|
You can of the Alaska Court of Appeals opinions.
|
|
NOTICE
The text of this opinion can be corrected before the opinion is published in the Pacific
Reporter. Readers are encouraged to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections @ appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
VALERIE LEGGETT, )
) Court of Appeals No. A-11136
Appellant, ) Trial Court No. 3KN-11-583 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
) No. 2411 - March 7, 2014
Appellee. )
)
Appeal from the District Court, Third Judicial District, Kenai,
Peter G. Ashman, Judge.
Appearances: Olena Kalytiak Davis, Anchorage, for the
Appellant. Mary Gilson, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Michael C.
Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, and Allard, Judge, and
Hanley, District Court Judge.*
Judge HANLEY.
A jury convicted Valerie Leggett of driving under the influence, and she
appeals. Leggett argues the trial court erred in finding her admission of driving was
sufficiently corroborated to satisfy the corpus delicti rule. A central issue in this appeal
* Sitting by assignment made pursuant to article IV, section 16 of the Alaska
Constitution and Administrative Rule 24(d).
----------------------- Page 2-----------------------
is whether a trial judge can consider inadmissible evidence in determining whether a
defendant's confession is sufficiently corroborated to satisfy Alaska's corpus delicti rule.
Because Alaska takes an "evidentiary foundation" approach to corpus delicti,
we conclude that Alaska Evidence Rule 104(a) applies to corpus delicti determinations.
This evidence rule declares that when a judge is making preliminary determinations
concerning the admissibility of proposed evidence, the judge is not bound by the rules
of evidence. Thus, under Evidence Rule 104(a), a trial judge may consider inadmissible
evidence when determining whether a defendant's confession is sufficiently corroborated
to satisfy the corpus delicti rule.
Leggett also argues that the court erred in not sua sponte granting a mistrial
after a key government witness invoked the Fifth Amendment, and that the court later
erred in denying Leggett's motion for a new trial on this same basis. We conclude the
trial court was not required to declare a mistrial sua sponte, and that the court did not err
when it denied Leggett's motion for a new trial.
Facts and proceedings
Valerie Leggett and her husband, Dustin Leggett, were drinking at a bar near
their home in Sterling. Later that evening, Dustin called 911 to report that Leggett had
tried to run him over. Troopers responded, and Leggett admitted she had driven. She
stated that a friend had been driving them home but she and Dustin argued during the trip.
The friend and Dustin got out of the vehicle, and Leggett drove the rest of the way to their
house - a short distance - to get to their son before Dustin did. Leggett denied trying
to run Dustin over. Both Leggett and Dustin were intoxicated.
Dustin gave conflicting information to the troopers. He said that after he
got out of the car, Leggett tried to run him over and headbutted him. But the trooper did
- 2 - 2411
----------------------- Page 3-----------------------
not believe Dustin's allegations. In fact, the evidence indicated that Dustin had assaulted
Leggett. Leggett was injured; she had a concussion and appeared to have a fractured nose.
The State charged Dustin with assault, and he ultimately pleaded guilty to harassment.
Based on the evidence that Leggett had driven the car while she was
intoxicated, Leggett was charged with driving under the influence. The State's evidence
that Leggett had driven consisted of her own admissions that she drove, plus the contents
of Dustin's 911 call and his statements to the troopers.
Leggett's defense was that her mother had driven her and Dustin home from
the bar, that Dustin lied about her driving to distract the troopers from his assault on her,
and that she had told the troopers that she had driven because she had been "extremely
intoxicated" and injured. Leggett did not contest her intoxication.
The parties and the court started trial with the assumption that Dustin would
testify. The prosecutor subpoenaed Dustin as a witness for trial, and the prosecutor told
the jury during the State's opening statement that Dustin would testify that Leggett had
driven the car. But in the middle of trial, after the two troopers testified, the prosecutor
learned that Dustin would be asserting his Fifth Amendment privilege. The prosecutor
then announced that he would not be calling Dustin as a witness.
District Court Judge pro tem Peter G. Ashman found the prosecutor had not
intentionally misled the defense and the court about his intent to call Dustin as a witness,
but Judge Ashman found that the defense would be prejudiced if Dustin did not testify.
The judge required the prosecutor to attempt to call Dustin. But after an
in camera hearing, the court ruled that Dustin had a valid Fifth Amendment claim.
Because Dustin's anticipated testimony had already been described to the
jury, Judge Ashman told Leggett's attorney that he would grant a mistrial if the defense
attorney requested one. But he clearly stated that if Leggett did not request a mistrial,
- 3 - 2411
----------------------- Page 4-----------------------
he would not grant one sua sponte. Despite the court's offers, Leggett's attorney did not
request a mistrial.
Judge Ashman also asked Leggett's attorney if Dustin's statements to the
troopers - which had been described during the testimony - should be stricken from
the record. But Leggett's attorney told the judge that she did not want the statements
stricken. The attorney told the judge that Dustin's statements should not be admitted for
the truth of the matters asserted, but that the statements should remain in the record to
show the context of the troopers' investigation. Judge Ashman instructed the jury as
requested by Leggett.
Judge Ashman denied the State's request to admit a recording of Dustin's
911 call - ruling that Dustin's hearsay statements during that call were not admissible
as excited utterances or statements of present sense impression.
After these evidentiary matters were resolved, Leggett's attorney moved
to dismiss the case, arguing that the corpus delicti rule was not satisfied. Judge Ashman
denied Leggett's motion to dismiss. He concluded that even though Dustin's out-of-court
statements were inadmissible hearsay, it was nevertheless proper for him to rely on these
hearsay statements to determine whether Leggett's admissions were sufficiently
corroborated to satisfy the corpus delicti rule. Judge Ashman analyzed the motivation
behind Leggett's and Dustin's statements, as well as the details each described. He ruled
that Leggett's admissions that she had driven were corroborated by Dustin's statements
to the 911 dispatcher and the troopers, as well as the details of Leggett's own multiple
statements.
The jury convicted Leggett of DUI. Leggett's attorney then moved for a
new trial, arguing (in pertinent part) that Leggett's trial was unfair because of the mid-trial
development that Dustin would not be testifying.
- 4 - 2411
----------------------- Page 5-----------------------
Judge Ashman denied this motion. He concluded that Leggett's attorney
had been given multiple opportunities to move for a mistrial once it was learned that
Dustin would not be testifying, and that the attorney had made a tactical decision not to
request one.
Leggett now appeals her conviction.
Leggett's corpus delicti claim
The major issue on appeal is whether a trial judge can consider inadmissible
testimony when evaluating the admissibility of a defendant's confession under Alaska's
corpus delicti rule. Leggett argues that only admissible evidence can be considered -
and, for this reason, her trial judge committed error by relying on inadmissible evidence
(in particular, Dustin's out-of-court statements) when the judge found that Leggett's
admissions to the troopers were sufficiently corroborated to satisfy the corpus delicti rule.
Under Alaska's corpus delicti rule, a defendant cannot be convicted solely
1 2
on the basis of an uncorroborated confession.
As this Court held in Langevin v. State ,
3
Alaska follows the "evidentiary foundation" approach to corpus delicti. Under this
approach,
[t]he decision regarding corpus delicti is made by the trial
judge before the case is submitted to the jury. The judge
assesses the sufficiency of the State's evidence to prove the
corpus delicti, and this decision is one of law - similar to the
judge's assessment of the sufficiency of any other evidentiary
1 Dodds v. State , 997 P.2d 536, 538 (Alaska App. 2000).
2 258 P.3d 866 (Alaska App. 2011).
3 Id. at 870.
- 5 - 2411
----------------------- Page 6-----------------------
foundation under Alaska Evidence Rule 104(a)-(b).
Assuming the judge rules that the corpus delicti had been
established, then, at the end of trial, the jury considers all of
the evidence (including the defendant's confession) and
decides whether the State has established each element of the
charged crime beyond a reasonable doubt.4
Alaska's "evidentiary foundation" approach to the corpus delicti rule appears
to be the minority position among American jurisdictions. Many American jurisdictions
consider the corpus delicti to be an implicit element of the government's proof - an
element that must be proved to the jury whenever the government's case includes evidence
of the defendant's confession. 5
Under this "implicit element" approach to the corpus
delicti rule, the government's proof of the corpus delicti must, of necessity, be based on
admissible evidence - because the jury makes the ultimate decision as to whether the
government has established the corpus delicti.
But under Alaska's "evidentiary foundation" approach to corpus delicti, the
trial judge makes a foundational evidentiary ruling as to whether the jury should hear
evidence of the defendant's confession - i.e., whether the government has offered
sufficient corroboration of the defendant's confession to allow the confession to be
presented to the jury. Because the judge's corpus delicti decision is a foundational
evidentiary ruling, the judge's ruling is governed by Alaska Evidence Rule 104. And
Evidence Rule 104(a) declares that, when a judge makes this kind of ruling (determining
whether the proponent of certain evidence has established the requisite foundation), the
judge "is not bound by the rules of evidence except those with respect to privileges."
4 Id. at 869-70 (quoting Dodds , 997 P.2d at 540 (alterations omitted)).
5 1 Kenneth S. Broun et al., McCormick on Evidence § 145 Vol. 1, pp. 804-07 (7th
ed. 2013).
- 6 - 2411
----------------------- Page 7-----------------------
In addition, Alaska Evidence Rule 101(c)(1) states that the rules of evidence
(except those relating to privilege) do not apply to "questions of fact preliminary to
[determining the] admissibility of evidence when the issue is to be determined by the judge
under Rule 104(a)."
Because Alaska's "evidentiary foundation" approach to the corpus delicti
rule is the minority approach, there are not a lot of judicial decisions from other
jurisdictions on this point of law. However, the few that we could find reach the same
conclusion that we have reached here: the judge may consider evidence that would not
be admissible in the trial itself.6
For these reasons, we hold that when the trial judge in Leggett's case was
deciding whether Leggett's confession was sufficiently corroborated to satisfy Alaska's
corpus delicti rule, the judge could properly consider Dustin Leggett's out-of-court
statements for the truth of the matters asserted, even though those statements were
inadmissible hearsay.
6 See State v. Sweat, 727 S.E.2d 691, 697 (N.C. 2012) ("Whether a defendant's
confession satisfies the corpus delicti rule is a preliminary question of admissibility governed
by Civil Procedure Rule 104(a). In ruling on this question of admissibility, a trial court 'is
not bound by the rules of evidence except those with respect to privileges.' N.C.G.S. § 8C-1,
Rule 104(a) (2011). Therefore, ... hearsay statements can be considered in determining if the
confession satisfies the corpus delicti rule."); State v. Gerlaugh , 654 P.2d 800, 806 (Ariz.
1982) ("While the statement made by [Gerlaugh's] codefendant could not be considered by
the jury to determine appellant's guilt, we find it could be used to help establish the corpus
delicti for the crimes involved, i.e., the fact that the offenses were actually committed,
without regard [to] who committed them.")
- 7 - 2411
----------------------- Page 8-----------------------
Leggett's motion for a new trial
Prior to sentencing, Leggett's attorney moved for a new trial. The attorney
argued that, due to the mid-trial development that Dustin would not be testifying, Leggett's
trial became fundamentally unfair. Judge Ashman denied the motion for a new trial
because he concluded that the defense attorney had made a tactical decision to proceed
with the trial rather than request a mistrial.
On appeal, Leggett contends that, because of Dustin's mid-trial assertion
of privilege, Judge Ashman should have sua sponte granted a mistrial. But Leggett's
attorney pointedly refused to request a mistrial even when Judge Ashman prompted her
to ask for one.
Judge Ashman later explicitly found that Leggett's attorney made a tactical
choice to reject the remedy of a mistrial and, instead, to take the trial to completion. The
record fully supports the judge's finding. And because Leggett's attorney made this
tactical choice, Leggett is not allowed to now claim, on appeal, that Judge Ashman
committed plain error by failing to declare a mistrial sua sponte.
Leggett further contends that she was unfairly surprised when Dustin refused
to testify, and that she therefore was deprived of the opportunity to confront Dustin and
his out-of-court statements. But again, Leggett's attorney expressly declined the trial
judge's offer to strike Dustin's statements in their entirety. Instead, the defense attorney
asked the judge to leave Dustin's statements in the evidentiary record (to explain the
course of the investigation), but to bar the jury from considering those statements for their
truth. The trial judge did as the defense attorney asked.
- 8 - 2411
----------------------- Page 9-----------------------
This means that Leggett has no claim under the Confrontation Clause -
because when statements are not offered for the truth of the matters asserted, the admission
of those statements does not implicate a defendant's right to confrontation.7
After the jury returned an unfavorable verdict, the defense attorney asked
for a new trial, arguing that the trial became unfair after Dustin invoked his Fifth
8
Amendment privilege. But as our supreme court explained in Owens v. State, a defendant
should not be allowed to "take a gambler's risk and complain only if the cards [fall] the
wrong way."9
Conclusion
The judgment of the district court is AFFIRMED.
7 See Christian v. State, 276 P.3d 479, 488 (Alaska App. 2012) ("The
[Confrontation] Clause ... does not bar the use of testimonial statements for purposes other
than establishing the truth of the matter asserted.") (quoting Crawford v. Washington, 541
U.S. 36, 59 n.9 (2004)) (alteration in Christian).
8 613 P.2d 259 (Alaska 1980).
9 Id. at 261 (quoting Mares v. United States , 383 F.2d 805, 808 (10th Cir. 1967)).
- 9 - 2411
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
