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Leggett v. State (3/7/2014) ap-2411

Leggett v. State (3/7/2014) ap-2411

                                                                       NOTICE  

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                      IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



VALERIE LEGGETT,                                                        )  

                                                                        )            Court of Appeals No. A-11136 

                                      Appellant,                        )            Trial Court No. 3KN-11-583 CR  

                                                                        ) 

                  v.	                                                   )  

                                                                        )                          O  P  I  N  I  O  N  

STATE OF ALASKA,                                                        )  

                                                                        )                No. 2411 - March 7, 2014   

                                      Appellee.	                        ) 
 

                                                                        )
  



                        Appeal from  the  District Court, Third  Judicial District, Kenai,  

                        Peter G. Ashman, Judge.  



                        Appearances:   Olena   Kalytiak   Davis,   Anchorage,   for   the  

                        Appellant.  Mary Gilson, Assistant Attorney General, Office of  

                        Special Prosecutions  and  Appeals, Anchorage, and  Michael C.  

                        Geraghty, Attorney General, Juneau, for the Appellee.  



                        Before:   Mannheimer,   Chief   Judge,   and   Allard,   Judge,  and  

                        Hanley, District Court Judge.*  

                                                                              



                        Judge HANLEY.  



                        A jury convicted Valerie Leggett of driving under the influence, and she   



appeals.  Leggett argues the trial court erred in finding her admission of driving was  



sufficiently corroborated to satisfy the corpus delicti rule.  A central issue in this appeal  

                                                                                                                           



            *     Sitting  by  assignment  made  pursuant  to  article  IV,  section  16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

is whether a trial judge can consider inadmissible evidence in determining whether a  

                                            



defendant's confession is sufficiently corroborated to satisfy Alaska's corpus delicti rule.  



                    Because Alaska takes an "evidentiary foundation" approach to corpus delicti,  



we conclude that Alaska Evidence Rule 104(a) applies to corpus delicti determinations.  

                                                                                       



This evidence rule declares that when a judge is making preliminary determinations  

                                                                             



concerning the admissibility of proposed evidence, the judge is not bound by the rules  

                                                                                                       



of evidence.  Thus, under Evidence Rule 104(a), a trial judge may consider inadmissible  

                                                      



evidence when determining whether a defendant's confession is sufficiently corroborated  



to satisfy the corpus delicti rule.  



                    Leggett also argues that the court erred in not sua sponte granting a mistrial  

                                                                                                                      



after a key government witness invoked the Fifth Amendment, and that the court later  

                                                                                                              



erred in denying Leggett's motion for a new trial on this same basis.  We conclude the  



trial court was not required to declare a mistrial sua sponte, and that the court did not err  

                                                                                                                    



when it denied Leggett's motion for a new trial.  



          Facts and proceedings  



                    Valerie Leggett and her husband, Dustin Leggett, were drinking at a bar near  



their home in Sterling.  Later that evening, Dustin called 911 to report that Leggett had  

                                                                  



tried to run him over.  Troopers responded, and Leggett admitted she had driven.  She  



stated that a friend had been driving them home but she and Dustin argued during the trip.  

                                                                                  



The friend and Dustin got out of the vehicle, and Leggett drove the rest of the way to their  

                                  



house - a short distance - to get to their son before Dustin did.  Leggett denied trying  

                                                                                                                



to run Dustin over.  Both Leggett and Dustin were intoxicated.  



                    Dustin gave conflicting information to the troopers.  He said that after he  

                                        



got out of the car, Leggett tried to run him over and headbutted him.  But the trooper did  

                                                                       



                                                              - 2 -                                                         2411
  


----------------------- Page 3-----------------------

not believe Dustin's allegations.  In fact, the evidence indicated that Dustin had assaulted  



Leggett.  Leggett was injured; she had a concussion and appeared to have a fractured nose.  



The State charged Dustin with assault, and he ultimately pleaded guilty to harassment.  

                                                                    



                     Based  on  the  evidence  that  Leggett  had  driven  the  car  while  she  was  



intoxicated, Leggett was charged with driving under the influence. The State's evidence  

                                                                                                       



that Leggett had driven consisted of her own admissions that she drove, plus the contents  

                                                                                      



of Dustin's 911 call and his statements to the troopers.   



                     Leggett's defense was that her mother had driven her and Dustin home from  



the bar, that Dustin lied about her driving to distract the troopers from his assault on her,  

                    



and that she had told the troopers that she had driven because she had been "extremely  

                    



intoxicated" and injured.  Leggett did not contest her intoxication.    



                     The parties and the court started trial with the assumption that Dustin would  

                                                                                    



testify.  The prosecutor subpoenaed Dustin as a witness for trial, and the prosecutor told  

                                                                                           



the jury during the State's opening statement that Dustin would testify that Leggett had  



driven the car.  But in the middle of trial, after the two troopers testified, the prosecutor  

                                                                                                  



learned that Dustin would be asserting his Fifth Amendment privilege.  The prosecutor  

                                                                                                               



then announced that he would not be calling Dustin as a witness.   



                     District Court Judge pro tem Peter G. Ashman found the prosecutor had not  

                                                                              



intentionally misled the defense and the court about his intent to call Dustin as a witness,  

                                                                                                  



but Judge Ashman found that the defense would be prejudiced if Dustin did not testify.  

                                                                                                    



The   judge   required   the   prosecutor   to   attempt   to   call   Dustin.      But   after   an  

                                                                  



in camera hearing, the court ruled that Dustin had a valid Fifth Amendment claim.   



                     Because Dustin's anticipated testimony had already been described to the  

                                                 



jury, Judge Ashman told Leggett's attorney that he would grant a mistrial if the defense  



attorney requested one.  But he clearly stated that if Leggett did not request a mistrial,  

               



                                                               -  3 -                                                         2411
  


----------------------- Page 4-----------------------

he would not grant one sua sponte.  Despite the court's offers, Leggett's attorney did not  



request a mistrial.   



                   Judge Ashman also asked Leggett's attorney if Dustin's statements to the  

                              



troopers - which had been described during the testimony - should be stricken from  

                                                                                            



the record.  But Leggett's attorney told the judge that she did not want the statements  

                         



stricken.  The attorney told the judge that Dustin's statements should not be admitted for  

                                                            



the truth of the matters asserted, but that the statements should remain in the record to  

                                   



show the context of the troopers' investigation.  Judge Ashman instructed the jury as  



requested by Leggett.  



                   Judge Ashman denied the State's request to admit a recording of Dustin's  



911 call - ruling that Dustin's hearsay statements during that call were not admissible  

                                                                                     



as excited utterances or statements of present sense impression.  



                   After these evidentiary matters were resolved, Leggett's attorney moved  



to dismiss the case, arguing that the corpus delicti rule was not satisfied.  Judge Ashman  

                                                                                           



denied Leggett's motion to dismiss.  He concluded that even though Dustin's out-of-court  



statements were inadmissible hearsay, it was nevertheless proper for him to rely on these  

                                                                                                         



hearsay  statements  to  determine  whether  Leggett's  admissions  were  sufficiently  



corroborated to satisfy the corpus delicti rule.  Judge Ashman analyzed the motivation  

                                                   



behind Leggett's and Dustin's statements, as well as the details each described.  He ruled  



that Leggett's admissions that she had driven were corroborated by Dustin's statements  

                                                                   



to the 911 dispatcher and the troopers, as well as the details of Leggett's own multiple  

                                                                                         



statements.  



                   The jury convicted Leggett of DUI.  Leggett's attorney then moved for a  



new trial, arguing (in pertinent part) that Leggett's trial was unfair because of the mid-trial  



development that Dustin would not be testifying.  



                                                           - 4 -                                                       2411
  


----------------------- Page 5-----------------------

                   Judge Ashman denied this motion.  He concluded that Leggett's attorney   



had been given multiple opportunities to move for a mistrial once it was learned that  



Dustin would not be testifying, and that the attorney had made a tactical decision not to  

            



request one.  



                   Leggett now appeals her conviction.  



         Leggett's corpus delicti claim  



                   The major issue on appeal is whether a trial judge can consider inadmissible  



testimony when evaluating the admissibility of a defendant's confession under Alaska's  

                                                                                                         



corpus delicti rule.  Leggett argues that only admissible evidence can be considered -  

                                                                                                          



and, for this reason, her trial judge committed error by relying on inadmissible evidence  



(in particular, Dustin's out-of-court statements) when the judge found that Leggett's  



admissions to the troopers were sufficiently corroborated to satisfy the corpus delicti rule.  



                   Under Alaska's corpus delicti rule, a defendant cannot be convicted solely  

                                                                         



                                                                 1                                                          2  

on the basis of an uncorroborated confession.  

                                                                          

                                                                    As this Court held in Langevin v. State , 



                                                                                                          3  

Alaska follows the "evidentiary foundation" approach to corpus delicti.   Under this  



approach,  



                    [t]he decision regarding corpus delicti is made by the trial  

                   judge before the case is submitted to the jury.  The judge  

                   assesses the sufficiency of the State's evidence to prove the  

                   corpus delicti, and this decision is one of law - similar to the  

                                                                                                   

                   judge's assessment of the sufficiency of any other evidentiary  

                                                                             



          1   Dodds v. State , 997 P.2d 536, 538 (Alaska App. 2000).  



          2   258 P.3d 866 (Alaska App. 2011).  



          3   Id. at 870.  



                                                           - 5 -                                                         2411  


----------------------- Page 6-----------------------

                    foundation        under      Alaska       Evidence         Rule     104(a)-(b).  

                    Assuming the judge rules that the corpus delicti had been  

                    established, then, at the end of trial, the jury considers all of  

                                                                         

                    the  evidence  (including  the  defendant's  confession)  and  

                                                                                   

                    decides whether the State has established each element of the  

                                                                                                    

                    charged crime beyond a reasonable doubt.4  

                                                                                     



                    Alaska's "evidentiary foundation" approach to the corpus delicti rule appears  



to be the minority position among American jurisdictions.  Many American jurisdictions  



consider the corpus delicti to be an implicit element of the government's proof - an  



element that must be proved to the jury whenever the government's case includes evidence  

of the defendant's confession. 5  

                                                Under this "implicit element" approach to the corpus  



                                                                                               

delicti rule, the government's proof of the corpus delicti must, of necessity, be based on  



                                                                                                          

admissible evidence - because the jury makes the ultimate decision as to whether the  



government has established the corpus delicti.   



                    But under Alaska's "evidentiary foundation" approach to corpus delicti, the  



trial judge makes a foundational evidentiary ruling as to whether the jury should hear  



evidence of  the  defendant's  confession  -  i.e.,  whether  the  government  has  offered  

               



sufficient  corroboration  of  the  defendant's  confession  to  allow  the  confession  to  be  

                                                                  



presented to the jury.   Because the judge's corpus delicti decision is a foundational  

                                   



evidentiary ruling, the judge's ruling is governed by Alaska Evidence Rule 104.  And  

                                                        



Evidence Rule 104(a) declares that, when a judge makes this kind of ruling (determining  

                                                                                   



whether the proponent of certain evidence has established the requisite foundation), the  

                                       



judge "is not bound by the rules of evidence except those with respect to privileges."  



          4    Id. at 869-70 (quoting Dodds , 997 P.2d at 540 (alterations omitted)).  



          5    1 Kenneth S. Broun et al.,          McCormick on Evidence  145 Vol. 1, pp. 804-07 (7th  



ed. 2013).  



                                                            -  6 -                                                        2411  


----------------------- Page 7-----------------------

                                  In addition, Alaska Evidence Rule 101(c)(1) states that the rules of evidence  



 (except those relating to  privilege) do not apply to "questions of fact preliminary to  

                                                                



 [determining the] admissibility of evidence when the issue is to be determined by the judge  



under Rule 104(a)."  



                                  Because Alaska's "evidentiary foundation" approach to the corpus delicti  

                                                                                



rule  is  the  minority  approach,  there  are  not  a  lot  of  judicial  decisions  from  other  



jurisdictions on this point of law.  However, the few that we could find reach the same  

                                                                                                                 



 conclusion that we have reached here:  the judge may consider evidence that would not  

                                                                                                                                                                                     

be admissible in the trial itself.6  

                                                                                  



                                                                                                                                                                                                   

                                  For these reasons, we hold that when the trial judge in Leggett's case was  



                                                                                                             

 deciding whether Leggett's confession was sufficiently corroborated to satisfy Alaska's  



 corpus  delicti  rule,  the  judge  could  properly  consider  Dustin  Leggett's  out-of-court  



 statements  for  the  truth  of  the  matters  asserted,  even  though  those  statements  were  



 inadmissible hearsay.  



                 6       See   State v. Sweat, 727 S.E.2d   691, 697 (N.C. 2012) ("Whether a defendant's  



 confession satisfies the corpus delicti rule is a preliminary question of admissibility governed  

by Civil Procedure Rule 104(a).  In ruling on this question of admissibility, a trial court 'is               

not bound by the rules of evidence except those with respect to privileges.' N.C.G.S.  8C-1,           

 Rule 104(a) (2011). Therefore, ... hearsay statements can be considered in determining if the                                 

 confession satisfies the                                 corpus delicti rule."); State v. Gerlaugh , 654 P.2d 800, 806 (Ariz.  

 1982) ("While the statement made by [Gerlaugh's] codefendant could not be considered by                                   

 the jury to determine appellant's guilt, we find it could be used to help establish the corpus  

 delicti  for  the  crimes  involved,  i.e.,  the  fact  that  the  offenses  were  actually  committed,  

without regard [to] who committed them.")  



                                                                                                      -  7 -                                                                                                 2411
  


----------------------- Page 8-----------------------

         Leggett's motion for a new trial  



                   Prior to sentencing, Leggett's attorney moved for a new trial.  The attorney  



argued that, due to the mid-trial development that Dustin would not be testifying, Leggett's  



trial became fundamentally unfair.  Judge Ashman denied the motion for a new trial  

                                         



because he concluded that the defense attorney had made a tactical decision to proceed  



with the trial rather than request a mistrial.  



                   On appeal, Leggett contends that, because of Dustin's mid-trial assertion  

                                    



of privilege, Judge Ashman should have sua sponte granted a mistrial.  But Leggett's  



attorney pointedly refused to request a mistrial even when Judge Ashman prompted her  

                                                     



to ask for one.   



                   Judge Ashman later explicitly found that Leggett's attorney made a tactical  



choice to reject the remedy of a mistrial and, instead, to take the trial to completion.  The  

                                                                                         



record fully supports the judge's finding.  And because Leggett's attorney made this  

                                                                                               



tactical choice, Leggett is not allowed to now claim, on appeal, that Judge Ashman  



committed plain error by failing to declare a mistrial sua sponte.  



                   Leggett further contends that she was unfairly surprised when Dustin refused  



to testify, and that she therefore was deprived of the opportunity to confront Dustin and  

                           



his out-of-court statements.  But again, Leggett's attorney expressly declined the trial  



judge's offer to strike Dustin's statements in their entirety.  Instead, the defense attorney  



asked the judge to leave Dustin's statements in the evidentiary record (to explain the  



course of the investigation), but to bar the jury from considering those statements for their  



truth.  The trial judge did as the defense attorney asked.   



                                                         -  8 -                                                   2411
  


----------------------- Page 9-----------------------

                  This means that Leggett has no claim under the Confrontation Clause -  



because when statements are not offered for the truth of the matters asserted, the admission  

of those statements does not implicate a defendant's right to confrontation.7  



                  After the jury returned an unfavorable verdict, the defense attorney asked  



for  a  new  trial,  arguing  that  the  trial  became  unfair  after  Dustin  invoked  his  Fifth  



                                                                                                      8 

Amendment privilege.  But as our supreme court explained in Owens v. State,  a defendant 



should not be allowed to "take a gambler's risk and complain only if the cards [fall] the  

                                                            

wrong way."9  

                       



         Conclusion  



                  The judgment of the district court is AFFIRMED.  



         7    See   Christian   v.   State,       276    P.3d    479,    488    (Alaska      App.    2012)   ("The  



[Confrontation] Clause ... does not bar the use of testimonial statements for purposes other   

than establishing the truth of the matter asserted.") (quoting  Crawford v. Washington, 541  

U.S. 36, 59 n.9 (2004)) (alteration in Christian).  



         8    613 P.2d 259 (Alaska 1980).  



         9    Id. at 261 (quoting Mares v. United States , 383 F.2d 805, 808 (10th Cir. 1967)).  



                                                        -  9 -                                                     2411  

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