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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sanders v. State (10/9/2015) sp-7058

Sanders v. State (10/9/2015) sp-7058

         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, email  

                                                                                       

         corrections@akcourts.us.  



                    THE SUPREME COURT OF THE STATE OF ALASKA  



RYAN JOHN SANDERS,                                      )  

                                                        )        Supreme Court No. S-15403  

                            Petitioner,                 )        Court of Appeals No. A-10943  

                                                        )  

         v.                                             )        Superior Court No. 3AN-07-00018 CR  

                                                        )  

STATE OF ALASKA,                                        )        O P I N I O N  

                                                        )  

                            Respondent.                 )        No. 7058 - October 9, 2015  

                                                        )  



                   Petition for Hearing from the Court of Appeals of the State of  

                                                                                             

                   Alaska, on appeal from the Superior Court of the State of  

                                                                                            

                   Alaska, Third Judicial District, Anchorage, Michael Spaan,  

                   Judge.  



                   Appearances:             Michael        Schwaiger,        Assistant       Public  

                   Defender, and Quinlan Steiner, Public Defender, Anchorage,  

                                  

                   for Petitioner.  Kenneth M. Rosenstein, Assistant Attorney  

                                                      

                   General,      Office      of    Special      Prosecutions         &    Appeals,  

                   Anchorage,  and  Michael  C.  Geraghty,  Attorney  General,  

                                           

                   Juneau, for Respondent.  



                   Before:   Fabe, Chief Justice, Stowers, Maassen, and Bolger,  

                                                                                       

                   Justices, and Matthews, Senior Justice.*  

                                                                             [Winfree, Justice,  

                   not participating.]  



                   FABE, Chief Justice.
  

                                                                                   

                   BOLGER,  Justice,  with  whom  STOWERS,  Justice,  joins,
  

                   dissenting in part.
  



         *         Sitting  by  assignment  made  under  article  IV,  section  11  of  the  Alaska  



Constitution and Alaska Administrative Rule 23(a).  


----------------------- Page 2-----------------------

I.        INTRODUCTION  



                                                                   

                   A criminal defendant on trial for two murders sought to admit a recording  



of a phone call to the police, placed by a young woman who had since died.  On the  



                                                                                      

recording, the young woman told a police officer that one of the victims had told her that  



                            

both victims were conspiring to attack and rob the defendant.  In support of his motion  



to  admit  the  recording,  the  defendant  argued  that  the  recording  was  critical  to  his  



defense, which centered on justified self-defense and heat of passion.  The defendant  



                                                                                                  

invoked  the  hearsay  exceptions  for  a  declarant's  then  existing  state  of  mind,  an  



                                                                                                          

unavailable declarant's statement against penal interest, and the residual exception for  



unavailable  declarants,  as  well  as  his  constitutional  right  to  present  a  defense.    The  



superior court denied the motion.  The jury, presented with no evidence of the alleged  



conspiracy to attack and rob the defendant, convicted him of first- and second-degree  



murder.  He appealed, and the court of appeals affirmed his conviction.  



                                                                           

                   We  granted  the  defendant's  petition  for  hearing  to  decide  whether  the  



                                            

deceased witness's statement should have been admitted at trial.  We conclude that it  



should have been admitted, and we therefore reverse the defendant's convictions and  



remand for a new trial.  



II.       FACTS AND PROCEEDINGS  



          A.       Facts  



                                     

                   1.        The incident  



                                                                                     

                   On New Year's Eve 2006, Ryan Sanders shot and killed Travis Moore and  



Ashlee Richards at his home.  Sanders had invited Moore to a gathering at Sanders's  



                                                                           

apartment after Moore called him several times that evening.  Moore arrived in an SUV  



                                                                                                      

with Richards, Raven Ketzler, and his girlfriend, Sherrell Porterfield.  Moore, who was  



carrying  an  unloaded  9mm  caliber  Beretta  pistol,  entered  Sanders's  apartment  with  



                                                            -2-                                                      7058
  


----------------------- Page 3-----------------------

                                                                                     1  

Porterfield and Richards, who was carrying a push knife.   The three left a machete in  



                                               

their SUV along with Ketzler, who did not come into Sanders's apartment during the  



                                                                                                                 

more  than  thirty  minutes  the  other  three  were  inside.    Nine  people  were  present  in  



                                                                                           

Sanders's apartment: Sanders; Moore; Richards; Porterfield; Sanders's brother, Joseph;  



Sanders's one-year-old daughter; Sanders's girlfriend, Melissa; Sanders's girlfriend's  



brother, Jeremy; and Jeremy's girlfriend, Mary Jane.  



                                                          

                    According  to  Sanders's  statement  to  the  police,  he  was  talking  in  his  



                                                                                  

bedroom  with  his  brother  and  Moore  when  Moore  pulled  out  his  Beretta  and  hit  



Sanders's head with it, splitting open the skin above his eyebrow.  Sanders fell to the  



ground between his bed and the wall, reached for a nearby .38 caliber revolver, and shot  



                                                                                                  

at Moore four or five times. Two bullets struck Moore. According to Sanders, everyone,  



                            

including Moore, ran from the shots.  Moore collapsed and died outside the apartment  



alongside the walkway leading to the front door.  



                                                                  

                    Sanders, who claimed he was unsure whether he had hit Moore, grabbed  



                              

a .40 caliber Glock semi-automatic handgun and ran outside.  He saw "a black coat with  



                                               

fur on it running towards [the] SUV" and remembered that Moore had been wearing a  



                                                                                                             

"big black jacket" with fur on it.  Sanders stated that he pursued and shot at the running  



                                                                   

person, not noticing Moore's body as he ran past it.  The running person was Richards.  



Sanders shot Richards nine times, and a tenth bullet grazed her hand.  Richards was  



pronounced dead at the hospital.  



                    Sanders claimed that he stopped shooting after Richards fell and that he was  



five  to  ten  feet  away.    Forensic  evidence  and  some  witness  testimony,  however,  



                                                                                   

suggested that some shots were fired into Richards after she fell.  Sanders also stated that  



          1         A push knife is a weapon designed to be grasped so the blade sticks out  



from the front of the fist.   See People v. Owens, 2d Crim. No. B248606, 2014 WL  

3667199, at *1 n.3 (Cal. App. July 24, 2014).  



                                                              -3-                                                        7058
  


----------------------- Page 4-----------------------

he did not realize that he had been shooting at someone other than Moore until after it  

            



was over, when he approached Richards and saw her hair and then saw Moore's body  



for  the  first  time  while  returning  to  the  apartment.    Richards  was  an  overweight  



Caucasian woman with hair past her shoulders.  Moore was a fit African-American man  



with short-cropped hair.  



                                                                                       

                    Back in his apartment, Sanders put down his Glock and waited.  Before the  



police arrived Sanders asked his girlfriend's brother, Jeremy, to get the .38 out of the  



                                                                                                             

apartment.  Jeremy hid the .38 in a parking lot underneath a car, where the police later  



found it.  



                                                                                  

                    The first police officer arriving on scene had to swerve to miss the SUV in  



                      

which Moore arrived and which was pulling out of the driveway.  After stopping for a  



                                                                                       

moment when it almost hit the first officer's car, the SUV continued to try to leave.  The  



second officer to arrive blocked the street, stopping the SUV from leaving.  



                                                                                                      

                    Sanders, holding a "really bloody" towel to his head, told the first officer  



                                                                                       

that he had been hit in the head with a pistol and then shot two people and that his Glock  



                                               

was inside on the coffee table. While being questioned later at the police station, Sanders  



                                                                                                  

denied that any weapons other than a disassembled rifle, Moore's Beretta, and Sanders's  



                                                                   

Glock had been in the apartment.  When the police stated that someone had gotten rid of  



          

a gun and they had recovered it, Sanders then admitted that the .38 was involved and that  



he had asked Jeremy to remove it from the apartment.  Sanders said that he did so and  



                                                                                             

lied  about  it  only  because  he  had  recently  bought  the   .38  under  questionable  



                                                            

circumstances.  Sanders also stated that he had no idea why Moore attacked him, but that  



Moore  and  Joseph,  Sanders's  brother,  had  "real  problems"  because  some  people,  



including Joseph, had been at Moore's house and "some money [came] up missing."  



                                                               -4-                                                         7058
  


----------------------- Page 5-----------------------

                        2.         Carmela Bacod's statement to the police  



                        Two  days  after  the  shootings  Detective  Mark  Huelskoetter,  the  lead  

detective in the case, received a phone call from Carmela Bacod, which he recorded.2  



The 17-year-old Bacod described a series of events stretching back "about two weeks                                                   



now," which had started when "Ryan Sanders, he stole money from one of our friends."                                    



She explained that Richards had been her best friend since third grade, that she had  



known Moore "for a couple months," and that she had met Ketzler once.  She stated that  



                                                                                                                              

she had never met Sanders.  Bacod reported that she "was supposed to go with them to  



                                                                                                

their house . . . that night," and correctly stated that Ketzler and Porterfield, both of  



whom she physically described, had been present along with Moore and Richards.  



                                                                                                                               

                        Bacod described a phone call with Richards "about a week and a half ago,"  



in which Richards told Bacod that Richards, Moore, Ketzler, and Porterfield had been  



hanging out with Sanders one night when they all fell asleep and woke up to discover  



                                                                                                   

Sanders gone, along with money that had belonged to Ketzler.  Bacod told Detective  



                                                                                                  

Huelskoetter that "they wanted to go beat him up  to  get the money back," and that  



                                                                                                                                        

"Ashlee [Richards] just told me that they wanted the money back, and then they were  



             

gonna jump 'em for it."  Bacod also told Detective Huelskoetter that Richards "told me  



                                                                                                                                     

that  earlier they tried before or something like that, and Ryan's brother got  mad  or  



                                                                                                 

something and pulled a gun on [Raven Ketzler's] face, or something like that."  And she  



                                                                                                                             

answered affirmatively when Detective Huelskoetter asked her, "[Y]ou know that Travis  



[Moore] wanted to beat Ryan [Sanders] up over the money?" and "[W]hen they were  



goin' over there that was pretty much the idea, is that Travis [Moore] was gonna beat  



[Sanders] up?"  



            2          A transcript of the call follows this opinion as an appendix.  



                                                                          -5-                                                                        7058  


----------------------- Page 6-----------------------

                   Later   in  the  call,  Bacod  was  more  circumspect.    When  Detective  



                                                    

Huelskoetter asked her if she "knew that kinda the plan was that Travis [Moore] and his  



girlfriend and Ashlee [Richards] and - and some other girl named Raven [Ketzler] were  



                              

gonna go over there and essentially jump them to get their money back," Bacod stated,  



                           

"Not - not jump, like, you know, like, talk."  She then stated, "But obviously they're  

young, so, you know, there's gonna be violence in it.  But I couldn't stop them."3  



                                                                                                     

                   Bacod gave Detective Huelskoetter her name, date of birth, phone number,  



and address.  She took his name and direct phone number, which she recorded with a pen  



she requested from her mother, and told him she would call if she thought of anything  



else.  



                                                                         

                   Sanders was not informed of Bacod's call to Detective Huelskoetter until  



                                                                   

March 2008, more than a year later. Before trial and less than three months after Sanders  



had learned of her call, Bacod was killed in a car accident.  



         B.        Proceedings  



                   1.       Charges  



                   Ten  days  after  the  shootings  Sanders  was  indicted  on  five  counts:  



                              

first-degree murder  of Moore (Count I), first-degree murder of Richards (Count II),  



second-degree  murder  of  Moore  (Count  III),  second-degree  murder  of  Richards  



(Count IV), and tampering with physical evidence (Count V).  



                   2.       Motion in limine to admit Bacod's statement  



                   In  February  2009  Sanders  filed  a  motion  in  limine  to  admit  Bacod's  



                                                                                

statement at trial.  Sanders argued for admission based upon his due process right to  



                                                                                      

present a defense and Alaska Rules of Evidence 803(3) (the state of mind exception to  



         3         According to the transcript, Bacod and Detective Huelskoetter were talking  



over one another during this exchange.  



                                                           -6-                                                       7058  


----------------------- Page 7-----------------------

hearsay) and 804(b)(3) (the exception for statements against  an unavailable declarant's  



interest) for Richards's statement to Bacod, and 804(b)(5) (the unavailable declarant  



residual hearsay exception) for Bacod's statement to Detective Huelskoetter.  



                                                                                             

                   The superior court denied Sanders's motion, stating that "Ms. Richards'[s]  



                                                                                                        

statements to Ms. Bacod regarding her intention to go to the Defendant's residence with  



                                                                                                

Mr. Moore are not admissible under Rule 803(3) as circumstantial evidence that either  



                                                                                       

Ms. Richards [or] Mr. Moore planned to rob and assault the Defendant."  The superior  



court stated its understanding of the specifics of Richards's statement:  



                   There  is  no  evidence  Ms.  Richards  actually  stated  she  or  

                                                                                                 

                   Mr. Moore planned to assault and rob the Defendant.  In the  

                                 

                   recorded statement, Ms. Bacod extrapolates the inevitability  

                                                                                           

                   of violence from Ms. Richards'[s] statements. . . .  As earlier  

                   noted,  Ms.  Bacod  states  that  Ms.  Richards  told  them  they  

                   were  going  over  to  the  Defendant's  residence  to  talk.  

                   Ms.  Bacod added that there would likely be violence, but she  

                   does  not  state  that  Ms.  Richards  affirmatively  stated  their  

                   intention was to rob or assault the Defendant.  



                   Regarding the applicability of Rule 804(b)(5) to  Bacod's statement, the  

                                                                                           



superior court stated that "[t]he trustworthiness of the statement may not be established  

                                                                                                        

by corroborating evidence" - citing Ryan v. State ,4 which in turn cited the United States 



                                                     5 

                                                       - and therefore did not consider any extrinsic  

Supreme Court case Idaho v. Wright 



                                                                                                       

corroborating evidence.  The superior court stated its understanding of the specifics of  



Bacod's statement:  



                            The relationship between Ms. Bacod, the Defendant,  

                                                                           

                   and the shooting victims in this case is essentially unknown.  

                   It is clear that all four parties were in the same social circle,  

                   but the o   nly  evidence o      f their relationships to one another is  



          4        899 P.2d 1371, 1375 (Alaska App. 1995).  



          5        497 U.S. 805, 822-24 (1990).  



                                                            -7-                                                        7058  


----------------------- Page 8-----------------------

                    contained in the recording itself. . . .  The lack of evidence in  

                    this respect does not indicate any motivation for Ms. Bacod  

                    to lie in the Defendant's favor, but neither does it explain her  

                                                        

                    motivation for calling the police to speak against her fallen  

                               [6] 

                    friends.      



                             While it is true Ms. Bacod made her statement to a  

                    government agent, Ms. Bacod was not under oath and there  

                    were no subsequent interviews where Detective Huelskoetter  

                                                                           

                    or    any     other     government          agent      could      cross-examine  

                    Ms.  Bacod  regarding  her  statements  or  otherwise  test  her  

                    knowledge   and   veracity.                 The   Detective   merely   took  

                    Ms. Bacod's statements and indicated he might contact her  

                    again.      Ms.  Bacod  gave  her  statement  telephonically  and  

                                                                                

                    there is no way to tell where she was or who else was in the  

                                                     

                    room when she made the call.  The statements simply are not  

                                                                        

                    "so trustworthy that adversarial testing would add little to its  

                                                                                              

                    reliability."21  



                    _______________________________________________  



                             21  

                                       Ryan ,  899  P.2d  at  1375  (quoting  Idaho  v.  

                                                                 

                    Wright, 497 U.S. at 821); see also Vaska v. State, 135 P.3d  

                    1011, 1020 (Alaska 2006).  



                    3.       Trial  



                                                                                               

                    Trial took place in August 2010.  None of the nine adults who were at the  



house  testified.    No  evidence  was  presented  regarding  Richards's  push  knife  or  the  



                                7  

machete in the SUV.    Bacod's statement was not introduced, and no evidence was  



          6         We note the conundrum created by the court's statement that the                                  lack of  



extrinsic  evidence  regarding  the  relationship  between  Bacod,  Sanders,  and  others  

counted against Bacod's statement's admission, given the court's prior conclusion that  

                                                                                                  

extrinsic   evidence   could   not   be   considered   when   determining   the   statement's  

trustworthiness.  



          7  

                                                                                     

                    On the first day of trial the State moved for a protective order preventing  

Sanders from mentioning the push knife and machete during voir dire and his opening  

                                                                                                           (continued...)  



                                                             -8-                                                        7058
  


----------------------- Page 9-----------------------

presented  that  Ketzler  stayed  in  the  SUV.    The  superior  court  instructed  the  jury  



                                                                                                  

regarding  five  defense  theories:    justified  self-defense,  heat  of  passion,  defense  of  



                                                     

premises, defense of a third person, and reasonable mistake of fact (regarding Richards's  



identity).  



                    During opening statements and closing arguments, the State maintained that  



self-defense  and  defense  of  others  did  not  apply  because  Sanders's  actions  were  



                                                                                                                       

excessive.  The State painted Sanders as a liar who also had others lie for him, and it  



                               

questioned whether Moore had actually been the first aggressor.  The State contended  



that even if the heat of passion defense initially applied, Sanders had time to cool down  



                                                                                                           

while he grabbed the second gun and chased Moore out of the apartment.  The State also  



                       

contended that no justification could defend against the first-degree murder of Richards  



                                                                                                 

because it would be an unreasonable mistake of fact to believe that she was Moore or that  



she was armed.  



                    During opening and closing arguments, counsel for Sanders argued that  



                                                                                          

Sanders had been truthful, stating that he immediately took responsibility for the two  



deaths, waited quietly for the police, put down the Glock in a safe place, and answered  



                                                                                            

the police officer's questions.  Sanders's counsel argued that Sanders quickly told the  



                                                           

truth about the .38 and that he had lied at first only because he was worried about that  



                               

gun's provenance.   Counsel for Sanders argued that Sanders committed no crime in  



                                                                                                                   

killing Moore, who had attacked him without warning in his home, because it was self- 



                                                                                             

defense.  His counsel also argued that even if Sanders had not acted in self-defense, he  



          7(...continued)  



statement.  The court granted this request because there was no evidence that "the knife"  

                                                                                        

was brandished at Sanders or that he knew of "the knife," and it admonished Sanders's  

counsel not to mention either weapon in voir dire or his opening argument.  The court  

indicated it would take up the issue later if evidence of either the knife's or machete's  

relevance developed during the trial.  



                                                             -9-                                                        7058
  


----------------------- Page 10-----------------------

                                                                                                                 

acted in the heat of passion.  Counsel further argued that he had  made  a reasonable  



mistake  of  fact  regarding  Richards's  identity,  given  the  low  lighting  outside,  the  



similarity of Richards's and Moore's coats, and the fast-paced, frenetic situation.  



                    The jury found Sanders not guilty of first-degree murder of Moore, but  



           

guilty of the lesser included second-degree murder of Moore under Count I.  The jury  



also found Sanders guilty of the remaining counts, as charged:  first-degree murder of  

Richards,  second-degree  murder  of  Moore  under  a  different  theory,8  second-degree  



                 

murder of Richards, and tampering with physical evidence.  By returning these verdicts,  



                                                               9  

the jury rejected all five defense theories.   



                    4.        Appeal to the court of appeals  



                                                                                                                     

                    On appeal Sanders argued that the superior court had erred by refusing to  



                                                                          10  

                                                                                                   

allow him to introduce Bacod's statement at trial.                            The court of appeals concluded that  



          8         Different second-degree murder theories were used for the lesser-included   



second-degree murder offenses under Counts I and II and the second-degree murder  

offenses charged directly in Counts III and IV.  



          9  

                                   

                    The jury was instructed that justified self-defense was a complete defense  

                                                                                                                 

to first-degree murder, second-degree murder, and manslaughter.  If the jury believed  

                                                                                                         

Sanders killed Moore in justified self-defense, it would have found Sanders not guilty  

                                                                                          

of all charges related to Moore's death.  Instead, the jury found Sanders guilty of the  

second-degree murder of Moore under two theories.  



                                                                                                     

                    The jury also was instructed that heat of passion was a defense to the lesser  

included second-degree murder theories but not the direct second-degree murder charges.  

The jury found Sanders guilty of all second-degree murder offenses, demonstrating that  

                                                                                                         

it did not believe Sanders killed Moore or Richards in the heat of passion.  



          10  

                                                                                              

                    See Sanders v. State, Mem. Op. & J. No. 5991, 2013 WL 6229377, at *1  

                                                                        

(Alaska App. Nov. 27, 2013).  Sanders also  argued that the superior court erred by  

                     

allowing the State to introduce his girlfriend's and his brother's false statements to the  

police:  Detective Huelskoetter testified that Sanders's girlfriend said that Sanders's  

                                                                                                                (continued...)  



                                                               -10-                                                         7058
  


----------------------- Page 11-----------------------

                                             

the  superior  court  "did  not  abuse  [its]  discretion"  by  finding  Bacod's  statement  



inadmissible, stating:  



                    Bacod told the police that Richards said to her that they were  

                    going  to  go  over  to  Sanders's  residence  to  confront  him.  

                                                                      

                    Bacod added that she thought the confrontation was likely to  

                    be violent.  



                              . . . .  



                              In    the    present       case,      Sanders       offered       Bacod's  

                    out-of-court  statements  for  the  purpose  of  proving  that  

                                                              

                    Richards and Moore went to Sanders's house intending to use  

                                  

                    violence to retrieve money from Sanders or his brother.  But  

                                                                                                   

                    even  according  to  Bacod, Richards never said  that she  or  

                    Moore intended to use violence; instead Richards said that  

                    they wished to talk to Sanders about the money.  In Bacod's  

                                                                           

                    statements        to    the    police,      she    acknowledged             that    the  

                    possibility of violence was only her speculation, or her after- 

                                                             

                                                                                             [11] 

                    the-fact gloss on her conversation with Richards.                             



                    Like the superior court, the court of appeals quoted Ryan v. State for the  



                                                                                              

proposition that "evidence admitted under the residual hearsay exceptions must possess  



                                                                                   

'particularized guarantees of trustworthiness' making it 'so trustworthy that adversarial  



                                                              12  

                                                                  The court added, "[T]here was essentially  

testing would add little to its reliability.' " 



          10(...continued)  



brother fired a rifle inside the apartment; he also testified that  Sanders's brother said that  

                                                            

Moore fired at Sanders first.  Id. at *1, *5-6.  The State labeled both statements "lies" in  

                                                                                                                     

its closing argument while questioning Sanders's veracity and whether Moore was the  

                                                                                                           

first aggressor.  The court of appeals concluded that the admission of these statements  

was error, but was harmless.  See id. at *1, *7.  



          11        Id. at *1, *5.  



          12        Id. at *5 (quoting 899 P.2d 1371, 1375 (Alaska App. 1995)).  



                                                             -11-                                                        7058
  


----------------------- Page 12-----------------------

no evidence regarding Bacod's potential motivation for contacting the police."13                                       The  



                                                                    14  

court of appeals upheld the trial judge's ruling.                        



                   Regarding Sanders's argument that the exclusion of Bacod's statement  



violated his due process right to present a defense, the court of appeals stated, "[I]n  



                                                                                                                           15  

                                                                                               

general, a trial court does not commit error by properly applying the evidence rules." 



The court of appeals then concluded:  "We have previously pointed out the lack of  



reliability of Bacod's recorded statement to establish the proposition for which it was  



                                                                                                                  

offered.  We conclude that the trial court's proper application of the evidence rules did  

not unfairly limit Sanders's ability to present a defense."16  



                   Chief  Judge  Mannheimer  concurred  with  the  court's  opinion,  writing  



separately to point out that Sanders wished to introduce Richards's statement to prove  

Moore's future actions.17  Chief Judge Mannheimer cited the Commentary to Rule 803(3)  



                                                                                          

(the state of mind hearsay exception) to explain that the Rule "does not allow a litigant  



                                                                                               

to introduce one person's statement about their current mental state (including their  



                                                                                                                  18  

current  plans)  for  the  purpose  of  proving  another  person's  future  actions."                                   This  



          13       Id.   



          14       Id.  



          15       Id.  



          16       Id.  



          17       See id. at *7-10 (Mannheimer, C.J., concurring).  



          18       Id. at *8 (emphasis in original).  



                                                            -12-                                                      7058
  


----------------------- Page 13-----------------------

                                                                                                                

provided,  in  his  view,  an  additional  reason  that  the  contested  statements  were  not  

admissible.19  



                   5.        Petition for hearing  



                   Sanders filed a petition for hearing with this court, and we granted it, in  



                                                                                                  

part, on "whether exclusion of Carmela Bacod's hearsay statement to the investigating  



detective was reversible error."  



                                                 

                   Sanders argues that Bacod's statement was admissible under the Rules of  



Evidence  -  using  both  Rule  803(3)  (the  state  of  mind  hearsay  exception)  and  



                                                                                           

Rule  804(b)(5)  (the  unavailable  declarant  residual  hearsay  exception)  -  to  show  



                                                                                                    

Richards's intent and conduct in going to Sanders's apartment on  New Year's Eve.  



Sanders also argues, based on his constitutional right to present a defense, that Bacod's  



                                                                                               

statement was admissible to show both Richards's and Moore's intent and conduct in  



                                                                             

going to Sanders's apartment.  Sanders argues that the failure to admit the statement  



under these theories was error and that the error was not harmless.  



III.      STANDARD OF REVIEW  



                   A trial court's "[f]actual findings are reviewed for clear error.  We will  



                                                                                                   

reverse . . . factual findings only when, after a review of the entire record, we are left  



                                                                                                         20  

                                                                                                               When  the  

with  a  definite  and  firm  conviction  that  a  mistake  has  been  made." 



admissibility of evidence  "turns on a question of law, such as the 'correct scope or  

interpretation of a rule of evidence,' we apply our 'independent judgment . . . .' "21  



          19       See id. at *8-10.  



          20       Lee v. Konrad , 337 P.3d 510, 517 (Alaska 2014) (footnote and internal  



quotation marks omitted).  



          21       Barton v. N. Slope Borough Sch. Dist. , 268 P.3d 346, 350 (Alaska 2012)
              



(quoting City of Bethel v. Peters, 97 P.3d 822, 825 (Alaska 2004)). In contrast, when we
            

                                                                                                          (continued...)
  



                                                            -13-                                                      7058
  


----------------------- Page 14-----------------------

                                                                                   

Under the de novo standard of review, we adopt the rule of law that is "most persuasive  



                                                           22  

                                                                      

in light of reason, precedent and policy."                     We also review constitutional interpretation  

issues de novo.23  



IV.       DISCUSSION  



                    "Hearsay  is  a  statement,  other  than  one  made  by  the  declarant  while  



testifying at the trial or hearing, offered in evidence to prove the truth of the matter  



              24                                                                    25 

asserted."         As a general rule hearsay is not admissible,                        but the Rules of Evidence  



                           26                                                                                               27  

                                                                  

contain exceptions            and define certain types of out-of-court statements as not hearsay. 



                                                                        

The proposed evidence in this case contains two levels of hearsay, each of which must  



be  individually  admissible  for  the  exclusions  Sanders  challenges  to  have  been  



          21(...continued)  



review a trial court's decision to admit or exclude evidence solely as an application of  

            

a correctly interpreted rule of evidence to the facts of the instant case, we apply the abuse  

                                                                             

of discretion standard of review.  See Greene v. Tinker, 332 P.3d 21, 31, 37-38 (Alaska  

                                                                                                     

2014) (evaluating for abuse of discretion a trial court's decision to admit testimony of  

late-identified witness).  



          22  

                                                

                   Barton ,  268  P.3d  at  350  (internal  quotation  marks  omitted);  see  also  

ConocoPhillips  Alaska,  Inc.  v.  Williams  Alaska  Petroleum,  Inc.,  322  P.3d  114,  122  

(Alaska 2014).  



          23       See Khan v. State, 278 P.3d 893, 896 (Alaska 2012).  



          24       Alaska R. Evid. 801(c).  



          25       See Alaska R. Evid. 802.  



          26       See Alaska R. Evid. 803-04.  



          27       See Alaska R. Evid. 801(d).  



                                                            -14-                                                       7058
  


----------------------- Page 15-----------------------

                 28  

erroneous.           If either Richards's statement to Bacod or Bacod's statement to Detective        



Huelskoetter was inadmissible, the proposed evidence was entirely inadmissible.  



          A.	        Richards's   Statement   To   Bacod   Was   Admissible   As   Evidence  of  

                     Richards's  Then  Existing  State  Of  Mind  Under  Alaska  Rule  Of  

                     Evidence 803(3).  



                     Under Alaska Rule of Evidence 803(3), "[a] statement of the declarant's   



then existing state of mind, emotion, sensation, or physical condition (such as intent,     



plan,   motive,   design,   mental   feeling,   pain,   and   bodily   health)   offered   to   prove  the  



declarant's  present  condition  or  future  action,"  is  not  excluded  by  the  hearsay  rule.  



                                                                   

Sanders argues that Richards's statement to Bacod was admissible to show Richards's  



intent and conduct in going to Sanders's apartment.  We agree.  



                                                                                                       

                     The superior court found that "[t]here is no evidence Ms. Richards actually  



stated she or Mr. Moore planned to assault and rob [Sanders]."  Instead, the superior  



                              

court   concluded,   "Ms.                 Bacod   extrapolates   the   inevitability   of                       violence   from  



                                                                                                     

Ms. Richards's statement."  The court of appeals agreed, stating that "even according to  



                                                                        

Bacod, Richards never said that she or Moore intended to use violence; instead Richards  



                                                                                            29  

                                                                                                The court of appeals also  

said that they wished to talk to Sanders about the money." 



concluded  that  "[i]n  Bacod's  statements  to  the  police,  she  acknowledged  that  the  



possibility  of  violence  was  only  her  speculation,  or  her  after-the-fact  gloss  on  her  

conversation with Richards."30  



                     We disagree with this interpretation of Bacod's statement.  Bacod's first  



recorded words to Detective Huelskoetter were, "Everything happened, and she told me,  

                          



           28        See Alaska R. Evid. 805.  



           29        Sanders  v.  State,  Mem.  Op.  &  J.  No.  5991,  2013  WL  6229377,  at  *5  



(Alaska App. Nov. 27, 2013).  



           30	       Id.  



                                                                 -15-	                                                          7058
  


----------------------- Page 16-----------------------

like,  actually  it's  been  goin'  on  for  like,  about  two  weeks  now.    Um,  the  -  Ryan  



Sanders, he stole money from one of our friends, and they wanted to go beat him up to  

                                                                      



get the money back."  (Emphasis added.)  Bacod later stated, "Ashlee just told me                                                        that  



they wanted the money back, and then they were gonna jump 'em for it," and said "[s]he  

                                                  



told me  that earlier they tried before or something like that."  (Emphasis added.)  She also       



answered in the affirmative when Detective Huelskoetter twice asked her direct questions  



verifying that Moore was planning to go beat up Sanders:  



                                                                                                                       

                      Q.         So -  but you know  that Travis [Moore] wanted to  

                      beat Ryan [Sanders] up over the money?  



                      A.	        Yeah.  



                                                                                                                    

                      Q.         And  that  when they were goin' over there that was  

                      pretty much the idea, is that Travis [Moore] was gonna beat  

                      [Sanders] up?  



                      A.	        Yeah.  



                                                                                       

                      Only  after  verifying  with  Detective  Huelskoetter  that  Porterfield  and  



                                                

Ketzler, who were both still alive, had been present the night of the shooting did Bacod  



partially backtrack:  



                                                                              

                      Q.         So, now, just let me see if I understand correctly, that  

                                                                       

                      you knew that kinda the plan was that Travis [Moore] and his  

                                               

                      girlfriend and Ashlee [Richards] and - and some other girl  

                      named  Raven  [Ketzler]  were  gonna  go  over  there  and  

                      essentially jump them to get their money back?  



                            

                      A.	        Not - not jump, like, you know, like, talk.  



                                 . . . .  



                                                                                                                       

                      A.          [T]hey're  young,  so,  you  know,  there's gonna be  

                      violence in it.  



                                 . . . .  



                             

                      A.	        But, I couldn't stop them.  



                                                                     -16-	                                                             7058
  


----------------------- Page 17-----------------------

                                                                                                                      

                        Q.          Right. So, they - they - I mean basically the only  

                                                        

                        reason they were going over there was to get the money back.  



                        A.          Probably.  



                        The State does not forcefully contest that Richards told Bacod about the  



                                                                                                                                    

plan to confront Sanders.  Instead it argues that Richards's statement was not of her own  



intent, but instead the intent of "an unidentified 'they.' "  But the "they" in question is  



not unidentified.  Bacod named the four people involved, including Richards.  When  



Detective Huelskoetter summarized what Bacod had told him - "the  plan was that  



Travis [Moore] and his girlfriend and Ashlee [Richards] and - and some other girl  



                                                                                                                                               

named Raven [Ketzler] were gonna go over there and essentially jump them to get their  



                                                                         

money back" - Bacod did not say that Richards was not part of the group making the  



plan.  The State's argument that only Moore, and not Richards, intended to beat up  



Sanders fails for similar reasons:  Bacod, in recounting her conversation with Richards,  



said multiple times that "they" - not just Moore - were going to beat up Sanders.  



                        The State argues that the statements regarding Sanders stealing money are  



inadmissible hearsay because they are being offered to prove that Sanders stole money.  



                                                                                                       

But  Sanders  offered  the  statements  about  the  theft  to  show  Richards's  motive,  not  



whether Sanders actually stole money.  Richards's belief that the theft was committed  

by Sanders explained her motive in going to Sanders's apartment.31  



            31          The State also argues that Richards's statements regarding Sanders's theft     



of money may not have been based upon her own personal knowledge and thus would             

be inadmissible under Alaska Rule of Evidence 602, which permits a witness to testify   

only to matters about which she has personal knowledge.  But the statements were being       

offered to prove Richards's                        belief  that Sanders stole the money as her motive to attack   

him.    Richards  had  personal  knowledge  regarding   her  own  belief,  just  as  she  had  

personal knowledge regarding her own plan to beat up Sanders.  



                                                                           -17-                                                                     7058
  


----------------------- Page 18-----------------------

                                                                                               

                   The State also contends the word "jump" as used by Bacod meant "talk,"  



not assault.  The State argues that Bacod "expressly defined jump for her purposes."  



This is contradicted by the statement itself.  Before using the word "jump," Bacod stated  



that  the  group  was  planning  to  "beat  [Sanders]  up."    Bacod  twice  answered  in  the  



                                                                                               

affirmative Detective Huelskoetter's direct questions verifying that Moore was planning  



to go "beat up" Sanders.  



                   Bacod stated that Richards directly expressed her intent to beat up Sanders  



                                                                                                          

and  her  motive  for  doing  so.    This  statement  of  Richards's  intent  and  motive  was  



                                                                              32 

                                                                                  Because we conclude that the  

admissible under Rule 803(3) to show her future action. 



                                                   

superior court's factual finding that Bacod merely extrapolated violence from Richards's  



statement to her was clearly erroneous, we must reverse the court of appeals' decision  



upholding the superior court's Rule 803(3) ruling.  



                                                                                                  

         B.	       Richards's  Statement  To  Bacod  Was  Admissible  As  Evidence  of  

                   Moore's Future Actions Under Alaska Rule Of Evidence 803(23).  



                                                                                     

                   Although Richards's statement to Bacod was relevant to explain some of  



                                                

Richards's conduct at Sanders's home, its greater potential relevance was to explain  



Moore's  conduct,  which,  according  to  Sanders,  included  pistol-whipping  Sanders  



                                                                                         

without provocation.   However, as Chief Judge Mannheimer noted in his concurring  



                                                      

opinion below, "the Commentary to Evidence Rule 803(3) explains that Rule 803(3)  



         32        Sanders's stated purpose in requesting admission of Richards's statement  



of her own motive and intent includes showing "Richards'[s] conduct at Sanders'[s]  

     

home" - that "she would have behaved like Moore would have behaved after Sanders  

                                                                           

fought him off" and in particular that she chose to flee Sanders's home to get to the  

"getaway car" (instead of "fighting, hiding, staying in place, or withdrawing") and "did  

                                                                                          

nothing to rescue Sanders from his assailant."  Sanders also states that "evidence of  

Richards'[s] robbery plot would have show[n] that Richards shared Moore's escape route  

- Porterfield's SUV" and that "Richards ran because she had made the mistake of  

bringing a knife to attack a man with a gun."  



                                                          -18-	                                                    7058
  


----------------------- Page 19-----------------------

does not allow a litigant to introduce one person's statement about their current mental  

                                                                                                



state (including their current plans) for the purpose of proving another person's future  

                                                    

             33  Thus, if Richards's statement to Bacod was admissible only to demonstrate  

actions."                                    



Richards's  future  actions,  and  not  Moore's,  its  probative  value  might  have  been  

                  

outweighed by the danger of unfair prejudice,34  making it proper for the trial court to  

                                                                                                                

                                                                    35   But the circumstances in this case  

exclude it or subject it to a limiting instruction.     



demonstrate that Richards's statement was admissible not only to prove Richards's intent  



and conduct, but also Moore's.  



                   The Commentary to Rule 803(3) explains that "[f]or the statements of one  

                                                                                                   



person as to his mental or emotional condition to be used against another, [Evidence  

                                                36   Rule 803(23) is a residual hearsay exception.  It  

                                                                                            

Rule 803](23) must be satisfied."  



permits the admission of a statement that would otherwise be excluded as hearsay if it  

                                                                                         



has  "circumstantial guarantees of trustworthiness" that are "equivalent" to the listed  



                                                                 

exceptions, and "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 interest of justice will best be served by  



admission of the statement into evidence."  



         33        Sanders,  2013  WL  6229377,  at  *8  (Mannheimer,  C.J.,  concurring)  



(emphasis in original).  



         34        See Alaska R. Evid. 403.  



         35        Cf.  Linton  v.  State,  880  P.2d  123,  130-31  &  n.6  (Alaska  App.  1994)  



(affirming introduction of murder victim's hearsay statements, with limiting instruction,  

                                                                                         

under  Rule  803(3)  even  though  the  statements  concerned  the  victim's  fear  of  the  

defendant and the defendant's alleged threats to the victim).  



         36        Commentary Alaska E. R. 803(3).  



                                                          -19-                                                     7058
  


----------------------- Page 20-----------------------

                         In this case, the party seeking to introduce a statement under the residual   



exception is a criminal defendant.  This fact is important in two interrelated ways.  First,        



Sanders, like all criminal defendants, enjoys a constitutional right to due process of law                                 



                                                              37  

before he is convicted of a crime.                                 "Although it is not absolute, a defendant's right to  



                                                                                                                 38  

present a defense is a fundamental element of due process."                                                          Evidentiary rulings can  



so infringe this right to present a defense that they constitute a violation of the guarantee  

                                                                                    

of our constitution's due process clause,39 which requires admission even of evidence  



                                                                                                                                                   

that the legislature has specifically barred if its exclusion "substantially limits the right  

                                            40     Here,  however,  as  we  explain  below,  it  is  an  incorrect  

                                                                                                                                    

to  present  a  defense."  



application of the evidence rules that encroaches on this right.  



                                                                                    

                         Sanders presented five defense theories to the jury:  justified self-defense,  



                                               

heat of passion, defense of premises, defense of a third person, and reasonable mistake  



                                                                                                                                    

of fact (regarding Richards's identity).  The credibility of each of these theories was tied  



to the jury's willingness to believe Sanders's account of Moore striking him without  



                                                                        

provocation, an account that the State argued "doesn't make any sense" during closing  



                                                                              

argument.  The exclusion of Richards's  statement to Bacod effectively excluded all  



evidence of the alleged conspiracy to rob Sanders and thus excluded critical evidence  



                                                     

relevant to the credibility of Sanders's account of the events that preceded the shootings.  



                                                   

The jury was left with an  account in which, as the State put it in closing argument,  



                                                                                                                                      

Sanders "tells us for no reason, no reason whatsoever, no reason that he's willing to  



                                                                                                                               

admit, Mr. Moore whacks him on the head and causes that gash, that gash above his eye,  



            37           See Alaska Const. art. I, § 7.  



            38           Smithart v. State, 988 P.2d 583, 586 (Alaska 1999) (citation omitted).  



            39           See id.  



             40          Valentine v. State, 215 P.3d 319, 326 (Alaska 2009).  



                                                                             -20-                                                                       7058
  


----------------------- Page 21-----------------------

                                                                                                                       

for no reason whatsoever."   The exclusion prevented the jury from hearing the only  

available evidence of the missing "reason" the State rhetorically lamented.41  



                            

                    The second way that Sanders's status as a criminal defendant is important  



                                                                                                                               

is the fact that the State likely could have used Richards's statement against Moore if it  



                                                                                                       42  

                                                                                                           Alaska Rule of  

had sought to prosecute Moore for conspiracy to commit robbery. 



                                     

Evidence 801(d)(2)(E) provides that a statement is not hearsay if it "is offered against  



a party and is . . . a statement by a co-conspirator of a party during the course and in  



                                                                                                                          

furtherance of the conspiracy."   Richards told Bacod about an on-going plan to rob  



Sanders  -  a  plan  that  Richards  shared  with  Moore  and  which  they  had  already  



                                                                                                                   

attempted to put into action, only to be resisted by Sanders's armed brother.  Bacod was  



                                                                                             

apparently supposed to join her four friends when they went to Sanders's house on the  



                                                                                              

night of the shootings.  Moore's actions, including going to Sanders's home with the  



          

other alleged participants in the conspiracy while carrying a pistol and, according to  



                                                                              

Sanders's  account,  striking  Sanders  in  the  face,  corroborate  his  connection  to  the  



                                               43  

conspiracy Richards described.                       



                    Rule 801(d)(2)(E) is not directly applicable to this case because Moore is  

                                                                                                          



not a party to the State's prosecution of Sanders and thus Richards is not a party's co- 

                      



conspirator.   But Rule 803(23), which must be satisfied "[f]or the statements of one  

                                                                                                        



          41        Cf. Keith v. State, 612 P.2d 977, 982-83 (Alaska 1980) ("If the superior  



court's refusal to admit the journal did, in fact, substantially limit Keith's opportunities  

                                                             

to prove his innocence affirmatively, the due process right to a fair trial would have been  

                                                                                                           

denied him.").  



          42        See AS 11.31.120 (conspiracy); 11.41.500 (robbery in the first degree).  



          43        Cf. Stewart v. State, 756 P.2d 900, 904-05 (Alaska App. 1988) (discussing  



evidence   that   corroborated   a   defendant's   connection   to   a   plan   described   in   a  

                                                                                              

co-conspirator's statement).  



                                                              -21-                                                         7058
  


----------------------- Page 22-----------------------

person as to [her] mental or emotional condition to be used against another,"44 allows for  



                                                

the admission of statements that have "circumstantial guarantees of trustworthiness" that  



                                                                          

are "equivalent" to the other exceptions to the bar on hearsay.  Statements made by a co- 



conspirator in furtherance of a conspiracy were traditionally defined as an exception to  



the hearsay rule, but under the revised Alaska Rules of Evidence they are defined as  



                  45  

                                

nonhearsay.           Their characterizaion as nonhearsay is largely predicated on expectations  



                                                                                             46  

                                                                                                 Richards's statement  

of trustworthiness, just like the exceptions listed in Rule 803. 



                                                                                                         

establishing Moore's participation in a conspiracy to rob Sanders did not become less  



trustworthy because Sanders, rather than the State, sought to introduce it.   



                                                                                                                        

                    The "interest of justice" factor identified in Rule 803(23) dovetails in this  



                                                                                  

case with the right to present a defense.  In light of this factor, Richards's statement fits  



                             

within the residual hearsay exception even as it pertains to Moore's future actions.  Here  



                                                           

the only reasonably available evidence explaining Moore's alleged unprovoked assault  



                                                                                                             

on Sanders was his co-conspirator's statement that she, Moore, and others "wanted to go  



                                                                                               

beat [Sanders] up to get the money back."  Richards's statement to Bacod was therefore  



admissible.  



          44        Commentary Alaska E. R. 803(3).  



          45        See Hawley v. State, 614 P.2d 1349, 1357 n.20 (Alaska 1980); Commentary  



Alaska E. R. 801(d)(2) ("[I]f these rules [-801(d)(2)(C),(D), and (E)-] were written  

                                                             

on a clean slate without reference to the Federal Rules, admissions would be treated as  

                                                                                   

exceptions to the hearsay rule and placed under Rule 803.").  



          46        See MODEL CODE OF EVIDENCE , Rule 508 cmt. b (1942) ("[T]he tendency  



                                                                                    

in the authorities is to receive evidence of all declarations of a conspirator concerning the  

conspiracy when made during its pendency.  These statements are likely to be true, and  

are usually made with a realization that they are against the declarant's interest.").  



                                                             -22-                                                        7058
  


----------------------- Page 23-----------------------

          C.	      Bacod's  Statement  To  Detective  Huelskoetter  Was  Admissible  As  

                   Evidence Of Richards's Statement Under Alaska Rule Of Evidence  

                   804(b)(5).  



                   1.	      The  superior  court  and  court  of  appeals  excluded  Bacod's  

                            statement   to   Detective   Huelskoetter   based   on   an   overly  

                            demanding test for determining sufficient trustworthiness under  

                            the unavailable declarant residual hearsay exception.  



                   Alaska Rule of Evidence 804(b)(5) is, like Rule 803(23), a residual hearsay  

                                                                         



exception.  It permits the admission of a statement by an unavailable declarant that would  

                                                                                               



otherwise be excluded as hearsay if it has "circumstantial guarantees of trustworthiness"  

                                                



that are "equivalent" to the listed exceptions, and "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."47  



                   The  superior  court  stated  that  Bacod's  statement  did  not  fall  within  

                                                 



Rule 804(b)(5)'s residual exception because it was not "so trustworthy that adversarial  

                                                                                                      



testing would add little to its reliability."  The court of appeals agreed, and quoted the  



same  language  in  support  of  its  conclusion  that  the  superior  court  did  not  abuse  its  



                                                             48  

discretion in excluding Bacod's statement.                       The quoted standard is from the court of  



         47        Alaska R. Evid. 804(b)(5).  



         48        See Sanders v. State         , Mem. Op. & J. No. 5991, 2013 WL 6229377, at *5  



(Alaska App. Nov. 27, 2013).  



                                                          -23-	                                                    7058
  


----------------------- Page 24-----------------------

                                                       49  

                                                                                                     

appeals's  decision  in  Ryan  v.  State ,                 which  in  turn  was  quoting  the  United  States  



                                                                   50  

Supreme Court's decision in Idaho v. Wright .  



                                                                                                        51  

                                                                                     

                    Both  Wright and  Ryan  are  Confrontation  Clause  cases.                                They    were  



                             

decided  based  on  the  precedent  established  in  Ohio  v.  Roberts,  under  which  even  



                               

testimonial hearsay could be admissible against a criminal defendant as long as it fell  



                                                                                                          

"within  a  firmly  rooted  hearsay  exception"  or  bore  "particularized  guarantees  of  



                         52  

trustworthiness."             Both cases considered "residual" hearsay evidence offered by the  



government against a criminal defendant protected by the Confrontation Clause, and both  



erected a demanding standard for admission:  The courts would only allow a criminal  



defendant  to  be  tried  based  on  the  word  of  a  declarant  he  could  not  confront  if  the  



                                                                                                                             53  

                      

                                                                               

statement was "so trustworthy that adversarial testing would add little to its reliability." 



          49        899 P.2d 1371, 1375 (Alaska App. 1995).  



          50        497 U.S. 805, 821 (1990).  



          51        See id. at 808 ("This case requires us to decide whether the admission at  



trial of certain hearsay statements made by a child declarant  to an examining pediatrician  

violates a defendant's rights under the Confrontation Clause of the Sixth Amendment.");  

Ryan , 899 P.2d at 1375 ("Because the hearsay issue in this case arises in the context of  

                                                                                                        

a criminal prosecution, the hearsay must satisfy not only the requirements of Evidence  

                                                             

Rule 804(b) but also the requirements of the Confrontation Clauses of the Federal and  

                                                                                                         

Alaska  Constitutions  (the  Sixth  Amendment  to  the  United  States  Constitution  and  

                                                                          

Article I, Section 11 of the Alaska Constitution).").  



          52        448 U.S. 56, 66 (1980).  



          53        Wright, 497 U.S. at 821; see also Ryan , 899 P.2d at 1375.  The United  



States  Supreme  Court  disapproved  the  Ohio  v.  Roberts  approach  in  Crawford  v.  

 Washington, 541 U.S. 36 (2004), and Davis v. Washington , 547 U.S. 813 (2006), which  

established that "hearsay evidence may violate a defendant's right of confrontation even  

though that  evidence might  be admissible under the hearsay rules." Clark v. State, 199  

P.3d 1203, 1210 (Alaska App.  2009).  By decoupling the Confrontation Clause and the  

                                                                                                           (continued...)  



                                                             -24-                                                       7058
  


----------------------- Page 25-----------------------

                                                 

                    In contrast, in this case it was Sanders, rather than the State, who sought to  



                                                                                                         

admit Bacod's statement.  The State is, of course, not protected by the Confrontation  



Clauses in the Alaska and United States Constitutions.  And the State has not identified  



any  case  in  which  the  test  the  superior  court  used  has  been  applied  to  evidence  



                                                                                           

introduced  by  a  criminal  defendant.    The  superior  court  thus  erred  by  applying  the  



                                                                          

heightened   reliability   standard   that   limited                       the   residual   hearsay   exception   in  



Rule 804(b)(5) to evidence "so trustworthy that adversarial testing would add little to its  



                                                                                                       

reliability" to Bacod's statement.  Instead, the superior court should have applied the test  



                                                                                                                   

set out in Evidence Rule 804(b)(5) itself:  A statement by an unavailable declarant is  



                                                                     

admissible  if  (1)  "the  statement  is  offered  as  evidence  of  a  material  fact,"  (2)  "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," (3) "the general purposes  



                                                                           

of  these  rules  and  the  interests  of  justice  will  best  be  served  by  admission  of  the  



statement  into  evidence,"  and  (4)  the  statement  has  "circumstantial  guarantees  of  



                                                                                    

trustworthiness" that are "equivalent" to the guarantees of trustworthiness that justify the  



enumerated hearsay exceptions when a declarant is unavailable.  



                    Importantly, the enumerated exceptions to which Rule 804(b)(5) refers are  



                                  

those that apply only when the declarant is unavailable.  "The traditional exceptions to  



                                                                                 

the hearsay rule form two general classes:  (1) those statements which are so inherently  



                                                                                                    

reliable  that  cross-examination  is  thought  unnecessary  (Rule  803);  and  (2)  those  



statements which are sufficiently reliable to be admitted in light of their great evidentiary  



          53(...continued)  



rules of evidence, Crawford and Davis removed the need to erect a demanding residual  

                                                                                                     

hearsay standard to serve the purposes of the Confrontation Clause.   Cf. Whorton v.  

Bockting ,  549  U.S.  406,  413-14  (2007)  ("Roberts  potentially  excluded  too  much  

                                                                                                                     

testimony  because  it  imposed  Confrontation  Clause  restrictions  on  nontestimonial  

                                                                                     

hearsay not governed by that Clause.").  



                                                               -25-                                                         7058
  


----------------------- Page 26-----------------------

                                                                                   54  

value  when  the  declarant  is  unavailable  (Rule  804)."                              The  exceptions  to  which  



804(b)(5)  refers  all  have  circumstantial  guarantees  of  trustworthiness,  such  as  the  



                                                                              55  

                                             

                                                                                                     

unavailable declarant's belief of her impending death                            or admission to civil or criminal  



            56  

                but they are not necessarily  "so trustworthy that adversarial testing would add  

liability,                                                                                             



little to [their] reliability."  In fact, the limitation of these exceptions to circumstances in  

                                            



which the declarant is unavailable suggests that cross-examination would add to their  



                                                                                  57  

reliability,  and  would  be  required  if  it  were  possible.                         Thus,  the  superior  court's  



                                                                         

application of the demanding "adversarial testing would add little" standard to Sanders's  



efforts to admit Bacod's statement under Rule 804(b)(5) was a legal error.  



                    2.	      It was legal error for the superior court to refuse to consider  

                             evidence  that  corroborated  Bacod's  statement  to  Detective  

                             Huelskoetter.  



                                                                                                   

                    The superior court ruled that "[t]he trustworthiness of [Bacod's] statement  



                                                  

[to Detective Huelskoetter] may not be established by corroborating evidence."  The  



          54       In re A.S.W. , 834 P.2d 801, 804 (Alaska 1992) (emphasis added).  



          55        See Alaska R. Evid. 804(b)(2).  



          56        See Alaska R. Evid. 804(b)(3).  



          57        See Commentary Alaska E. R. 804(b) ("Rule 803 . . . is based upon the  



assumption  that  a  hearsay  statement  falling  within  one  of  its  exceptions  possesses  

qualities  which  justify  the  conclusion  that  whether  the  declarant  is  available  or  

unavailable is not a relevant factor in determining admissibility.  [Rule 804(b)] proceeds  

                                                                                              

upon a different theory:  hearsay which admittedly is not equal in quality to testimony  

of the declarant on the stand may nevertheless be admitted if the declarant is unavailable  

                             

and  if  his  statement  meets  a  specified  standard.    The  rule  expresses  preferences:  

testimony given on the stand in person is preferred over hearsay, and hearsay, if of the  

                                                                                                                     

specified quality, is preferred over complete loss of the evidence of the declarant.").  



                                                             -26-	                                                      7058
  


----------------------- Page 27-----------------------

                                                                                                      58  

                                                                                                            

court of appeals did not specifically consider this claim of error.                                       The superior court's  



                                            

ruling on this point is legal error and is inconsistent with our cases interpreting Evidence  



Rule 804(b)(5).  



                                                                                                          

                     The superior court cited Ryan v. State in support of its no-corroborating- 



evidence rule.  As discussed above, Ryan was a Confrontation Clause case.  Like the  



heightened  reliability  requirement  for  unavailable  declarant  hearsay  testimony,  the  



requirement that "[t]he required 'guarantees of trustworthiness' may not be established  



                                                                                                                       

by showing that the hearsay statement is corroborated by other evidence" was based on  



                                                                                        59  

the court of appeals' interpretation of Idaho v. Wright .                                   The court of appeals in Ryan  



                                                                                                          60  

                                                                                                              The application of  

limited this holding to cases implicating the Confrontation Clause. 



                          

the prohibition on corroborating evidence to a criminal defendant's attempt to introduce  



                                         61  

hearsay evidence is error,                  particularly in light of a criminal defendant's constitutional  



           58        See  generally   Sanders  v.  State,  Mem.  Op.  &  J.  No.  5991,  2013  WL  



6229377 (Alaska App. Nov. 27, 2013).  



           59        See Ryan v. State, 899 P.2d 1371, 1375 (Alaska App. 1995) (citing Idaho  

                                                    

v.  Wright, 497 U.S. 805, 822-24 (1990)).  



           60        See id. ("In Idaho v. Wright , the United States Supreme Court held that, at  



least   for   Confrontation   Clause   purposes,   a   hearsay   statement's   'guarantees   of  

         

trustworthiness' must be 'inherent' in the statement." (quoting Wright, 497 U.S. at 822)).  



           61  

                                                              

                     See Brumley v. Albert E. Brumley & Sons, Inc., 727 F.3d 574, 578 (6th Cir.  

                                                                                                                           

2013) ("[ Wright's] requirement that the truthfulness of a statement be so clear [from only  

the circumstances surrounding the statement] that the test of cross-examination be of  

marginal  utility  is  specific  to  the  Confrontation  Clause;  thus,  the  requirement  is  

inapplicable in this [civil] case.");  United States v. NB, 59 F.3d 771, 776 n.5 (8th Cir.  

                                                                                                        

1995) ("Wright has no effect on hearsay analysis when there is no Confrontation Clause  

issue."); 5 CHRISTOPHER   B.   MUELLER   &   LAIRD  C.   KIRKPATRICK ,   FEDERAL  EVIDENCE  

§ 8:141, at 286-88 (4th ed. 2013) ("Obviously                              Wright does not affect use of the catchall   

[hearsay exception] in civil cases, nor limit defense use of the catchall in criminal cases,       

                                                                                                                     (continued...)  



                                                                  -27-                                                             7058
  


----------------------- Page 28-----------------------

right to present a defense.  



                   In cases that do not feature the specific protections of the Confrontation  



Clause,  extrinsic  corroborating  evidence  often  supports  the  admission  of  evidence  

offered under the residual hearsay exceptions in Evidence Rules 804(b)(5) and 803(23).62  



                                                               

Permitting trial courts to consider extrinsic corroboration appears to be the majority rule  



                                                                                                                63  

                                                                                                                      This  

in     jurisdictions          which        have       specifically          addressed          the     issue. 



          61(...continued)  



and  in  these  settings  independent  corroboration  continues  to  count  in  assessing  

trustworthiness.").  



          62       See,  e.g.,  Kristen  L.  v.  Benjamin  W.,  Mem.  Op.  &  J.  No.  1502,  2014  



WL 2716842, at *3 (Alaska June 11, 2014) (corroborating notes supported admission  

of  counselor's  testimony  about  children's  statements  under  the  catchall  hearsay  

exception); In re T.P. , 838 P.2d 1236, 1241-42 (Alaska 1992) (approving of trial court's  

                                                        

admission of minor's hearsay statement under Evidence Rule 804(b)(5) partially because  

a  reference  in  the  statement  to  the  location  of  an  alleged  sexual  touching  was  

corroborated); cf. Matanuska Elec. Ass'n v. Weissler , 723 P.2d 600, 610 n.17 (Alaska  

                           

1986)  (approving  of  trial  court's  ruling  that  the  fact  that  a  hearsay  "statement  also  

                                                             

corroborates  other  testimony"  makes  it  more  appropriate  to  admit  under  Evidence  

                                                                                            

Rules 804(b)(5) and 803(23)).  



          63  

                                                             

                   See United States v. Turner, 718 F.3d 226, 233-34 (3d Cir. 2013) ("[When  

determining] whether a document is sufficiently trustworthy to be admitted under [the  

residual  hearsay  exception]  .  .  .  ,  the  district  court  may  not  rely  exclusively  on  

corroborating   evidence."   (emphasis   added)   (citation   omitted));   United   States   v.  

Redlightning , 624 F.3d 1090, 1118 (9th Cir. 2010) (concluding that a hearsay statement  

                                            

lacked "circumstantial guarantees of trustworthiness" under residual hearsay exception  

                                  

in part because it was uncorroborated and in part because extrinsic evidence contradicted  

                                

it);  United  States  v.  Hunt,  521  F.3d  636,  643-44  (6th  Cir.  2008)  (finding  hearsay  

statements  lacked  "circumstantial  guarantees  of  trustworthiness"  because  they  were  

                            

uncorroborated);  United States v. Abreu, 342 F.3d 183, 191 (2d Cir. 2003) (finding  

                                                                                                        

hearsay statements lacked "circumstantial guarantees of trustworthiness" in part because  

                                                                                                             

they were "uncorroborated");  United States v. Hall, 165 F.3d 1095, 1110-11 (7th Cir.  

1999)   (stating   relevant   factor   when   determining   "circumstantial   guarantees   of  

                                                                                                          (continued...)  



                                                            -28-                                                      7058
  


----------------------- Page 29-----------------------

          63(...continued)  



trustworthiness" is "whether the declarant's statement was insufficiently corroborated");  

United  States  v.  Panzardi-Lespier,  918  F.2d  313,  316-17  (1st  Cir.  1990)  (listing  

corroboration as one factor in determining "circumstantial guarantees of trustworthiness"  

and using extrinsic corroboration, after  Wright); State v. Allen, 755 P.2d 1153, 1164  

                                                             

(Ariz. 1988) ("We do not require corroboration under the residual hearsay exceptions,  

                                                                        

but  its  existence  is  nevertheless  helpful.");  Martin  v.  State ,  57  S.W.3d  136,  142  

            

(Ark. 2001) (concluding in the context of determining "circumstantial guarantees of  

trustworthiness,"  that  details  from  the  accomplice's  post-crime  hearsay  statements,  

including "the detailed directions to the abandoned house, the fact that [the victim's] face  

                                                                                                       

and mouth had been duct-taped, and the fact that her arms and legs were hogtied[, ]were  

                                                                         

highly indicative of the truthfulness of [the] statements . . . ."); Cabrera v. State, 840  

A.2d 1256, 1268 (Del. 2004) ("[The] statements fail to satisfy the . . . circumstantial  

                            

guarantees of trustworthiness [requirement under the residual hearsay exception] for the  

                                                                                                                        

same reasons that they were not admissible under [the statement against penal interest  

exception] - they were not supported by sufficient corroborating evidence."); State v.  

                                                               

 Weaver, 554 N.W.2d 240, 248 (Iowa 1996), overruled on other grounds by State v.  

                                                                                                                      

Hallum , 585 N.W.2d 249 (Iowa 1998) ("Factors to consider in making a trustworthiness  

                                                                            

determination under [the residual hearsay exception] include: . . . corroboration . . . .");  

                                                                                                                           

People v. Katt , 662 N.W.2d 12, 24 n.12 (Mich. 2003) ("[C]orroborative evidence may  

be  used  to  determine  the  trustworthiness  of  statements  [offered  under  the  residual  

hearsay  exceptions]  .  .  .  [if]  the  Confrontation  Clause  is  not  implicated."  (emphasis  

omitted) (citations omitted)); State v. Griffin, 834 N.W.2d 688, 693 (Minn. 2013) (listing  

corroborating evidence as a relevant factor for determining "circumstantial guarantees  

                                                                                          

of trustworthiness" under a residual hearsay exception); State v. Cottier, 755 N.W.2d  

                                                                                                              

 120, 131 (S.D. 2008) ("[F]actors for a trial court to consider in assessing trustworthiness  

                                                                                            

of hearsay offered under the residual hearsay rule . . . include:  . . . the existence of  

                                       

corroborating evidence . . . ."); State v. Lopez, 843 N.W.2d 390, 437 (Wis. 2014) (stating  

                                                                    

that factors to consider in determining "circumstantial guarantees of trustworthiness"  

under  a  residual  hearsay  exception  include  "the  existence  of  other  corroborating  

                                                                              

evidence"); Lafond v. State , 89 P.3d 324, 339 (Wyo. 2004) ("[C]ircumstantial guarantees  

of trustworthiness . . . may be established . . . through other corroborating evidence . . . ."  

                                             

(quoting Johnson v. State , 930 P.2d 358, 366 (Wyo. 1996)));  2 G 

                                                                                                 EORGE E.  DIX ET AL .,  

MCCORMICK  ON  EVIDENCE  §  324,  at  565-66  (Kenneth  S.  Broun  ed.,  7th  ed.  2013)  

("[E]ven before Crawford v. Washington eliminated the precedential value of  Wright,  

some lower courts used corroboration as a factor establishing trustworthiness of hearsay  

                                                                                                                  

                                                                                                            (continued...)  



                                                             -29-                                                        7058
  


----------------------- Page 30-----------------------

interpretation  makes  sense,  as  a  court  testing  a  statement's  admissibility  under  the  



                                                                                

residual  hearsay  exceptions  is  concerned  with  the  trustworthiness  of  the  specific  



                                                                                                

statement at issue, rather than the category of statements to which the statement belongs.  



                                                              

There is no logical reason that extrinsic corroborating evidence cannot contribute to  



                                                                                 64  

creating "circumstantial guarantees of trustworthiness."                             Indeed, one of the unavailable  



          63(...continued)  



admitted  under  a  catchall  exception  when  the  confrontation  issue  was  otherwise  

eliminated.");  5  FEDERAL  EVIDENCE ,   supra  note  61,  §  8:141,  at  286-88;  HEARSAY  



                                                                                                                   

HANDBOOK  §§ 47:1-2 (4th ed. 2014); 5 JACK B. WEINSTEIN & MARGARET A. BERGER ,  

WEINSTEIN 'S   FEDERAL   EVIDENCE                     §  807.03[2][b],  at  807-15  to  -18  (Joseph  M.  

McLaughlin ed., 2d ed. 2014).  



                    But see United States v. El-Mezain, 664 F.3d 467, 498 (5th Cir. 2011) ("The  

                                                                                            

determination  of  trustworthiness  is  'drawn  from  the  totality  of  the  circumstances  

surrounding the making of the statement, but it cannot stem from other corroborating  

                                                                                   

evidence.' [United States v.] Ismoila , 100 F.3d [380,] 393 [(5th Cir. 1996)] (citing Idaho  

                                                                               

v. Wright, 497 U.S. 805, 820-22 (1990))."); Vasquez v. People, 173 P.3d 1099, 1106-07  

(Colo.  2007)  (relying  upon  Wright  to  conclude  that  extrinsic  corroboration  is  not  

appropriate          consideration           when        determining          "circumstantial            guarantees         of  

                                                                             

trustworthiness" under residual hearsay exception); State v. Aaron L., 865 A.2d 1135,  

                                                                                                               

1144 n.20 (Conn. 2005) ("Only factors related to the circumstances surrounding the  

                                                             

making of the challenged statement may be considered to support the reliability of the  

                                                              

hearsay  statement  at  issue."  (emphasis  in  original));  Larchick  v.  Diocese  of  Great  

Falls-Billings , 208 P.3d 836, 845 (Mont. 2009) ("[The residual hearsay exception] looks  

                                                                                            

to  the  circumstances  surrounding  a  hearsay  statement  when  it  is  made  -  the  

circumstantial guarantees of trustworthiness that lend reliability to the hearsay statement  

                                                                  

in lieu of cross-examination." (internal quotation mark omitted)); State v. Johnson, 557  

                                             

S.E.2d 811, 817 (W. Va. 2001) ("Reliability must be shown from the circumstances  

surrounding the making of the statement.").  



          64        The     State      argues      that    the     word      "circumstantial"           in    "equivalent  



                                           

circumstantial guarantees of trustworthiness"  means only the immediate circumstances  

of   the   statement,   not   any   extrinsic   corroborating   circumstances.   But   the   word  

"circumstantial"            could      just     as    easily      include       any     circumstances           indicating  

trustworthiness, including extrinsic corroboration.  The wording of Rule 804(b)(5) does  

                                                                                                           (continued...)  



                                                             -30-                                                       7058
  


----------------------- Page 31-----------------------

declarant  hearsay  exceptions  to  which  evidence  offered  under  the  residual  hearsay  



                                                         

exception is compared contemplates the use of extrinsic evidence to support the hearsay  



                65                                                                         66 

                                                                                                                     

statement,         and another, in some circumstances, requires it.                            We therefore agree with  



                                                                                                          

the  majority  of  jurisdictions  that  extrinsic  corroborating  evidence  may  properly  be  



considered in determining whether a statement proffered under Rule 804(b)(5)'s residual  



                                                                                                                 

hearsay exception exhibits "circumstantial guarantees of trustworthiness" equivalent to  



the other unavailable declarant hearsay exceptions.  



          64(...continued)  



not  exclude  the  consideration  of  extrinsic  evidence,  and  we  will  not  read  such  a  

                                                                                             

prohibition into the rule.  See State v. Robinson, 718 N.W.2d 400, 409 n.4 (Minn. 2006)  

                                                                                                     

("Nor  does  the  residual  exception  itself  prevent  us  from  considering  corroborating  

evidence.  The rule contains no specific limitation . . . .").  



                    The State additionally argues that the presence of extrinsic corroboration  

                                     

precludes the statement from being "more probative on the point for which it is offered  

                                                                                                    

than any other evidence which the proponent can procure through reasonable efforts."  

                                                 

Though it is possible that extrinsic corroborating evidence could be more probative than  

                                                                           

the hearsay statement it supports, this will not always be the case.  



          65  

                                                                                                                

                    See Alaska R. Evid. 804(b)(4)(B) (exception for statement of personal or  

                                                                                                           

family history about a person other than the unavailable declarant "if the declarant was  

                                                                                          

related to the other by blood, adoption, or marriage or was so intimately associated with  

the other's family as to be likely to have accurate information concerning the matter  

declared").  



          66        See Alaska R. Evid. 804(b)(3) (Although statements against interest are  



                                                                     

generally admissible, "[a] statement tending to expose the declarant to criminal liability  

and   offered   to   exculpate   the   accused   is   not   admissible   unless   corroborating  

                                                                                                           

circumstances clearly indicate the trustworthiness of the statement.").  The State argues  

                                                                                      

that Rule 804(b)(3)'s explicit inclusion of corroborating evidence means that the drafters  

of the rules intended to disallow the use of corroborating evidence for the other hearsay  

exceptions, including Rule 804(b)(5).  But the requirement of corroboration in one area  

                                                                                                                     

does not necessarily entail its prohibition in another.   The drafters of Rule 804(b)(5)  

                                                                                            

could  have  stated  that  no  extrinsic  corroboration  could  be  used  to  find  "equivalent  

                                                                                                           

circumstantial guarantees of trustworthiness," but they did not.  



                                                               -31-                                                         7058
  


----------------------- Page 32-----------------------

                      3.	        In light of the correct test of admissibility and                                     the  proffered  

                                 corroborating                evidence,          Bacod's           statement            to     Detective  

                                 Huelskoetter should have been admitted.  



                      As discussed above, a statement by an unavailable declarant is admissible            



if (1) "the statement is offered as evidence of a material fact," (2) "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," (3) "the general purposes of these  



                                                                                                                        

rules and the interests of justice will best be served by admission of the statement into  



                                                                                                              

evidence," and (4) the statement has "circumstantial guarantees of trustworthiness" that  



                                                                                              

are "equivalent" to the guarantees of trustworthiness that justify the enumerated hearsay  



                                                                              67  

                                                                                     The  State  contests  two  of  these  

exceptions  when  a  declarant  is  unavailable. 



requirements:  the circumstantial guarantees of Bacod's statement's trustworthiness and  

                                                                                            



whether the statement is more probative on the point for which it was offered than other  



evidence Sanders could have reasonably procured.  



                                 a.	        Bacod's  statement  to  Detective  Huelskoetter  had  the  

                                            required circumstantial guarantees of trustworthiness.  



                      Whether a particular hearsay statement offered under the residual hearsay  

                                                                                        



exception at Rule 804(b)(5) has sufficient circumstantial guarantees of trustworthiness  

                                                                                               



is necessarily a case-by-case question.  Many courts focus upon idiosyncratic aspects of  

                                                                                                                                



                                                                                                                    68  

the   particular   proffered   statement   which   suggest   trustworthiness.                                               Particularly  



significant relevant factors relied on by multiple jurisdictions include:  



                      whether the declarant had a motivation to speak truthfully or  

                                                                     

                      otherwise;   the   spontaneity   of   the   statement,   including  

                      whether it was elicited by leading questions, and generally  

                                                              



           67         Alaska R. Evid. 804(b)(5).  The Rule also requires adequate notice to the  



opposing party, a requirement not at issue in this case.  



           68         See MCCORMICK ON EVIDENCE , supra note 63, § 324, at 561-66.  



                                                                    -32-	                                                              7058
  


----------------------- Page 33-----------------------

                   the  time  lapse  between  event  and  statement;  whether  the  

                   statement was under oath; whether the declarant was subject  

                                                                                        

                   to cross-examination at the time the statement was made; the  

                   relationship between the declarant and the person to whom  

                   the statement was made; whether the declarant has recanted  

                                                       

                   or  reaffirmed  the  statement;  whether  the  statement  was  

                   recorded  and  particularly  whether  it  was  videotaped;  and  

                   whether   the   declarant's   firsthand   knowledge   is   clearly  

                                                                       

                                       [69] 

                   demonstrated.  



                                                                                                          

And, as discussed above, in cases that do not implicate the Confrontation Clause it is  



appropriate to consider extrinsic corroborating evidence.  



                                                                                                          

                   The State correctly notes that the residual hearsay exceptions apply "only  



                           70 

                              and are not invitations to discard the general prohibition on the  

on rare occasions," 



                                                                                      

admission of hearsay.  But in this case at least five factors - Bacod's motivation to  



                                                                       

speak truthfully, the spontaneity of her statement, the professional relationship between  



her and Detective Huelskoetter, the fact that her statement was recorded, and the clear  



demonstration of her firsthand knowledge of Richards's plan -  argue in favor of the  



statement's trustworthiness, as does the extrinsic corroborating evidence.  The particular  



guarantees of trustworthiness attached to Bacod's statement to Detective Huelskoetter  



convince  us  that,  given  the  importance  of  the  statement  to  Sanders's  defense,  the  

statement should have been admitted.71  



         69        Id.  



         70        In re A.S.W. , 834 P.2d 801, 804 (Alaska 1992).  



         71        See id. (explaining that the unavailable declarant hearsay exceptions in  



Rule 804 relate to "statements which are sufficiently reliable to be admitted in light of  

their great evidentiary value"); see also Smithart v. State, 988 P.2d 583, 586 (Alaska  

                                                                                    

1999) (recognizing that exclusion of evidence proffered by a criminal defendant can  

violate the defendant's due process rights).  



                                                          -33-                                                    7058
  


----------------------- Page 34-----------------------

                                       i.       Motivation to speak truthfully  



                   Bacod's  statement  provides  no  reason  to  believe  she  was  speaking  



insincerely in an effort to help Sanders.  She told Detective Huelskoetter that she had  



                                                                                                                   

known Richards, whom she described as her "best friend," since the third grade, and that  



       

she  had  known  Moore  for  months.    She  connected  her  social  life  to  theirs,  telling  



Detective  Huelskoetter  that  she  was  supposed  to  have  been  with  Richards,  Moore,  



                                                                              

Ketzler, and Porterfield on the night of the shooting.  In contrast, she explained that she  



had never met Sanders.  Despite this asymmetry of bonds, she relayed information that,  



                               

whether she knew it or not, would have been helpful to Sanders's defense and implicated  



                       

her friends in a conspiracy to commit robbery.  The fact that Sanders did not learn of the  



call until the State disclosed its existence fifteen months after Bacod placed it further  



diminishes the chances that Bacod was somehow lying for Sanders's benefit.  



                                       ii.      Spontaneity  



                   It is also relevant that Bacod initiated the call to Detective Huelskoetter.  



                                                                                    

The fact that she sought Detective Huelskoetter out rather than vice versa diminishes the  



                                                        

chances that she was telling him what she thought he wanted to hear.  Bacod answered  



                                                                                                  

Detective Huelskoetter's open-ended questions and stated that she told him everything  



she  knew  about  the  events.    She  invited  him  to  call  her  back  if  he  had  any  further  



questions, in the process giving him her full name, home address, and phone number.  



And she apparently did all of this in the presence of her mother.  



                   The dissent complains that "the most relevant portion" of Bacod's statement  



                                                                                       72  

"was  obtained  through  the  detective's  leading  questions."                              But  only  after  Bacod  



          72       Dissent at 44.  



                                                            -34-                                                         7058  


----------------------- Page 35-----------------------

                                                                                                                                  73 

                                                                         

reported what she had learned about the plan from her conversation with Richards                                                     did  



                                                            

Detective  Huelskoetter  ask  the  two  follow-up  questions  cited  by  the  dissent.    Both  



questions were posed immediately after Bacod stated, "I can't think right now," and they  



                                                                               

are  therefore  best  interpreted  not  as  leading  questions  but  as  attempts  to  elicit  



clarification of Bacod's previous statements.   



                                           iii.      Under oath  



                     Bacod's  statement  to  Detective  Huelskoetter  was  not  under  oath.    But  



because Bacod was speaking with a peace officer about a crime, knowingly providing  

false information in this call could have possibly subjected Bacod to criminal liability.74  



This possibility, much like an oath, provided a strong incentive to be truthful.  



                                           iv.       Cross-examination  



                                                                                                      

                     Bacod was not subject to cross-examination when she made the statement.  



                                                                                         

Although Detective Huelskoetter asked some clarifying questions, this was no substitute  



for  cross-examination.    This  factor  does  not  weigh  in  favor  of  her  statement's  



admissibility.  



           73        "[Sanders] stole money from one of our friends, and they wanted to go beat   



him up to get the money back . . . ."                      Bacod then stated, "Ashlee [Richards], . . . Raven  

[Ketzler], . . . Travis [Moore], and Travis's fiancée Sherrell [Porterfield]. . . woke up with                                 

money gone, and they were guessing it was [Sanders] . . . ."  



           74  

                             

                     See  AS  11.56.800(a)(1)(A)  ("A  person  commits  the  crime  of  false  

                                       

information or report if the person knowingly gives false information to a peace officer  

                                                                

with the intent of implicating another in an offense.").  The State argues that Bacod could  

                                                                                          

not have faced charges for false information or report because "it was Richards who  

                                                     

supposedly suggested that others intended to commit a crime," while "Bacod was merely  

a conduit for that information."  But this section applies as readily to "conduits" as to  

primary souces, so long as the requisite knowledge and intent are present.   



                                                                  -35-                                                            7058
  


----------------------- Page 36-----------------------

                                      v.       Relationship  



                                       

                   The fact that Detective Huelskoetter was the police officer charged with  



                                                                                                      

investigating the recent shooting deaths of two of her friends strongly favors Bacod's  



statement's admissibility.  Bacod provided the detective background information about  



what she believed "triggered it to happen."  These serious circumstances invited careful  



and somber reflection and explanations.  Indeed, as discussed above, knowingly lying  



to Detective Huelskoetter could have subjected Bacod to criminal liability.  



                                      vi.      Recantation and reaffirmation  



                   The  record  does  not  contain  any  evidence  that  Bacod  ever  recanted  or  



reaffirmed her statement to Detective Huelskoetter.  The dissent charges that Bacod  



                                                                                                   

"changed her account in real time in response to what she learned" in the interview with  

Detective Huelskoetter.75  But Bacod initially indicated, without any prompting from the  



detective, that Moore, Richards, Ketzler, and Porterfield wanted to"beat . . . up" Sanders.  

                                                                                                          



And while Bacod later added that the four of them were going to "try to talk . . . it out,"  

                                                                                                             



the dissent omits Bacod's very next statement to the detective:  "But . . . obviously. . .  

                                                                             



they're young, so . . . there's gonna be violence in it."  And for most of the time between  

                                                                                                 



Bacod's statement and her death Sanders was not aware that she had called and spoken  

                                                                                       



with Detective Huelskoetter.  



                                      vii.     Recording  



                   Detective Huelskoetter recorded Bacod's statement when she called him.  

                                                                                              



If  the  only  record  of  the  statement  was  Detective  Huelskoetter's  recollection  and  



testimony   there   would   be   risks   that   he   misunderstood   or   misremembered   the  



conversation.  The fact that the jury could have heard the statement eliminates those  



          75       Dissent at 43.  



                                                           -36-                                                        7058  


----------------------- Page 37-----------------------

risks, although it does not eliminate the risks of Bacod's faulty perception or memory of       



her conversation with Richards.   



                                         viii.      Clear demonstration of firsthand knowledge  



                     Bacod's statement to Detective Huelskoetter demonstrated her firsthand   



knowledge of the plan and conflict Richards described.  Bacod listed the number of her  



friends  that  went  to  Sanders's  house  and  provided  their  names.    She  identified  the  



                                                  

relationships among them.  Her close ties with Richards, whom Bacod described as her  



                                                                                                    

"best friend," and  whom  Bacod  was supposed  to  join  on  the night  of  the  shooting,  



provides further reassurance that Bacod had firsthand knowledge of the conversation  



with Richards.  



                                         ix.        Corroboration  



                     Extrinsic corroborating evidence provides further circumstantial guarantees  



                                                 

of trustworthiness in this case.  Bacod correctly identified the group of four people that  



                                                                                                               

went to Sanders's home together on the night of the shootings without assistance from  



Detective Huelskoetter.   Bacod stated that "they wanted to go beat [Sanders] up to get  



the money back," and that because the four were young "there's gonna be violence in it."  



                                                                                                                      

On the night of the shooting, little more than a week after Bacod reported she spoke with  



Richards, those four people traveled to Sanders's house with a pistol, a push knife, and  



a  machete.    According  to  Sanders,  one  of  them  struck  him  with  the  pistol  without  



warning, an action consistent with the plan to "jump" Sanders that Bacod described.  

                     Taken together, the "idiosyncratic factors"76 surrounding Bacod's statement  



to  Detective  Huelskoetter  convince  us  that  it  had  the  circumstantial  guarantees  of  



trustworthiness that Evidence Rule 804(b)(5) requires.  Bacod's statement was essential  



                                                                                                                     

to the defense theories Sanders had a constitutional right to present, and it, like the rest  



          76         MCCORMICK ON EVIDENCE , supra note 63, § 324, at 561.  



                                                                -37-                                                              7058  


----------------------- Page 38-----------------------

      

of the Rule 804 exceptions for unavailable declarants, was "sufficiently reliable to be  

admitted in light of [its] great evidentiary value."77  



                                                                                                                                     

                                   b.	         Bacod's statement to Detective Huelskoetter was more  

                                                                        

                                               probative on the point for which it was offered than other  

                                               evidence Sanders could have reasonably procured.  



                                                                                                     

                        The State also argues that Bacod's statement to Detective Huelskoetter was  



                                                                                                          

inadmissible because Porterfield and Ketzler were available to testify, "and both would  



                                                                                                                                           

have presumably known about the purported plan."  It follows, the State argues, that the  



                                                                                                                      

 statement Sanders sought to introduce was not "more probative on the point for which  



                                                                                

it is offered than any other evidence which the proponent can procure through reasonable  

efforts," as Rule 804(b)(5) requires.78  



                                                                                                                     

                       Although it is difficult to precisely define the scope of "the point for which  



 [evidence] is offered," it is clear that Bacod was in a unique position in this case.  She  



                                                                                                                              

had allegedly learned about an ongoing conspiracy from a close friend, but she did not  



join in the enterprise.  This gave her crucial insight into the aims of the acting parties  



                                                               

without exposing her to the threat of criminal liability that would normally silence a  



                                                                                                                          

participant  in  a  criminal  scheme.                           The  record  contains  no  hint  of  another  witness  



                                                                              

prepared to testify that Richards and Moore planned to "jump" Sanders or of any other  



                       

person who was aware of the plan but not participating in it.  The State acknowledges  



in its brief that Porterfield, one of the witnesses it faults Sanders for not interviewing,  



denied  knowledge  of  any  plan  to  rob  and  beat  up  Sanders.    And  the  fourth  alleged  



                                                                                                                    

confederate, Ketzler, similarly denied any role in, or knowledge of, a plan to rob Sanders  



            77         In re A.S.W. , 834 P.2d 801, 804 (Alaska 1992).  



            78          The State also alludes to the availability of Sanders's brother, Joseph, to   



testify that Moore attacked Sanders first, but Bacod's statement was probative of more                           

than just Moore's physical actions in Sanders's bedroom and came from a source much  

less likely to fabricate testimony on Sanders's behalf.  



                                                                        -38-	                                                                 7058
  


----------------------- Page 39-----------------------

                                                                

when questioned by police. Moreover, Bacod learned about the plan from Richards, one  



                                                                                                         

of the victims and one of the three people whose states of mind, intentions, and actions  



were central to the case.  



                      Under these circumstances, and again informed by Sanders's constitutional  



                          

right to present a defense, we do not believe that Sanders could have reasonably procured  



                                                                                                   

any evidence more probative on the points for which Sanders offered Bacod's statement  



                                                                                                                       

to  Detective  Huelskoetter.                   We  therefore  reject  the  State's  argument  that  Bacod's  



                                                                               

statement was inadmissible for this reason and, in conjunction with our determination  



                                                                    

above that the statement had the required circumstantial guarantees of trustworthiness,  



                         

and the State's well-reasoned concession that admission of the statement would serve the  



interests   of   justice,   hold   that   it   should   have   been   admitted   under   Evidence  

Rule 804(b)(5).79  



           D.         The Exclusion Of The Two Statements Was Not Harmless.  



                      Although the superior court's exclusion of Richards's statement to Bacod  



and Bacod's statement to Detective Huelskoetter was erroneous, it is not a basis for  



                                                                                            80  

reversing Sanders's conviction if the error was harmless.                                       The trial record in this case  

                                                                                                                               



           79         In its respondent's brief, the State clarified that "[t]he state does not dispute       



the potential materiality of the report by Bacod - it refers to the purported statements         

by Richards, which if admissible, would be relevant.  Nor does the state dispute that  

admission of Bacod's report would be consistent with the evidence rules and the interests  

                                                                                                                          

of justice.  The state, however, disputes that Bacod's report is more probative than other  

                                                                                                             

reasonably available evidence."  



           80  

                                                             

                      See Alaska R. Crim. P. 47(a) ("Any error, defect, irregularity or variance  

which does not affect substantial rights shall be disregarded.").  



                                                                   -39-                                                             7058
  


----------------------- Page 40-----------------------

                                                                                                                                    

indicates that the exclusion was not harmless because we cannot "fairly say that the error  

did not appreciably affect the jury's verdict."81  



                       The State argues that the evidence that Richards and Moore had conspired  



to attack and rob Sanders would not have appreciably affected the jury's verdict because  



                                                                                             

the focus of the State's case was on the excessiveness of Sanders's response, not whether  



                

 Sanders  or  Moore  was  the  initial  aggressor.    The  State  focuses  particularly  on  the  



prosecutor's rebuttal argument, during which he appeared to implicitly concede that  



                                                                                                                      

Moore  struck  Sanders  first.    But  the  strength  of  the  prosecutor's  concession  was  



                                                                                                                

 significantly undercut by its context.  Just before those statements, the prosecutor noted  



                                                                                                                                      

that he was arguing based on "words from [Sanders's] mouth," but he did not tell the  



                                                                                                                    

jury to accept them as true.   Indeed, much of the prosecutor's first closing argument  



provided  the  jury  with  reason  not  to  credit  Sanders's  account,  including  Sanders's  



explanation of what had provoked the shootings.  The prosecutor was hardly conceding  



that Sanders was credible when he told the jury that Sanders "tells us for no reason, no  



                                                                                                                  

reason whatsoever, no reason that he's willing to admit, Mr. Moore whacks him on the  



head and causes that gash, that gash above his eye, for no reason whatsoever."  The  



prosecutor rhetorically asked the jury, "[W]ould it make any sense for Mr. Moore to  



                               

whack somebody in the head with an unloaded gun when the other guy's got two loaded  



            81        Love v. State         , 457 P.2d 622, 634 (Alaska 1969).  Sanders argues that, given       



the constitutional nature of his claim of error, the State is required to demonstrate that the     

error was harmless beyond a reasonable doubt.  See, e.g., Adams v. State , 261 P.3d 758,   

773 (Alaska 2011) ("A constitutional violation will always affect substantial rights and  

will be prejudicial unless the State proves that it was harmless beyond a reasonable  

doubt.  An error that is not constitutional in nature will be prejudicial if the defendant  

proves  that  there  is  a  reasonable  probability  that  it  affected  the  outcome  of  the  

proceeding.").              Because  we  find  that  the  error  was  not  harmless  under  the  less- 

                                                                                                     

demanding standard for non-constitutional errors, we need not determine whether the  

error was harmless beyond a reasonable doubt.  



                                                                     -40-                                                               7058
  


----------------------- Page 41-----------------------

                          

guns right there on the bed?  That makes no sense."  The prosecutor also told the jury  



                                                               

that "[w]e know intuitively" that Sanders told the other witnesses to the events that "[t]he  



                                                                                      

story will be he hit me first." And the prosecutor told the jury that Sanders had "a motive  



                                                                                                     

to lie to the detectives to make himself look good and to leave out the parts of the story  



                                                                                           

that make it look like . . . the shooting of Mr. Moore had a lot more to do with preexisting  



animosity than we discovered in this case."  



                                                          

                    In light of the extensive argument against Sanders's account that the State  



                                                                                                     

presented during closing argument, we cannot fairly conclude that the exclusion did not  



have an appreciable effect on the jury's verdict.  



V.        CONCLUSION  



                                                                                                                    

                    Because the excluded evidence should have been admitted and because its  



                                            

exclusion was not harmless, we REVERSE Sanders's convictions and REMAND for a  



new trial.  



                                                              -41-                                                         7058
  


----------------------- Page 42-----------------------

BOLGER, Justice, with whom STOWERS, Justice, joins, dissenting in part.  



I.          INTRODUCTION  



                       I agree with the general legal framework the court uses to decide this case.  



I am troubled, however, by the court's conclusion that Carmela Bacod's statement to  

                                                                                                  



Detective Huelskoetter was so trustworthy that the superior court was  required as a  



                                                                                                                   1  

matter of law to admit it under Alaska Evidence Rule 804(b)(5).   Even considering  



                                                                                                                  

corroborating  evidence,  I  would  hold  that  Bacod's  statement  does  not  evince  the  



"circumstantial               guarantees            of      trustworthiness"                required          for      admission            under  



                                                                                                                                           

Rule  804(b)(5),  and  I  would  affirm  the  superior  court's  evidentiary  ruling.                                                      In  the  



                                                                           

alternative,  I  would  remand  to  allow  the  superior  court  to  exercise  its  discretion  in  

making this determination under this court's newly announced standard.2  



II.         DISCUSSION  

                         The  court  adopts  nine  "[p]articularly  significant  relevant  factors"3  for  



determining whether a proffered hearsay statement, despite failing to meet any of the  



                                                         

enumerated hearsay exceptions, is nevertheless sufficiently trustworthy to be admitted  



                         4  

                              The  court  concludes  that  "at  least  five"  of  these  factors  favor  the  

into  evidence.                                                                              



            1          Op. at 28, 39.  



            2          See Patterson v. GEICO Gen. Ins. Co., 347 P.3d 562, 568 (Alaska 2015)   



("We . . . review the superior court's application of the evidence rules . . . for abuse of                   

discretion.").  



            3          See Op. at 32.  



            4  

                                                                       

                       The  court  adopts  eight  of  these  factors  from  2  GEORGE  E.   DIX  ET  AL .,  

MCCORMICK ON EVIDENCE § 324, at 565-66 (Kenneth S. Broun ed., 7th ed. 2013) and     

analyzes evidence of corroboration as a final, standalone factor.  See Op. at 32-38.  



                                                                       -42-                                                                  7058
  


----------------------- Page 43-----------------------

                                 5  

                                           

statement's admission.   But for the reasons discussed below, I am not persuaded by the  



                                                           

court's analysis, and I would conclude that, on the record before us, only one of these  



        

nine factors - the recording of the statement - unambiguously favors admission, while  



the remaining eight either cut against the statement's trustworthiness or provide little  



insight into the trustworthiness of the statement.  



          A.        Motivation To Speak Truthfully  



                                                                                                    

                    The court concludes that "Bacod's statement provides no reason to believe  



                                                                                                   6  

she was speaking insincerely in an effort to help [Ryan] Sanders."   But while I agree  



                                                                  

that Bacod had no reason to lie for Sanders , Bacod's broader motivations for speaking  



                       

with Detective Huelskoetter remain unknown.  If anything, Bacod's statement suggests  



that  Bacod  contacted  Detective  Huelskoetter  partly  to  determine  what  the  police  



                                    7 

                                                                            

knew about the shooting,  and it is undisputable that she changed her account in real time 



                                               8  

in response to what she learned.   This casts some doubt on the idea that Bacod called  



Detective Huelskoetter for the civic-minded purpose of providing a truthful statement to  



help  the  police  with  their  investigation.    I  would  therefore  conclude  that  this  factor  



weighs neither for nor against finding Bacod's statement sufficiently trustworthy.  



          5         Op. at 33.  



          6         Op. at 34 (emphasis added).  



          7         Specifically, Bacod asked Detective Huelskoetter:  



                        *	   "[W]ere you there at the scene?" 



                        *	   "Was . . . it just [Richards] and [Moore] alone?"  



                                                                               

                        *	   "[W]as there other people with [Moore] and . . . [Richards]? . . .  

                             Were there two females there?"  



          8         Bacod  initially  indicated  that  Travis  Moore,  Ashlee  Richards,  Raven  



Ketzler, and Sherrell Porterfield wanted to "jump" and "beat . . . up" Sanders, but she  

later said "[t]hey were . . . gonna try to talk . . . it out."  



                                                             -43-	                                                      7058
  


----------------------- Page 44-----------------------

          B.        Spontaneity  



                    In discussing spontaneity, the court focuses primarily on the fact that Bacod  



                                                                                                             

initiated the call to Detective Huelskoetter and states that the detective's questions to her  



                               9  

                                                                                                   

were "open-ended."               But though it is true that much of Bacod's statement was made in  



                                                                                                    

response to open-ended questions, the most relevant portion - Bacod's claims about  

Travis  Moore's  intent10  -  was  obtained  through  the  detective's  leading  questions.  



                                                          

Bacod never independently stated (or even implied) that Moore was the ringleader of the  



                                                                                                                 

alleged assault.  She indicated this only by affirmatively answering two very leading  



questions:  (1) "So . . . you know that [Moore] wanted to beat [Sanders] up over the  



                                                         

money?" and (2) "[W]hen they were goin' over there[,] [it] was pretty much the idea . . .  



                                                            11  

that [Moore] was gonna beat him up?"                            I do not think that Bacod's responses to the  



detective's leading questions on this critical issue can be considered spontaneous, and  



I  would  conclude  that  this  factor  weighs  against  the  trustworthiness  of  Bacod's  



statement.  



          C.        Under Oath  



                    Bacod's statement was not sworn testimony.  Accordingly I would conclude  



that this factor weighs against the statement's trustworthiness.  



          D.        Cross-examination  



                    Bacod's  statement  was  not  subjected  to  thorough  cross-examination.  



                                                                                     

Although Detective Huelskoetter asked several leading questions, none was particularly  



          9         Op. at 34.  



          10        Moore's intent was important and perhaps critical to the admissibility of   



Bacod's statement, as the court notes.  Op. at 18-19.  



          11        Moreover, this second question would have been objectionable if it had  



been asked at trial because Bacod had no personal knowledge of Moore's state of mind  

                             

at the moment "when [the alleged conspirators] were goin[g]" to Sanders's apartment.  



                                                               -44-                                                         7058
  


----------------------- Page 45-----------------------

pointed or intended to cast doubt on Bacod's truthfulness, as the State's questions would         



have been had Bacod been able to testify at trial.  Indeed, cross-examination would have  



been particularly helpful in clarifying this particular statement, because it might have  



shed light on whether Richards actually told Bacod that the alleged conspirators were  



                                                                                                 

planning to "jump" and "beat . . . up" Sanders or merely indicated an intent to "talk" with  



him.  Because the State was unable to press Bacod on this point, I would conclude that  



this factor weighs against the trustworthiness of Bacod's statement.  



          E.        Relationship  



                    The  court  concludes  that  Bacod's  decision  to  talk  to  a  police  officer  



investigating the deaths of two friends strongly favors the trustworthiness of Bacod's  



               12  

statement.         The court also notes that knowingly providing false information to the  



                                                                                 13  

police could have subjected Bacod to criminal liability.                             And elsewhere in its analysis,  



                                                

the court suggests that Bacod's statement was more trustworthy because she made it in  



                                          14  

the presence of her mother.                   But as a general matter, I suspect police officers and  



parents  of  teenagers  would  be  skeptical  of  the  court's  reasoning,  since  it  is  not  



                                                                    

uncommon for individuals to lie to the police, or teenagers to their parents.  And as noted  



                 

above, the idea that Bacod was highly motivated to tell the truth - either by the death  



                                                  

of her friends or by the potential for criminal liability - is somewhat belied by the fact  



that she changed her account halfway through her statement.  



                                                                                                          

                    For these reasons, I would conclude that the relationship between Bacod  



                                          

and Detective Huelskoetter provides, at best, weak support for trustworthiness.  I do not  



                                   

think there is enough  information in the record about Bacod's relationship with her  



          12        Op. at 36.  



          13        Op. at 36.  



          14        Op. at 34.  



                                                             -45-                                                        7058
  


----------------------- Page 46-----------------------

mother and with Detective Huelskoetter (or police officers in general) to support the  



conclusion that these relationships "strongly favor" her statement's trustworthiness.  



         F.        Recantation Or Reaffirmation  



                   There is no evidence to suggest Bacod recanted or reaffirmed her statement  

                                                                                         



after  talking  with  Detective  Huelskoetter,  and  she  died  before  the  evidence  of  her  

                                                                                   



statement came to light.  As already noted, however, Bacod walked back a critical part  

                                     



of her account - namely, that Moore, Richards, Ketzler, and Porterfield intended to  



                                                                                        

assault Sanders - midway through her statement.  Although it seems likely that Bacod's  



                                                      

reason for changing her narrative was to protect Ketzler and Porterfield once she learned  



                                                 

they had been present at Sanders's house during the shootings, Bacod's shift of narrative  

                                                         15  as the court puts it, or a partial recantation, as  

                                                                             

was indisputably a "partial[] backtrack," 



I would put it.  For this reason, I would conclude that this factor weighs against finding  

                                                                      



Bacod's statement trustworthy.  



          G.       Recording  

                   Bacod's statement was recorded.  As the court correctly concludes,16 this  

                                                                         



weighs in favor of the statement's trustworthiness.  



         H.        Firsthand Knowledge  



                   The court notes that Bacod had firsthand knowledge of her conversation  

                          

                                                           17   Nevertheless, I am not persuaded that this  

with Richards, which seems indisputable.                                              



factor favors admissibility.  It is difficult to imagine proffered evidence of hearsay within  

                                                                         



          15       See Op. at 16.  



          16       See Op. at 33.  



          17       See Op. at 37.   The  court  also notes t  hat  Bacod had close t  ies w              ith Richards  



and knew the identities of the other three alleged conspirators.  Id.  For the reasons  

discussed  in  the  next  section,  however,  I  am  unpersuaded  that  this  corroborating  

evidence supports the trustworthiness of Bacod's statement.  



                                                          -46-                                                     7058
  


----------------------- Page 47-----------------------

                                                                                                           

hearsay where the out-of-court declarant will not have firsthand knowledge of the second  



declarant's statement, so this factor would appear to support the admission of hearsay  



within hearsay in most cases.  But each level of hearsay compounds the risk that the  



                                                                                                

original statement was miscommunicated or misunderstood, and a factor that usually or  



                           

always favors the admission of hearsay within hearsay seems an unreliable indicator of  



whether the statement is trustworthy.  Therefore, while firsthand knowledge (or lack  



thereof) seems a particularly relevant factor in determining whether a typical hearsay  



                                                          18 

                                                                                                             

statement should be considered reliable,                     I would conclude that this factor has little or  



no  weight  in  determining  the  trustworthiness  of  hearsay-within-hearsay  statements,  



including Bacod's.  



          I.       Corroborating Evidence  



                   Finally,  the  court  concludes  that  corroborating  evidence  supports  the  



                                                                         

trustworthiness of Bacod's statement.  The court highlights Bacod's identification of  



Moore, Richards, Ketzler, and Porterfield early in her statement without prompting from  



                                19  

                                                                             

Detective Huelskotter.              And the court notes that the four friends had three weapons in  



                                                                                                            

their possession the night of the shootings:  (1) Richards's push knife, (2) the machete  

in the car, and (3) Moore's unloaded pistol.20  



                   But the fact that Bacod could identify the alleged conspirators provides  



                                                                   

minimal corroboration for Bacod's statement, since Bacod's statement suggests that the  



friends regularly spent time together, and Bacod did not actually know whether Ketzler  



          18       See United States v. Hall            , 165 F.3d 1095, 1111 (7th Cir. 1999) (holding  



third-party  suspect's  confession  unreliable  where  it  was  "clear"  that  suspect  "knew  

nothing about the specifics of the crime").  



          19       Op. at 36.  



          20       Id. at 37.  



                                                           -47-                                                      7058
  


----------------------- Page 48-----------------------

and   Porterfield   visited   Sanders   the   night   of   the   shootings.   Moreover,   Bacod's  



identification  of  her  friends  does  not  corroborate  the  critical  portion  of  Bacod's  



statement:  her explanation for why those friends visited Sanders's apartment.  



                   Likewise, the existence of the three weapons adds little corroborative force  



                                                                                                             

to Bacod's statement.  The push knife and machete are conditionally relevant only if the  

                                                                           21 but there is no evidence of such  

weapons were intended to be used to assault Sanders, 



intent.  To the contrary, Richards never brandished  the push knife and the machete  

                                                                             



                             22  

remained in the car.             And while Moore's pistol provides some corroboration for the  



general  thrust  of  Bacod's  statement,  the  weapon's  existence  rebuts  the  portion  of  

                                                                                           



Bacod's statement that specifically addresses Moore's relationship with firearms.  When  

                                                                             



asked whether she had ever observed Moore with a gun, Bacod responded:  "No, . . . no.  

                            

                                                     23  Bacod further speculated that Ketzler was the  

I can't imagine [Moore] with a gun."  

                                                                    



only one of the alleged conspirators who might have had a gun, but there is no evidence  

                                                                                                       



in  the  record  suggesting  that  Ketzler  possessed  a  firearm  either  on  the  night  of  the  



shootings or in general.  



                   For  these  reasons,  I  do  not  share  the  court's  confidence  that  Bacod's  



identification of the group of friends who visited Sanders on the night of the shootings  

                                                                                            



-  or the existence of the friends' three weapons - significantly corroborates Bacod's  



statement.  I would conclude that the corroborating evidence here provides only weak  



support for the statement's trustworthiness.  



         21        See Alaska R. Evid. 104(b).  



         22        Indeed, Sanders was not aware of either weapon, and the superior court  



concluded they were irrelevant and inadmissible.  



         23        It also seems odd that Moore would take an                  unloaded weapon to Sanders's  



house if he intended to assault Sanders.  



                                                          -48-                                                     7058
  


----------------------- Page 49-----------------------

III.     CONCLUSION  



                                            

                   I  disagree  with  the  court's  conclusion  that  Bacod's  statement  was  



                                                                      

sufficiently  trustworthy  to  be  admissible  under  Rule  804(b)(5),  and  I  am  especially  



                                                               

troubled by the court's holding that Bacod's statement was so trustworthy that it must be  

admitted as a matter of law.24  



                   The court attempts to narrow the breadth of this holding by stating that the  

                                               



residual hearsay exceptions apply "only on rare occasions," should not be treated as  



                                                                                            

"invitations to discard the general prohibition on the admission of hearsay," and must be  

                                                25  But litigants - both criminal and civil - will no  

applied on a "case-by-case" basis.     



doubt cite this case to support the admission of hearsay statements under the residual  



                                                                                                    

hearsay exceptions.  And Bacod's unsworn, telephonic statement seems less trustworthy  



than evidence from sworn affidavits or in-person interviews if such evidence can be  



partially corroborated.  Though the court has not previously held that these types of  



                                                                                                      

hearsay evidence should be admissible at trial, I fail to see why today's ruling will not  



lead to the regular admission of such statements.  



                   I fear the court will come to regret its expansion of the residual hearsay  



exceptions, and I respectfully dissent.  



         24        See Op. at 39.  



         25        See Op. at 32-33.  



                                                          -49-                                                       7058  


----------------------- Page 50-----------------------

                            Anchorage Police Department Transcript  



Q - DETECTIVE M. HUELSKOETTER  

A - CARMELA BACOD  



A.	      Everything happened, and she told me, like, actually it's been goin' on for like,  

         about two weeks now.  Um, the - Ryan SANDERS (Phonetic), he stole money  

         from one of our friends, and they wanted to go beat him up to get the money back,  

                                                                                               

         'cause it was pretty much a lot of money, and I think that's what like, triggered  

                                                                                  

         it (clears throat) to happen.  

Q.	      Do you know who, uh - which friend had the money stolen?  

A.	      I don't know her last name.  I've met her just one time.   Her name is RAVEN  

                            

         (Phonetic), though.  

Q.	      Okay.  So, what - what exactly do you know about the s - stealing of the money?  

                                         

A.	      Um, well, ASHLEE (Phonetic) told me, uh, like about a week and a half ago, she  

                                                                                                    

         told  me  on  the  phone  that  hi  -  her,  RAVEN,  and  TRAVIS  (Phonetic),  and  

                          

         TRAVIS's fiancée SHERRELL, (Phonetic) and RYAN were all hangin' out, and  

                                                                    

         then RYAN ended up the one only awake.  Everyone was sleeping and they woke  

                                                 

         up with money gone, and they were guessing it was him, 'cause he was the only  

                                                                               

         one awake, and he was gone when they came - when they woke up.  

Q.	      Humph.  

A.	      So, they assumed that he had stolen the money and ASHLEE told me that she  

                                                                                                         

         heard around that RYAN had bought, uh, marijuana and alcohol and other drugs  

                                                             

         with the money.  

Q.       Uh-huh.  

BACKGROUND NOISE  

A.       So, that's what I've heard.  

BACKGROUND NOISE  

Q.	      Okay.  Do you - do you know of any other, uh, bad blood between RYAN and  

                                                                                         

         TRAVIS and that group?  Any other things goin' on?  

BACKGROUND NOISE  

A.	      Um, I don't know RYAN - I've never met RYAN, but his name sounds really  

                                                 

         familiar,  and  I've  known  TRAVIS  for  a  couple  months,  and  I've  known  

         ASHLEE, she - she was my best friend, and I've known her since third grade.  

Q.	      Okay.  

A.	      But, that was pretty much what she told me.  

Q.	      So, what did . . .  



                                              Appendix - 1 of 6	                                               7058  


----------------------- Page 51-----------------------

A. 	     She . . .  

Q.	      . . . they tell you about, uh, wanting to go, uh, beat them up over this?                        I mean,  

         what specifically do you know about that?  What was the plan?  

BACKGROUND NOISE  

A.	      (Clears throat) Um, actually he had - he wanted to hang out with them . . .  

Q.	      He, as in TRAVIS?  

A.	      Uh, RYAN.  He wanted to hang out with all of us.  I was supposed to go with  

         them to their house . . .  

Q.	      Oh, okay.  

A.	      . . . that night. (Clears throat) Um, I really don't know, like - oh, I can't think right  

                                                                                

         now.  

Q.	      Okay.  

A.	      Sorry.  

Q.       So - but you know that TRAVIS wanted to beat RYAN up over the money?  

BACKGROUND NOISE  

A.       Yeah.  

BACKGROUND NOISE  

Q.	      And that when they were goin' over there that was pretty much the idea, is that  

                                     

         TRAVIS was gonna beat him up?  

BACKGROUND NOISE  

A.	      Yeah.  Um, were you there at the scene?  

Q.       I've - I was at the scene.  

BACKGROUND NOISE  

A.	      Was, uh - was it just ASHLEE and TRAVIS alone?  

Q.	      I - I'm sorry?  

A.	      Like, um, was there other people with TRAVIS and SHERRELL, like - I mean,  

                                            

         ASHLEE?  

Q.	      Yeah.  There were.  

A.	      Were there two females there?  

Q.       Yes.  

BACKGROUND NOISE  

Q.	      So, do you know somethin' about that?  

A.	      Well, um, RAVEN, she's a Native.  I don't know if that was one of her females,  

                                                                                                  

         but, she had long hair . . .  

Q.	      'Kay.  

A.	      . . . that's RAVEN.  SHERRELL's a Black female.  

Q.	      Uh-huh.  

A.	      She was, uh, TRAVIS's fiancée.  



                                             Appendix - 2 of 6	                                           7058  


----------------------- Page 52-----------------------

Q.      Okay.  

BACKGROUND NOISE  

A.	     Um, ASHLEE just told me that they wanted the money back, and then they were  

                                  

        gonna jump 'em for it.  But, uh, she told me that earlier  they  tried before or  

                                                                                          

        something like that, and RYAN's brother got mad or something and pulled a gun  

                                                                           

        on RAVEN's face, or something like that.  I don't know.  She didn't tell me much  

        about that.  

Q.      So, uh, [your] name's CARMELA, is that right?  

BACKGROUND NOISE  

A.      Yes.  

BACKGROUND NOISE  

Q.	     So, now, just let me see if I understand correctly, that you knew that kinda the  

                                                                                    

        plan was that TRAVIS and his girlfriend and ASHLEE and - and some other girl  

        named RAVEN were gonna go over there and essentially jump them to get their  

                                                               

        money back?  

A.	     Not - not jump, like, you know, like, talk.  

Q.	     Okay.  They were . . .  

A.	     But . . .  

Q.	      . . . gonna try to talk . . .  

A.	      . . . obviously . . .  

Q.	      . . . it out, or . . .  

A.	      . . . they're young, so, you know, there's gonna be violence in it.  

Q.	     Okay.  

A.	     But, I couldn't stop them.  

     

Q.	     Right.  So, they - they - I mean basically the only reason they were going over  

        there was to get the money back.  

BACKGROUND NOISE  

A.	     Probably.  

Q.      Okay.  Alright.  

BACKGROUND NOISE  

Q.      Um, you ever see TRAVIS with a gun?  

BACKGROUND NOISE  

A.	     No, he - no.  I can't imagine TRAVIS with a gun.  

Q.	     You can't imagine TRAVIS with a gun?  

A.	     No.  He's so nice.  

Q.      Is he?  

BACKGROUND NOISE  

Q.	     (Sighs) Um, who on that side would - would have had a gun?  



                                           Appendix - 3 of 6	                                         7058  


----------------------- Page 53-----------------------

BACKGROUND NOISE  

A.	    Definitely not ASHLEE.  

Q.     Okay.  

BACKGROUND NOISE  

Q.     Anyone else that you can think of that mighta had a gun?  

BACKGROUND NOISE  

A.	    I can't really, like - I don't know RAVEN that much, but probably she could.  I've  

                                            

       only met her once.  

Q.	    Okay.  

A.     And I don't know her.  

BACKGROUND NOISE  

Q.     Okay.  I - is there anything else that, uh . . .  

BACKGROUND NOISE  

Q.     . . . you think I should know?  

BACKGROUND NOISE  

A.	    That's - I told you everything I know.  

Q.     Okay.  CARMELA, what's your last name?  

BACKGROUND NOISE  

A.	    BACOD.  

Q.	    Can you spell . . .  

A.	    B . . .  

Q.	    . . . that?  

A.	    B as in boy . . .  

Q.	    Uh-huh.  

A.	    . . . A-C-O-D as in dog.  

Q.     B-A-C-O-D?  

BACKGROUND NOISE  

Q.	    BACOD?  

A.	    Yeah.  

Q.	    What's your date of birth?  

A.      [Bacod provided her date of birth]  

BACKGROUND NOISE  

Q.     Um, and how do I get a hold of you again, just call this number?  

BACKGROUND NOISE  

A.	    This is my mom's cell phone.  

Q.	    Okay.  You have your own cell phone, then?  

A.	    Yeah.  



                                      Appendix - 4 of 6	                                  7058  


----------------------- Page 54-----------------------

Q.	     Okay.    And,  uh,  is  that,  uh,  [Detective  Huelskoetter  recited  Bacod's  phone  

       number]?  

BACKGROUND NOISE  

A.	    Yeah.  

Q.      Okay.  

BACKGROUND NOISE  

Q.     And where do ya live?  

BACKGROUND NOISE  

A.	    Um, [Bacod provided her home address] . . .  

        . . . .  

Q.	     . . . Alright.  If, uh, if I have any other questions, can I, uh, give you a call back  

                                                                     

        or come see you?  

BACKGROUND NOISE  

A.	    Yeah.  

Q.      Okay.  And, uh, do you have somethin' to write my name and number down with?  

BACKGROUND NOISE  

A.	    Mom, can I get a pen?  

Q.      'Cause I'll give you my direct number.  

BACKGROUND NOISE  

A.	     Okay.  

Q.      Okay, my first name is MARK.  

BACKGROUND NOISE  

Q.	    My last name, I'll spell it for you, 'cause it's really long.  It's spelled H-U-E-L-S- 

                                         

       K-O-E-T-T-E-R.  

BACKGROUND NOISE  

Q.     And my telephone number is [Detective Huelskoetter provided his phone number]  

BACKGROUND NOISE  

A.	     Okay.  

Q.	     Okay?  

A.	     Thank you.  

Q.	     So, if you think of anything that - that I should know about, will you please give  

       me a call?  

A.	    Yes.  

Q.	    Alright, well thank you very much.  

A.	    You're welcome.  

Q.	    We'll talk to you later.  



                                       Appendix - 5 of 6	                                   7058  


----------------------- Page 55-----------------------

A.     Alright.  

Q.     'Bye.  

A.     'Bye.  

BACKGROUND NOISE  

RECORDER SHUTS OFF  

END OF PHONE CONTACT  



                                  Appendix - 6 of 6                               7058  

Case Law
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