FABE, Chief Justice.
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
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 Porterfield and Richards, who was carrying a push knife.
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 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
Two days after the shootings Detective Mark Huelskoetter, the lead detective in the case, received a phone call from Carmela Bacod, which he recorded.
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?"
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."
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.
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).
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
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:
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,
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 machete in the SUV.
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 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,
On appeal Sanders argued that the superior court had erred by refusing to allow him to introduce Bacod's statement at trial.
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 testing would add little to its reliability.'"
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 general, a trial court does not commit error by properly applying the evidence rules."
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.
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.
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 with a definite and firm conviction that a mistake has been made."
"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 asserted."
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 said that they wished to talk to Sanders about the money."
We disagree with this interpretation of Bacod's statement. Bacod's first recorded words to Detective Huelskoetter were, "Everything happened, and she told me, 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
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:
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.
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 admissible under Rule 803(3) to show her future action.
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) 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 actions."
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 Rule 803](23) must be satisfied."
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 before he is convicted of a crime.
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 had sought to prosecute Moore for conspiracy to commit robbery.
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 person as to [her] mental or emotional condition to be used against another,"
The "interest of justice" factor identified in Rule 803(23) dovetails in this case with the
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."
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 discretion in excluding Bacod's statement.
Both Wright and Ryan are Confrontation Clause cases.
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 value when the declarant is unavailable (Rule 804)."
The superior court ruled that "[t]he trustworthiness of [Bacod's] statement [to Detective Huelskoetter] may not be established by corroborating evidence." The court of appeals did not specifically consider this claim of error.
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 the court of appeals' interpretation of Idaho v. Wright.
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).
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 exceptions when a declarant is unavailable.
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 the particular proffered statement which suggest trustworthiness.
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 on rare occasions,"
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.
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 "was obtained through the detective's leading questions."
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.
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.
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.
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.
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 risks, although it does not eliminate the risks of Bacod's faulty perception or memory of her conversation with Richards.
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.
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"
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.
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 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).
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 reversing Sanders's conviction if the error was harmless.
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.
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.
WINFREE, Justice, not participating.
BOLGER, Justice, with whom STOWERS, Justice, joins, dissenting in part.
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 matter of law to admit it under Alaska Evidence Rule 804(b)(5).
The court adopts nine "[p]articularly significant relevant factors"
The court concludes that "Bacod's statement provides no reason to believe she was speaking insincerely in an effort to help [Ryan] Sanders."
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 were "open-ended."
Bacod's statement was not sworn testimony, Accordingly I would conclude that this factor weighs against the statement's trustworthiness.
Bacod's statement was not subjected to thorough cross-examination. Although Detective Huelskoetter asked several leading questions, none was particularly 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.
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 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 mother and with Detective Huelskoetter (or police officers in general) to support the conclusion that these relationships "strongly favor" her statement's trustworthiness.
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 was indisputably a "partial[] backtrack,"
Bacod's statement was recorded. As the court correctly concludes,
The court notes that Bacod had firsthand knowledge of her conversation with Richards, which seems indisputable.
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 Detective Huelskoetter.
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 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 weapons were intended to be used to assault Sanders,
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.
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.
I fear the court will come to regret its expansion of the residual hearsay exceptions, and I respectfully dissent.
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 ...
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.
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.
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?
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
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.
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.
A. Alright.
Q. 'Bye.
A. 'Bye.
BACKGROUND NOISE
RECORDER SHUTS OFF
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.
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, 110 S.Ct. 3139, 111 L.Ed.2d 638 (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., 272 Conn. 798, 865 A.2d 1135, 1144 n. 20 (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, 350 Mont. 538, 208 P.3d 836, 845 (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, 210 W.Va. 404, 557 S.E.2d 811, 817 (2001) ("Reliability must be shown from the circumstances surrounding the making of the statement.").
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.
