Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge. Court of Appeals No. A-10316 Trial Court No. 3PA-04-2796 Cr
The opinion of the court was delivered by: Mannheimer, Judge.
The text of this opinion can be corrected before the opinion is published in the Pacific Reporter. Readers are encouraged to bring typographical or other formal errors to the attention of the Clerk of the Appellate Courts: 303 K Street, Anchorage, Alaska 99501 Fax: (907) 264-0878 E-mail: corrections at appellate.courts.state.ak.us
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
Cynthia J. Estes and her husband, Richard Deremer, were suspected of killing Estes's cousin, David McKinney, and stealing his supplies of prescription pain medications. During the investigation of this homicide, the state troopers enlisted Deremer's cousin, Jason Chew, to engage Estes in a monitored conversation about the homicide. During this conversation, Chew attempted to draw out Estes by telling her that he had spoken with Deremer about the homicide, and that Deremer had described how he and Estes plotted to kill McKinney.
Despite Chew's repeated assertions that Deremer had implicated Estes in the homicide, Estes staunchly denied that she had had anything to do with planning or committing the crime. She admitted that she had driven Deremer to McKinney's house, but she declared that she had no idea that Deremer intended to commit murder. Estes told Chew that she thought Deremer was merely going to confront McKinney about an ongoing family dispute.
(Apparently, McKinney suspected that Estes had been stealing drugs from him. McKinney had confronted Estes about this, and he had allegedly threatened Estes and her family.)
Estes admitted that she almost immediately found out that Deremer had murdered McKinney -- because, when she came back to McKinney's house to pick Deremer up, Deremer told her to come inside the house, and then it become obvious what Deremer had done. Estes also conceded that she assisted in the theft of McKinney's prescription pain medications by retrieving a slip of paper from McKinney's wallet -- a paper that contained the combination to the safe where McKinney stored his medications -- and by showing Deremer where the safe was.
After Estes had this conversation with Chew, she was interviewed by two state trooper investigators who used the same strategem -- telling Estes that Deremer had confessed to the homicide, and that Deremer had described how he and Estes planned the crime together. During this conversation with the state troopers, Estes eventually admitted that, when she drove Deremer to McKinney's house, she knew that Deremer intended to shoot McKinney -- although she told the investigators that she did not want to believe that he would really go through with it.
Estes also again admitted that, after McKinney was shot and killed, she entered the house and searched McKinney's wallet for the piece of paper containing the combination to the floor safe where McKinney stored his pain medications. However, Estes claimed that she had no intent to steal these medications when she drove Deremer to McKinney's house -- that she made this decision only after McKinney was already dead.
The primary questions presented in this appeal arise from the fact that, at Estes's murder trial, the State sought permission to introduce the contents of Estes's monitored telephone conversation with Chew and her later interview with the state troopers. Estes's attorney objected, arguing that the introduction of this evidence would violate Estes's Sixth Amendment right of confrontation as construed in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
Specifically, the defense attorney pointed out that, during these two conversations, Chew and the state troopers referred to out-of-court statements purportedly made by Estes's husband, Deremer. In these purported statements, Deremer admitted his guilt of the murder, but he also incriminated Estes.
Estes's attorney argued that Deremer's out-of-court statements were "testimonial hearsay" for purposes of the confrontation clause, and therefore any reference to these statements would violate Estes's right to confrontation -- since Deremer (who was tried separately for the murder) was not available as a witness at Estes's trial, and since Estes had had no prior opportunity to cross-examine Deremer concerning these purported statements.
The trial judge, Superior Court Judge Eric Smith, concluded that Estes's confrontation clause objection was meritless because, even if Deremer had in fact made the statements attributed to him by Chew and by the trooper investigators, the State was not offering Deremer's statements for a hearsay purpose.
Why we conclude that the introduction of this evidence did not violate Estes's Sixth Amendment right of confrontation
Alaska Evidence Rule 801(c) defines "hearsay" as a statement (i.e., an assertion of fact*fn1 ) that is "offered in evidence to prove the truth of the matter asserted [in the statement]."
In Estes's case, the State wished to introduce two recorded interviews with Estes -- the surreptitiously recorded conversation with Chew, and the openly recorded interview with the state troopers. Both of these interviews contained references to outof-court statements purportedly made by Estes's husband, Deremer -- statements implicating Estes in the planning and commission of the murder.
But this evidence was not hearsay, because the State did not offer this evidence as proof of the matters asserted in the statements attributed to Deremer. Rather, Chew's assertions about what Deremer said, and the troopers' assertions about what Deremer said, were offered to provide the foundation or context for understanding the statements ...