
Ms. Linehan that ... shes my heroine is an
act as contemplated by [Evidence Rule]
404(b). I think that [it is] an admission,
and its admissibility under that analysis
would be governed by Evidence Rule 403 [in
other words,] is ... that admission more
prejudicial [than probative].
I find that its probative value is
important to the jury. It is a statement
that [tends] to reflect a certain intent and
identification with the particular lead
actress in that plot, or the person in that
movie. There are some similarities between
that movie and what happened here. And, in
my view, given the States theory that this
was part of a plan that unfolded over months,
her state of mind months before, and her
identification with this particular person as
her heroine, is a relevant consideration for
the jury. ... It is [her] admission of
identification with the ... perpetrator [of
the murder] in the movie.
. . .
[S]ince the defendant has urged a [Rule]
404(b) analysis with respect to Ms. Aspiotiss
testimony about the movie, I think I do need
to address [that issue]. I think, in the
context of this case, if [Ms. Linehans
reaction to the movie] was determined to be
an act for [purposes of Rule 404], ... [then]
it is evidence that goes to intent,
preparation, and plan.
Where I differ with [defense counsel]
about the analysis of those particular
factors is that I think theyre really case-
specific, and there does not necessarily have
to be an extremely close proximity in terms
of time, or extremely close identity in terms
of acts, for the evidence to be necessarily
admissible. I think you need to look at it
in the context of the particular cases and
the claims asserted by the State in its
theory of the prosecution. And here the
claim is one of a plan that appeared to
evolve over months. I see a sufficient nexus
between the plot line of this particular
movie, where a lover is used as a vehicle to
kill a husband, to establish [this]
defendants intent, preparation, and plan over
months in engaging Mr. Carlin ... to commit
this particular homicide.
So ... I do find that the evidence, if
considered as an act, is ... admissible for
the purposes of establishing intent,
preparation, or plan. [Under] the same
analysis I [explained] earlier, I find that
its probative value outweighs its prejudicial
effect on the jury. And I will permit Ms.
Aspiotis to testify to her understanding of
the content of the movie and Ms. Linehans
admission about it.
Following this ruling, the
prosecutor called Aspiotis to the stand.
Aspiotis testified that she was friends with
Linehan from 1994 until February 1996, when
they ended their friendship. During the time
they were friends, Aspiotis would often watch
movies with Linehan at John Carlins house in
south Anchorage. Aspiotis then told the jury
about The Last Seduction:
Ms. Aspiotis: [There was one movie, The
Last Seduction,] about a woman whos married
to a doctor, and she had talked him into
doing [an illegal] drug deal, selling
pharmaceutical cocaine, and he got $700,000
[from selling the cocaine]. ... [Later,]
while he was in the shower, she stole the
money, [and she] took off and went to a small
town where a young man lived that she met at
a bar. And she could tell right away that he
was very naive, ... just [a] pretty innocent
guy. And eventually she talked him into
trying to murder her husband for the
insurance.
Prosecutor: And how did [the movie]
end?
Ms. Aspiotis: [The naive young man]
ended up in prison, and she went free with
all the money.
Prosecutor: ... What was [Linehans]
reaction to that movie?
Ms. Aspiotis: She told me that [this
woman] was her heroine, and that she wanted
to be ... just like her. ... She was
talking about the character [in] the movie[.]
Later in the trial, the prosecutor
asked the trial judge to allow the State to
hold a screening of the entire movie for the
jurors. The prosecutor told the trial judge
that the States case against Linehan hinged
on having the jury adopt a particular view of
a web of circumstantial evidence, and that
the strength of the States case would be
significantly enhanced if the State comes in
with [evidence of] a plan, with [evidence of]
a motive that [Linehan] has [expressly]
adopted. That evidence, the prosecutor
asserted, was Linehans statement to Aspiotis
about the main character in The Last
Seduction her statement, Thats my heroine.
I would like to be just like her. The
prosecutor argued that the jury should be
allowed to see the entire movie, to give the
State actual evidence to back [its theory] up
a piece of evidence that shows the plan that
fits all of whats going on[.]
The prosecutor conceded that the
evidence might be inflammatory but he argued
that Linehan should not be heard to object on
this ground:
Prosecutor: If [this evidence] is
inflammatory, [Ms. Linehan] has adopted that
inflammatory nature, whatever may be in
there. She has looked at this character, and
she has said, I want to be like that person
who is pretty bad and I want to do something
like that person has done which is pretty
bad. And then she has carried it out in this
case. So, yeah, in that respect, [the
evidence is inflammatory]. But shes the one
that looked at [the movie]; shes the one that
adopted it. ... She said, Thats what I want
to be like, and thats what I want to do. And
to the extent that ... you could call that
inflammatory, thats what she said; thats what
she adopted.
But, by now, the trial judge had
taken the time to watch The Last Seduction
for himself, and he was having second
thoughts about the admissibility of this
evidence. The judge described the plot of
the movie in some detail on the record. He
conceded that there were some similarities
between the plot of the movie and the States
theory of Linehans case, but he noted that
there are a lot of differences. (The judge
then described many of these differences.)
The trial judge also stated that he
now agreed with the defense attorneys that
the State had failed to establish any
temporal proximity between Linehans
statements about the movie and the occurrence
of Leppinks murder. The judge explained
that, when he ruled on the admissibility of
Aspiotiss testimony, he was under the
impression that the watching of the movie,
and Linehans statements about the movie, had
taken place in February 1996 (i.e., about two
months before the murder). But when Aspiotis
testified, she could not remember when these
events had occurred thus diminishing the
probative value of the evidence.
The trial judge concluded:
The Court: [A]lthough there is some
similarity in the theme [of the movie], the
theme of manipulation, there are too many
differences between the facts [of] this case,
as Ive heard them and as alleged [by the
State], and the [plot of the] movie
differences that, when I read the case law on
admitting these movies, would seem to be
significant. We dont have a situation here
of repeated viewings [by the defendant], or
[of] stark similarities between scenes in the
movie and the crime in question. There are
significant difference[s] here[.]
. . .
[This evidence] seems to me to have a
tendency to let jurors convict [Ms. Linehan]
because of her identification with a
character in the movie who committed other
murders and a large theft, rather than on the
basis of the evidence in this case.
Based on these conclusions, the
trial judge not only denied the States
request to screen the movie for the jurors,
but the judge also barred the State from
introducing any more testimony describing the
plot of the movie:
The Court: Ms. Aspiotis ... described
the plot line in a sufficiently accurate
sense that [the testimony] ought to be left
at that. And I think this piece of evidence
has to stand [or] fall on its own legs, as it
is ... .
(b) Why we conclude that the admission of this
testimony was error
The trial judges initial ruling on this issue
was flawed by the mistaken dichotomy that the
trial judge drew between (1) admissions of a party
opponent and (2) evidence of bad character.
The fact that a particular out-of-court
statement was made by a party-opponent means that
evidence of the statement is admissible despite the
normal bar on hearsay evidence. See Evidence Rule
801(d)(2). However, it is a completely separate
question whether this out-of-court statement is barred
by the rules that govern the admissibility of evidence
of a persons character. See Evidence Rules 404 and
405.
For example, the defendant in a robbery case
might remark to a police officer that he habitually
cheats at cards. If the prosecution wished to
introduce this statement at the defendants trial by
calling the officer who heard the defendant make the
statement, there would be no hearsay objection to the
proposed testimony because the officer heard the
defendant utter the out-of-court statement, and because
the out-of-court statement is an admission of a party
opponent. But the defendant might well have an
objection to this evidence under Evidence Rule 404(a),
because the proposed evidence appears to have no
relevance to the robbery charge except to prove the
defendants bad character.
In the present case, the State proposed to
introduce evidence (1) that Linehan had expressed
admiration for the scheming, treacherous, murderous
villain in The Last Seduction, and (2) that Linehan had
declared that she wanted to be just like this villain.
Linehan had no hearsay objection to this
proposed evidence. It was her own statement, it was
being introduced through the testimony of a witness who
personally heard her make the statement, and the
evidence was being offered by her opponent in the
litigation (the State). But this evidence clearly
raised concerns under Evidence Rule 404, because it
tended to prove Linehans bad character and it was
apparently being offered to show that Linehan acted
true to character. Thus, the trial judge committed
error when he initially failed to analyze the proposed
evidence as character evidence under Evidence Rule 404.
When this issue was litigated, the trial
judge repeatedly asked the defense attorney how the act
of watching a movie, or even a statement of admiration
for a villainous character in a movie, could qualify as
a bad act for purposes of Evidence Rule 404(b). It is
true that courts and attorneys often use a shorthand
when they speak about Evidence Rule 404(b): they refer
to the rule as governing evidence of bad acts. But
Rule 404(b) is not limited to evidence of conduct that
qualifies as a crime or conduct that would generally be
regarded as immoral. Rather, it applies to evidence of
any conduct that tends to prove a persons bad
character.
By its very language, Rule 404(b) applies to
all evidence of other crimes, wrongs, or acts. And as
the Commentary to Alaska Evidence Rule 404(b) explains,
this rule is merely a specialized ... application of
the general rule [stated in Evidence Rule 404(a)]
excluding circumstantial use of character evidence.
Evidence Rule 404(a) declares that evidence
of a persons character is normally not admissible when
it is offered as circumstantial evidence that the
person acted in conformity with their character on a
particular occasion. And even when evidence of a
persons character is admissible under one of the
exceptions to this general rule, Evidence Rule 405
declares that, in most instances, the persons character
must be established by reputation or opinion evidence,
and not by evidence of specific instances of the
persons behavior.
Alaska Evidence Rule 404(b)(1) is essentially
an amalgam of these two concepts. Rule 404(b)(1)
declares that evidence of a specific instance of a
persons behavior is not admissible when the sole
purpose of this evidence is to prove the persons
character so that the persons character can then be
used as circumstantial evidence that the person acted
in conformity with their character on another occasion.
This is a restatement of the principles codified in
Rule 404(a) and 405. Indeed, as Professors Saltzburg,
Martin, and Capra note in their treatise on the Federal
Rules of Evidence, The first sentence of Rule
404(b)[(1)] ... is probably unnecessary in light of
[the general rule stated in] Rule 404(a).13
Given the purpose of Evidence Rule 404(b), it
is evident that the rule applies not just to acts that
are intrinsically bad, but rather to any and all
conduct that is offered as a specific manifestation of
a persons character.14 Thus, Rule 404(b)(1) would
apply to evidence that a defendant has expressed
admiration for, or a desire to emulate, a notorious
villain if that evidence was being offered to prove
the defendants character, so that the defendants
character could be used as circumstantial evidence of
the defendants behavior on another occasion.
On the other hand, neither Evidence Rule
404(a) nor Evidence Rule 404(b) bars evidence simply
because the evidence tends to demonstrate a persons bad
character. These two rules bar the evidence only if
the purpose of the evidence is to prove,
circumstantially, that the person acted true to
character on the particular occasion being litigated.
If the evidence is legitimately being offered for a
different purpose, then Rules 404(a) and 404(b) do not
bar the evidence.
When litigation occurs under Evidence Rule
404(b)(1), the dispute most often arises because the
proponent of the evidence asserts that they are not
offering the evidence for the prohibited purpose of
establishing character, but instead for some other case-
specific, non-character purpose (such as the ones
listed in the second sentence of the rule). The trial
judge must then decide whether the proposed evidence
truly has a case-specific, non-character relevance, or
whether the evidence has no genuine purpose other than
to show the defendants character and the consequent
likelihood that the defendant acted in conformity with
that character during the episode being litigated.
Smithart v. State, 946 P.2d 1264, 1270-71 (Alaska App.
1997).15
In the present case, the State proposed to
introduce evidence that Linehan had expressed
admiration for, and a desire to emulate, the main
character in The Last Seduction a woman who
manipulated men and who was a treacherous murderer. If
the primary relevance of the proposed evidence rested
on the assertion that people who admire murderous
villains can be expected to act like those villains if
given the opportunity, then the evidence should have
been excluded under Evidence Rules 404(a)-(b). On the
other hand, if the proposed evidence had a significant,
case-specific relevance other than using Linehans
purported character as circumstantial evidence of her
actions, then the evidence would not be barred by Rules
404(a)-(b), and the trial judge would then be obliged
to weigh the probative value of the evidence against
its potential for unfair prejudice under Evidence Rule
403.
The parties have alerted us to several court
decisions dealing with the question of whether evidence
of a defendants admiration for the protagonist of a
movie, or the defendants obsession with a movie, should
be admissible when the defendant is prosecuted for
committing a crime similar to the criminal acts
portrayed in the movie.
Conceivably, a defendants admiration for the
protagonist of a movie might be probative of the
defendants plan or intent to commit acts similar to
those committed by the protagonist. But many law-
abiding people are drawn to characters in literature or
in the cinema who are villainous or roguish even
though they would not dream of engaging in the same
crimes or misdeeds. Moreover, even if a defendants
statement of admiration for a villain really did
manifest the defendants true character, evidence of the
defendants statement would be barred by Evidence Rules
404(a) and 404(b)(1) if the evidence had no genuine
purpose other than to establish, circumstantially, that
the defendant probably acted true to character on some
occasion.
For these reasons, courts require the
government to show a particularly close nexus between
the protagonist or the plot of a movie and the
defendants charged criminal acts before this type of
evidence will be admitted.
Thus, in Oree v. State, 630 S.E.2d 390, 393-
94 (Ga. 2006), the court found that the evidence was
admissible because the defendant watched the movie on
the night of the homicide and had watched it several
times before, and because certain details of the murder
mirrored the actions of the murderous character in the
movie. In Rushin v. State, 502 S.E.2d 454, 456 (Ga.
1998), the defendant owned a video of the movie and
watched it repeatedly, and (again) there were certain
distinctive details of the murder that mirrored the
murder portrayed in the film. In Beasley v. State, 502
S.E.2d 235, 238 (Ga. 1998), the defendant watched the
movie twenty times. And in Jones v. State, 780 N.E.2d
373, 377-78 (Ind. 2002), the defendant rented the movie
just a week before the murder, and several significant
details of the homicide (the murderers use of a knife,
his infliction of numerous stab wounds to the victims
back, and his act of washing the knife in the victims
kitchen sink after the attack) mirrored the details of
the murder portrayed in the movie.
In the present case, the trial judge made two
rulings on this issue. In the first of these rulings,
the judge concluded that evidence of Linehans
admiration for the protagonist of The Last Seduction
was admissible for the purpose of establishing her
intent, preparation, or plan. In other words, the
judge found that this evidence tended to show that
Linehan conspired with Carlin, or that she manipulated
Carlin, to accomplish the murder.
But after the trial judge heard Aspiotiss
testimony, and after the judge had a chance to
personally view the movie and to review the cases in
this area, the judge essentially changed his mind. In
his second ruling (made in response to the States
request to play the entire movie for the jury), the
judge declared that there [were] too many differences
between the facts [of] this case ... and the [plot of
the] movie. The judge pointed out that [w]e dont have
a situation here of repeated viewings [by the
defendant], or [of] stark similarities between scenes
in the movie and the crime in question. [Instead,
t]here are significant difference[s] here[.]
Given the absence of a close nexus between
the movie and the actual crime, the trial judge
concluded that the primary effect of the evidence would
be to prompt the jurors [to] convict [Ms. Linehan]
because of her identification with a character in the
movie who committed other murders and a large theft,
rather than on the basis of the evidence in this case.
This ruling, of course, gave rise to another
significant issue: what to do about the testimony that
Aspiotis had already given? As we explained
previously, the trial judge decided to let Aspiotiss
testimony stand, but to curtail the State from
introducing any other evidence about the movie:
The Court: Ms. Aspiotis ... described
the plot line in a sufficiently accurate
sense that [the testimony] ought to be left
at that. And I think this piece of evidence
has to stand [or] fall on its own legs, as it
is ... .
The problem with this approach is
that Aspiotiss description of the plot of The
Last Seduction was not sufficiently accurate.
Instead, it was misleading. Aspiotis
described the actions of the movies
protagonist this way:
[S]he met [a young guy] at a bar. And
she could tell right away that he was very
naive, ... just [a] pretty innocent guy. And
eventually she talked him into trying to
murder her husband for the insurance.
This description makes the plot of
the movie sound like the States view of
Linehans case a murder that was plotted to
obtain life insurance benefits. This is a
misleading portrayal of the movie. The
protagonist of The Last Seduction did
manipulate a young man to kill her husband,
but she did not do so with the intention of
collecting life insurance benefits. Rather,
she plotted her husbands murder so that her
husband would not be able to pursue her and
retrieve the $700,000 that she had stolen
from him.
In other words, evidence of
Linehans statements about this movie should
not have been admitted in the first place
and the jury heard an account of the movie
that was misleadingly favorable to the States
case. These errors should not be repeated at
any retrial.
Why we conclude that the trial judge did not abuse his
discretion when he allowed the prosecutor to
elicit testimony that Linehan met the men involved
in this case through her work as an exotic dancer
Before Linehans trial began, the parties
litigated the question of whether the State should
be allowed to introduce testimony that Linehan
worked as an exotic dancer.
The prosecutor argued that Linehans work as
an exotic dancer was relevant because that was how she
became acquainted with Leppink, Carlin, and Hilke. The
prosecutor asserted that Linehans employment as an
exotic dancer was a fact that weave[d] throughout her
relationships with [these] men that it explained why
the men were accustomed to ... giv[ing] money [to her],
and it also explained the certain amount of rivalry
that [was] going on ... between [the men].
The prosecutor promised the trial judge the
State [would] not attempt to use, or attempt to
attribute to [Linehan], any kind of label or any kind
of character simply because she was an exotic dancer.
The defense attorney argued that it would be
prejudicial to the fairness of the trial to let the
State use the label exotic dancer because everyone
understands that this phrase is a euphemism for
stripper. The defense attorney further argued that
most people assume that strippers are not just dancing
with their clothes off; rather, they are involved in
other acts that would be illegal [and] unsavory to most
people. Finally, the defense attorney contended that,
despite the States protestations, the State did want to
rely on the fact that Linehan worked as an exotic
dancer to prove her character specifically, to prove
that she was skilled at manipulating men for her own
ends.
The trial judge concluded that the State
should be allowed to refer to the fact that Linehan
worked as an exotic dancer:
The Court: [W]ith regard to [this]
issue ... , I have the benefit of having
heard most of the States evidence in a prior
trial [i.e., John Carlins trial]. And ...
some facts ... are so inextricably woven into
the fabric of [the] case, in terms of
understanding ... the relationships between
people, the possible motivations of people,
that [these facts] become relevant and
important ... regardless of whether ... they
are directly related to [the] essential
elements of the crime. In this case, ...
understanding how those people interacted
together, how they met, what motivations they
might have had to compete with one another
and/or be manipulated by Ms. Linehan if
thats the States theory is all related to
... Ms. Linehans employment.
The jury would have a far better
understanding of the relationships between
the various people who were living with
Ms. Linehan at the time, and competing for
her affections, by understanding how they
met, [and] the context of how they met her.
[And] putting [a] characterization on
her employment, she was a performer. The
fact that she was a performer enables [the
jury] to understand how and why she related
to the various people [in this case],
including Mr. Carlin, [and his son], and Mr.
Leppink. And I think that it is one of those
things that is necessary for the jury to have
a complete understanding of the case and,
indeed, how and why the crime may [have]
occurred here. [I]ts the States theory that
Ms. Linehan [was] an aider and abetter, or
manipulated others into committing the crime
here. I think [the jurors will] have a
better understanding of how that could have
happened by understanding what her employment
was at the time.
This ruling has two components.
The trial judge first concluded that Linehans
employment as an exotic dancer was relevant
to explain her relationships with the various
men involved in this case, and to explain the
mens relationships with each other. Second,
the trial judge concluded that Linehans
employment as an exotic dancer was relevant
to explaining her conduct in this case and
her influence over the men. Specifically,
the judge concluded that, because Linehan was
a performer, this made it more likely that
she manipulated Carlin into committing
Leppinks murder.
The first portion of this ruling is
the kind of decision that was properly within
the trial judges discretion. However, the
second portion of the trial judges ruling
poses difficult questions.
In this second portion of the
ruling, the trial judge found that Linehans
employment was relevant because it
demonstrated that she was likely a skilled
manipulator. The judges ruling was
apparently based on the following rationale:
(1) Linehans success as an exotic dancer
hinged on her skill as a performer her
ability to manipulate men into spending large
sums of money by convincing them that she
cared about them, or that they would obtain
some benefit by doing this; and thus
(2) Linehans employment as an exotic dancer
was circumstantial evidence that she could,
and would, manipulate Carlin to murder
Leppink.
Under this reasoning, the trial
judge was essentially approving the use of
Linehans profession as character evidence.
As we explained above, when this
matter was litigated in the superior court,
the prosecutor expressly declared that he
would not use the evidence for this purpose
that he would not attempt to attribute to
[Linehan] ... any kind of character simply
because she was an exotic dancer. Moreover,
this use of the evidence is seemingly
prohibited by Evidence Rule 404(a).
However, we have reviewed the
entire transcript of Linehans trial, and the
prosecutor never attempted to use evidence of
Linehans employment as an exotic dancer for
the purpose of proving her character. The
prosecutor never argued or suggested that,
because Linehan worked as an exotic dancer,
she was more likely to have manipulated a man
into committing a murder for her own ends.
Thus, to the extent that the second portion
of the trial judges ruling may have been
error, that error did not prejudice Linehan.
Conclusion
For the reasons explained here, we conclude
that the judgement of the superior court must be
reversed, and that Linehan is entitled to a new
trial.
COATS, Chief Judge, concurring.
Shortly before his death, Kent Leppink sent a
letter to his parents. The letter contained a sealed
envelope. Leppink directed his parents to not open the
sealed envelope unless something fishy happened to him.
After Leppink died, his parents opened the
envelope. In a note contained in the envelope, Leppink
stated that if he died under suspicious circumstances
that Mechele, John [Carlin] or Scott [Hilke] were the
people, or persons that probably killed me. Make sure
they get burned. He instructed his parents to [u]se
the information enclosed to take Mechele down. Make
sure she is prosecuted. Leppinks accusations that were
contained in the note are the key evidence in question
in this appeal.
All of the authority of which we are aware
holds that these accusations from the grave are
extremely prejudicial. As Judge Mannheimer states in
his majority opinion:
Many courts have noted the
extremely prejudicial and
inflammatory nature of a victims
accusatory statements from the
grave. See, e.g., People v.
Coleman, 695 P.2d 189, 198; 211
Cal.Rptr. 102, 111 (Cal. 1985);
State v. Prudden, 515 A.2d 1260
(N.J. App. 1986); State v. Downey,
502 A.2d 1171 (N.J. App. 1986).
Even in cases where the victims
accusatory statement was found to
be properly admitted to prove or
explain the victims ensuing
actions, appellate courts have
acknowledged that this type of
evidence is fraught with inherent
dangers, and that it requires rigid
limitations on its admission and
its use by the jury. See United
States v. Brown, 490 F.2d 758, 766
(D.C. Cir. 1973).
(In addition, in State v. Sanchez,1 the court found
that admission of this kind of accusation to support
the inference that the victim feared the accused or
that the accused was the perpetrator violates the
confrontation clause of the United States Constitution.
The court held that because the intended audience [of
the note] reasonably included law enforcement and the
circumstances surrounding the note indicate that an
objective declarant reasonably should have anticipated
that the State would make use of the statements at
trial ... [the] note was testimonial ...).2
Decisions of the Alaska Supreme Court are
consistent with these holdings. In Wyatt v. State,3
the court stated that the fact that a murder victim
feared the accused is inadmissible if its probative
value depends on the impermissible inference that,
because the victim feared the accused, the accused
likely did something or planned to do something to
justify the fear.4
The State does not dispute this authority.
The State concedes that Leppinks accusations that
Mechele, John or Scott were the people, or persons that
probably killed me would be inadmissible hearsay if it
was offered to prove the truth of Leppinks prediction
that Linehan would kill him. The State argues that the
note was admissible to explain Leppinks actions shortly
before the murder actions which could only be
understood when viewed in relation to the confusion
reflected in Leppinks letter ....
As Judge Mannheimer points out in the opinion
of the court, there was, however, no dispute concerning
Leppinks deep infatuation with Linehan and his confused
feelings about her, nor was there any dispute
concerning Leppinks actions. The easiest way to
demonstrate this is to discuss the Hope note. This was
the note that Linehan participated in writing that
lured Leppink to Hope, where he was murdered.
Linehan conceded that in April of 1996, she
had arranged to take a trip to Sacramento and Lake
Tahoe so that she could be with Scott Hilke, who was
then living in California. Linehan was gone between
April 25 and May 2. Before she left, she and Carlin
wrote a note that they placed where Leppink would find
it. The note, purportedly from Carlin, mentioned a
cabin which he had worked on for Linehan in Hope. The
letter implied that Linehan would be at the cabin this
weekend with another man. At the bottom of the note
was a handwritten message from Linehan indicating
please dont let anyone know where we are at.
It is uncontested that the note was a
fabrication and that there was no cabin in Hope. On
the weekend of April 27, Leppink traveled to Hope
looking for Linehan. It was during this time that
Leppink changed the beneficiaries on his life insurance
three times, tore up the will that named Linehan as the
beneficiary, and wrote the letter to his parents. The
parties do not dispute that Leppink contacted Carlin to
help him find Linehan in Hope, and that Carlin killed
Leppink there.
This evidence, which was uncontested, clearly
demonstrates Leppinks relationship with Linehan. He
was infatuated with her, didnt trust her and had very
confused feelings about her, and would likely respond
to the Hope note by trying to find her. Linehan knew
this and wrote the Hope note. Linehan contended that
she wrote the note to divert Leppink so that she could
have her romantic encounter with Hilke. The State
contended that Linehan wrote the Hope note to lure
Leppink to Hope so Carlin could kill him. But the
relationship between Leppink and Linehan was clear he
had strong and conflicted feelings about her and she
could easily manipulate him. In short, there was no
reason to admit the accusations that Leppink made in
his letter to his parents to explain that relationship
or show his actions shortly before the murder. It is
undisputed what Leppink did, why he did it, and how he
felt. The question was Linehans intent when she wrote
the Hope note.
The State also argues that the accusations
that Leppink made in the note were admissible to
explain Linehans cooperation with the state troopers
during her May 5 interview. The State contends that
the defense argued that Linehans conduct during the
investigation was consistent with her innocence that
Linehan had cooperated by volunteering knowledge about
the Desert Eagle gun, had acknowledged her relationship
with Leppink, admitted her involvement in drafting the
Hope note, and did not make a claim to the insurance
proceeds or under Leppinks will. The State argued that
it needed to explain Linehans cooperation by showing
that, before she talked to the troopers, she had been
informed about Leppinks letter.
There are several problems with the States
claim that it needed to introduce the accusation in the
letter. First, it is undisputed that, on May 4, a day
before Linehans interview with the troopers, she talked
to Lane Leppink, Kent Leppinks brother, who told her
that she should be careful because [his] parents would
blame her. So Linehan had already been informed that
she was a suspect before she talked to the troopers.
Second, as Judge Mannheimer points out in the opinion
of the court, it is unclear when Linehan was actually
informed about the letter it could well have been
after she talked to the troopers on May 5.
Furthermore, the trial court instructed the jury that
Leppinks letter was only admissible to show Leppinks
state of mind and was not admissible for any other
purpose.
In conclusion, courts appear to universally
conclude that admission of accusations from the grave
similar to the kind admitted in this case are highly
prejudicial. The reasons which the State has advanced
for admitting this evidence do not stand up to
analysis. The States case against Linehan was
circumstantial, and the evidence was subject to
different interpretations and was hardly overwhelming.
We accordingly conclude that Linehans conviction must
be reversed.
_______________________________
1 See the CourtView docket for State v. Carlin, File No. 3AN-06-
10139 Cr. According to the superior court record, which is
available online at:
www.courtrecords.alaska.gov/pa/pa.urd/pamw2000.o_case_sum?98208999
Carlins trial took place over several weeks in March 2007, and on
April 3rd the jury found Carlin guilty of first-degree murder.
Following his sentencing, Carlin appealed his conviction to this
Court. See Carlin v. State, Court of Appeals File No. A-10155.
However, before briefing of the appeal was completed, Carlin died
in prison. Accordingly, this Court dismissed Carlins appeal and
abated the prosecution against Carlin ab initio. See Order dated
December 12, 2008 in File No. A-10155. In other words, this
Court set aside Carlins conviction because he died before he
could obtain appellate review of that conviction. See Hartwell
v. State, 423 P.2d 282, 283-84 (Alaska 1967).
2 Quoting this Courts decision in Linton v. State, 880 P.2d
123, 130 (Alaska App.1994), affirmed on rehearing, 901 P.2d
439 (Alaska App.1995).
3 Again, quoting this Courts decision in Linton, 880 P.2d at
130.
4 During these same remarks to the trial judge, the prosecutor
made one additional argument as to why Leppinks assertion
might be admissible. The prosecutor argued that Leppinks
accusatory assertion was relevant because it would have
affected Linehans and Carlins perception of Leppink, and
thus it might have affected Linehans and Carlins alleged
decision to murder Leppink:
Prosecutor: [Now, if Linehan and Carlin] dont want
[Leppink] around for one reason or another, what
[Leppinks letter] tells them is, This guy aint going
away. You cant simply tell him, Its over; goodbye.
Somebody with that mind set is simply not going to go
away. ... [He] is going to be very difficult to deal
with.
But in response, the defense attorney pointed out that the
statements in Leppinks letter could not possibly have
affected Linehans and Carlins alleged decision to murder
Leppink because the contents of the letter did not come to
light until after Leppink was killed. After the defense
attorney pointed this out, the prosecutor never mentioned
this argument again.
5See, e.g., Demoski v. New, 737 P.2d 780, 786 (Alaska 1987)
(An appellee may seek to defend a judgment on any basis
established by the record, whether or not it was relied
on by the trial court or even raised before the trial
court); Millman v. State, 841 P.2d 190, 195 (Alaska
App. 1992) (same).
6See Koyukuk River Tribal Task Force on Moose Management v.
Rue, 63 P.3d 1019, 1021 n. 8 (Alaska 2003).
7541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
8See Chapman v. California, 386 U.S. 18, 24; 87 S.Ct. 824,
828; 17 L.Ed.2d 705 (1967); Love v. State, 457 P.2d
622, 633 (Alaska 1969).
9Dague v. State, 81 P.3d 274, 282 (Alaska 2003); Love, 457
P.2d at 632.
10 Overruled on other grounds in People v. Wilson, 462 P.2d
22, 29-30; 82 Cal.Rptr. 494 (Cal. 1969).
11 Shepard, 290 U.S. at 99-102, 54 S.Ct. at 23-25.
12 Quoting People v. Talle, 245 P.2d 633, 645 (Cal. App.
1952).
13Stephen A. Saltzburg, Michael M. Martin, and Daniel J.
Capra, Federal Rules of Evidence Manual (9th ed. 2006), Vol.
1, p. 404-20.
14See United States v. Vega, 188 F.3d 1150, 1154 (9th Cir.
1999): [Federal Evidence Rule 404(b)] applies to all other
acts, not just bad acts. ... Thus, despite the fact that
there is nothing intrinsically improper about Vegas prior
border crossings or bank deposits, they are nonetheless
subject to 404(b). See also Huddleston v. United States,
485 U.S. 681, 685; 108 S.Ct. 1496, 1499; 99 L.Ed.2d 771
(1988), where the Supreme Court described Federal Evidence
Rule 404(b) as generally prohibit[ing] the introduction of
evidence of extrinsic acts that might adversely reflect on
the actors character, unless that evidence bears upon a
relevant issue in the case such as motive, opportunity, or
knowledge. (Emphasis added)
15Our decision in Smithart was reversed by the Alaska Supreme
Court, but on another ground. See Smithart v. State, 988
P.2d 583 (Alaska 1999).
1 177 P.3d 444, 451-53 (Montana 2008).
2 Id. at 453.
3 981 P.2d 109 (Alaska 1999).
4 Id. at 113, quoting Linton v. State, 880 P.2d 123, 130
(Alaska App. 1994), affd on rehg 901 P.2d 439 (Alaska App.
1995).
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