AARON L. ARREDONDO, Appellant,
STATE OF ALASKA, Appellee.
from the Superior Court Trial Court No. 3AN-11-3873 CR, Third
Judicial District, Anchorage, Gregory Miller, Judge.
Patton Kim, Assistant Public Defender, and Quinlan Steiner,
Public Defender, Anchorage, for the Appellant.
Terisia K. Chleborad, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Craig W. Richards, Attorney
General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, and Allard, Judge.
L. Arredondo appeals his conviction for felony driving under
the influence. Arredondo's wife Jackie refused to testify
at his trial. (She invoked her spousal immunity privilege
under Alaska Evidence Rule 505(a).) But the State called
Jackie's mother (Arredondo's mother-in-law) to
testify about a conversation she had with Jackie on the night
of this incident. During this conversation with her mother,
Jackie described a statement that Arredondo had made to her -
a statement suggesting that Arredondo had been driving.
attorney objected that Jackie's mother's testimony on
this subject was (1) inadmissible hearsay and, in any event,
(2) protected by the marital communications privilege
codified in Alaska Evidence Rule 505(b). The trial judge
overruled these objections and allowed the State to present
appeal, Arredondo renews his objections to this testimony -
but for the reasons explained in this opinion, we uphold the
trial judge's rulings and we therefore affirm
early morning hours of April 3, 2011, the Anchorage police
found Arredondo's truck resting on a steep embankment
below the freeway exit where Muldoon Road meets the Glenn
Highway. Soon after, the police found Arredondo walking
alone; he had keys to the vehicle in his pocket, and he was
intoxicated. However, Arredondo told the police that the keys
in his pocket were not the only keys to his truck. He stated
that he kept a spare set of keys in the vehicle itself, and
he declared that someone else had been driving the vehicle.
primary question litigated at Arredondo's trial was
whether Arredondo was the person who was driving his truck
when it skidded off the freeway exit and down the embankment
- or whether (as Arredondo's attorney argued) it was
Arredondo's wife Jackie who was driving the truck.
fact, this was the primary question litigated at all
three of Arredondo's trials for this offense.
Arredondo's first two trials ended in mistrials when the
jury was unable to reach a verdict.
third trial, to bolster its case that Arredondo had been
driving the truck, the State called Arredondo's
mother-in-law, Annette McDole, to testify about a
conversation she had with her daughter Jackie
time of these events, Arredondo and Jackie were separated,
and Jackie was staying at McDole's house. According to
McDole's testimony, Jackie woke up McDole in the early
morning hours and reported that Arredondo had just been
inside the house. Jackie told McDole that she had awakened to
find Arredondo in her bedroom, and that Arredondo said that
he needed her help - but in response, Jackie told Arredondo
to leave the house.
Arredondo correctly notes in his brief, when the prosecutor
made his offer of proof concerning McDole's testimony, he
made broader assertions about what Arredondo told Jackie.
According to the prosecutor's offer of proof, Jackie told
McDole that Arredondo asked for her help because he had
"wrecked the truck". And later, when McDole gave
foundational testimony during voir dire examination
outside the presence of the jury, McDole said that Jackie
reported that Arredondo asked for help "with his
vehicle". But when McDole actually testified in front of
the jury about her conversation with Jackie, she never
asserted that Arredondo had said anything about wrecking the
truck, or about needing help with his vehicle - only about
needing help for some unspecified purpose.)
after Jackie had this conversation with her mother, a friend
of Jackie's arrived at the house. (Apparently, Jackie had
already called this friend for assistance before she woke her
mother up.) Jackie, McDole, and Jackie's friend then
drove to where Arredondo's truck was resting beside the
highway - but the police were already in the process of
attorney objected to McDole's testimony about what Jackie
said during their conversation. The defense attorney argued
that McDole's testimony was inadmissible hearsay to the
extent that it was offered to prove the truth of what Jackie
said. The defense attorney also argued that whatever
Arredondo had said to Jackie was protected by the marital
communications privilege codified in Alaska Evidence Rule
trial judge overruled both of these objections and allowed
McDole to testify about her conversation with Jackie -
including Jackie's statement that Arredondo had asked for
her help (although the subject of this help remained
jury convicted Arredondo of driving under the influence, and
he now appeals.
hearsay objection to McDole's testimony
testimony was double hearsay: it was offered to prove (1)
that Jackie had, in fact, had the prior conversation with
Arredondo (the conversation she related to her mother), and
(2) that Arredondo had, in fact, asked Jackie for help during
this hearsay issue was litigated in the trial court, the
judge found that McDole's testimony was not barred by the
hearsay rule because Jackie's statements to McDole fell
within the exception for excited utterances codified in
Alaska Evidence Rule 803(2). More specifically, the judge
found that, at the time of Jackie's initial conversation
with McDole, Jackie had just experienced a "startling
event" - i.e., Arredondo's early-hour
intrusion into her bedroom - and that Jackie "was still
under the stress" of this ...