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Wahl v. State (8/4/2017) ap-2561

Wahl v. State (8/4/2017) ap-2561

                                                                                NOTICE
  

              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@ akcourts.us  



                              IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                      



KENNETH  ARNOLD  WAHL,  

                                                                                                        Court  of  Appeals  No.  A-11825  

                                                      Appellant,                                     Trial  Court  No.  3AN-09-8618 C                              R  



                                         v.  

                                                                                                                     O  P  I  N  I  O  N  

                                                                                                                                                   

STATE  OF  ALASKA,  



                                                      Appellee.                                           No. 2561 - August 4, 2017  

                                                                                                                                                        



                           Appeal   from  the   Superior   Court,  Third  Judicial   District,  

                                                                                                                                    

                           Anchorage, Jack W. Smith, Judge.  

                                                                                 



                           Appearances:                   Sharon  Barr,  Assistant  Public  Defender,  and  

                                                                                                                                              

                           Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                                                                                                                                                       

                           Eric  A.  Ringsmuth,  Assistant  Attorney  General,  Office  of  

                                                                                                                                                

                           Criminal Appeals, Anchorage, and Craig W. Richards, Attorney  

                                                                                                                                     

                           General, Juneau, for the Appellee.  

                                                                                               



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

                                                                                                                                     

                           Superior Court Judge.*  

                                                          

                                                                         



                                        

                           Judge MANNHEIMER.  



       *      Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  



Constitution and Administrative Rule 24(d).                              


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

                                                                                                                   

                    In the spring of  2009, Kenneth Arnold Wahl approached an Anchorage  



                                                                                                                              

homeowner, Colette Fry, and asked her if she needed help with her landscaping.   Fry  



                                                                                                                              

hired Wahl on the spot to help her with yard work.                                  Soon after she met Wahl,  Fry  



                                                                                                                               

realized that Wahl was homeless, and she offered to let him  stay in a camper on her  



                                        

property, free of charge.  



                                                                                                                           

                    About six weeks later, Fry's next-door neighbor, Elisa Orcutt, was found  



                                                                                                                     

murdered in her home.  Wahl was quickly identified as a suspect, and he was ultimately  



                                                       

tried and convicted for this murder.  



                                                                                                                                 

                    Wahl now appeals his conviction on two grounds.  He claims that some of  



                                                                                                                             

the State's evidence (a pair of blood-stained boots) was obtained illegally, and he also  



                                                                                                                             

claims  that  his  trial attorney  should  have  been  allowed  to  introduce  the  grand  jury  



                                                                                                                        

testimony of a witness whose presence could not be procured for trial.  For the reasons  



                                                                                                                         

explained in this opinion, we conclude that there is no merit to either of Wahl's claims,  



                                                             

and we therefore affirm his conviction.  



                                                                                                                

          The police discovery and seizure of a pair of blood-stained boots  



                                                                                                                               

                    Part of the physical evidence introduced against Wahl at his trial was a pair  



                                                                                                                         

of blood-stained boots that were discovered beneath the camper where Wahl was staying  



                                                                          

(the camper located on Colette Fry's property).  



                                                                                                                        

                    The camper was situated on Fry's lawn, but it was raised off the ground,  



                                                                                                                               

held up by jacks and wooden pallets.  After Fry gave the police permission to search her  



                                                                                                                         

property for evidence of her neighbor's murder, the police looked underneath the camper  



                                          

and discovered the boots.  



                                                                                                                           

                    Wahl's attorney filed a pre-trial motion seeking suppression of these boots  



                                                                                                                            

on  the ground that the police violated Wahl's Fourth Amendment rights when they  



                                                              - 2 -                                                          2561
  


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

looked underneath the camper.                                                                       But following an evidentiary hearing, the superior court                                                                                                     



found that Colette Fry consented to this search.                                                                                                   The court further found that Fry had the                                                                            



authority to permit this search,                                                                         even after she gave Wahl permission to stay in the                                                                                                           



camper.    



                                          A warrantless search does not violate the Fourth Amendment if the police                                                                                                                                             



have obtained the consent of a person having actual or apparent authority over the                                                                                                                                                                                     



                               1  

property.     



                                          The record clearly supports the superior court's finding that Fry consented  

                                                                                                                                                                                                                                                  



to the search.  Both Fry and police detective David Cordie testified that Fry authorized  

                                                                                                                                                                                                                                                



the police to search her property,  including the camper,  for evidence relating to  the  

                                                                                                                                                                                                                                                                     



murder.   The record also supports the superior court's finding that Fry had sufficient  

                                                                                                                                                                                                                                                   



authority over the camper to consent to the search.  Fry testified that even after she gave  

                                                                                                                                                                                                                                                                  



Wahl permission to live on  her  property, she continued to store her belongings both  

                                                                                                                                                                                                                                                                  



inside the camper and in the space beneath  it.                                                                                                              (In particular, Fry stored fishing and  

                                                                                                                                                                                                                                                                     



camping gear in the camper itself, and she stored seat cushions, buckets, hoses, and jack  

                                                                                                                                                                                                                                                                    



fluid underneath the camper.)                                                                          Fry also testified that she did not need to ask Wahl's  

                                                                                                                                                                                                                                                          



permission to retrieve these items.  

                                                                                                             



                                          Based on this record, we affirm the superior court's ruling that the police  

                                                                                                                                                                                                                                                               



lawfully searched underneath the camper and discovered the boots.  

                                                                                                                                                                                                                      



           1         See Hilbish v. State                                       , 891 P.2d 841, 848 (Alaska App. 1995): "Consent to search given                                                                                                                  



by a person with authority to consent has long been recognized as one of the exceptions that                                                                                                                                                                           

can justify a warrantless search.                                                                 A person may consent to a search if that person has joint                                                                                                        

access to or control of the place to be searched.                                                                                                Actual authority to consent is not required,                                                          

so long as the person has the apparent authority to consent."                                                                                                                       (Citations omitted.)                                          



                                                                                                                                  - 3 -                                                                                                                             2561
  


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

                                                                                                                

          The  trial  judge's  ruling  that  the  defense  could  not  introduce  Lewis  

                                                                                             

           "Buddy" Hardwick's grand jury testimony at Wahl's trial  



                                                                                                                             

                    Wahl's defense to the murder charge was that someone else had killed Elisa  



                                                                                                                

Orcutt - and that the murderer was possibly Lewis "Buddy" Hardwick, an acquaintance  



                   

of Wahl's.  



                                                                                                                              

                    Beginning with her opening statement, Wahl's attorney told the jurors that  



                                                                                                                         

Hardwick had been in many of the same locations as Wahl around the time of the murder  



                                                                                                                             

- and that the police had failed to adequately investigate whether Hardwick might have  



                                     

committed the murder:  



                      

                                                                                                            

                              Defense Attorney :  The State cannot go back and fix  

                                                                                                       

                    their investigation.  It's too late for that.  They chose which  

                                                                                                       

                    leads to follow and which leads to abandon, but they chose  

                                                                                                        

                    wrong.  Ladies and gentlemen, this is the case where the State  

                                                  

                    got the wrong guy.  



                                                                                                                               

                    The defense attorney resumed this theme in her summation to the jury. She  



                                                                                                                      

listed various reasons why Hardwick should have been viewed as a "person of interest",  



                                                                                                                          

and she asserted that the police had negligently failed to investigate Hardwick.   Then,  



                                                                                                               

according to the defense attorney, Hardwick "mysteriously" left Alaska.  



                                                                                                                                

                    In the context of this defense, Wahl's attorney asked the trial judge to let  



                                                                          

her introduce Hardwick's grand jury testimony.  



                                                                                                                           

                    In July 2009 (i.e., the month following the murder), Hardwick was called  



                                                                                                                     

as  a  witness before the grand jury that indicted Wahl.                                 In his testimony,  Hardwick  



                                                                                                                                     

described his year-long acquaintance with Wahl, as well as their shared work history.  



                                                                                                                             

More importantly,  Hardwick testified that Wahl let him sleep in the camper on two  



                                                                                                                              

nights in June 2009:  Saturday the 20th and Monday the 22nd.  Elisa Orcutt's body was  



                                                                              

discovered in her basement on Tuesday the 23rd.  



                                                              - 4 -                                                          2561
  


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

                                                                                                                            

                    Hardwick testified that on one of the evenings that he was staying with  



                                                                                                                              

Wahl  in  the  camper  (most  likely  Monday  evening,  June  22nd),  Wahl  asked  for  



                                                                                                                     

Hardwick's assistance in stealing property from a house in the neighborhood.  Hardwick  



                                                                 

told Wahl that he would not help do this.  



                                                                                                                               

                    When Hardwick woke  up the next morning,  there was property in the  



                                                                                                                              

camper that had not been there before:   a stereo boom-box,  a  yellow toolbox,  and  



                                                                                                                              

numerous bottles of perfume. In addition, Wahl asked Hardwick to pawn a necklace and  



                                                                                                                               

a ring for him.  Wahl claimed that he could not pawn these items himself because he did  



                                            

not have any identification.  



                                                                                                                            

                    Finally,  Hardwick identified Wahl as the owner of the boots that were  



                                                        

discovered underneath the camper.  



                                                                                                                            

                    Wahl was indicted in July 2009, but his trial was not held until four years  



                                                                                                                        

later,  in early June 2013.               On  May  28th,  shortly before Wahl's trial began,  Wahl's  



                                                                                                                            

defense attorney announced that she intended to identify Hardwick as someone who  



                                                                       

could potentially have committed the murder.  



                                                                                                                                  

                    At that  time,  the prosecutor apparently intended to call Hardwick as a  



                                                                                                                    

witness at Wahl's trial.   But one week later, after several days of trial, the prosecutor  



                                                                                                                              

announced that Hardwick would not testify at Wahl's trial because "nobody can find him  



                                                                                                                              

right now".   The prosecutor explained that the police had conducted an extensive but  



                                                                                                                                     

unsuccessful search for Hardwick, and they believed that he was no longer in Alaska.  



                                                                                                                                  

(This belief was later corroborated by police records showing that Hardwick received a  



                                                                                                                        

traffic ticket in Florida on May 8th - three weeks before Wahl's trial began.)  



                                                                                                                                

                    Although Hardwick's grand jury testimony  was primarily inculpatory of  



                                                                                                                  

Wahl,  Wahl's attorney asked the trial judge for permission to introduce Hardwick's  



                                                                                                                         

grand  jury  testimony  under  Alaska  Evidence  Rule  804(b).                                  Evidence  Rule  804(b)  



                                                                                                                               

authorizes the admission of certain classes of hearsay statements if the proponent of the  



                                                              - 5 -                                                          2561
  


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

                                                                                                                           

evidence can establish that the person who made these statements is unavailable to testify  



                                                                                                                                 

(i.e., "unavailable" as that term is defined in subsection (a) of Evidence Rule 804).  



                                                                                                                            

                     More specifically, the defense attorney contended that Hardwick's grand  



                                                                                                                                  

jury testimony was admissible under Rule 804(b)(1), which authorizes the admission of  



                                                                                                                                 

a witness's prior testimony "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."  



                                                                                                                              

                     Alternatively,  the  defense  attorney  argued  that  Hardwick's  grand  jury  



                                                                                                                              

testimony was admissible under Rule 804(b)(5), the "residual clause" of Evidence Rule  



                                                                                                                      

 804(b).   Under this provision, hearsay is admissible if the proponent of the evidence  



establishes:  



                                                                                                      

           *	   that the person who made the statements is unavailable;  



                                                                                                                       

           *	   that the proposed hearsay evidence has circumstantial guarantees of  



                                                                                                                     

                trustworthiness           equivalent         to    the     circumstantial          guarantees         of  



                                                                                                                   

                trustworthiness codified in the other provisions  of Rule 804(b) (i.e.,  



                                                                             

                subsections (1) through (4) of the rule);  



                                                                                                            

           *	   that the proposed hearsay evidence is material and is "more probative  



                                                                                                                      

                on the point for which it is offered than any other evidence which the  



                                                                                                      

                proponent can procure through reasonable efforts"; and  



                                                                                                                       

           *	   that "the general purposes of [the evidence rules] and the interests of  



                                                                                                           

               justice will best be served by admission of the statement into evidence."  



                                                                                                                               

                     Following a  hearing on  these  issues,  the  superior  court  found  that  the  



                                                                                                                         

defense attorney had failed to pursue reasonable efforts to locate Hardwick and procure  



                                                                                                                              

his testimony.   Thus, the court ruled, the defense attorney had failed to establish that  



                                                                                          

Hardwick was "unavailable" as defined in Rule 804(a)(5).  



                                                               - 6 -	                                                         2561
  


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

                                                            In   addition,   the   superior   court   concluded   that   even   if   Hardwick   was  



unavailable as defined in Rule 804(a)(5), the proposed hearsay evidence failed to satisfy                                                                                                                                                                                                                                                                              



the requirements of either Rule 804(b)(1) (the "former testimony" provision of the rule)                                                                                                                                                                                                                                                                                        



or Rule 804(b)(5) (the "residual" provision of the rule).                                                                                                                                                                                                 



                                                             On appeal, Wahlchallenges                                                                                                 all of these rulings.   We agree with the superior  



court that Wahl failed to establish the foundational requirements for admission of the                                                                                                                                                                                                                                                                                               



proposed hearsay evidence under either Rule 804(b)(1) or Rule 804(b)(5).                                                                                                                                                                                                                                                                We therefore   



need not decide whether Wahl demonstrated reasonable efforts to locate Hardwick and                                                                                                                                                                                                                                                                                                 



procure his testimony.                                                                                



                               The grand jury testimony was not admissible under Rule 804(b)(1)                                                                                                                                                                                                   



                                                            There are no Alaska cases that discuss how the hearsay exception codified                                                                                                                                                                                                                            



in Evidence Rule 804(b)(1) applies to grand jury testimony.                                                                                                                                                                                                              However, the Ninth Circuit                                                                   



addressed this issue in                                                                              United States v. McFall                                                                                       , 558 F.3d 951, 961-63 (9th Cir. 2009),                                                                                                            



where the court construed the federal counterpart to Alaska Evidence Rule 804(b)(1).                                                                                                                                                                                                                                                                                                              



                                                            The Ninth Circuit noted that the "similar motive" requirement of Federal                                                                                                                                                                                                                              



Evidence Rule 804(b)(1) is "a fact-intensive" requirement that hinges on "the particular                                                                                                                                                                                                                                                                  



                                                                                                                             2  

circumstances of the case."                                                                                                       



                                                            In McFall, the question was whether the defense was entitled to introduce  

                                                                                                                                                                                                                                                                                                                                                          



the grand jury testimony of a man named Sawyer. Accordingto the government's theory  

                                                                                                                                                                                                                                                                                                                                                                       

                                                                                                                                                                                                                                                                                                                                       3   In Sawyer's  

of the case, Sawyer and McFall had jointly conspired to commit extortion.  

                                                                                                                                                                                                                                                                                                                                                          



lengthy grand jury testimony, he repeatedly denied this charge - and his description of  

                                                                                                                                                                                                                                                                                                                                                                                          



               2              McFall , 558 F.3d at 961.                                                                                   See also Justice Blackman's concurring opinion in                                                                                                                                                                            United  



States v. Salerno                                                          , 505 U.S. 317, 325-26; 112 S.Ct. 2503, 2509; 120 L.Ed.2d 255 (1992).                                                                                                                                                                                                                                                



               3  

                                                    

                              Ibid.  



                                                                                                                                                                                         - 7 -                                                                                                                                                                                     2561
  


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

                                                                                                 4  

events   largely   corroborated   McFall's   account.      The   Ninth   Circuit   concluded   that,  



under these circumstances, the government's motive to cross-examine Sawyer during                                                                                 



his grand jury testimony was similar to the motive that the government would have had                                                                                   



if Sawyer had been available as a witness at McFall's trial and                                                                       had given the same             

                      5      Thus,  the  Ninth  Circuit  ruled,  Sawyer's  grand  jury  testimony  was  

testimony.                                                                                                                                                            



admissible under Federal Evidence Rule 804(b)(1).  

                                                                                                         



                           But  in  Wahl's case, the government did not believe that Hardwick was  

                                                                                                                                                                       



Wahl's accomplice when the government brought Hardwick to testify to the grand jury.  

                                                                                                                                                                                 



Rather, the government viewed Hardwick as a witness who had important knowledge of  

                                                                                                                                                                           



Wahl's actions and statements in the days surrounding the murder.   And as we have  

                                                                                                                                                                     



already  noted,  Hardwick's  grand  jury  testimony  was  largely  inculpatory  of  Wahl.  

                                                                                                                                                                                 



Although Hardwick did  not  assert that Wahl had committed the murder, Hardwick's  

                                                                                                                                                        



testimony provided significant circumstantial evidence of Wahl's guilt.  

                                                                                                                                                



                           Nothing 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.  

                                                                                                                                                                            



                           Under these circumstances, the record amply supports the superior court's  

                                                                                                                                                                  



conclusion that, if Hardwick had been called as a witness at Wahl's trial, and if Wahl's  

                                                                                                                                                                 



attorney had examined Hardwick in a manner suggesting that Hardwick, and not Wahl,  

                                                                                                                                                                   



had committed the murder, the trial prosecutor would have had a significantly different  

                                                                                                                                                              



motive to examine Hardwick.  

                                                               



                           We therefore agree with the superior court that Hardwick's grand jury  

                                                                                                                                                                       



testimony was not admissible under Alaska Evidence Rule 804(b)(1).  

                                                                                                                                              



       4     Ibid.  



       5     Id.  at 963.          



                                                                                   - 8 -                                                                               2561
  


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

                                                                                                   

          The grand jury testimony was not admissible under Rule 804(b)(5)  



                                                                                                                             

                    This  leaves  Wahl's  alternative  argument  that  Hardwick's  grand  jury  



                                                                                                                          

testimony should have been admitted under Evidence Rule 804(b)(5), the residual clause  



                    

of the rule.  



                                                                                                                        

                    As we have explained, Rule 804(b)(5) requires the proponent of the hearsay  



                                                                                                                               

evidence  to  establish  that  the  proposed  hearsay  has  circumstantial  guarantees  of  



                                                                                                            

trustworthiness that are equivalent to the circumstantial guarantees of trustworthiness  



                                                                          

codified in the other provisions of Rule 804(b).  



                                                                                                                    

                    Here, there is  another provision of Evidence Rule 804(b) - subsection  



                                                                                                                                

(b)(1) - that directly addresses the admissibility of a person's prior testimony.  And as  



                                                                                                                     

we have just discussed, when a party wishes to introduce evidence of prior testimony  



                                                                                                                                

under Rule 804(b)(1), the party offering the evidence must prove that the other party -  



                                                                                                                                

i.e., "the party against whom the testimony is now offered" - had a similar motive to  



                                                                              

develop the person's testimony at the earlier time.  



                                                                                                                                 

                    We have already concluded that Wahl failed to satisfy this requirement of  



                                                                                                                              

Rule 804(b)(1).   If Hardwick had testified at Wahl's trial, and if Wahl's attorney had  



                                                                                                                  

suggested that Hardwick rather than Wahl had committed the murder, the government  



                                                                                                                            

would have had a significantly different motive to develop Hardwick's testimony.  



                                                                                                                             

                    Thus, when Wahl argues that Hardwick's grand jury testimony should have  



                                                                                                                              

been admitted under the residual clause of Rule 804(b)(5), he is essentially arguing that  



                                                                                                                     

even when the opposing party did not have a similar motive to develop the  person's  



                                                                                                                        

testimony on the earlier occasion, there are nevertheless situations where the  former  



                                                                                                                    

testimony evidence has circumstantial guarantees of trustworthiness that are equivalent  



                                                         

to the "similar motive" requirement.  



                                                              - 9 -                                                          2561
  


----------------------- Page 10-----------------------

                                                                                                                                  

                     The United States Supreme Court rejected almost this same argument in  



                                                                                                                                 

 United States v. Salerno, 505 U.S. 317, 112 S.Ct. 2503, 120 L.Ed.2d 255 (1992).  In  



                                                                                                                        

Salerno, the Supreme Court held that the "similar motive" requirement was an essential  



                                                                                                                               

component of Federal Evidence Rule 804(b)(1), and the Court rejected arguments that  



                                                                                                                               

this requirement could be relaxed in the interest of justice.  Id. , 505 U.S. at 321-24, 112  



                            

S.Ct. at 2507-09.  



                                                                                                                                 

                    What  Salerno  teaches  is  that,  in  the  absence  of  a  "similar  motive"  to  



                                                                                                                                  

develop the person's testimony on the former occasion - that is, when the testimony is  



                                                                                                                      

now being offered in a different context or for a different purpose - there is a significant  



                                                                                                                                

danger that the former testimony will be incomplete, or that it will not be focused on the  



                                                                                                                                

issues  that  are  actually  being  disputed  in  the  current  litigation.                             Thus,  there  is  an  



                                                                                                                                 

unacceptable risk that arguments and inferences based on the former testimony will be  



                                         

speculative or misleading.  



                                                                                                                                   

                     This means that when proof of "similar motive" is lacking, evidence of a  



                                                                                                                     

person's former testimony will almost inevitably fail to satisfy the "equivalent guarantees  



                                                                                                                                  

of trustworthiness" requirement of Evidence Rule 804(b)(5).  As this Court explained in  



                                                                                                                                  

Ryan v.  State,  899 P.2d 1371,  1375 (Alaska App.  1995),  when hearsay evidence is  



                                                                                                                               

offered under Evidence Rule 804(b)(5), the proponent of the evidence must establish that  



                                                                                                                                

"the totality of circumstances that surround the making of the statement ... render the  



                                                                                                                               

declarant particularly worthy of belief" and render the proposed hearsay evidence "so  



                                                                                                            

trustworthy that adversarial testing would add little to its reliability."  



                                                                                                                               

                     There  might  be  extraordinary  circumstances  where,  even  though  the  



                                                                                                                       

proponent   of   former   testimony  evidence  failed  to  satisfy  the  "similar   motive"  



                                                                                                                          

requirement  of  Rule  804(b)(1),  the  proposed  former  testimony  evidence   would  



                                                                                                                    

nevertheless have guarantees of trustworthiness equal to the trustworthiness guaranteed  



                                                              -  10 -                                                         2561
  


----------------------- Page 11-----------------------

by the "similar                                             motive" requirement.                                                                     But Wahl's case presents no such extraordinary                                                                                             



circumstances.    



                                                    Accordingly, we agree with the superior court that Hardwick's grand jury                                                                                                                                                                                                        



testimony was not admissible under Evidence Rule 804(b)(5).                                                                                                                                                                                          



                           Conclusion  



                                                     The judgement of the superior court is AFFIRMED.                                                                                                          



                                                                                                                                                               -  11 -                                                                                                                                                             2561
  

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