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. Superior Court No. 3AN-07-00018 CR.
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.]. BOLGER, Justice, with whom STOWERS, Justice, joins, dissenting in part.
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
been admitted, and we therefore reverse the defendant's convictions and remand for a new trial.
II. FACTS AND PROCEEDINGS
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 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 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."
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. 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?"
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).
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 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, which in turn cited the United States Supreme Court case Idaho v. Wright  -- and therefore did not consider any extrinsic 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 only evidence of their relationships to one another is 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 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 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).
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. Bacod's statement was not introduced,
and no evidence was 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 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, second-degree murder of Richards, and tampering with physical evidence. By returning these verdicts, 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 allow him to introduce Bacod's statement at trial. The court of appeals concluded that 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 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 testing would add little to its reliability.'"  The court added, " [T]here was essentially no evidence regarding Bacod's potential motivation for contacting the police."  The 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 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." 
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. 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 current plans) for the purpose of proving another person's future actions."  This provided, in his view, an additional reason that the contested statements were not admissible.
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 ...