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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Vaska v. State (05/15/2006) sp-6013
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
IN THE SUPREME COURT OF THE STATE OF ALASKA
| STANLEY VASKA, | ) |
| ) Supreme Court No. S- 11171 | |
| Petitioner, | ) |
| ) Court of Appeals No. A-8232 | |
| v. | ) Superior Court No. 4BE-S95-111 CR |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| ) | |
| Respondent. | ) No. 6013 - May 15, 2006 |
| ) | |
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the Superior Court, Fourth Judicial
District, Bethel, Raymond M. Funk, Judge.
Appearances: Margi Mock, Assistant Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Petitioner. Kenneth
M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for Respondent.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
BRYNER, Chief Justice.
CARPENETI, Justice, dissenting in part.
MATTHEWS, Justice, with whom CARPENETI,
Justice, joins in part, dissenting.
I. INTRODUCTION
A jury found Stanley Vaska guilty of sexually abusing
T.E., a minor. The evidence identifying Vaska as the young
childs abuser included testimony of T.E.s mother describing
statements T.E. had made after the alleged abuse. Because T.E.
said at trial that she had no memory of the period in her
childhood when the abuse occurred, the trial court admitted her
mothers testimony under the catchall exception to Alaskas hearsay
rule. On appeal, Vaska argued that the trial court erred in
applying the catchall exception. In response, the state urged
the court of appeals to affirm on the alternative ground that
T.E.s statements were admissible as prior inconsistent
statements. The court of appeals accepted this argument and
affirmed Vaskas conviction, ruling that T.E.s statements were
admissible under this new theory.1 We granted Vaskas petition
for hearing and now reverse. Because Vaskas decision not to
cross-examine T.E. at trial may have been influenced by the
states exclusive reliance on the catchall exception and by its
failure to lay any foundation to admit T.E.s statements as prior
inconsistent statements, we hold that it was error to apply the
prior-inconsistent-statement provision for the first time on
appeal, and we remand to allow the court of appeals to consider
other potential grounds for affirming.
II. FACTS AND PROCEEDINGS
Three-year-old T.E. began having mood swings in the
spring of 1994. She eventually disclosed to her mother, Olga E.,
that her girl (T.E.s term for her genital area) hurt. T.E. later
told her mother that a ga-ga (the family term for monster) had
hurt her. Olga reported the abuse and took T.E. to a hospital in
Bethel for examination by Dr. Donald Burgess. Dr. Burgess asked
T.E. to show the area of her pain on an anatomically correct
doll, and T.E. responded by pointing to the dolls genital area
and to its mouth. Dr. Burgess asked T.E. who had hurt her, and
T.E. answered, Ga-ga. T.E. then referred to M.V.s daddys ga-ga.2
She placed her finger in the dolls vagina when asked how the ga-
ga hurt her. Dr. Burgess conducted a pelvic examination and
found an opening in T.E.s hymen that was larger than any he
previously observed in a girl her age. The doctor concluded that
T.E. had been penetrated by a large object. Sometime after this
examination, Olga and T.E. were walking in their home community
of Russian Mission and encountered Vaska. According to Olga,
T.E. said, Theres the ga-ga hes the ga-ga and then she pointed
at Stan [Vaska].
Vaska was later indicted and convicted on one count of
first-degree sexual abuse of a minor, T.E., and one count of
second-degree sexual abuse of another minor, M.V.3 Vaska
appealed the convictions to the court of appeals, which reversed
and ordered new trials.4
At Vaskas retrial on the count relating to T.E., the
state called T.E. as a witness and questioned her briefly, but
ended its examination after T.E. said that she could not remember
anything before the third grade. T.E.s complete testimony was as
follows:
Q: . . . . How old are you [T.E.]?
A: Ten.
Q: And do you know what your birthday is?
A: March 5.
Q: Do you know what year you were born in?
A: 1991.
Q: And youre going to school now?
A: Uh-huh (affirmative).
Q: What grade? What grade did you just
finish?
A: Fourth.
Q: Did you like school?
A: Uh-huh (affirmative).
Q: What was your teachers name?
A: Theresa Vaska.
Q: Now, do you know what it means to tell
the truth?
A: (Inaudible reply).
Q: You dont know what it means to tell the
truth? Do you know the differ well, what if
I told you its snowing in the room her [sic]
today? What am I doing?
A: Lying.
Q: Is that good?
A: Unh-unh (negative).
. . . .
Q: Now, [T.E.], do you remember back to
when you were a little tiny girl?
A: Unh-unh (negative).
Q: Whats the what think what Id like you
to do is think back in your mind and whats
the first thing you can think of as a little
girl?
(Pause)
Q: Do you remember being in kindergarten?
A: (Inaudible reply).
Q: No? Do you remember being in first
grade?
A: (Inaudible reply).
. . . .
A: No.
Q: What grade do you remember?
A: Third.
Q: Third grade? Okay. Do you whats your
moms name?
A: Olga [E.].
Q: Whats your daddys name?
A: Larry [E.].
Q: So do you remember anything before the
third grade?
A: No.
Q: Okay.
[Prosecutor]: I dont have any other
questions, Your Honor.
Defense counsel did not cross-examine T.E. The court
then told T.E., You can leave now, thats the end of your
testimony maam. The trial transcript states: (Witness excused).
After T.E. left the stand, the prosecutor asked the
superior court to find, under Alaska Rule of Evidence 804(a)(3),
that T.E. was unavailable as a witness because she lacked all
memory of her out-of-court statements.5 The prosecutor then
moved to have T.E.s statements to her mother admitted under
Evidence Rule 804(b)(5), the catchall exception to the hearsay
rule.6
The superior court stated that it would allow the
mother to testify as to the statements [T.E.] made concerning
identification of the defendant . . . . The court also stated
that theres no reason to believe . . . that these statements are
so unreliable as to be inadmissible. The court concluded that,
given the broad general exceptions under 804(b)(5), . . . given
the evidence presented to date and the review of the court file
. . . the court believes that testimony by the mother of
statements made . . . by her daughter, concerning this incident
will be admissible.
The prosecutor then called T.E.s mother to the witness
stand. She described the statements T.E. made to her about her
girl hurting and the ga-ga; she also testified that on one
occasion, when she and T.E. encountered Vaska while walking
together in Russian Mission, T.E. said, Theres the ga-ga hes
the ga-ga and then she pointed at Stan [Vaska]. The state never
sought to recall T.E. to the witness stand after she was excused.
Nor did it ever ask the trial court to admit T.E.s prior
statements as prior inconsistent statements under Alaska Evidence
Rule 801(d)(1)(A).
The jury found Vaska guilty of sexual abuse of T.E. in
the first degree. Vaska appealed, arguing that the admission of
T.E.s hearsay statements to her mother under Evidence Rule
804(b)(5)s catchall exception violated the confrontation clauses
of the state and federal constitutions.7 In response, the state
urged the court of appeals to hold, as an alternative ground for
affirming,8 that the statements were admissible as prior
inconsistent statements under Alaska Evidence Rule 801(d)(1)(A)9
a theory that the state had never previously asserted. The court
of appeals adopted this new theory and affirmed Vaskas conviction
without deciding whether T.E.s statements were admissible under
the catchall exception.10
Vaska petitioned for hearing to this court, challenging
the court of appealss ruling that T.E.s statements were
admissible as prior inconsistent statements. We granted the
petition to consider that issue.
III. DISCUSSION
A. Standard of Review
We apply de novo review in determining whether an
intermediate appellate court has erroneously applied new legal
grounds to affirm a trial courts ruling.11
B. The State Failed To Establish a Foundation for
Admitting T.E.s Prior Statements Under Evidence Rule
801(d)(1)(A).
Vaska challenges the court of appealss ruling that
T.E.s prior statements implicating Vaska were properly admitted
as prior inconsistent statements. The superior court did not
rely on this theory; instead, it ruled the statements admissible
under Alaskas catchall exception, Alaska Rule of Evidence
804(b)(5).12 Not until Vaska appealed did the state first argue
that the statements were admissible as prior inconsistent
statements.13 The court of appeals accepted the states argument
and admitted the disputed evidence on this new theory. Vaska
argues that the court of appeals erred in so ruling.
Alaska Rule of Evidence 801(d)(1) allows prior
statements of a witness to be admitted if:
The declarant testifies at the trial or
hearing and the statement is (A) inconsistent
with the declarants testimony. Unless the
interests of justice otherwise require, the
prior statement shall be excluded unless (i)
the witness was so examined while testifying
as to give the witness an opportunity to
explain or to deny the statement or (ii) the
witness has not been excused from giving
further testimony in the action.
The party offering a statement under this rule must
satisfy two foundational conditions.14 First, the offering party
must show that the prior statement is indeed inconsistent with
the declarants testimony. Inconsistency does not necessarily
require textual conflict; other circumstances, including lack of
memory at trial, may suffice.15 Because the question whether a
declarants alleged lack of memory establishes inconsistency often
becomes a disputed issue,16 a claim of inconsistency based on
faulty memory normally must be raised by the offering party at
the trial court level. The trial court is best situated to
resolve testimonial disputes of this kind, and raising the issue
in the trial court ensures that the party against whom the prior
statement is offered will have ample notice that inconsistency
has been asserted and a fair opportunity to contest this
foundational point.
The second foundational condition for admitting a prior
inconsistent statement requires that the witness who made the
prior statement be given an opportunity to explain or deny it.
Under Evidence Rule 801(d)(1)(A)(i), the offering party usually
must meet this requirement by ensuring that the witness is so
examined while testifying as to give the witness an opportunity
to explain or deny the statement. Alternatively, Evidence Rule
801(d)(1)(A)(ii) sometimes allows trial courts to admit a prior
inconsistent statement before the declarant can explain or deny
it but only if the witness has not been excused from giving
further testimony in the action.17 As the commentary to Rule
801(d)(1)(A) makes clear, however, this option applies only in
exceptional situations: Except in special cases, counsel should
lay the foundation for an inconsistent statement while the
witness who made the statement is testifying . . . .18
Ordinarily, then, Rule 801(d)(1)(A) contemplates that
both of the foundational conditions it describes should be met
before the prior statement is admitted, and while the declaring
witness is still on the stand. And at a minimum, the rule
directs that the full foundation must be laid before the
declarant has been excused from testifying.19 The text of
Evidence Rule 801(d)(1)(A)(i) makes these expectations clear by
requiring that the declarant be so examined while testifying as
to give the witness an opportunity to explain or to deny the
statement.20 It follows that when the state fails to make a prima
facie showing of compliance with the rules foundational
conditions, the defendant has no duty to cross-examine the
declarant in order to negate the existence of a proper
foundation. Indeed, to shift the foundational burden in this way
would leave a defendant like Vaska with an untenable choice:
[F]orcing a defendant to call a child complainant to testify in
order to cross-examine that individual . . . unfairly requires a
defendant to choose between his right to cross-examine a
complaining witness and his right to rely on the States burden of
proof in a criminal case.21
Although we have long recognized that the foundational
conditions for admitting a prior inconsistent statement should
not be mechanically applied in every instance,22 our adherence to
this principle assumes a corresponding showing of circumstances
establishing good cause to relax the rules clear commands; we
have never suggested that the principle of flexibility should
routinely excuse offering parties from complying with Rule
801(d)(1)(A)s foundational prerequisites. As already indicated,
the commentary to the rule precludes such an interpretation by
emphasizing that the rules foundational conditions should be
enforced except in special cases.23 This emphasis on the need for
compliance as a general rule is justified because the
foundational conditions serve the vital purpose of protecting the
rights to effective confrontation and cross-examination.24 They
do this by sparing the party against whom a prior inconsistent
statement is offered from the unfair burden of having to directly
examine a witness about a prior statement that has not yet been
shown to be admissible under Rule 801, while at the same time
preserving that partys right to fully cross-examine the declarant
about the statement if it passes muster and is properly admitted.
Moreover, when Rule 801(d)(1)(A) is invoked for the
first time on appeal, as the state invoked it here, the need to
enforce its foundational conditions takes on added importance
because those conditions serve the additional purpose of
protecting the accused from being unfairly surprised by the rules
late invocation. In this procedural setting, because compliance
with the rules foundational conditions would provide actual
notice at trial that the statement in question met the
prerequisites for admission under Rule 801(d)(1)(A), the
existence of a proper foundation would at a minimum ensure that
the accused received fair and timely warning that the rule might
be invoked.
With these considerations in mind, we turn to the facts
of this case. Here, the trial court excused T.E. and declared
her unavailable as a witness immediately after the prosecutions
preliminary questioning caused her to claim that she could not
recall anything that had happened to her before she entered third
grade. Because the state did not offer to admit T.E.s statements
as prior inconsistent statements during the trial, the adequacy
of the states foundation for admission under this theory
necessarily depends on whether the states brief examination of
T.E. established inconsistency between her trial testimony and
her prior statements and resulted in her being so examined as to
give her an opportunity to explain or deny the [prior
inconsistent] statement[s].25 T.E.s abbreviated
testimony failed to satisfy, or even address, either foundational
condition for admission under Rule 801(d)(1)(A). The court of
appeals nevertheless excused these foundational flaws, primarily
relying on two previous cases in which it had considered
foundational challenges to prior inconsistent statements: Bodine
v. State26 and Wassilie v. State.27
In Bodine, a child declarant made statements to social
workers and the police, alleging fellatio with her father.28 At
trial, she repeatedly denied that her father had ever put
anything in her mouth and also denied ever telling anybody that
he had done so.29 The trial court admitted into evidence her
statements to the social workers and police. The prosecutor had
not specifically asked the witness questions about when she made
the prior statements, to whom they were made, or their exact
contents, but when Bodine appealed, the court of appeals held
that for purposes of Rule 801(d)(1)(A), the prosecutors questions
sufficiently alluded to the subject matter of the childs
statements to the social worker and the police.30 The court of
appeals concluded that, given the childs age and the subject
matter of the interrogation, the superior court did not abuse its
discretion in admitting the statements.31
The court reached a similar conclusion in Wassilie v.
State. There, an elderly witness at trial could not remember a
statement he had made to police after he and his wife were
assaulted. The prosecutor did not directly confront the witness
with his prior statement or ask him to explain or deny it, but
did ask him whether he recalled talking to the police or the
police coming to his home.32 Even though he could not recall any
details, the witness was able to testify that his wife had in
fact been injured.33 Analogizing the witnesss limited ability to
testify to that of a child, the court of appeals recognized that
foundational requirements should not be mechanically applied in
every instance and concluded that the trial court had not abused
its discretion in admitting the prior statement despite the
minimal foundation presented.34
Here, unlike Bodine and Wassilie, where the prosecutors
conducted at least a minimal inquiry into the prior statements,
none of the questions the state posed to T.E. remotely touched
upon or even suggested the subject matter of her prior
statements. The states brief examination of T.E. consisted
entirely of preliminary, background questions covering topics
such as what it means to tell the truth, how far back in
elementary school T.E.s memory extended, and the names of her
parents. None of these questions gave T.E. an opportunity to
explain or deny any prior statements T.E. made to her mother
regarding sexual abuse by Vaska. The prosecutor failed to ask
about the subject matter of T.E.s prior statements; he likewise
failed to ask about the surrounding circumstances in which T.E.
made those statements. Nor did the state otherwise attempt to
test T.E.s lack of memory; it simply accepted at face value her
general assertion that she remembered nothing that happened
before she entered third grade.
In short, the state abandoned its examination of T.E.,
asked for her to be declared unavailable, and allowed her to be
excused without complying with either foundational prerequisite
for admitting prior inconsistent statements indeed, without
eliciting any germane testimony whatsoever. To be sure, as we
noted above, a declarant need not directly deny or contradict a
prior statement to establish inconsistency. But in our view the
duty to establish inconsistency under Rule 801(d)(1)(A) requires
something more concrete and specific than an unexplained
statement asserting a general memory loss of everything before
third grade. By the same token, while it seems safe to assume
that the states duty to give T.E. a chance to explain or deny her
prior statements might be minimal under the circumstances
presented here, the state offers no persuasive justification for
ignoring this condition completely. The states near-total
failure to lay a foundation provides a strong factual ground
distinguishing this case from Bodine and Wassilie.
The dissent tries to dismiss Rule 801(d)(1)(A)s
opportunity-to-explain requirement as merely a dispensable frill.35
Citing McMaster v. State,36 it suggests that this requirement is
distinctly optional where the witness is a young child.37 But
McMaster is readily distinguishable from this case, as are other
cases that have condoned relaxing the rules foundational
conditions such as Bodine and Wassilie because they all
involved situations in which the disputed witnesses had been
available to testify, had actually given meaningful testimony
about the offenses at issue, and had subjected themselves to
cross-examination on their testimony. Here, by contrast, the
witness was excused and declared unavailable without offering any
relevant testimony and, as we discuss further below, this
occurred under circumstances in which Vaskas counsel had no
reason to believe that the state might later claim that her brief
appearance on the stand had testimonial significance under Rule
801(d)(1)(A).
Another important procedural distinction exists here as
well. Our opinion in McMaster and the court of appealss opinions
in Bodine and Wassilie reviewed and affirmed decisions in which
trial judges exercised their broad powers of discretion to admit
evidence that was expressly offered at trial under Rule
801(d)(1)(A). As the court of appeals itself emphasized in
deciding Bodine, In determining the sufficiency of the foundation
for admission of prior inconsistent statements, the trial court
is allowed considerable latitude, particularly where the witness
is a young child.38 By sharp contrast, in Vaskas case, the state
raised Rule 801(d)(1)(A) as a theory for admission for the first
time on appeal; and the court of appeals declared the disputed
evidence admissible not out of deference to trial court
discretion exercised in applying this rule, but rather by
independently ruling as a matter of law that, despite the lack of
a proper foundation, T.E.s statements were admissible under Rule
801(d)(1)(A).
This ruling is problematic for several reasons. When
an offer of evidence presented at trial fails to comply with
formal requirements set out in our evidence rules, trial judges
commonly exercise broad discretion in deciding whether the
offered evidence should be admitted despite its formal lack of
compliance, usually basing their decisions in large part on a
careful consideration of the precise facts at issue in the case
at hand.
Because such decisions rely heavily on case-specific factual
considerations, they fall squarely within the domain of trial
courts, not appellate tribunals, as demonstrated by the fact that
appellate review in such cases is typically deferential.39 After
all, an appellate court lacks the trial courts ability to observe
witnesses, assess credibility, weigh competing evidence, and
resolve disputed facts all essential tools for fact-based
discretion. Accordingly, when foundational facts have not been
established and the trial court has never been asked to consider
a theory of admissibility freshly raised on appeal, it would seem
problematic for an appellate tribunal to resolve the disputed
issue by exercising fact-based discretion; yet it seems equally
problematic to decide the controversy as if it presented a pure
issue of law.
We recognize of course that an appellate court
ordinarily has broad authority to affirm a trial courts ruling on
any legal theory established in the appellate record.40 But this
rule is not absolute. By its own terms, it applies only to
issues of law that find support in settled facts. It does not
extend to new theories that would normally be resolved by
discretionary powers traditionally reserved for trial courts
powers relying on case-specific consideration of disputed or
disputable issues of fact.
The rule allowing appellate courts to affirm on any
legal theory also must be tempered by the need for procedural
fairness. As we have previously indicated, invoking Rule
801(d)(1)(A) for the first time on appeal raises unique concerns
relating to fair notice. Specifically, it would seem
fundamentally unfair to apply a legal theory raised for the first
time on appeal if a different theory asserted by the prosecution
at trial encouraged the defendant to chart a procedural course
that might not have been taken if the prosecutions new legal
theory had been timely asserted. The circumstances of Vaskas
case suggest the potential for this kind of unfairness.
The prosecution ended T.E.s direct examination and
asked to have her declared unavailable without any inquiry into
the alleged offense or any effort to lay a proper foundation for
admitting her prior statements as prior inconsistent statements
under Rule 801(d). Because T.E. had said nothing relevant and
the prosecution offered no clue that it might later use her
limited direct examination as a foundation to introduce her
earlier out-of-court statements, Vaska unsurprisingly declined
to cross-examine. The prosecution immediately moved to excuse
T.E. as a witness, and the trial court formally excused her. The
state then asked the superior court to declare T.E. unavailable
under Rule 804(a)(3) because she lacked any relevant memory; at
the same time, it asked to admit T.E.s prior statements under the
catchall exception. Despite strenuous objections by Vaska, the
superior court granted the states motions and admitted T.E.s
prior statements under the catchall exception.
On appeal, the state opted to advance a new legal
theory, urging the court of appeals to hold that T.E.s statements
would have been admissible as prior inconsistent statements under
Rule 801(d)(1)(A)41 a ground that the state never mentioned at
trial. In accepting this theory, the court of appeals expressed
the view that T.E.s lack of memory did not deprive Vaska of a
fair opportunity for cross-examination;42 the court then ruled
that T.E.s declarations were admissible as prior inconsistent
statements.43
Yet given the totality of these circumstances, it seems
to us that invoking the states new legal theory for the first
time on appeal potentially exposed Vaska to unfair prejudice by
undercutting tactical choices he might have made in reliance on
the theory of admissibility invoked by the state at trial the
catchall exception. As set out in Evidence Rule 804(b)(5), the
catchall exception applies only when (a) the declarant is unable
to testify in other words, is unavailable as a witness;44 (b) no
other hearsay exception specifically cover[s] the proposed out-of-
court statements;45 and (c) the statements are shown to have
equivalent circumstantial guarantees of trustworthiness in
comparison to specifically covered exceptions in other words,
trustworthiness so strong that adversarial testing through cross-
examination would not benefit the defendant.46 In light of the
catchall rules requirements, when the superior court found T.E.s
statements admissible under this rule, it effectively determined
that T.E. had shown herself to be incapable of providing any
useful testimony, that her prior statements were not specifically
covered by any other exception, and that they were so reliable
that Vaska had no need to cross-examine her. In short, by
accepting the states theory of admissibility at trial and
applying the catchall exception, the superior court effectively
told Vaska that there was no real reason to cross-examine T.E.
By contrast, the rule applied on appeal, Evidence
Rule 801(d)(1)(A)s prior-inconsistent-statement provision,
requires the declarant to testify and be available for meaningful
cross-examination. When realistically viewed, the findings
required under the states newly raised theory flatly conflict
with the superior courts express finding that T.E. was in fact
not available to testify a finding specifically requested by the
state and authorized under Rule 804(a)(3).47 The court of
appealss conclusion that T.E. was available for meaningful cross-
examination also conflicts with the trial courts finding that
T.E.s statements met the guarantee of trustworthiness required
under Rule 804(b)(5) a finding implicitly determining that cross-
examination would not provide any meaningful benefit to Vaska.48
To be sure, as the state now points out, a finding of
unavailability under Rule 804(a)(3) does not necessarily equate
to a legal determination that the witness could not have been
meaningfully cross-examined in a way that would satisfy the
accuseds constitutional right of confrontation.49 But this
abstract constitutional distinction begs the practical question
at issue here: whether the particular manner in which the state
chose to present its case at trial could have influenced Vaskas
tactical choices. Here, as already mentioned, the state
terminated T.E.s direct examination at the earliest opportunity,
without questioning her about any circumstances relevant to the
case at hand and without making any attempt to lay a foundation
for introducing her earlier declarations as prior inconsistent
statements. The state then immediately asked to have T.E.
declared unavailable and simultaneously asked the court to admit
her out-of-court statements under the catchall exception.
At no time during the trial did the state do or say
anything to suggest that it might later seek to introduce T.E.s
out-of-court statements on a basis that would authorize their
admission only if T.E. actually testified and could be
meaningfully cross-examined. Given that the states chosen theory
of admissibility at trial did not require T.E. to testify and,
indeed, assumed that cross-examination would be unhelpful, the
totality of the circumstances could easily have led Vaskas trial
counsel to conclude quite reasonably that cross-examining her
would be pointless, even though under different circumstances
asserting that procedural right might have been crucial.
As the state itself recognizes, Vaskas decision to
waive cross-examination at trial reflects a tactical choice. Yet
despite this recognition, the state ignores the most likely
tactical explanation for Vaskas choice: the states own strategic
decision to cut short T.E.s testimony, have her declared
unavailable, and ask that her earlier statements be admitted on
grounds wholly unrelated to her ability to appear as a witness at
trial or to be meaningfully cross-examined. Theoretically, of
course, Vaska remained free to cross-examine T.E; but as a
practical matter, the states tactical choice gave Vaska no
immediate reason to conduct cross-examination, and it suggested
no foreseeable reason. Indeed, it appears that the states most
likely purpose in deciding to seek admission at trial under the
catchall exception, instead of on alternative grounds that would
have required T.E.s presence, was to spare T.E. from having to
face the emotional trauma of cross-examination.50 From the states
perspective at trial, T.E. had no meaningful testimony to offer,
so there was no point in initiating an ongoing dispute over her
present ability to testify and be meaningfully cross-examined a
dispute that the state was bound to invite unless it relied on
the catchall provision.51
Under these circumstances, it is unrealistic to
suggest, as the dissent does, that Vaskas trial counsel had a
duty to cross-examine T.E. about her prior statements to her
mother, or to call her back for cross-examination, if he wanted
to avoid losing Vaskas right to challenge the states future (but
then-unforeseeable) efforts to have T.E.s statements declared
admissible on new grounds. While it might be correct as an
abstract legal proposition to say that T.E. was always available
and could have been cross-examined, by any practical measure the
proposition is hardly convincing.52
In summary, when the state chooses not to offer
evidence under the prior-inconsistent-statement theory at trial,
fails to lay a proper foundation for admission under this theory,
and relies instead on the catchall exception, its tactical
choices could easily lead the accused to reasonably believe that
the declarants testimony and testimonial credibility are not at
issue and that no question of inconsistency has been raised;
these beliefs may in turn shape the accuseds conduct at trial by
persuading him that, under the circumstances, the inherent risks
of cross-examining the declarant outweigh the potential benefit.
If the state later invokes Rule 801(d)(1)(A) on appeal in a
situation like this, we think that the foundational conditions of
Rule 801(d)(1)(A) should generally be enforced because of the
crucial role they can play in avoiding surprise and unfair
prejudice. Considering the totality of the circumstances
presented in this case, we are unable to conclude that the state
laid an adequate foundation for admitting T.E.s prior statements
to her mother under Rule 801(d)(1)(A).
The dissenting opinion nonetheless reasons that T.E.s
out-of-court statements were alternatively admissible and may
actually have been admitted as prior identifications under
Evidence Rule 801(d)(1)(C).53 Some comments are in order to
explain why we are unpersuaded by the dissents thoughtful
discussion of this theory.
Initially, we note that our own review of the trial
transcript leaves us unconvinced that the superior court actually
admitted, or even considered admitting, T.E.s statements as
evidence of prior identification. As we read the record, it
seems as likely that the trial court admitted them only under the
catchall exception, Rule 801(d)(1)(A).54 But even if we assumed
that Judge Funk found T.E.s statements admissible on this other
alternative ground, his ruling would provide no occasion for this
court to affirm the court of appealss decision.
The alternative theories discussed by the dissents have
never been raised by the state, addressed by Vaskas counsel, or
considered by the court of appeals; they have been proposed only
by the dissents. Because adversary briefing serves as the
foundation of due process in an appellate forum, it would hardly
seem right for this court to rely on yet another set of
alternative legal grounds grounds that the court of appeals
never had an opportunity to consider and that neither party has
ever recognized, let alone briefed. Absent briefing on the
issue, we are in no position to decide whether T.E.s statements
were inevitably admissible under Rule 801(d)(1)(C) as prior
identifications.
We granted Vaskas petition to decide whether the court
of appeals correctly affirmed on the newly raised legal theory
that T.E.s statements were admissible under the prior
inconsistent statement provision, and we have resolved that
issue. Our decision on that narrow point does not suggest that
the disputed evidence was inadmissible on other legal grounds.
To the contrary, it leaves the court of appeals ample room to
consider on remand any other alternative legal ground for
affirming, including harmless error, so long as both parties have
fair notice of the ground and an opportunity to address it, and
provided that the ground finds support in the record and can be
applied without unfairly altering procedural expectations formed
during the trial court proceedings.55
IV. CONCLUSION
For these reasons, we REVERSE the evidentiary ruling of
the court of appeals on the limited ground that the rationale
adopted by that court was unsound. We REMAND to the court of
appeals for further proceedings consistent with this opinion,
including further consideration to determine whether T.E.s
statements were admissible on other legal grounds and whether
improper admission of the statements would have amounted to
harmless error.
CARPENETI, Justice, dissenting in part.
I agree with the analysis contained in Part III.B. of
todays Opinion, which holds that the state failed to establish a
foundation for admitting T.E.s prior statements under Evidence
Rule 801(d)(1)(A). But I do not join the Opinion in this regard,
because I do not believe it is necessary to reach this issue in
this case. The trial courts decision can and should be affirmed
on the grounds on which the trial court admitted the evidence,
identification of a person under Evidence Rule 801(d)(1)(C).1
This is the thesis of Part II of Justice Matthewss dissent, with
which I agree. For this reason, I join in Part II of the
dissent.
A review of the trial record convinces me that Judge
Funk correctly admitted the disputed evidence on the basis of
Evidence Rule 801(d)(1)(C). That is a sufficient basis for
affirmance. Accordingly, I would affirm Vaskas conviction on the
ground that the superior court correctly admitted the disputed
evidence.
MATTHEWS, Justice, with whom CARPENETI, Justice, joins as to part
II, dissenting.
Todays opinion holds that because T.E.s statements to
her mother were not offered into evidence as prior inconsistent
statements, the court of appeals erred when it held the
statements to be admissible on that basis. The opinion
acknowledges the rule that an appellate court may affirm a trial
courts ruling on grounds other than those relied on by the trial
court. But the court holds that this doctrine cannot be relied
on in this case because (1) no foundation was established for the
admission of the statements on prior inconsistent statement
grounds and (2) Vaska might have decided to cross-examine T.E. if
he had known that the statements were offered on the ground that
they were prior inconsistent statements.
I disagree and would affirm the decision of the court
of appeals based on the rationale expressed by the court of
appeals. In my view a satisfactory foundation for admission of
the statements on prior inconsistent statement grounds was
established. Further, affirming on prior inconsistent statement
grounds does not result in unfairness to Vaska because he knew
the statements were going to be offered and he had an opportunity
to cross-examine T.E. concerning them and her lack of memory. In
addition, I believe that the trial court also admitted the
statements on a separate ground, namely, that they were
statements of identification of a person. I would affirm on this
basis as well.
I will first discuss the trial courts decision, next
the question of admissibility of the statements as statements of
identification, and last why I believe that the prior
inconsistent statement rationale employed by the court of appeals
is correct and justifies affirmance.
I. The Trial Courts Decision
My first disagreement with the court is based on
differences as to what happened at the trial. The court
concludes that Judge Funk admitted T.E.s out-of-court statements
under Evidence Rule 804(b)(5), the catch-all exception. Although
I acknowledge that the catch-all exception was the basis of the
states offer, it was not the sole basis of the superior courts
decision to admit the evidence. Instead, Judge Funk admitted the
evidence on two alternative grounds. First, he ruled that Olga
E.s account of her daughters prior statements was admissible as
prior identifications.1 Only after this ruling, and without in
any way receding from it, did he also rule that the testimony
would be allowed under the catch-all exception. In the
paragraphs that follow I will explain this in some detail.
Olga and the doctor who examined T.E. testified to
several out-of-court statements made by T.E. First, Dr.
Burgess, who examined T.E. a few days after the assault,
testified that he asked T.E. who hurt her. She replied: [M.V.]s
daddys ga-ga which signified that [M.V.]s father, Vaska, was the
perpetrator. Second, Olga testified to four prior statements by
T.E. First, she said that T.E. told her that her girl was
hurting, girl being their word for T.E.s vagina. The second
statement was that T.E. said a ga-ga had hurt her, a word Olga
translated as monster. Third, prior to Dr. Burgesss examination,
Olga testified that T.E. told her that [M.V.]s dad hurt her.
Fourth, she related how T.E. saw Vaska while she and T.E. were
walking in Russian Mission and identified him to her as the ga-
ga.
The admissibility of the doctors statement is not at
issue, because Vaska did not object to it at trial and has not
challenged its admission in his petition for hearing. But the
doctors written report was objected to on hearsay grounds. The
report included a form child abuse report filled out by Dr.
Burgess. This form report is important. It contains T.E.s
statement to Dr. Burgess that [M.V.]s daddys gocha hurt her, and
sets out Olgas account of T.E.s report to Olga of T.E.s sexual
abuse by Vaska. In objecting to the report Vaskas counsel made
it clear that his biggest concern was paragraph VIII of the form
report, which is Olgas account of T.E.s statements to Olga.2
Initially Judge Funk indicated that the report might
come in as a medical record under Evidence Rule 803(4). But
defense counsel pointed out that the identification of the
perpetrator would not be permitted under that exception. The
court found that this observation was well taken, but after
further study indicated that the identification made by the child
would not be hearsay under Evidence Rule 801(d)(1)(C)3 if the
child testified at trial. In so ruling the court mentioned Rule
801(d)(1)(C) expressly, along with a court of appeals case
concerning the rule, Bell v. State.4 At that point the child had
not yet testified and the court deferred ruling on the admission
of the report.5
Subsequently, there was a colloquy on whether Olgas
testimony was inadmissible as hearsay, and it was this colloquy
that led to the ruling challenged here. The colloquy occurred in
the interval after Dr. Burgess and T.E. had testified and before
Olga took the stand. Immediately after T.E. was excused, the
prosecutor asked that the court declare T.E. unavailable under
Rule 804(a)(3), so that her out-of court statements could be
admitted under the catch-all exception of Rule 804(b)(5). Under
Rule 804, a declarant (here T.E.) is unavailable to testify where
the declarant establishes a lack of memory of the subject matter
of the declarants statement.6 If a declarant is unavailable in
this way, her out-of-court statements can come in under Rule
804(b)(5) provided the other, somewhat open-ended prerequisites
of that rule are also met. In making the offer, the prosecutor
said he would be seeking to admit certain statements made by
[T.E.], so that it doesnt have to come up every time as
potentially as an objection. The prosecutor noted that
statements made by T.E. could also be admitted under some other
grounds. The prosecutors offer was thus evidently an effort to
save time and avoid numerous objections during Olgas forthcoming
testimony; it amounted to an attempt to have Olgas testimony
declared admissible in advance. The content of this testimony
was familiar to both parties, inasmuch as Olga had testified at
the first trial about T.E.s statements.
In response to this offer (and throughout the
colloquy), defense counsel never argued that T.E.s lack of memory
had not been established, or that the court should not declare
her unavailable. Instead, after the offer, Judge Funk pointed
out that one of T.E.s out-of-court statements had [come] in
already without objection. This was a reference to Dr. Burgesss
testimony. Defense counsel responded apparently to explain why
he did not object to the doctors testimony noting that once T.E.
testified the doctors testimony would be admissible under 801 and
my reading of the Bell case. The reference to the Bell case was,
again, a reference to Bell v. State.7 In Bell, the court stated
that even if an out-of-court statement could not come in under an
exception for medical diagnoses, the statement might be
admissible as a prior identification under 801(d)(1)(C).8
As I have noted, Bell had already come up in the
colloquy over whether to admit the doctors medical report into
evidence, so Judge Funk was familiar with the case. This
discussion of Bell seemed to prompt the court to conclude that
the out-of-court statements to Olga should be admissible as prior
identifications under Rule 801(d)(1)(C), even though the states
offer had been based on the catch-all exception of Rule
804(b)(5). Specifically, both defense counsel and the court
recognized that one issue was admissibility under Evidence Rule
801. Defense counsel mentioned the rule explicitly, and the
court described the rule by its subject, prior identifications.
After the court stated that one of the childs statements had
already come in without objection, the colloquy continued:
MR. SOBERAY: I understand that because
my reading of the Bell case was such that
unless she testifies -- if she doesnt testify
then they wouldnt be admissible. If she has
testified under 801, I think its admissible.
THE COURT: It appears to me I mean
theyre a little ambiguous in the way the
Court of Appeals and Judge Singletons
language makes it ambiguous but it appears to
the court that if the defendant[9] testifies
then, if what it is is an identification.
Then prior identifications are admissible.
MR. SOBERAY: Right.
THE COURT: And that appears to be whats
the issue bef -- in this, is a prior
identifications. . . .
(Emphasis added.) Judge Funk then expanded on this with a
statement that seemed to be based not only on Rule 801(d)(1)(C)
(prior identifications), but also on a case not previously
mentioned by the parties, Natkong v. State:10
Under Natkong v. State, Alaska App. 96, the
court had faced issues where a lack of memory
or refusal to testify came up and the Court
of Appeals affirmed [the] ruling that prior
statements describing the sexual amus --
abuse were admissible. It appears to the
court that if you consider that they were
statements by a very young girl to more than
one person, that they -- or issues of
identification, that they were issues
involving sexual abuse that there is
consistent case law that such prior
statements, prior identifications, come in.
That theres no reason to believe any
particular reasons to find that these
statements are so unreliable as to be
inadmissible. Certainly the extent of such
statements and the -- are a subject for the
weight to be considered by the jury after
appropriate cross examination argument. So
the court would allow the mother to testify
as to the statements that [T.E.] made
concerning identification of the defendant
and/or concerning the sexual abuse she
suffered at the age that she was at the time.
Do we need anything else at this point.
(Emphasis added.)
Natkong construes Rule 801(d)(1)(A), which admits prior
inconsistent statements of a witness that would otherwise be
hearsay.11 Judge Funk may have been saying that T.E.s inability
to remember the assault, which the state had said made her
unavailable for purposes of the catch-all, was also what made her
testimony inconsistent with her prior out-of-court statement for
purposes of Rule 801(d)(1)(A). But this reference to Natkong
does not clearly show that Judge Funk also relied on a prior
inconsistent statement rationale for admitting the evidence for
two reasons. First, Natkong contains a discussion of the
admission on prior identification grounds of statements that a
witness has forgotten.12 Second, Natkong contains a sentence
that mentions Rule 804(b)(5), the catch-all, as an acceptable
alternative ground for admitting the out-of-court statement
involved there.13 The important point, in my view, is that this
part of the colloquy, with its many references to prior
identifications, its discussion of the Bell case, and counsels
express mention of Rule 801, indicates that the mothers testimony
was found admissible because it satisfied the prior
identification criteria of Rule 801.
After this ruling, Vaskas lawyer did not object or
directly register his disagreement with the courts decision to
allow the mother to testify as to the statements that [T.E.] made
concerning identification of the defendant and/or concerning the
sexual abuse she suffered at the age that she was at the time.
Instead he raised the possibility that the out-of-court
statements might be thought admissible under a different hearsay
exception, not mentioned by the court or the state and then he
explained why he believed this exception did not apply. More
specifically, after the court asked if we need anything else at
this point, defense counsel asked to just make my argument, even
though he said he understood that the court has ruled. Urged to
continue, Vaskas lawyer then cited several cases, among them
Greenway v. State,14 discussing the common law hearsay exception
for first reports of a sexual assault. Although up to this point
this exception had not been raised by anyone, the defense argued
that the exception should not apply because too much time had
supposedly elapsed between the assault and T.E.s report.15
Judge Funk responded by saying that [t]he court will
still allow the out-of-court statements. He appeared to
appreciate that Vaska was arguing that the first report exception
should not apply, but did not, at least not clearly, address this
exception. Instead he said that any delay in reporting the
assault was irrelevant, because its not just a witness talking
about a prior event, but it is someone identifying a defendant as
causing an injury, it is a specific prior statement about sex
abuse. (Emphasis added.) This again suggests a reliance on the
prior identification. But then, right at the end, Judge Funk
concluded in a way that suggested he thought the out-of-court
statements in the mothers testimony were admissible under Rule
804(b)(5), the catch-all exception initially raised by the state.
Specifically, the court said that the time lag was not a
sufficient basis, given broad general exceptions under 804(b)(5)
to exclude the testimony by the mother of statements made . . .
by her daughter, concerning this incident. On this note, the
colloquy came to a close. Defense counsel made a continuing
objection to Olgas testimony so as to not interrupt that
testimony, which the court acknowledged, and then Olga was called
to the stand.
Putting aside for a moment whether the decision to
admit the evidence was erroneous, I draw two conclusions from
this colloquy.
First, Judge Funks initial ruling the one in which he
discussed Bell and made numerous references to prior
identifications must be evaluated on review. This is the
clearest statement of the courts rationale, and unlike the
somewhat haphazard response to Vaskas first report argument, it
was clearly based on independent research and some forethought.
This first ruling was based at least in part on Rule
801(d)(1)(C), the prior identification rule. This is seen in the
courts (and defense counsels) references to Bell, in the courts
repeated characterization of T.E.s statements as prior identifica
tions, and in defense counsels reference to Rule 801.16 When
evidence is admitted on two or more grounds, one of which has
been correctly applied and justifies the admission, admitting the
statement is not grounds for reversal.17
Second, it should be clear that insofar as Judge Funk
relied on the catch-all ground under Rule 804(b)(5), this ruling
was based on T.E.s unavailability, which in turn was based on her
apparent inability to remember the assault and her statements
concerning it. Vaska never contested her lack of memory, and
does not do so on appeal. He states, without sarcasm, in his
reply brief that T.E.s memory loss amounted to virtual amnesia .
. . .
II. The Trial Courts Decision on Prior Identification Grounds
Was Not Erroneous.
It seems clear to me that T.E.s out-of-court statements
were admissible as statements of identification of a person made
after perceiving the person under subpart (C) of Rule 801(d)(1).
T.E. told her mother prior to Dr. Burgesss examination but after
T.E.s report of vaginal irritation that [M.V.]s dad [Vaska] hurt
her. In addition, sometime later while walking in Russian
Mission with Olga, T.E. identified Vaska as the ga-ga, or
perpetrator of the assault. These identifications by T.E.
readily fall within the literal language of the rule and
authoritative interpretations of it.18 19
III. The Court of Appeals Correctly Affirmed on Prior
Inconsistent Statement Grounds.
In my opinion the court of appeals correctly ruled that
T.E.s statements to Olga were admissible as prior inconsistent
statements under Rule 801(d)(1)(A). As I explain in the
discussion that follows, an adequate foundation for admitting the
statements was established and no unfairness resulted from the
fact that the statements were not explicitly admitted as prior
inconsistent statements.
When a witness claims at trial that she does not
remember the substance of a prior statement, the prior statement
is considered to be inconsistent with the witnesss testimony and
it may be admitted as a nonhearsay statement under Evidence Rule
801(d)(1)(A).20
Todays opinion treats lack of memory of a statement as
a necessary foundational condition for admission of a statement
as a prior inconsistent statement.21 In the second trial of this
case T.E., then in the fourth grade, testified that she could not
remember events when she was a little tiny girl, could not
remember being in the first grade, and indeed could not remember
anything before the third grade.22 The abuse that T.E. suffered,
and her statements concerning it, occurred when she was three
years old. In my view her testimony was sufficient to establish
that she did not remember either the abuse or the statements,
since she said that she remembered nothing at all about that
period of her life. Thus it seems to me that the first
foundational requirement for the admission of statements that the
witness has forgotten making lack of memory was satisfied.
But the opinion of the court contends that, as a second
foundational requirement, T.E. should have been given an
opportunity to explain or deny the statements that she made when
she was three years old.23 Normally, of course, the only
explanation for not remembering making a statement is just that,
not remembering making the statement. Where the witness is an
adult, it does no harm to make a further inquiry, but in the case
of a young and frightened child, conducting an examination
seeking some other explanation for unremembered statements would
typically be both confusing and futile.24
The purposes of the opportunity to explain requirement
are to avoid unfair surprise to the adversary; to save time,
since an admission by the witness may make extrinsic proof
unnecessary; and to give the witness a fair chance to explain the
discrepancy.25 In this case considerations of fairness to the
witness are not of concern because T.E. was not unfairly treated.
Likewise, the time-saving purpose of the requirement is not
implicated because the truth of T.E.s lack of memory is not
contested and because it would be an untenable irony to conclude
that the possibility of avoiding delay could be a reason
justifying reversing a jury verdict and requiring a new trial.
In theory, the first purpose of the requirement avoiding
surprise to the adversary might well be a significant factor.
But here it was not because this case had already been tried.
Vaska knew the substance of Olgas impending testimony.26 Thus,
under the facts of this case, none of the values sought to be
advanced by the opportunity to explain foundational requirement
would be prejudiced by not adhering to it.
Case law in Alaska counsels that the opportunity to
explain requirement is distinctly optional where the witness is a
young child. The leading case is McMaster v. State.27 McMaster
was accused of shooting her husband. The couples five year-old
daughter testified that the father shot himself.28 The state put
a family friend on the stand, who testified that the daughter
told him after the shooting that she saw her mommy shoot her
daddy.29 Over objection, the state sought to admit this
testimony under the predecessor to Rule 801(d)(1)(A), which had a
substantially similar opportunity to explain requirement. The
child had not been asked about the prior statement and it was
offered after she had already testified. Nonetheless, this court
upheld the admission of the statement. We observed that
commentators on the law of evidence generally supported
flexibility with respect to the opportunity to explain
requirement, including dispensing with it altogether if it seems
fairer to do so.30 We noted that this relaxed approach was
advocated in the case of adult witnesses without direct
reflection on the other crucial problem in this case: the fact
the witness in question was only five years old.31 In cases
involving young children we indicated that there were even
greater reasons not to insist on a mechanical application of this
foundational requirement: This is particularly true when the
court is dealing with the testimony of a child of tender years.32
Since McMaster, in every case in which the failure to adhere to
the opportunity to explain requirement has been raised in cases
involving young children, Alaska appellate courts have either
approved dispensing with the requirement or have found incomplete
compliance to be sufficient.33
Based on the above discussion, I conclude that of the
two foundational requirements found wanting by todays opinion,
the first, lack of memory, was satisfied. The second,
opportunity to explain, would not properly have been required in
this case because any attempt to satisfy it would likely have
been futile, none of the values sought to be advanced by the
requirement were lost by dispensing with it, and case law
suggests that it need not be applied to children of tender
years.34
But the question remains whether it was unfair to rule
on appeal that the evidence would have been admissible on prior
inconsistent statement grounds given that it was actually offered
under the catch-all exception contained in Evidence Rule
804(b)(5). I do not think that there was any unfairness,
primarily because admission of the evidence under either theory
was predicated on T.E.s lack of memory which Vaska decided not to
challenge.
The basis for invoking the catch-all exception is
unavailability of a witness due to lack of memory. Under
Evidence Rule 804(a)(1) a witness is said to be unavailable when
the witness establishes a lack of memory of the subject matter of
the [witnesss] statement. As already noted, Vaska did not oppose
the states offer of unavailability on the ground of T.E.s lack of
memory. If he had wished he could have requested that T.E. be
recalled to the stand for cross-examination as to her lack of
memory on the subject matter of the statements that he knew were
about to be offered.35 T.E.s lack of memory would also have been
the foundational basis for admission of her statements on prior
inconsistent statement grounds. Since Vaska chose not to cross-
examine T.E. concerning her lack of memory when it formed the
predicate for admission of her statements under Rule 804(b)(5),
there is no reason to think that he would have done so if her
lack of memory had formed the predicate for the admissibility of
her statements under Rule 801(d)(1)(A).36
Moreover, at the time that T.E. testified the question
of the admission of Dr. Burgesss written child abuse report was
still pending. Judge Funk had already indicated that the report
might be admissible under Evidence Rule 801(d)(1)(C) as a
statement of identification if T.E. testified but, as T.E. had
not yet testified, he had deferred ruling on the admission of the
report. Vaskas counsel, of course, knew T.E.s testimony was the
predicate for admissibility of the child abuse report on prior
identification grounds. The purpose of requiring a witness to
testify before a statement of identification may be admitted
under Evidence Rule 801(d)(1)(C) is so that the opponent of the
evidence may question the witness about the statement she has
reportedly made.37 Vaskas counsel thus knew that T.E.s testimony
opened the door for admission of the report containing T.E.s
statements to her mother, and that he had an opportunity to cross-
examine her concerning it, yet he chose not to take advantage of
this opportunity.38 Again, this points to the conclusion that
Vaska likewise would have declined to cross-examine T.E. if T.E.s
statements to her mother had been offered on prior inconsistent
statement grounds.
In summary, because T.E.s lack of memory concerning her
prior statements would be the predicate for admitting them under
either the catch-all exception or as prior inconsistent
statements, Vaskas failure to seek cross-examination of her when
the evidence was being offered under the former theory
demonstrates that he would have done nothing different if the
evidence had been introduced under the latter theory. This is
underlined by the fact that while Vaska knew that the written
account of the most damning statement that T.E. had made to Olga
was pending admission as a prior identification, he still
declined to exercise his right of cross-examination.
The bottom line is that the court is contemplating the
possibility of a third trial in this case,39 ostensibly to give
Vaska an opportunity to ask T.E. about the assault and her
statements concerning it even though Vaska conceded that T.E.
has no memory of these matters, and even though Vaska had an
opportunity to cross-examine T.E. about her lack of memory of the
subject matter of her statements at a time when he knew the
statements were about to be offered, yet showed no interest in
doing so. I do not see what unfairness would be remedied by
giving Vaska another trial.
IV. Conclusion
For these reasons I would affirm the decision of the
court of appeals.
APPENDIX TO THE DISSENTING OPINION
THE COURT: You can leave now, thats the end of your
testimony maam.
(Witness excused)
THE COURT: Mr. Olson, your next witness?
MR. OLSON: I -- you could just wait right outside. If we
could approach?
THE COURT: Certainly.
(Bench conference as follows:)
(Whispered conversation)
MR. OLSON: (Indiscernible - away from microphone).
THE COURT: Well, I mean, as to what? As to the next
witnesses testimony?
(Whispered conversation)
THE COURT: Should we discuss this?
(Whispered conversation)
THE COURT: Youd like to discuss this for a while?
(Whispered conversation)
THE COURT: All right.
(End of bench conference)
THE COURT: Were going to need to send you back to the jury
room for a little bit to discuss this -- a legal question. So,
even though youve only been here a short while, well send you
back, well get you back in here as soon as we can. Thank you
very much.
(Pause)
THE COURT: Mr. Olson? The jury is not present.
MR. OLSON: Your Honor, what I am asking to do, rather than
having to -- number 1, so we can determine the issue but number
2, so it doesnt have to come up every time as -- potentially as
an objection is to have [T.E.] declared unavailable under
804(a)(3).
THE COURT: And under 804(a)(3) unavailability of witness
includes situations in which the declarant establishes a lack of
memory of the subject matter of his statement. And.....
MR. OLSON: Then Id, among other things, theres some other
exceptions but Id be asking that certain statements made by
[T.E.] be admitted under 804(b)(5).
THE COURT: Which is the catchall?
MR. OLSON: Thats correct. And Im just doing it as an
abundance of caution, Your Honor. This wasnt -- although the
youth -- wha the -- my -- the young girl was unavailable in the
last trial, she was actually physically hiding underneath a table
in the library. So physically couldnt come in but all the
statements had -- were admitted before but I just want to
establish this and there are some other grounds for admitting
certain statements.
THE COURT: Mr. Soberay?
MR. SOBERAY: Well, if we have the jury out now, I.....
THE COURT: Im sorry, I didnt understand the last statement.
MR. SOBERAY: Well, if the jury is out right now, I guess
what the prosecution is asking is for the court to rule not on
the availability or unavailability of a witness but to go further
and determine whether or not the out of court statements by
[T.E.] would be admissible.
THE COURT: Well, one come -- came in already without
objection.
MR. SOBERAY: I understand that because my reading of the
Bell case was such that unless she testifies -- if she doesnt
testify then they wouldnt be admissible. If she has testified
under 801, I think its admissible.
THE COURT: It appears to me -- I mean theyre a little
ambiguous in the way the Court of Appeals and Judge Singletons
language makes it ambiguous but it appears to the court that if
the defendant testifies then, if what it is is an identification.
Then prior identifications are admissible.
MR. SOBERAY: Right.
THE COURT: And that appears to be whats the issue bef -- in
this, is a prior identifications. Under Natkong v. State, Alaska
App. 96, the court had faced issues where a lack of memory or
refusal to testify came up and the Court of Appeals affirmed
Judge Carpenetis ruling that prior statements describing the
sexual amus -- abuse were admissible. It appears to the court
that if you consider that they were statements by a very young
girl to more than one person, that they -- or issues of
identification, that they were issues involving sexual abuse that
there is consistent case law that such prior statements, prior
identifications, come in. That theres no reason to believe any
particular reasons to find that these statements are so
unreliable as to be inadmissible. Certainly the extent of such
statements and the -- are a subject for the weight to be
considered by the jury after appropriate cross examination
argument. So the court would allow the mother to testify as to
the statements that [T.E.] made concerning identification of the
defendant and/or concerning the sexual abuse she suffered at the
age that she was at at the time. Do we need anything else at
this point.
MR. SOBERAY: Can I just make my argument.....
THE COURT: Certainly.
MR. SOBERAY: .....regarding that, Your Honor? And I
understand the court has ruled, Im -- just maybe.....
THE COURT: Make an offer of proof, you bet.
MR. SOBERAY: Well, essentially, Your Honor.....
THE COURT: Theres (indiscernible) to be a ruling.
MR. SOBERAY: Well, essentially, Your Honor, I think we all
know from the previous trial and we would -- wed expect that the
testimony would be rather consistent with what had previously
been testified. So that -- thats the proffer of what essentially
is -- think the testimony is going to be. But there is case law
that goes back to -- well, the 1970s. I think it started with
Torres versus State at 519, 788 where there was an exception for
sex crimes and the first reporting of abuse or assault. But
there were cases -- a litteny of cases after that that sort of
homed in on, you know, what it was that was so reliable about
this first reporting exception. And what they basically said is,
you know, the courts found that it to be reliable based on the
fact that it was the first reporting and then they started
getting into issues of how much time had passed. And there was
one case thats -- that was cited in Greenway in 1980 -- Greenway
versus State, which was at 626, 1060 -- 626 P.2d 1060, a Supreme
Court from 1980 where they cited another case, State versus
Twyford, T-w-y-f-o-r-d, which was a case out of South Dakota from
1971 where they said a delay of over two months not reason to
exclude testimony since victim was only 12 years old.
The problem that we have here is we dont know when this
all -- when this is supposed to have happened. The only thing
that we have is the spring of 1994 is whats alleged in the
indictment. So if the spring of 1994 started in -- March 20th
and this is being reported in -- May 6th or early May, then the
question becomes is that such a long delay that we now get into
the considerations that Greenway talked about in saying that
delays reduce that indicia of reliability. And I dont have any
case law and I dont think that any court is going to say its got
to be two weeks or four weeks -- I dont think theres anything
like that, I think its a judgment call. So, we dont know exactly
when, and I dont think anybody is going to tell us, but I think
the court could glean some information from the doctors testimony
and that would suggest that some healing had taken place and that
there had to be some length of time and so if thats the case,
that -- thats basically my argument. We just dont know -- its
just theres no nexus between when it occurred and when the
reporting is done and your indicia of reliability is
substantially reduced and therefore it would be unfair to admit
the statements.
THE COURT: The court will still allow it. The court
accepts that what the argument thats being asserted is is that
certainly on issues of reliability, newness of the event to the
time of report, especially when dealing with adults increases the
level of reliability. And clearly in this case, we -- were
dealing with a very young child whose ability to carefully
discern dates, if we had them, would be difficult to find
reliable. In this case we dont have any but the court, given the
number of cases that find because its not just a witness talking
about a prior event, but it is someone identifying a defendant as
causing an injury, it is a specific prior statement about sex
abuse, it is one where the person testifying is of such young age
that these are always problematic.
The court doesnt find that a sufficient basis, given broad
general exceptions under 804(b)(5), the court finds in its
discretion that given the evidence presented to date and the
review of the court file that the offer of proof is such that the
court believes that testimony by the mother of statements made by
her, by her daughter, concerning this incident will be
admissible. Anything further at this time?
MR. SOBERAY: No, Your Honor.
THE COURT: So were ready to -- why dont we call her in and
get her in and situated.
MR. SOBERAY: Your Honor, so as not to interrupt, may I have
a continuing objection.
THE COURT: And -- absolutely. And there will be a
continuing objection. Id much prefer to make sure thats clear on
the record so I dont have to -- you dont feel compelled to keep
jumping up and down.
MR. SOBERAY: Yes, sir.
THE COURT: Mr. Vaska, that means that your attorney -- the
court respects and has admitted for the record that your
attorney, if I didnt say there was continuing objection, would
want to object to each and every question and Id say overruled
and not to have that happen, Ive just -- he has just said that
hes going to continue to object to the courts ruling and that I
have noted that for the record and Ive denied all of those
objections now to all the questions. Okay?
_______________________________
1 Vaska v. State, 74 P.3d 225, 228-30 (Alaska App. 2003).
2 M.V. is Vaskas daughter and T.E.s cousin.
3 Vaska v. State, 955 P.2d 943, 944 (Alaska App. 1998).
4 Vaska v. State, Mem. Op. & J. No. 4326 (Alaska App.,
January 10, 2001), 2001 WL 21196, at *3-4. The court of appeals
remanded for determination whether the superior courts law clerk
was biased against Vaska. Vaska, 955 P.2d at 947. On remand,
the superior court decided to sever the two counts. Vaska v.
State, 2001 WL 21196, at *1. The petition now before us concerns
only Vaskas conviction on the count charging him with abusing
T.E.
5 Alaska Evidence Rule 804(a)(3) defines unavailability
to include situations in which the declarant . . . establishes a
lack of memory of the subject matter of the declarants statement.
6 Under Alaska Evidence Rule 804(b)(5), if a declarant is
unavailable as a witness, the hearsay rule does not exclude:
[a] statement not specifically covered by any
of the foregoing exceptions but having
equivalent circumstantial guarantees of
trustworthiness, if the court determines that
(A) the statement is offered as evidence of a
material fact; (B) the statement is more
probative on the point for which it is
offered than any other evidence which the
proponent can procure through reasonable
efforts; and (C) the general purposes of
these rules and the interests of justice will
best be served by admission of the statement
into evidence.
Alaska appellate decisions have variously referred to
this provision as the residual exception and catch-all exception
to the hearsay rule. See, e.g., In re T.P., 838 P.2d 1236, 1239
(Alaska 1992); In re A.S.W., 834 P.2d 801, 802, 804 (Alaska
1992); Cleveland v. State, 91 P.3d 965, 971 (Alaska App. 2004);
Hughes v. State, 56 P.3d 1088, 1091 (Alaska App. 2002). We refer
to it here as the catchall exception.
7 Vaska, 74 P.3d at 226.
8 An appellate court can affirm a correct ruling of law
by a trial court, regardless of the grounds relied upon by the
trial court, if there exist independent grounds which, as a
matter of law, support the trial courts conclusion. McGee v.
State, 614 P.2d 800, 805-06 n.10 (Alaska 1980).
9 Vaska, 74 P.3d at 227.
10 See generally Vaska, 74 P.3d 225.
11 McGee, 614 P.2d at 805-06 n.10; Stordahl v. Govt
Employees Ins. Co., 564 P.2d 63, 67 n.16 (Alaska 1977).
12 Vaska, 74 P.3d at 227.
13 Id. The states brief in the court of appeals candidly
stated that neither the state nor the trial court relied on [Rule
801(d)(1)(A)] as a basis for admitting T.E.s out-of-court
statement . . . .
14 Cf. Dobos v. Ingersoll, 9 P.3d 1020, 1024 (Alaska 2000)
(stating that, for admission of hearsay statement under Evidence
Rule 803(1), [t]he burden is on the proponent of the evidence to
establish the foundational facts necessary for the hearsay
exception).
15 [I]nconsistency is not limited to diametrically opposed
answers but may be found in evasive answers, inability to recall,
silence, or changes of position. United States v. Dennis, 625
F.2d 782, 795 (8th Cir. 1980) (interpreting Fed. R. Evid.
801(d)(1)(A)) (citing United States v. Rogers, 549 F.2d 490,
495-96 (8th Cir. 1976), cert. denied, 431 U.S. 918 (1977)); see
also Richards v. State, 616 P.2d 870, 871 (Alaska 1980) (When
[the declarant] testified at trial that he had forgotten much of
what he had seen that night, the tape was admissible as a prior
inconsistent statement.).
16 See, e.g., Wassilie v. State, 57 P.3d 719, 722 (Alaska
App. 2002) (affirming admission under Evidence Rule 801(d)(1)(A)
where elderly witness could not recall at trial statements he
made to police investigating assault); Brandon v. State, 839 P.2d
400, 411-12 (Alaska App. 1992) (upholding admission where witness
had no memory at trial of prior statements); Van Hatten v. State,
666 P.2d 1047, 1049-51 (Alaska App. 1983) (holding feigned memory
loss inconsistent with prior statement).
17 A.R.E. 801(d)(1)(A)(ii).
18 Commentary, A.R.E. 801(d)(1)(A). The commentary for
Rule 801(d)(1)(A) refers to the foundation requirement for Alaska
Evidence Rule 613, which generally requires asking the testifying
witness to identify the statement after being reminded of its
substance and to whom it was made, and either to admit having
made the statement and explain the circumstances, or to deny it.
Commentary, A.R.E. 613(b). Rule 613(b) addresses use of prior
inconsistent statements to impeach the declarant.
19 Id.
20 If admission is sought under the alternative provided
in Evidence Rule 801(d)(1)(A)(ii), the declarant cannot have been
excused as a witness; this implies that inconsistency must be
demonstrated while there is still an opportunity for the
declarant to testify.
21 Lowery v. Collins, 996 F.2d 770, 771 (5th Cir. 1993).
22 McMaster v. State, 512 P.2d 879, 882 (Alaska 1973).
23 Commentary, A.R.E. 801(d)(1)(A).
24 United States v. Owens, 484 U.S. 554, 559 (1988).
25 A.R.E. 801(d)(1)(A)(i). Although Rule 801(d)(1)(A)(ii)
provides an alternative route for admission in exceptional cases
when an opportunity to deny or explain can be established because
a declarant has not been excused from giving further testimony in
the action, this provision has no conceivable application here.
As already mentioned, T.E. was excused and declared unavailable
immediately after the states preliminary questioning concluded.
Even assuming that both parties might have remained free to
recall her for purposes of laying the required foundation during
the remainder of the trial, neither party had occasion to do so,
because the State failed to invoke the prior inconsistent
statement rule until the trial was over and Vaska filed his
appeal. By then, of course, no possibility of recalling T.E.
existed.
26 Bodine v. State, 737 P.2d 1072 (Alaska App. 1987).
27 Wassilie v. State, 57 P.3d 719 (Alaska App. 2002).
28 Bodine, 737 P.2d at 1073.
29 Id. at 1074.
30 Id.
31 Id.
32 Wassilie, 57 P.3d at 721.
33 Id. at 720.
34 Id. at 721-22 (quoting McMaster, 512 P.2d at 882).
35 Dissent at 42-44.
36 512 P.2d 879 (Alaska 1973).
37 Dissent at 42.
38 Bodine, 737 P.2d at 1074.
39 Crook v. Mortenson-Neal, 727 P.2d 297, 302 (Alaska
1986) (On appeal, we defer to [the superior courts] ability to
observe the witnesses demeanor . . . .); McMaster, 512 P.2d at
882-83 (The trial judge should exercise his discretion to see
that the testimony is fairly presented to the jury.).
40 McGee, 614 P.2d at 805-06 n.10; Stordahl, 564 P.2d at
67 n.16. The first case to follow this rule was Ransom v. Haner,
362 P.2d 282, 285 (Alaska 1961) (citing treatise on federal
practice).
41 Vaska v. State, 74 P.3d 225, 227 (Alaska App. 2003).
42 Id. at 229.
43 Id. at 228.
44 A.R.E. 804(b) (requiring unavailability under A.R.E.
804(a) for hearsay exceptions set out in A.R.E. 804(b)).
45 A.R.E. 804(b)(5) (defining catchall provision to apply
to [a] statement not specifically covered by any of the foregoing
exceptions).
46 Id.; see also Ryan v. State, 899 P.2d 1371, 1375
(Alaska App. 1995) (quoting Idaho v. Wright, 497 U.S. 805, 820-21
(1990), for the proposition that evidence admitted under catchall
exceptions must possess particularized guarantees of
trustworthiness and be so trustworthy that adversarial testing
would add little to its reliability).
47 Evidence Rule 804(a) provides: Unavailability as a
witness includes situations in which the declarant . . . (3)
establishes a lack of memory of the subject matter of [his]
statement[.]
48 See Ryan, 899 P.2d at 1375 (quoting Wright, 497 U.S. at
820-21).
49 See, e.g., United States v. Owens, 484 U.S. 554, 563-64
(1988).
50 Notably, at Vaskas original trial, T.E. was so
terrified of appearing as a witness that she hid under a table in
the court buildings law library and could not be convinced to
come out, or even to communicate, despite repeated entreaties by
the prosecuting attorney. After T.E. was unable to testify, the
trial court evidently admitted her out-of-court statements under
this courts opinion in In re T.P., 838 P.2d 1236, 1241 (Alaska
1992), which affirmed a trial court decision applying Rule
804(b)(5)s catchall exception under similar circumstances.
51 As the trial prosecutor acknowledged in asking the
superior court to declare T.E. unavailable and admit her
testimony under the catchall provision, [W]hat I am asking to do,
rather than having to number 1, so we can determine the issue,
but number 2, so it doesnt have to come up every time as
potentially as an objection is to have [T.E.] declared
unavailable under [Rule] 804(a)(3). (Emphasis added.)
52 In this regard, the dissent suggests that, since Vaska
never contested T.E.s lack of memory and now characterizes T.E.s
memory loss as virtual amnesia, there is no reason to suppose
that he would have wanted to cross-examine T.E. Dissent at 39.
But this argument overlooks that Vaskas reason for not contesting
T.E.s lack of memory may well have been precisely the same as his
reason for not seeking to cross-examine T.E.: given the
prosecutors reliance on the catchall exception, Vaskas counsel
may simply have seen no reason to think that the state would seek
to admit Olga E.s testimony concerning T.E.s statements on a
theory of admissibility that would view T.E.s pro forma
appearance on the stand as a proper foundation for admitting her
prior statements as prior inconsistent statements. The dissent
further maintains that Vaskas counsel must have been aware that
T.E. had testified, because Judge Funk treated her brief
appearance as testimony for purposes of admitting Dr. Burgesss
report as identification evidence under A.R.E. 801(d)(1)(C).
Dissent at 32, 47. But this argument assumes that Judge Funks
comments in the colloquy transcribed in the dissents Appendix
meant what the dissent says they meant and that Vaskas counsel
necessarily would have understood them to have that meaning when
they were made. As we explain more fully in note 54 below,
neither assumption seems warranted. Moreover, even assuming that
the dissents interpretations of the colloquy in the Appendix were
clearly correct, we fail to see how Vaskas counsels willingness
to forgo cross-examining T.E. about statements attributed to her
and to her mother in Dr. Burgesss report shows that Vaskas
counsel necessarily would have forgone the opportunity for cross-
examination had the state tried to lay a timely foundation for
admitting Olga E.s testimony about what T.E. had said on the
distinctly different theory that T.E.s prior statements were
prior inconsistent statements.
53 Dissent at 33-36.
54 In our view, the record provides ample reason to
question the dissents reading of the superior courts ruling.
First, the state never asked to admit T.E.s prior statements to
her mother under Rule 801(d)(1)(C)s identification provision, or
on any other ground besides the catchall exception the provision
that Judge Funk eventually expressly adopted.
Second, the catchall provision applies by its own terms
only when an out-of-court statement is not specifically covered
by another provision. A.R.E. 804(b)(5). It thus seems unlikely
that Judge Funk would have ruled the statements admissible under
both Rule 804(b)(5) and Rule 801(d)(1)(C) at least not without
clearly indicating that his ruling on the catchall exception was
a backup rationale.
Third, by requiring circumstantial guarantees of
trustworthiness equivalent to those required under the specific
exceptions listed in Rule 804(b)(1)-(4), the catchall provision,
Rule 804(b)(5), invites courts faced with motions to admit
evidence under that provision to consider the issue of
trustworthiness by comparing the circumstances surrounding the
statement at issue with similar circumstances specifically
covered under hearsay provisions that might not strictly apply to
the case at hand. Here, Judge Funks colloquy with trial counsel
addressing analogous circumstances covered by other hearsay
provisions might simply reflect his understanding that Rule
804(b)(5) required him to find equivalent guarantees of
reliability. This would certainly explain why Judge Funk
repeatedly discussed the reliability of T.E.s statements (see,
e.g., Dissent, Appendix at 3: [T]heres no reason to believe any
particular reasons to find that these statements are so
unreliable as to be inadmissible.). Such discussion would not
have been necessary if the judge had simply meant to rule that
T.E.s statements were specifically covered by the identification
provision, since, unlike Rule 804(b)(5)s provisions governing the
catchall exception, Rule 801(d)(1)(C)s provisions do not make the
admission of identification evidence contingent on a finding of
circumstantial reliability.
Fourth, Judge Funk had good reason to believe that Rule
801(d)(1)(C)s identification provision might not specifically
cover T.E.s statements. The identification provision only
extends to those narrow portions of a statement comprising the
identification itself it does not allow admission of
accompanying statements describing the offense. See Commentary
to A.R.E. 801(d)(1)(C). Furthermore, as noted by the court of
appeals in Bell v. State, 716 P.2d 1004, 1006 (Alaska App. 1986),
a case that Judge Funk discussed in his colloquy with counsel,
the identification provision could be read as being applicable
only if the declarant herself . . . testifies to the prior
identification a condition that was not met here.
Fifth, it may not be textually accurate to characterize
Judge Funks statements regarding Bell and prior identifications
as a ruling that admitted T.E.s prior statements to her mother as
identification evidence under Rule 801(d)(1)(C). What Judge Funk
said was that he would allow the mother to testify as to the
statements that [T.E.] made concerning identification of the
defendant and/or concerning the sexual abuse. Dissent Appendix
at 3 (emphasis added). This merely describes what evidence Judge
Funk meant to admit; it does not say what legal ground he relied
on in deciding to admit it. To view this as a ruling that
admitted the disputed evidence under Rule 801(d)(1)(C) overlooks
the judges conspicuous failure to specify that provision as the
ground for his ruling. It also overlooks the judges simultaneous
reference to admitting testimony concerning the sexual abuse
evidence that could not have been covered by Rule 801(d)(1)(C)s
identification provision.
Finally, the catchall exception was the only exception
Judge Funk was ever asked to apply as a basis for admitting the
disputed evidence. Immediately after the judge ruled that he
would admit evidence of T.E.s statements concerning
identification and sexual abuse, Vaskas counsel asked to complete
his argument on the point, and Judge Funk invited him to [m]ake
an offer. Vaskas counsel proceeded to complete his argument, and
Judge Funk returned to the one subject he had not yet addressed:
the legal ground for his initial decision to admit this evidence.
The judge then explicitly stated that he based his ruling on the
broad general exceptions under 804(b)(5), the catchall provision.
In sum, we think that, when viewed as a whole, the
record leaves the dissents reading of Judge Funks ruling arguable
at best; the ruling is also amenable to an alternative reading:
After thoroughly considering the catchall exceptions prerequisite
of circumstantial trustworthiness in light of other hearsay rules
that concerned similar evidence but did not specifically cover
Vaskas case, Judge Funk found that T.E.s statements had
equivalent trustworthiness to similar evidence routinely admitted
under those exceptions, so he admitted her statements under the
catchall exception.
55 The dissent criticizes the bottom line of our opinion
for contemplating the possibility of a third trial in this case.
Dissent at 49. But our decision under the prior inconsistent
statement rule finds support in decisions from other states
reversing convictions in analogous situations. See State v.
Daniels, 682 P.2d 173 (Mont. 1984); Felix v. State, 849 P.2d 220
(Nev. 1993), superseded on other grounds by rule as stated in
Evans v. State, 28 P.3d 498 (Nev. 2001); State v. Rohrich, 939
P.2d 697 (Wash. 1997). Furthermore, the dissents concern that
our decision contemplates a new trial is unfounded. If the court
of appeals confirms on remand that the disputed evidence was
admissible as identification evidence (as the dissent contends
that it is), then no new trial will be needed; the same will be
true if it turns out on remand that the evidence was admissible
under the catchall exception or some other alternative theory; or
that its erroneous admission amounted to harmless error. And of
course, if it turns out that the evidence was admitted in error
and that the error was not harmless, then it is completely beside
the point to consider how many prior trials Vaska has had.
1 Indeed, we have repeatedly held that we can affirm on
any basis supported by the record, even if not relied on by the
trial court. See, e.g., Atcherian v. State, Dept of Revenue,
Child Support Enforcement Div., 14 P.3d 970, 974 n.8 (Alaska
2000) (We may affirm a superior courts decision on any ground
that appears in the record.). See also Sopko v. Dowell
Schlumberger, Inc., 21 P.3d 1265, 1269 (Alaska 2001) ([W]e can
affirm a grant of summary judgment on alternative grounds,
including grounds not advanced by the lower court or the parties.
Moreover, we will consider any matter appearing in the record,
even if not passed upon by the lower court, in defense of the
judgment.). When the trial court specifies a basis for its
decision with which we agree, the case for affirmance is even
stronger.
1 I have attached as an appendix the portion of the
transcript that contains these rulings. The ruling on prior
identification grounds is found at page 3 of the appendix.
2 The form report sets out T.E.s statements to Olga as
follows:
Child told mother that her girl hurt for four
days and mother noted irritation and slight
discharge from vagina. She contd to complain
of pain from that area. Stated that gocha
hurt her (monster), then stated [M.V.]s gocha
and after further questioning she stated that
[M.V.]s daddys gocha touched her and hurt
her.
3 Evidence Rule 801(d)(1)(C) provides:
(d) A statement is not hearsay if
(1) The declarant testifies at the trial
or hearing and the statement is
. . .
(C) one of identification of a person
made after perceiving the person[.]
4 716 P.2d 1004 (Alaska App. 1986).
5 After the child testified and the state had presented
its last witness the court again took up the question of the
admissibility of the report. The court ruled that the report was
admissible, particularly that the identifications were permitted
under the prior identification theory of Bell.
6 Alaska R. Evid. 804(a)(3).
7 716 P.2d 1004.
8 Id. at 1006.
9 The court presumably meant declarant instead of
defendant (since all the exceptions of Rule 801(d) apply only if
[t]he declarant testifies).
10 925 P.2d 672 (Alaska App. 1996).
11 Alaska Rule of Evidence 801(d)(1)(A) provides:
(d) A statement is not hearsay if
(1) The declarant testifies at the trial
or hearing and the statement is
(A) inconsistent with the declarants
testimony. Unless the interests of justice
otherwise require, the prior statement shall
be excluded unless
(i) the witness was so examined while
testifying as to give the witness an
opportunity to explain or to deny the
statement or
(ii) the witness has not been excused
from giving further testimony in the
action[.]
12 Natkong, 925 P.2d at 678 n.5.
13 Id. at 678.
14 626 P.2d 1060 (Alaska 1980).
15 This argument was based on the fact that the indictment
said the assault occurred in spring, which begins in March,
whereas T.E. first reported the crime in May, suggesting a gap of
perhaps a month and a half. But the evidence at trial
established that T.E. reported the assault only a few days after
it occurred.
16 It is not uncommon for courts to admit, and approve the
admission of, evidence on more than one basis, even when one of
the grounds for admission is the catch-all ground expressed in
Rule 804(b)(5). Judge Funk would have understood this because
one such case is Natkong v. State, 925 P.2d 672 (Alaska App.
1996), which he referred to in his ruling. Another is Dezarn v.
State, 832 P.2d 589, 590 (Alaska App. 1992) (discussed in
footnote 17). Courts elsewhere are in accord. See, e.g., State
v. Robinson, 699 N.W.2d 790 (Minn. App. 2005) (Subsequently
recanted statements by victim to nurse were offered as statements
of identification or, alternatively, under the medical diagnosis
and catch-all exceptions to the hearsay rule. Trial court
admitted them under the medical diagnosis exception. On appeal,
statements were held not admissible under the medical diagnosis
exception but they were admissible as statements of
identification and under the catch-all exceptions.); United
States v. Obayagbona, 627 F. Supp. 329, 339-41 (E.D.N.Y. 1985)
(Statement admissible under three specific exceptions to the
hearsay rule as well as under the catch-all. The trial judge,
Judge Weinstein, an eminent evidence expert, observed that the
guarantee of trustworthiness required by the catch-all provision
has already been demonstrated in the discussion of [the specific
hearsay exceptions under which the evidence was also
admissible].).
17 See, e.g., Dezarn, 832 P.2d at 590 (Testimony was
admitted both as an excited utterance under Alaska Evidence Rule
803(2) and under the residual hearsay exception of Alaska
Evidence Rule 804(b)(5). The court of appeals upheld the
admission as an excited utterance and concluded that because the
statement was admissible under Evidence Rule 803(2), we need not
reach [the superior courts] alternative ruling that [the]
statement was also admissible under Evidence Rule 804(b)(5).).
18 See, e.g., Buchanan v. State, 554 P.2d 1153, 1158
(Alaska 1976), a case foreshadowing and suggesting the adoption
of the prior identification exception so that witness A may
testify as to witness Bs extra-judicial identification if the
circumstances surrounding the prior identification were not such
as to render it unfair or unreliable, and witness B is available
for cross-examination. See also, e.g., United States v. Brink,
39 F.3d 419, 426 (3d Cir. 1994) (Generally, evidence is admitted
under Evidence Rule 801(d)(1)(C) when a witness has identified
the defendant . . . but forgets, or changes, his testimony at
trial.); Commentary, Alaska R. Evid. 801(d)(1)(C) (An early, out-
of-court identification provides fairness to defendants by
ensuring accuracy of the identification. At the same time, it
aids the government by making sure that delays in the criminal
justice system do not lead to cases falling through because the
witness can no longer recall the identity of the person he saw
commit the crime. . . . Accord, Buchanan v. State, 554 P.2d
1153, 1158 (Alaska 1976).). I note also that under Buchanan a
case-by-case review of the circumstances surrounding the prior
identification for reliability is appropriate.
19 In deference to the position of my colleagues, I am
willing to assume for purposes of discussion that Judge Funks
ruling that he would allow the mother to testify as to the
statements that [T.E.] made concerning identification indicated
not that he was admitting the mothers testimony directly as a
prior identification but instead that because he viewed the
testimony as equivalent in trustworthiness to a prior
identification, he was admitting it under the catch-all
exception. If so, it seems to me that the question of
admissibility would be put to rest by deciding that admission on
prior identification grounds would have been proper. It should
be easier, not more difficult, to admit evidence that satisfies a
direct hearsay exception on the basis of the particular exception
rather than under the multi-factored catch-all rule. And unlike
the prior inconsistent statement basis in the present case, there
are no arguably unmet foundational rules in connection with the
statement of identification ground. All that is required is an
identification and that the declarant testify.
20 See Wassilie v. State, 57 P.3d 719, 722-23 (Alaska App.
2002) (reviewing federal cases).
21 See Slip Op. at 8-12.
22 See the excerpt of the transcript quoted in the opinion
of the court at pages 4 and 5 supra.
23 Slip Op. at 8-12; the opportunity to explain
requirement is expressed in Evidence Rule 801(d)(1)(A)(i) set out
supra at note 11.
24 At the first trial T.E. was so frightened that,
according to Vaska, she hid from the prosecutor and the judge and
refused to come out from under a desk . . . .
25 McCormick on Evidence 37 at 133 (5th ed. 1999).
26 At the first trial T.E.s statements to Olga identifying
Vaska as the person who had abused her that were made before the
visit to Dr. Burgess were admitted without objection. T.E.s
later identification of Vaska during the walk in the village was
elicited by Vaskas counsel on recross-examination.
27 512 P.2d 879 (Alaska 1973).
28 Id. at 882.
29 Id. at 880.
30 Id. at 883 (quoting McCormick Law of Evidence 37 at 70
(1954)).
31 Id.
32 Id. at 882.
33 See, e.g., Richards v. State, 616 P.2d 870, 871-72
(Alaska 1980). (When Lonnie testified at trial that he had
forgotten much of what he had seen that night, the tape was
admissible as a prior inconsistent statement. And under McMaster
the prosecution was not required to allow Lonnie to explain his
inconsistent statement before introducing it, because of his
young age.) (citations omitted); Bodine v. State, 737 P.2d 1072,
1075 (Alaska App. 1987) (general questions found to be sufficient
compliance since [i]n determining the sufficiency of the
foundation for admission of prior inconsistent statements, the
trial court is allowed considerable latitude, particularly where
the witness is a young child.); Yatchmenoff v. State, Mem. Op. &
J. No. 4717, 2003 WL 21350242 (Alaska App., June 11, 2003) (child
was confronted with several but not all of the inconsistent
statements that were admitted; noting the generally fruitless
result of the confrontation the court held that the superior
court had not abused its discretion in finding that an adequate
foundation had been laid); accord Wassilie, 57 P.3d at 722 (where
prosecution sought to introduce elderly witnesss prior statement
after witness had been excused, prior statement was properly
admitted even though the witness was not asked about his prior
statement or requested to explain or deny it, because witness was
confused and further testimony was not apt to be useful).
34 In addition, since none of the purposes of the
opportunity to explain requirement would have been advanced by
adhering to it in this case, any complaint by Vaska that it
should have been followed falls within the realm of harmless
error. Civil Rule 61 teaches that courts at every stage of the
proceeding must disregard any error or defect in the procedure
which does not affect the substantial rights of the parties.
Todays opinion suggests that a substantial right, namely a
defendants right to rely on the States burden of proof in a
criminal case, is affected when the opportunity to explain
requirement is not followed. Slip Op. at 11. I do not agree.
The burden of proof at all times remains with the state
regardless of whether or not the opportunity to explain
requirement is followed. The suggestion to the contrary by the
court would make the explicit alternatives to the opportunity to
explain requirement that are built into the rule
801(d)(1)(A)(ii) (witness not excused from giving further
testimony) and the interests of justice exception dead letters
in criminal cases; it is also inconsistent with McMaster. Todays
opinion also suggests that the opportunity to explain requirement
is necessary to protect a defendants rights to effective
confrontation and cross-examination. Slip Op. at 11 (citing
United States v. Owens, 484 U.S. 554, 559 (1988)). Owens held
that the confrontation clause is not violated by the admission of
an out-of-court identification made by a witness who suffers from
memory loss at trial. The Court held that an opportunity to
cross-examine a forgetful witness satisfies the confrontation
clause: The confrontation clause guarantees only an opportunity
for effective cross-examination, not cross-examination that is
effective in whatever way and to whatever extent, the defense
might wish. Id. at 559. Owens does not state that the
opportunity to explain requirement serves vital purposes in
protecting rights to effective confrontation and cross-
examination. In fact, the opinion does not mention the
opportunity to explain requirement by name nor does it refer to
the Federal Evidence Rule that includes the requirement, F.R.C.P.
613(b) (relating to use of prior statements for impeachment
purposes).
35 The opponent of evidence offered based on a claim of
unavailability of a witness arising from the witnesss loss of
memory may cross-examine the witness. McCormick on Evidence 253
at 128 (5th ed. 1999). If the witnesss forgetfulness is only
partial we have suggested that resort both to present testimony,
to the extent of recollection, and hearsay would be appropriate.
In re T.P., 838 P.2d 1236, 1240 n.7 (Alaska 1992).
36 A defendants right to cross-examine a witness whose
statement is admitted on inconsistent statement grounds because
the witness does not remember making the statement is not
regarded as meaningless in a constitutional sense. As the court
of appeals noted in this case, quoting Justice Harlans concurring
opinion in California v. Green, 399 U.S. 149, 188-89 (1970),
which subsequently was adopted by the Court in Owens, 484 U.S. at
558:
The fact that the witness, though physically
available, cannot recall either the
underlying events that are the subject of an
extra-judicial statement or previous
testimony or recollect the circumstances
under which the statement was given, does not
have Sixth Amendment consequences. The
prosecution has no less fulfilled its
obligation simply because a witness has a
lapse of memory. The witness is, in my view,
available. To the extent that the witness
is, in a practical sense, unavailable for
cross-examination on the relevant facts, for
reasons stated [previously], I think
confrontation is nonetheless satisfied.
Vaska v. State, 74 P.3d 225, 229 (Alaska App. 2003). Todays
opinion seems to agree with this statement. Slip Op. at 20.
This is a matter of significance because the question initially
presented by Vaska in his petition for hearing to this court
(before the scope of the petition was expanded by this courts
direction to brief additional issues) was whether the court of
appeals had erred in its reliance on Owens in preference to Van
Hatten v. State, 666 P.2d 1047 (Alaska App. 1983). In Van Hatten
the court of appeals rejected the general formula advocated by
Justice Harlan in his concurring opinion in Green. Van Hatten,
of course, was decided before Justice Harlans rationale was
adopted by the opinion of the Court in Owens. The state argues,
and I agree, that this aspect of Van Hatten appears to be out of
step with current law.
37 See Buchanan v. State, 554 P.2d 1153 (Alaska 1976). In
Buchanan this court suggested adopting a new exception to the
hearsay rule that became the prior identification rule expressed
in Evidence Rule 801(d)(1)(C). We stated:
Although we do not decide the question
at this time, we also think there is
considerable merit in the states argument
that a new exception to the hearsay rule
should be recognized. The state contends
that witness A may testify as to witness Bs
extrajudicial identification if the
circumstances surrounding the prior
identification were not such as to render it
unfair or unreliable, and witness B is
available for cross-examination. Professor
Wigmore supports such a rule as do a large
number of courts, both on the basis of the
reliability of such evidence and because
cross-examination is readily available. If
the rationale behind the hearsay rule is that
the declarant cannot be cross-examined and
cannot be observed by the trier of fact, such
rationale is inapplicable when the person
actually making the identification is
available at trial.
Id. at 1157-58 (footnotes omitted) (emphasis added).
38 I do not question the soundness of this tactical
decision. I suspect that most trial attorneys would have
concluded that the possible risks involved in cross-examining
T.E. far outweighed any benefits that might have been gained.
Likewise, I do not suggest that Vaska had a duty to cross-examine
T.E. Contra Slip Op. at 22.
39 Whether a third trial takes place depends on the court
of appeals resolution on remand of the questions whether Olgas
account of T.E.s statements was admissible on grounds other than
prior inconsistent statement grounds and whether any error was
harmless.
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