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Arredondo v. State (1/12/2018) ap-2581

Arredondo v. State (1/12/2018) ap-2581


               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@  

                                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                 



                                                                                                                   Court of Appeals No. A-11380  


                                                             Appellant,                                         Trial Court No. 3AN-11-3873 CR  


                                                                                                                                  O   P   I   N   I   O   N  


                                                             Appellee.                                              No.  2581  -  January   12,  2018  


                                  ppeal   from   the   Superior   Court,  Third  Judicial   District,  


                              Anchorage, Gregory Miller, Judge.  


                              Appearances:   Callie Patton Kim,  Assistant Public Defender,  


                              and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  the  


                              Appellant.   Terisia K. Chleborad, Assistant Attorney General,  


                              Office of Criminal Appeals, Anchorage, and Craig W. Richards,  


                              Attorney General, Juneau, for the Appellee.  


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


                              Judge MANNHEIMER.  

                              Aaron L. Arredondo appeals his conviction for felony                                                                           driving under the                

influence.    Arredondo's wife Jackie refused to                                                               testify at his trial.                       (She invoked her                  

spousal immunity privilege under Alaska Evidence Rule 505(a).)                                                                                        But the State called             

Jackie's mother (Arredondo's mother-in-law) to testify about a                                                                                     conversation she had                     

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


with Jackie on the night of this incident.                       During this conversation with her mother,  


Jackie described a statement that Arredondo had made to her - a statement suggesting  


that Arredondo had been driving.  


                    Arredondo's attorney objected that Jackie's mother's testimony on this  


subject was (1) inadmissible hearsay and,  in any event,  (2) protected by the marital  


communications privilege codified in Alaska Evidence Rule 505(b).                                          The trial judge  


overruled these objections and allowed the State to present this testimony.  


                    On appeal, Arredondo renews his objections to this testimony - but for the  


reasons explained in this opinion, we uphold the trial judge's rulings and we therefore  


affirm Arredondo's conviction.  


          Underlying facts  


                    In the early morning hours of April 3, 2011, the Anchorage police found  


Arredondo's  truck  resting  on  a  steep  embankment  below  the  freeway  exit  where  


Muldoon Road meets the Glenn Highway.                                Soon after,  the police found Arredondo  


walking  alone;  he  had  keys  to  the  vehicle  in  his  pocket,  and  he  was  intoxicated.  


However, Arredondo told the police that the keys in his pocket were not the only keys  


to his truck.         He  stated that he kept a spare set of keys in the vehicle itself, and he  


declared that someone else had been driving the vehicle.  


                    The primary question litigated at Arredondo's trial was whether Arredondo  


was the person who was driving his truck when it skidded off the freeway exit and down  


the embankment - or whether (as Arredondo's attorney argued) it was Arredondo's  


wife Jackie who was driving the truck.  

                                                              - 2 -                                                         2581

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


                    In fact, this was the primary question litigated at all three of Arredondo's  


trials for this offense.  Arredondo's first two trials ended in mistrials when the jury was  


unable to reach a verdict.  


                    At the third trial, to bolster its case that Arredondo had been driving the  


truck, the State called Arredondo's mother-in-law, Annette McDole, to testify about a  


conversation she had with her daughter Jackie (Arredondo's wife).  


                    At the time of these events, Arredondo and Jackie were separated,  and  


Jackie was staying at McDole's house.  According to McDole's testimony, Jackie woke  


up McDole in the early morning hours and reported that Arredondo had just been inside  


the house.  Jackie told McDole that she had awakened to find Arredondo in her bedroom,  


and  that  Arredondo  said  that  he  needed  her  help  -  but  in  response,  Jackie  told  


Arredondo to leave the house.  


                    (As Arredondo correctly notes in his brief, when the prosecutor made his  


offer of proof concerning McDole's testimony, he made broader assertions about what  


Arredondo told Jackie.  According to the prosecutor's offer of proof, Jackie told McDole  


that Arredondo asked for her help because he had "wrecked the truck".  And later, when  


McDole gave foundational testimony during voir dire examination outside the presence  


of the jury, McDole said that Jackie reported that Arredondo asked for help "with his  


vehicle".  But when McDole actually testified in front of the jury about her conversation  


with Jackie, she never asserted that Arredondo had said anything about wrecking the  


truck,  or about needing help with his vehicle - only about needing help  for  some  


unspecified purpose.)  


                    Soon after Jackie had this conversation with her mother, a friend of Jackie's  


arrived at the house.   (Apparently, Jackie had already called this friend for assistance  


before she woke her  mother up.)  Jackie, McDole, and Jackie's friend then drove to  

                                                              - 3 -                                                          2581

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


where Arredondo's truck was resting beside the highway - but the police were already  


in the process of impounding it.  


                    Arredondo's attorney objected to McDole's testimony about what Jackie  


said during their conversation.   The defense attorney argued that McDole's testimony  


was  inadmissible hearsay to the extent that it was offered to prove the truth of what  


Jackie said.   The defense attorney also argued  that  whatever Arredondo had said to  


Jackie  was  protected  by  the  marital  communications  privilege  codified  in  Alaska  


Evidence Rule 505(b).  


                    The trial judge overruled both of these objections and allowed  McDole to  


testify about her conversation with Jackie - including Jackie's statement that Arredondo  


had asked for her help (although the subject of this help remained unspecified).  


                    The jury convicted Arredondo of driving under the influence, and he now  




          Arredondo's hearsay objection to McDole's testimony  


                    McDole's testimony was double hearsay:  it was offered to prove (1) that  


Jackie  had,  in fact, had the prior conversation with Arredondo (the conversation she  


related to her mother), and (2) that Arredondo had, in fact, asked Jackie for help during  


this conversation.  


                    When this hearsay issue was litigated in the trial court, the judge found that  


McDole's testimony was not barred by the hearsay rule because Jackie's statements to  


McDole fell within the exception for excited utterances codified in Alaska Evidence Rule  


803(2).        More  specifically,  the  judge  found  that,  at  the  time  of  Jackie's  initial  


conversation  with  McDole,  Jackie  had  just  experienced  a  "startling event"  -  i.e.,  


Arredondo's early-hour intrusion into her bedroom - and that Jackie "was still under  

                                                              - 4 -                                                          2581

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


the stress" of this event when she woke her mother and told her what had happened.  We  


conclude that the record supports the trial judge's ruling.  


                    When  hearsay  is  offered  under  the  excited  utterance  exception,  "the  


ultimate  question  is  whether  the  proponent  of  the  evidence  has  shown  that  the  


circumstances  surrounding the  utterance  produced  a  condition  of  excitement  which  


temporarily stilled the speaker's capacity of reflection and produced utterances free of  


conscious fabrication."  Sipary v. State, 91 P.3d 296, 305-06 (Alaska App. 2004).  This  


is a question of fact, and we will uphold the trial judge's conclusion on this issue unless  


that conclusion is shown to be clearly erroneous.  Ibid.  


                    As  we  have  explained,   McDole's  daughter   Jackie  was  married  to  


Arredondo at the time of this incident, but they were separated, and Jackie was living in  


McDole's house.  According to McDole's testimony, Jackie awakened her in the middle  


of the night by shaking her and saying, "Mom".  


                    Duringher voir dire testimony, McDole described Jackie's demeanor at the  


time as "startled" and "a little shocked".  When McDole was asked whether Jackie was  


crying or angry, McDole answered, "She was just startled.                                   ...  I think [she was] more  


shocked than anything."  


                    When Arredondo's attorney cross-examined McDole outside the presence  


of the jury, he asked McDole a series of questions about Jackie's mental state at the time  


of  their conversation.   But rather than challenge McDole's assertion that Jackie  was  


"startled" and "shocked",  the defense attorney only asked McDole to confirm  that  


Jackie's  emotional  reaction  was  mainly  in  response  to  Arredondo's   unexpected  


appearance in her bedroom - and not in response to his request for help with his truck:  



                              Defense Attorney :              Isn't it true that if [Jackie] was  


                     startled about anything, it was that Aaron [Arredondo] was in  


                    the home?  

                                                               - 5 -                                                          2581

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


                              McDole :  Yeah, it's a little startling to  wake up and  


                    find someone that shouldn't be there, standing over you.  


                              Defense Attorney :  But ... really, [Jackie's] focus was  


                    that  he  was in the house,  correct?   ...                     The focus of her  


                    waking you up was to let you know that  Aaron was in the  


                    house, and she wanted him out of there?  


                              McDole :  Right.  


Thus,  the  defense  attorney  did  not  challenge  McDole's  assertion  that  Jackie  was  


"startled" and "shocked" when she made the statements.  


                    Based  on  this  record,  we  conclude  that  the  trial judge's  finding about  


Jackie's mental state (i.e., Jackie's mental state at the time of her conversation with her  


mother) is not clearly erroneous.   We therefore affirm the judge's ruling that Jackie's  


statements to her mother were admissible as excited utterances.  


                    (Because we reach this conclusion, we need not address the trial judge's  


other two rationales for finding that McDole's testimony was admissible hearsay.)  


          Arredondo's  argument  that  McDole's  testimony  violated  the  marital  


          communications privilege  


                    Arredondo  argues that even if McDole's testimony did not violate the  


hearsay rule, her testimony nevertheless violated Arredondo's marital communications  


privilege - the privilege codified in Alaska Evidence Rule 505(b).  


                    Alaska Evidence Rule 505 encompasses two distinct evidentiary privileges  


that apply to married couples.  Subsection (a) defines the "spousal immunity" privilege  


- the right of one spouse to refuse to take the stand in a legal proceeding involving the  

                                                              - 6 -                                                          2581

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

other spouse.                This privilege belongs solely                              to   the   spouse who is being called as a                                  


witness, not the other spouse.                                

                          As we explained at the beginning of this opinion, Jackie Arredondo invoked  


the spousal immunity privilege and refused to testify at Arredondo's trial.  


                          Subsection (b) of Evidence Rule 505 defines a separate and distinct eviden- 


tiary privilege - the "marital communications" privilege.   This privilege does not give  


spouses the right to refuse to take the stand, but it does give spouses the right to refuse  


to answer any questions about confidential communications they had with their other  


spouse during the marriage - and the right to prevent their spouse from answering such  


questions, even if their spouse would otherwise be willing to answer.  


                          The general rule of privilege is stated in Evidence Rule 505(b)(1):  



                                      Neither during the marriage nor afterwards shall either  


                          spouse be examined as to any confidential communications  


                          made by one spouse to the other during the marriage, without  


                          the consent of the other spouse.  


                          As  can  be  seen  from  the  final  clause  of  this  definition,  the  marital  


communications privilege  belongs to both spouses - both the spouse who is being  


examined as a witness and the other spouse.  Thus, one spouse can effectively veto the  


other spouse's willingness to testify about their confidential communications.  


                          Arredondo argues that  he was entitled to invoke the marital communi- 


cations privilege to prevent his mother-in-law, Annette McDole, from testifying about  


her   conversation  with  her   daughter   Jackie  -  specifically,   the  portion  of   that  


       1     The general rule of privilege is stated in Evidence Rule 505(a)(1):                                                        "A husband shall       

not be examined for or against his                                wife, without his consent, nor a wife for or against her                                       

husband, without her consent."                           

                                                                               - 7 -                                                                          2581

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


conversation in which Jackie informed McDole about  Arredondo's statement that he  


needed Jackie's help.  


                    At first blush, Evidence Rule 505(b) seemingly does not apply to the facts  


of Arredondo's case.  The rule declares that a "spouse [shall not] be examined" as to any  


confidential communication between them and their spouse.  But in Arredondo's case,  


Jackie  was  not  examined  regarding  any  communication  she  had  with  Arredondo.  


Indeed,  Jackie  refused  to  take  the  stand  at  all (by  invoking her  spousal immunity  


privilege).   The evidence in question was elicited, not through the testimony of Jackie  


Arredondo, but rather through the testimony of her mother, Annette McDole.  


                     Several of the more recent appellate decisions in this area have held that  


statutes worded like our Evidence Rule 505(b)(1) apply only when a spouse is examined  


about confidential marital communications - and that "the privilege does not prevent  


another  person  from  testifying  to  [these]  statements",   nor  does  it  prevent  "the  


introduction of documents containing references to such communications."  Kenneth S.  


Broun et alia, McCormick on Evidence (7th ed. 2013),  82, Vol. 1, pp. 513-14.  


                    See Kidd v.  State,  955 S.W.2d 505 (Ark.  1997) (holding that a police  


detective could testify about the defendant's wife's statement to the detective); People  


v. Fisher, 503 N.W.2d 50, 56-57 (Mich. 1993) (upholding the admission of the wife's  


statement contained in a pre-sentence report); State v. Clark, 570 N.W.2d 195 (N.D.  


1997) (allowing evidence of the wife's statements to a police officer); State v. Lindley,  


502 P.2d 390, 391-92 (Or. App. 1972) (same:  wife's statements to a deputy sheriff)  


(relying on the Oregon Supreme Court's decision in State v. Wilkins, 142 P. 589, 590  


(Or.  1914));  State  v.  Bonaparte,  660  P.2d  334,  336  (Wash.  App.  1983)  (allowing  


evidence of the wife's statements to a third person).  


                    Although these decisions are based on statutes or rules that are worded like  


our Evidence Rule 505(b)(1), we also note that Alaska has a separate rule, Evidence Rule  

                                                               - 8 -                                                          2581

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


511,  that forbids the admission of privileged  communications if they were disclosed  


"without opportunity to claim the privilege".  With regard to the marital communications  


privilege,  both spouses hold the privilege.   Thus, if Jackie disclosed privileged matters  


to her mother in circumstances where Arredondo had no opportunity to object, one could  


argue that the privilege had been breached without Arredondo's having the "opportunity  


to claim the privilege".  


                    We say only "one could argue", because the meaning of Evidence Rule 511  


in this context is itself problematic.   Here, Arredondo surprised his estranged wife by  


appearing  unannounced  (and  uninvited)  in  her  bedroom.                                    Even  if  Arredondo  had  


remained in the house and had accompanied Jackie when she went upstairs to waken and  


alert her mother, and even if Arredondo had been present when Jackie began telling her  


mother about  what  Arredondo said in the bedroom, it is unclear whether Arredondo  


could "claim  the privilege" and stop Jackie from talking to her mother, or "claim the  


privilege" and prospectively prevent his mother-in-law from testifying later about what  


Jackie told her.  


                    We leave these matters undecided because we conclude that we can resolve  


Arredondo's case without resolving these questions.  


                    Arredondo  does  not  contend  that  his  marital communications  privilege  


would prevent McDole from testifying that Jackie woke her up in the middle of the night,  


or from testifying that Jackie reported that she had awakened to find Arredondo in her  


bedroom.          Arredondo  argues  only  that  his  assertion  of  the  marital communications  


privilege should have barred McDole from testifying "about Jackie's statement ... that  


Arredondo had asked for her help with his vehicle."  


                    As we have already explained, McDole did not testify that Arredondo asked  


Jackie for help "with his vehicle".   This is what McDole said during her foundational  

                                                               - 9 -                                                          2581

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


testimony outside the presence of the jury.  But when McDole testified in front of the  


jury, she said only that Arredondo asked Jackie "for help".  


                     Nevertheless,  if   (as   Arredondo  argues)  the  marital  communications  


privilege  applied  in  this  situation,  then  McDole  would  arguably  be  prohibited  from  


offering even this truncated version of Arredondo's statement to Jackie.  


                     But we conclude that the marital communications privilege does not apply  


to Arredondo's statement to Jackie about needing her help.  


                     The marital communications privilege defined in Evidence Rule 505(b)(1)  


applies only to confidential communications between the spouses.  Evidence Rule 505  


itself does not contain a definition of "confidential communication", but the commentary  


to Evidence Rule 505(b)(1) declares that this phrase "is analogous to a similar concept  


 [defined] in [the] lawyer-client and [the] physician/psychotherapist-patient privileges"  


-  i.e.,  it  is  analogous  to  the  definitions  of  "confidential communication"  found  in  


Evidence Rule 503(a)(5) and Evidence Rule 504(a)(4).  


                     Evidence Rules 503(a)(5) and 504(a)(4) both codify the principle that a  


communication is "confidential" only if the speaker does not intend for the statement to  


be disclosed to persons outside the umbrella of privilege.                                  And,  indeed,  the marital  


communications privilege has long been construed in accordance with this principle.  


                     As McCormick on Evidence explains, even when a marital communication  


takes place when only the two spouses are present, "a variety of factors, including the  


nature of the message or the circumstances under which it was delivered, may serve to  


rebut a claim that confidentiality was intended."  Kenneth S. Broun et alia, McCormick  


on Evidence (7th ed. 2013),  80, Vol. 1, p. 508.  Thus, for example, the privilege does  


not apply to communications that relate to business transactions where one spouse will  


transact the business, or will otherwise deal with third parties, as the agent of the other  


spouse.  Id.  at 509-510.  

                                                              - 10 -                                                          2581

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


                     See Schmied v.  Frank,  1882 WL 6459 (Ind.  1882),  where the Indiana  


Supreme  Court held that the privilege did not apply to a wife's testimony that  she  


authorized her husband to buy a commercial note as her agent.  The court noted that a  


husband's authority to act on his wife's behalf "is not confidential, nor [is it] intended  


to be private."  Rather, the husband's authority was "intended to be known and would  


be worthless unless known".  Id.  at *5.  


                    See also People v. Byrd, 525 N.W.2d 507, 509 (Mich. App. 1994) (holding  


that  a  husband's  statements  to  his  wife,  delegating to  her  the  authority  to  sell his  


marijuana to a third person, were not confidential, and thus not within the privilege);  


Lurty's Curator v. Lurty, 59 S.E. 405, 407 (Va. 1907) (holding that a husband's account  


of the money owed to his wife from the sale of their joint property was not privileged).  


                     In Arredondo's case, the trial judge could reasonably find that Arredondo's  


request for his wife's help with his vehicle was not intended to stay private between the  


two of them.  According to the testimony, the vehicle was restingon a steep embankment  


and it could not be removed without towing equipment.  Clearly, Arredondo's wife was  


not going to locate the truck without Arredondo's assistance, nor could she remove the  


vehicle single-handedly.                Rather,  it was reasonable to conclude that Arredondo was  


seeking his wife's aid in summoning and dealing with third parties who could retrieve  


the vehicle - so that Arredondo would not have to risk self-incrimination by doing this  




                     This conclusion is supported by the State's offer of proof in the trial court.  


According to the prosecutor's offer, Jackie and her mother, Annette McDole, showed up  


at the site of the accident while the police were still there, getting ready  to impound  


Arredondo's truck.   Jackie told the officer, "That's my truck" - and when the officer  


asked her what she meant by that statement, Jackie told the officer that Arredondo had  


asked for her help with his truck.  

                                                              - 11 -                                                          2581

----------------------- Page 12-----------------------


                    Given these facts, Arredondo's request for Jackie's help was essentially a  


delegation  of  authority  in  any  dealings  with  third  parties,  and  not  a  confidential  


communication.             For this  reason,  we uphold the trial judge's ruling that the marital  


communications privilege did not bar McDole from testifyingabout Arredondo's request  


for Jackie's help.  


                    We  note  one  other  rationale  for  allowing  McDole  to  testify  about  


Arredondo's statement to Jackie: at Arredondo's trial, his defense attorney wished to use  


the marital privilege as a sword rather than a shield.  


                    The evidence was uncontradicted that Jackie showed up at the scene of the  


accident while the police were conducting their investigation.                                    Arredondo's attorney  


based his trial strategy on the  fact that there was no direct evidence concerning how  


Jackie knew that Arredondo's truck would be at that location, or how she knew that  


intervention was required.  Arredondo's attorney took advantage of this evidentiary gap  


by expressly arguing to the jury that Jackie  was the one who drove the truck off the  


highway exit and down the embankment:  



                              Defense  Attorney :             Jackie  operated  the  truck.  She  


                    arrived at the scene; how does she know [where the truck  


                    was]?  Because she was the one who drove the truck.  She's  


                    going through a divorce.  ...  We don't know why people do  


                    things  that they do.              ...   [But] we do know ...  ,  through  


                    Ms. McDole's testimony, [that Jackie has] knowledge of the  


                    spare keys in the truck.   She wakes up Mrs.  McDole, tells  


                     [her that] Aaron needs help, and he was in my bedroom. Then  


                    she takes [McDole] to the scene.  ...  


                               [Jackie] made a phone call to her friend before she  


                    woke up her mother, then they [all] go to the scene.   Now  


                    how does [Jackie] know where the truck is?  Because that's  


                    who crashed the truck  - her and her friend, Sarah.   You  


                    heard  the  911  recording,  the  woman  on  the  phone  said  

                                                             - 12 -                                                          2581

----------------------- Page 13-----------------------


                    "they":  "they" may have been driving under the influence;  


                    I saw "them" drive off the road.  


                               This is why Aaron Arredondo's not guilty.  


                    Courts  have  long  held  that  litigants  should  not  be  allowed  to  use  


evidentiary privileges in ways that affirmatively distort the fact-finding process.   "The  


privilege may implicitly be waived when [a] defendant asserts a claim that in fairness  


requires examination of protected communications."  United States v. Bilzerian, 926 F.2d  


1285, 1292 (2nd Cir. 1991); see also Clark v. United States, 289 U.S. 1, 15; 53 S.Ct. 465,  


469; 77 L.Ed. 993 (1933) ("The privilege takes flight if the relation is abused.").  


                    Thus,  a party waives the marital communications privilege if the party  


"injects a matter that, in the context of the case, creates such a need for the opponent to  


obtain the information allegedly protected by the privilege that it would  be unfair to  


allow that party to assert the privilege".  State Farm Mutual Auto. Ins. Co. v. Lee, 13  


P.3d  1169,  1178  (Ariz.  2000).                   Similarly,  a  party  waives  the  privilege  if  the  party  


"selectively disclose[s] part of a privileged communication in order to gain an advantage  


in litigation".  S.E.C. v. Lavin, 111 F.3d 921, 933 (D.C. Cir. 1997).  


                    In  the  present  case,  Arredondo  asserted  his  marital  communications  


privilege for the purpose of excluding evidence that would have helped to explain how  


Jackie  came  to  know  that  Arredondo's  truck  was  sitting disabled  on  the  highway  


embankment - thus allowing the defense attorney to argue that Jackie's unexplained  


presence at the accident scene showed that she was the one who drove the truck off the  


highway and down the embankment.  


                     (The defense attorney had made this same argument at both of Arredondo's  


earlier trials - the two trials that ended in a mistrial when the jury was unable to reach  


a verdict.)  

                                                              - 13 -                                                          2581

----------------------- Page 14-----------------------

                                                                    Under these circumstances, even if we assume that Arredondo's marital                                                                                                                                                                                                                                                                            

communications privilege might otherwise have given him the right to prevent McDole                                                                                                                                                                                                                                                                                                                         

from testifying about                                                                                            her conversation with Jackie (to the extent that Jackie revealed                                                                                                                                                                                                                         

Arredondo's communications to her), Arredondo's litigation strategy worked a waiver                                                                                                                                                                                                                                                                                                                                  

of that privilege.                                                                 For this reason as well, we uphold the trial judge's ruling on the marital                                                                                                                                                                                                                                                        

communications privilege.                                                                                                               


                                                                    The judgement of the superior court is AFFIRMED.                                                                                                                                                                                                                              

                                                                                                                                                                                                              - 14 -                                                                                                                                                                                                               2581

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