Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wahl v. State

Supreme Court of Alaska

May 17, 2019

STATE OF ALASKA, Respondent.

          Petition for Hearing from the Court of Appeals No. A-11825 of the State of Alaska, on appeal from the Superior Court No. 3AN-09-08618 CR of the State of Alaska, Third Judicial District, Anchorage, Jack Smith, Judge.

          Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Petitioner.

          Eric A. Ringsmuth, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Respondent.

          Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.



          CARNEY, Justice, with whom WINFREE, Justice, joins, dissenting.


         At trial a murder defendant offered an acquaintance's testimony given during grand jury proceedings, invoking the former-testimony exception to the hearsay rule. The superior court excluded the evidence, reasoning that the State did not have the same motive to develop the acquaintance's testimony at grand jury. The court of appeals agreed.

         We conclude that the former-testimony exception does not require the opposing party to have had an identical motive to develop the testimony during the previous proceeding. Here the prosecutor's motives at grand jury and at trial were sufficiently similar to fit this exception. But we affirm based on the superior court's alternate rationale: The defendant did not establish that he had used reasonable means to secure the witness's attendance, and thus the witness was not "unavailable" - a requirement for the former-testimony exception to apply.


         A. Facts

         In June 2009 Elisa Orcutt was found murdered in her home. Police arrested Kenneth Arnold Wahl, whom Orcutt had previously hired to perform odd jobs. In a statement given to the police, Wahl encouraged them to investigate an acquaintance of his, Lewis "Buddy" Hardwick. The police interviewed Hardwick, but they ultimately charged Wahl with the murder. Hardwick testified during the grand jury proceedings and offered information about the nature of his relationship with Wahl as well as details about his and Wahl's activities during the weekend in which Orcutt was murdered. In July 2009 the grand jury indicted Wahl for murder in the first and second degree.

         B. Proceedings

         1. Superior court trial

         The charges against Wahl proceeded to trial in superior court in May and June 2013. Wahl's primary defense at trial was that someone else, likely Hardwick, was responsible for Orcutt's murder and the police had failed to follow up on any suspects other that Wahl. During the trial Wahl notified the court at a bench conference that he could not locate Hardwick to call him as a witness. Wahl had asked the State for Hardwick's contact information, but the State also could not locate Hardwick; it had been looking "everywhere" for him and believed he had left Alaska.

         Wahl sought to introduce Hardwick's grand jury testimony under Alaska Evidence Rule 804(b)(1), which provides that the hearsay rule does not exclude certain former testimony of an unavailable declarant. The State moved to exclude this testimony.

         The superior court held a hearing to consider the admissibility of Wahl's prior testimony. A defense investigator testified that she initially tried to locate Hardwick in 2009 but ceased shortly thereafter, believing Hardwick to be deceased. The investigator resumed her search for Hardwick about a week before the start of the trial. She searched death records and various databases but was unable to identify his present location. She also testified that she contacted former addresses, employers, a potential family member, and the public defender agency in Florida that had previously represented Hardwick, all without success. She was able to uncover a traffic ticket issued to Hardwick several weeks prior to the trial and called the state officer who issued the ticket, but her messages were not returned. Finally she attempted to locate Hardwick through social media, but that too was ineffective. The investigator concluded her search efforts on May 30, 2013, after the trial commenced.

         Wahl's counsel also related that prior to the trial, the State had provided her with a witness list that included Hardwick. Because Hardwick was on the State's list, Wahl's counsel "had no reason... to believe that [the State] didn't have him," especially given that the State had previously procured Hardwick's testimony at grand jury proceedings. Only after the trial had commenced did she learn that Hardwick was not in the State's custody, could not be located, and might not be called as a State witness.

         After hearing testimony from the defense investigator and argument from both parties, the superior court sustained the State's objection to admitting Hardwick's grand jury testimony. The court first ruled that the defense had not used "reasonable means" to secure Hardwick's attendance, specifically noting that Wahl had neither asked for state or local police help nor sought a court order under the Uniform Act to Secure Attendance in Criminal Proceedings (the Uniform Act).[1] The superior court characterized the defense investigator's efforts to locate Hardwick as "reasonable steps" and noted that, based on the State's acknowledgment that it could not locate Hardwick, "seeking the State's help in this case might have been futile." But the court concluded that a defendant must seek the State's help in locating a witness "even if it's a long shot." Therefore the court concluded that by "neither ask[ing] for state or local police help, nor us[ing] the terms of [the Uniform Act]," nor asking for a continuance to allow time to locate Hardwick, Wahl did not meet his burden to show he employed reasonable means to locate Hardwick.

         The court additionally concluded that Hardwick's testimony did not constitute "former testimony" under the hearsay exception because the State did not have a similar motive to develop Hardwick's testimony during grand jury proceedings. According to the court, grand jury proceedings involve "an entirely different set of guidelines or . . . rules." Such proceedings do not afford an opportunity for cross-examination and questions are usually "limited to those sufficient to support the indictment, with little or no delving into the facts provided or challenging the testimony given."

         Finally the court concluded that the testimony was not admissible under the residual exception to the hearsay rule, [2] in part because Ryan v. State[3] and Idaho v. Wright[4] require the defendant to show that the proffered testimony was "so trustworthy that adversarial testing would add little to its reliability."[5]

         Later in the trial, Wahl renewed his request to admit Hardwick's grand jury testimony under Evidence Rule 804(b)(1), arguing that the testimony of an investigating police officer demonstrated that it would have been futile for Wahl to request the State's assistance in locating Hardwick because the State also could not locate Hardwick through its independent efforts. According to Wahl his failure to enlist the State's help should therefore not count against him in the reasonable-efforts determination because this failure did not affect the outcome. The superior court again declined to admit Hardwick's testimony, reiterating that Wahl should have "asked the state to help[, ]... issued or requested the subpoena, or come to the court and asked for help" in order to satisfy the reasonable-efforts requirement.

         The jury ultimately found Wahl guilty of both murder counts. The convictions were merged for the purposes of sentencing, and Wahl received a mandatory sentence of 99 years' imprisonment.

         2. Court of appeals proceedings

         Wahl appealed, arguing in relevant part that the superior court erred in excluding Hardwick's grand jury testimony and that this error was not harmless. The court of appeals affirmed the superior court's exclusion of Hardwick's prior testimony and affirmed Wahl's conviction.[6] It agreed that the testimony was not admissible under the former-testimony exception because the State's motive to develop Hardwick's testimony during the grand jury proceeding was dissimilar from the motive it would have had at trial.[7] The court of appeals reasoned that "[n]othing in the grand jury record suggests that the prosecuting attorney had reason to believe that someone might later claim that it was Hardwick, not Wahl, who committed the murder, and that it was necessary to examine Hardwick on this issue."[8] The court reasoned that, because the State could not have known when it questioned Hardwick during the grand jury proceedings four years prior that Wahl would later attempt to cast blame on Hardwick, it had "a significantly different motive" during those questions, and Hardwick's answers were thus inadmissible.[9] The court of appeals did not consider whether Hardwick was unavailable because it held the testimony inadmissible on the basis of this different motive.[10]

         The court also concluded that Hardwick's testimony was inadmissible under the residual exception.[11] It reasoned that when testimony fails to satisfy the "similar motive" requirement under the former-testimony exception, then the testimony will almost inevitably fail to satisfy the requirement that it have "guarantees of trustworthiness" equivalent to the more specific exceptions in Rule 804.[12] Wahl petitioned for our review, and we granted his petition.


         "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."[13] Hearsay is generally inadmissible, [14] but the Alaska Rules of Evidence contain specific exceptions that permit the admission of some hearsay.[15] One set of exceptions, contained in Rule 804, is made for hearsay evidence of a declarant who is "unavailable" as defined by the Rule.[16] Wahl argues that Hardwick qualifies as an unavailable witness and that his grand jury testimony is admissible under two of the Rule 804 hearsay exceptions for such declarants-the former-testimony exception and the residual exception. The former-testimony exception allows hearsay by an unavailable declarant to be introduced when it is

[t]estimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of another proceeding, if the party against whom the testimony is now offered... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.[17]

         The residual exception also allows for the introduction of an unavailable declarant's former testimony if it is "not specifically covered by any of the [other] exceptions but [has] equivalent circumstantial guarantees of trustworthiness."[18]

         In the case of Hardwick's grand jury testimony, the court of appeals determined that the State lacked the similar motive necessary for the former-testimony exception to apply and that the testimony lacked the guarantees of trustworthiness necessary for the residual exception to apply.[19] It affirmed the superior court's exclusion of Hardwick's grand jury testimony on these grounds.[20] But we find error in the court of appeals's reasoning with respect to both exceptions, so we cannot affirm the superior court's decision on those grounds. Instead we affirm the superior court's decision based on an element of Rule 804 not considered by the court of appeals - whether Hardwick was unavailable. The superior court did not abuse its discretion when it concluded that Hardwick was not unavailable under Rule 804. On this ground, we affirm the superior court's exclusion of his grand jury testimony.

         A. The State Had A Similar Motive When Developing Hardwick's Testimony During The Grand Jury Proceedings.

         The State argues, as it did successfully before the court of appeals, that Hardwick's grand jury testimony was inadmissible under the former-testimony exception because the prosecution did not have a similar motive to develop the testimony at that time. Wahl argues that this court should adopt a broader interpretation of "similar motive" than did the court of appeals. When an evidentiary ruling "turns on a question of law, such as the 'correct scope or interpretation of a rule of evidence,' we apply our independent ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.