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Davis v. State (4/14/2006) ap-2042

Davis v. State (4/14/2006) ap-2042

     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

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878


) Court of Appeals No. A-8416
Appellant, ) Trial Court No. 3AN-00-6342 Cr
v. )
) O P I N I O N
Appellee. ) No. 2042 April 14, 2006
          Appeal  from the Superior Court,  Third  Judi
          cial  District,  Anchorage,  Larry  D.  Card,

          Appearances:  Colleen A. Libbey,  Libbey  Law
          Offices,   Anchorage,  for   the   Appellant.
          Timothy   W.   Terrell,  Assistant   Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and  David  W.  M rquez,
          Attorney General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          Daniel  D. Davis appeals his convictions for two counts
of third-degree assault, reckless driving, and driving without  a
license.   Davis contends that his trial was not held within  the
time  limits of Alaskas speedy trial rule, Criminal Rule 45;  and
he alternatively argues that his constitutional right to a speedy
trial  was violated.  Davis further contends that his trial judge
erroneously  allowed the State to introduce hearsay testimony  in
violation of both the Alaska Evidence Rules and the confrontation
clause  of  the  United States Constitution,  as  interpreted  in
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158  L.Ed.2d
177 (2004).
          For  the reasons explained here, we conclude that Davis
was  brought  to trial within the time limits of Alaska  Criminal
Rule 45, and that his constitutional right to a speedy trial  was
not  violated.  However, with respect to the challenged  hearsay,
we  conclude  that  this testimony was improperly  admitted.   We
further  conclude that this testimony may well have affected  the
jurys decision.  Accordingly, we reverse Daviss conviction; he is
entitled to a new trial.

     Underlying facts
               Davis   was  charged  with  several  criminal
     offenses  all stemming from a collision between  Daviss
     truck and a motorcycle.
               On  the afternoon of July 25, 2000, as  Davis
     was driving eastbound on Sixth Avenue in Anchorage,  he
     became embroiled in an altercation with Damien Owens, a
     motorcyclist.   According to Owens  and  several  other
     witnesses, this altercation began when Owens stopped at
     a  red  light  and  Davis pulled his truck  so  closely
     behind Owens that Owens could turn around and touch the
     truck.   Owens  was upset by this, and he  said  so  to
     Davis.   Davis then pulled his truck up next to  Owens,
     and the two men began a heated exchange.
          This  verbal exchange continued as the  light
turned  green  and the two drivers began to  accelerate
down  the  street.  However, Owens soon tried  to  pull
over  and  end the confrontation.  But as Owens  slowed
down  to negotiate a turn, Davis (who was now in  front
of  Owens) swerved his truck and almost hit Owens.   To
elude  Davis,  Owens then tried to pass  Davis  on  the
left.   As  Owens  accelerated  his  motorcycle,  Davis
veered  suddenly  in  Owenss direction,  striking  both
Owens  and  his  motorcycle.  Pieces of the  motorcycle
broke  off  from the impact, and Daviss vehicle  struck
Owens  in  the leg and the hand.  As a result  of  this
collision, Owens was pushed into the center turn  lane,
where  he encountered oncoming traffic.  After  dodging
this oncoming traffic, Owens was able to drive off  the
          Anchorage Police Officer Jeff Hobson  was  on
traffic  patrol  when  this episode  occurred.   Hobson
witnessed  the entire incident, and after Daviss  truck
veered  into Owens, the officer pulled Davis  over  and
arrested him for felony assault.
          After a backup officer arrived, Hobson turned
his  attention  to  the passenger  in  Daviss  vehicle,
Terrell  W. Hodge.  During Hobsons interview of  Hodge,
Hodge  told  the  officer  that   basically  ...  Davis
snapped and was totally out of control.  Meanwhile, the
backup officer observed open beer cans in Daviss  truck
and  smelled alcoholic beverages on Daviss person.  The
backup  officer  also learned from Davis  that  he  had
smoked marijuana earlier that day.
          At   trial,   Davis  offered  an  exculpatory
version of these events.  He contended that only  Owens
became  enraged during their encounter at  the  traffic
light.   Davis claimed that he himself only  wished  to
peacefully distance himself from Owens.  Davis conceded
that he had driven his truck to the right toward Owenss
lane  of travel, but he claimed that this movement  was
not   an  attempt  to  strike  Owens.   Rather,   Davis
testified  that  he  believed Owens was  slowing  down,
preparing  to  make a right turn, and Davis  moved  his
truck  into the right lane ahead of Owens in an attempt
to  pass  a  slow-moving motor home that  was  directly
ahead  of  him.   Davis further claimed that  when  his
truck  veered toward Owens the second time (this  time,
veering to the left), he (Davis) was not in control  of
the  truck.   Instead, according to  Davis,  the  truck
veered  to  the  left  because  his  passenger,  Hodge,
grabbed  the  steering wheel in a misguided  effort  to
prevent  Daviss truck from hitting Owens on the  right.
Davis  further  testified  that  his  vehicle  did  not
actually  hit  the motorcycle; rather, he claimed  that
the   only  contact  between  Owens  and  Daviss  truck
occurred  when  Owens  angrily  punched  the  side-view
mirror of Daviss truck as he drove by.
          After   listening  to  these  two   competing
versions of events, the jury found Davis guilty on  all

Daviss Rule 45 claim

          The  speedy  trial clock in this  case  began
running on July 26, 2000, when Davis was served with an
information charging him with various offenses stemming
from his encounter with Owens the previous day.  Daviss
trial did not begin until February 4, 2002.
          Daviss  case involves many different  periods
of  time  that the superior court found to be  excluded
from the Rule 45 calculation.  Davis challenges several
of  the  superior  courts rulings.   However,  the  two
crucial  events  for  Rule  45  purposes  occurred   on
November 22, 2000, and on April 9, 2001.
          Using  July 26, 2000 as a starting date,  the
120 days allowed by Rule 45 for bringing Davis to trial
would  have  expired on November 23, 2000.   But  Davis
filed  several  motions during that  four-month  period
that  tolled the running of Rule 45.  Most importantly,
Davis  filed a motion for co-counsel status on November
14,  2000,  and  a suppression motion on  November  22,
2000.   Daviss  motion for co-counsel  status  was  not
decided  until  January 30, 2001, and  his  suppression
motion  remained  undecided in early April  2001   even
though Daviss trial was scheduled for April 9th.
          The   superior  court  planned  to  hold   an
evidentiary hearing on April 4, 2001, (i.e., five  days
before  Daviss  scheduled trial).  But  on  April  4th,
Daviss attorney notified the superior court that  Davis
wanted to schedule a change-of-plea hearing.  Based  on
this  announcement,  the superior  court  canceled  the
evidentiary  hearing  and set a change-of-plea  hearing
for  April  9th  (the  day on which  Daviss  trial  was
supposed to have commenced).
          But  at  the  change-of-plea hearing,  Daviss
attorney  declared that he had not been  successful  in
arranging  a  package deal that included  a  negotiated
disposition  of  some  other misdemeanor  charges  that
Davis  was  facing in Palmer.  Because of this,  Daviss
attorney  said  that there would be no change  of  plea
that  day,  and  he  asked the superior  court  to  set
another  pre-trial conference for the  following  week.
Obviously,  Daviss case never settled;  instead,  Davis
went to trial.
          Under  this Courts decision in Mostafoski  v.
State,  954  P.2d  1042, 1044  (Alaska  App.  1998)   a
decision now codified in Criminal Rule 45(c)(5)  Daviss
announcement  on April 9th that he did  not  intend  to
change  his plea had the effect of re-setting the  Rule
45  clock to 0.  Thus, April 10, 2001 became Day 1  for
Rule 45 purposes.
          Indeed,  on the day after the aborted change-
of-plea  hearing, Superior Court Judge  Larry  D.  Card
issued an order in which he notified the parties  that,
based  on  Daviss  having  scheduled  a  change-of-plea
hearing, and then having failed to change his plea, the
judge  intended to re-start the Rule 45 calculation  at
Day 1.  Judge Card gave the parties five days to object
to his ruling; neither party objected.
          With  a new Day 1 of April 10, 2001, the  120
days allowed for bringing Davis to trial would normally
have  expired on August 7, 2001.  However, it  must  be
remembered  that  Daviss suppression motion  was  still
pending.  Thus, even though the Rule 45 clock had  been
re-set, it still had not commenced running again.
          Moreover,  on July 2, 2001, Davis  asked  the
superior  court  to remove his court-appointed  counsel
from  the case.  Daviss request for a new attorney  was
not resolved until August 23rd, when the superior court
appointed a new attorney to represent Davis.
          In  part  because  of the dispute  concerning
Daviss legal representation, the evidentiary hearing on
his  suppression motion was not held until November 29,
2001.   Judge Card issued his ruling on the suppression
motion the next day.
          In sum, even though the Rule 45 clock was re-
set  to  0  on April 9, 2001, the clock did  not  begin
running  again  until December 1, 2001 (the  day  after
Judge  Card decided the suppression motion).   And,  as
explained above, Daviss trial commenced on February  4,
2002   that  is,  65 days later.  Davis  was  therefore
brought  to  trial within the time limits  of  Criminal
Rule 45.
          Davis  presents two major objections  to  the
foregoing analysis.
          First,   Davis  asserts  that  his   attorney
unreasonably delayed filing the suppression  motion  of
November  22, 2000.  Davis argues that if his  attorney
had  been  diligent  and had paid proper  attention  to
Daviss  case, this suppression motion could  have  been
filed much earlier.
          The primary answer to this contention is that
Criminal  Rule  45  does not concern itself  with  such
matters.   As the Alaska Supreme Court and  this  Court
have  repeatedly said, Rule 45 must be  interpreted  so
that  the speedy trial calculation rests on objectively
ascertainable  events   such  as  the   filing   of   a
suppression motion.1  This policy would be defeated  if
we allowed defendants to challenge Rule 45 calculations
by  raising after-the-fact attacks on the diligence  of
their attorneys or the reasonableness or competence  of
their attorneys actions.
          A  second answer to Daviss argument is  found
in the particular facts of Daviss case.  At a pre-trial
hearing on October 12, 2000 (that is, approximately six
weeks  before the suppression motion was filed), Daviss
attorney  informed the superior court that  she  needed
more time to file pre-trial motions, including a motion
to  suppress.  At that time, Daviss trial was scheduled
for  October  23rd   only eleven days  in  the  future.
Thus,  to  honor  the  defense  attorneys  request  for
additional time, the superior court necessarily had  to
delay the trial.
          Judge  Card asked Daviss attorney if she  was
willing to waive the additional time under Rule 45, and
the  defense  attorney agreed to waive  42  days,  thus
allowing Daviss trial to be rescheduled for December 4,
2000.   But  Davis objected to this delay.  Davis  told
Judge  Card  that  his  attorney  had  failed  to   act
diligently,  and that she should have  filed  the  pre-
trial  motions  long before.  Davis asserted  that  his
attorneys  lack  of  diligence was essentially  forcing
Davis to waive his speedy trial rights.
          After   listening  to  Davis   express   this
dissatisfaction with his attorneys conduct, Judge  Card
informed  Davis that he had two options:   Davis  could
direct  his  attorney  to waive any  further  pre-trial
motions, thus regaining the October 23rd trial date, or
Davis  could  agree to have his attorney  pursue  these
motions,  with  the result that Daviss trial  would  be
          Despite  this  invitation  from  Judge  Card,
Davis   never   expressed  a  desire   to   waive   the
contemplated motions.  As noted above, the  suppression
motion  was filed on November 22, 2000.  And five  days
later,  when the parties assembled in court to  address
          the pre-trial motions, Davis stated that he did not
want  his  attorney  to withdraw  those  motions   even
though,   by  that  point,  the  superior   court   had
rescheduled Daviss trial to mid-January 2001.
          For  both of these reasons, we conclude  that
Davis  can  not attack the amount of time it  took  his
attorney to research, draft, and file the November 22nd
suppression motion.
          Daviss second major objection to our Rule  45
analysis involves the aborted change-of-plea hearing on
April  9,  2001, and the consequent re-setting  of  the
Rule 45 clock to 0.  Davis argues that he should not be
bound  by  his attorneys act of requesting a change-of-
plea hearing.  Davis contends that he was never willing
to  change  his  plea, that his attorney scheduled  the
change-of-plea  hearing without his consent,  and  that
Judge  Card  committed error by never asking  Davis  to
personally ratify his attorneys action.
          There  was no error.  Rule 45(c)(5) does  not
require the trial court to obtain a defendants personal
assent before acting on a defense attorneys request  to
schedule  a change of plea.  Nor does the rule  require
the  court  to  address  the  defendant  personally  to
ascertain  the  defendants position  when  the  defense
attorney  subsequently announces that no plea agreement
has been reached.
          The   facts   of  Mustafoski  v.  State   are
instructive.  In Mustafoski, the defense attorney  told
the  superior  court  that the  defendant  intended  to
change  his plea, but the attorney wanted to delay  the
entry of the plea until he could investigate whether  a
conviction   would   affect   Mustafoskis   immigration
status.2   The  following month, the  defense  attorney
told  the  court  that  he and  the  State  were  still
negotiating the resolution of the case.3  After another
two months, the defense attorney finally announced that
there would be no plea bargain, and that the case would
go  to  trial.4  We held that, under these  facts,  the
Rule  45  clock  was re-set to 0 on the  day  that  the
defense  attorney  announced that  there  would  be  no
negotiated settlement of the case.5
          Daviss  case presents similar facts.  On  the
day  of a scheduled evidentiary hearing, and only  five
days  before  Daviss scheduled trial,  Daviss  attorney
asked  the  superior court to schedule a change-of-plea
hearing.   In  reliance on that request,  the  superior
court canceled the evidentiary hearing and set a change-
of-plea  hearing  in place of the previously  scheduled
trial.   But  at  the  change-of-plea  hearing,  Daviss
attorney declared that Davis would not be changing  his
plea  that  day   because  the attorney  had  not  been
successful  in  arranging  a package  deal  that  would
resolve not only Daviss pending Anchorage charges,  but
also  some  other misdemeanor charges  that  Davis  was
facing in Palmer.
          These  are essentially the same circumstances
that  led us to re-set the Rule 45 clock in Mustafoski,
and we reach the same result here.
          Davis  points out that the pertinent  portion
of  Criminal  Rule  45(c)(5) refers  to  the  defendant
rather than to the defense attorney:
     When a defendant who previously informed  the
     court of an intention to plead guilty or nolo
     contendere  notifies  the  court   that   the
     defendant  now intends to proceed  to  trial,
     the time for trial shall run from the date of
     that notification.
     Based on this wording, Davis argues that this
     rule  only  takes effect when  the  defendant
     personally informs the court that they intend
     to  plead  guilty  or no  contest,  and  then
     later personally informs the court that  they
     now wish to go to trial.
          We  do  not believe that the Alaska
Supreme  Court intended Rule 45(c)(5)  to  be
read  in this fashion.  Even though the  text
of  Rule  45(c)(5)  refers to  the  defendant
rather  than  to  the defense  attorney,  the
Alaska   court  rules  often  use  the   term
defendant  to mean, or at least  to  include,
the  defense  attorney  (unless  the  context
indicates a narrower meaning).
          For example, Criminal Rule 45(c)(2)
declares   that  if  a  criminal  charge   is
dismissed  upon motion of the defendant,  the
speedy  trial calculation shall begin running
from  the  date  of service  of  any  renewed
charge.   Obviously, most motions to  dismiss
are filed by defense attorneys rather than by
the  defendants themselves.  There has  never
been  an  appellate decision suggesting  that
Rule  45(c)(2) applies only after  the  trial
court addresses the defendant personally  and
ascertains  that the defendant has personally
assented  to  the  filing of  the  motion  to
          We  further note that several other
provisions  of the criminal rules employ  the
word   defendant  when  the  context  clearly
suggests defense attorney.6
          We therefore conclude that Criminal
Rule  45(c)(5)s use of defendant  instead  of
defense counsel does not bespeak an intention
on  the  part of the Alaska Supreme Court  to
require  the defendants personal intervention
or  the  defendants express  ratification  of
their attorneys statements to the court.
          Accordingly, we affirm Judge  Cards
          ruling that Davis was brought to trial within
the time limits of Criminal Rule 45.

Daviss alternative claim based on the constitutional
right to speedy trial

     In  addition to attacking his trial  date  on
Rule  45  grounds, Davis also argues that the  19-
month  interval  between the day  he  was  charged
(July  26,  2000)  and  the day  his  trial  began
(February  4,  2002)  violated his  constitutional
right   to   a  speedy  trial.   We  reject   this
contention because, as explained above, the  major
portion  of this delay is attributable  to  Daviss
own  actions  or  the  actions  of  the  attorneys
representing him.
     Davis  relies primarily on Glasgow v.  State,
469  P.2d  682  (Alaska 1970),  where  the  Alaska
Supreme  Court declared that a delay of 14  months
violated the defendants constitutional right to  a
speedy  trial.7  But a careful reading of  Glasgow
shows that the supreme court, in calculating  this
delay of 14 months, [e]xclud[ed] those periods  of
time  that [could] properly be attributed  to  the
     A  year  after  Glasgow,  the  supreme  court
explicitly reiterated this principle in Rutherford
v.  State, 486 P.2d 946, 952 n. 15 (Alaska  1971).
This  rule   that defendants can not  base  speedy
trial  claims on delays attributable to themselves
has  been the accepted Alaska law on this  subject
ever since.9
     Accordingly, we reject Daviss claim  that  he
was  denied his constitutional right to  a  speedy

The  admissibility of the hearsay testimony  describing
the out-of-court statements of Terrell Hodge

          As  explained  above, Terrell Hodge  was  the
passenger in Daviss pickup truck during the incident in
question.   Hodge was therefore a potential witness  at
Daviss  trial.   However,  after  Hodge  consulted   an
attorney,  he  decided to claim his  privilege  against
self-incrimination, and the superior court upheld  this
claim of privilege.
          Following   this   ruling,   the   prosecutor
announced that he wished to introduce hearsay testimony
concerning certain statements that Hodge made  when  he
was  interviewed by Officer Hobson a few minutes  after
the  collision.  Specifically, the prosecutor  made  an
offer   of   proof   that,  during  this   on-the-scene
interview, Hodge told Hobson that Davis had gotten into
an  argument with the motorcyclist and that  Davis  had
snapped, succumbing to an uncontrollable case  of  road
          The  prosecutor  argued that  Hodges  out-of-
court  statements were admissible under either  of  two
hearsay   exceptions:   the  present  sense  impression
exception (Alaska Evidence Rule 803(1)) or the  excited
utterance  exception  (Alaska  Evidence  Rule  803(2)).
Daviss   attorney   responded  that   neither   hearsay
exception  applied to Hodges statements.   The  defense
attorney  also  argued that admission of  this  hearsay
would  violate Daviss constitutional right to  confront
the witnesses against him.
          After  the  two  attorneys staked  out  their
respective  positions,  the prosecutor  called  Officer
Hobson to present foundational testimony in support  of
the proposed hearsay.
          Hobson   testified  that,  after  the  backup
officer arrived on the scene and took custody of Davis,
Hobson  returned  to the pickup truck  and  interviewed
Hodge.  Hobsons conversation with Hodge occurred within
five to ten minutes after the traffic stop.
          When  the  prosecutor asked Hobson to  relate
what Hodge had told him, Hobson responded:

     Hobson:  [Hodge said] basically that Mr.
Davis  had a fit of road rage; [he]  snapped.
...  [Hodge] said [that] the motorcyclist had
gotten in an argument with Davis; Davis  just
snapped  and  had an uncontrollable  case  of
road rage.  [Hodge] said that Davis had [had]
a  similar case of road rage once before, but
[that]  he, Hodge, had been able to talk  him
out   of   it,  and  nothing  [had]  happened
[before] such as what happened on this day.

          The prosecutor then asked Hobson to
describe   Hodges   demeanor   during    this
interview.   Hobson replied  that  Hodge  was
calm and pleasant.
          Based on Hobsons description of the
interview, Judge Card ruled that Hodges  out-
of-court     statements    were    definitely
admissible  as  statements of  present  sense
impression,  and  perhaps  also  as   excited

     The  Court:   There is no  question  ...
that [Hodge had] time for reflective thought,
[and that fact goes] into the calculations of
the  court.   But [Hodge] is now unavailable,
[and   he]   did  perceive  the  events   [in
question].  He was a passenger in Mr.  Daviss
vehicle,   and   he   made   this   statement
immediately   after  sensing  whatever   this
occurrence  was, and his statement  describes
[the  cause of] that occurrence.   Now,  that
means   that  his  statement  [is]  not   ...
excluded by the hearsay rule.
     .  .  .

     [The   hearsay  exception  for]  present
sense    impression,   unlike   the   excited
utterance [exception], does not require  that
the   declarant   be  emotional   [or   even]
emotionally  affected ... by the  occurrence.
Instead,  its the spontaneity, ...  and  also
the  consequent  lack of time for  reflective
thought, [and also] safety from memory lapse,
[that]  are considered sufficient  under  the
rules    to    establish    the    statements

          Judge  Card recognized that  Hodges
statements   were  not,  strictly   speaking,
spontaneous,  since  they  were  elicited  by
Hobsons questions.  Nevertheless, Judge  Card
concluded  that  the  two hearsay  exceptions

     The  Court:   [Even] if [the  statements
were elicited in response to] a question,  if
it comes in as a [statement of] present sense
impression,   which  would  be  more   likely
[here],  it  can also come in as  an  excited
utterance  because I think [that] this event,
as  I heard the description by Mr. Owens  and
the other witnesses who have testified, [this
event]   was  something  extraordinary   that
happened in a very short period of time.   So
it   was  a  startling  event.   [And]   this
statement   [described]  Mr.  Hodges   mental
impressions ... shortly thereafter.
     .  .  .

     [The]  statement was made shortly  after
the  incident occurred, so it is at  least  a
present sense impression.
     .  .  .

     Based  upon what Ive heard, Im going  to
let  [the  testimony] in as a [statement  of]
present  sense impression.  It could also  be
considered [an] excited utterance;  they  are
so   closely  related.   The  spontaneity  is
there.   The requirements of [Evidence Rules]
803(1) and (2) [are] met.

          (Judge    Card    prohibited    the
prosecutor from eliciting testimony regarding
Hodges  statement  about  the  alleged  prior
incident in which Davis lost control  of  his
temper,  and  the judge also  prohibited  any
reference  to the term road rage, because  he
concluded  that this term was  too  imprecise
and potentially prejudicial.)
          Following   this  ruling,   Officer
Hobson took the stand again (this time in the
presence   of  the  jury)  and  related   the
statements that Hodge made during  the  post-
collision   interview  (with  the  redactions
described in the preceding paragraph).
          In  this  appeal, Davis renews  his
contention  that this hearsay  testimony  was
not  admissible  under either  Evidence  Rule
803(1)    (statement   of    present    sense
impression) or Evidence Rule 803(2)  (excited
utterance).   In addition, Davis argues  that
admission   of   the   challenged   testimony
violated   his  right  to  confrontation   as
interpreted  by  the  United  States  Supreme
Court in Crawford v. Washington, 541 U.S. 36,
124  S.Ct. 1354, 158 L.Ed.2d 177 (2004).   We
do  not reach the confrontation issue because
we  agree  with Davis that the testimony  was
not  admissible under either of the suggested
exceptions to the hearsay rule.

(a)  Explanation of the two hearsay exceptions  at
issue in this case

     The two hearsay exceptions at issue here  for
statements  of present sense impression,  and  for
excited   utterances    are   based   on   similar
rationales,  and  hearsay statements  relating  to
startling  occurrences (such as the motor  vehicle
collision  at  issue  in  this  case)  are   often
admissible under both theories.  But Daviss appeal
requires   us  to  examine  those  two  exceptions
     An  out-of-court statement is a statement  of
present  sense  impression  if  it  describes   or
explains  an event, and if it was made  while  the
declarant  was  perceiving  the  event  ...  ,  or
immediately  thereafter.   Alaska  Evidence   Rule
803(1).    The   defining  characteristic   of   a
statement  of  present  sense  impression  is  its
spontaneity  the speakers lack of reflection about
what  he  or  she  should be saying.   Under  Rule
803(1), the presumption of spontaneity (and, thus,
the  presumption of trustworthiness)  arises  from
the  fact  that  the speaker utters the  statement
while  observing the event or condition at  issue,
or  immediately thereafter.  In other words, there
is hardly any interval between the observation and
the  statement  describing the  observation   and,
thus, no time for reflection.
          As  explained in the Commentary to the Alaska
Evidence Rules, the underlying theory of [Rule  803(1)]
is  that [the] substantial contemporaneity of event and
statement  negate  the  likelihood  of  deliberate   or
conscious misrepresentation.10
          Unlike  excited  utterances,  statements   of
present sense impression do not have to be inspired  by
exciting  or  startling occurrences.11   Of  course,  a
startling  event  may  inspire a statement  of  present
sense impression:  Look at that!  That truck just ran a
red  light.  But an utterance relating to a  much  more
mundane (and potentially boring) observation could also
qualify  as  a  statement of present sense  impression:
See  that herd of cows?  All of them are white.  It  is
not  the emotional state of the speaker, but rather the
lack of an appreciable interval between the observation
and  the  statement, that gives rise to the presumption
that the statement is trustworthy.
          In  contrast,  an out-of-court  statement  is
admissible as an excited utterance if it was made while
the declarant was under the stress of excitement caused
by  the  event  or  condition to  which  the  statement
relates.  Alaska Evidence Rule 803(2).  As is true with
statements  of present sense impression,  the  defining
characteristic   of  an  excited   utterance   is   its
spontaneity  the speakers lack of reflection about what
he or she should be saying.  But under Rule 803(2), the
presumption  of spontaneity (and, thus, the presumption
of  trustworthiness)  arises from  the  fact  that  the
speaker   is   laboring  under  the  emotional   stress
engendered by the event.
          As  stated  in the Commentary to  the  Alaska
Evidence  Rules, [t]he theory of [Rule 803(2)]  is  ...
that   circumstances  may  produce   a   condition   of
excitement  which  temporarily  stills  the  [speakers]
capacity for reflection and produces utterances free of
conscious  fabrication.12  Thus, when  an  out-of-court
statement is offered as an excited utterance,  the  key
factual question is not the interval between the  event
and  the  statement,  but rather the  duration  of  the
[speakers] state of excitement.13

  (b)   Analysis of Hodges out-of-court statement as  a
  potential statement of present sense impression

          As   explained  above,  the  key  factor   in
deciding  whether Hodges out-of-court statement  should
be  deemed  a statement of present sense impression  is
the   assessment  of  whether  there  was   substantial
contemporaneity between the event being explained  (the
collision) and Hodges explanatory statement.
          Here,  there  was  no strict contemporaneity;
rather,  there was an interval of five to  ten  minutes
between  the event and the statement.  But as explained
above, the Commentary to Evidence Rule 801(1) does  not
          speak of strict contemporaneity; rather, it speaks of
substantial contemporaneity.  And the Federal Rules  of
Evidence  Manual takes the approach that, for  purposes
of  assessing substantial contemporaneity, there is  no
fixed  limit on the interval between the event and  the
explanatory statement:
     While  contemporaneity  is  critical  to
[the statements] admissibility, there is  ...
no talismanic time period for admission [of a
statement]  as  a  present sense  impression.
Admissibility is determined on a case-by-case
basis,  [with the judge] investigat[ing]  the
circumstances of the statement  to  determine
whether  the  declarant had significant  time
for reflection.

Stephen A. Saltzburg, Michael M. Martin,  and
Daniel  J.  Capra, Federal Rules of  Evidence
Manual  (8th ed. 2002),  803.02, Vol.  4,  p.
          Another   text  on   the   law   of
evidence,  John W. Strong et alia,  McCormick
on   Evidence  (5th  ed.  1999),  appears  to
advocate a tighter definition of the  present
sense     impression    hearsay    exception.
Referring    to    Evidence   Rule    803(1)s
requirement that the statement be made  while
the speaker was actually perceiving the event
or    immediately    thereafter,    McCormick

While   [the]  principle  [of  this   hearsay
exception]  might  seem  to  call  for  [its]
limitation  to [statements that share]  exact
contemporaneity   [with   the   event   being
described or explained], some allowance  must
be  made  for the time needed for translating
observation   into   speech.     Thus,    the
appropriate  inquiry  is  whether  sufficient
time  elapsed  [between  the  event  and  the
explanatory statement] to have permitted [the
speaker to engage in] reflective thought.

Id.,  271, Vol. 2, p. 203.
          We  acknowledge that there are some
court   decisions  that  have   allowed   the
admission   of   present   sense   impression
statements that were made as much  as  twenty
minutes   after   the  event   described   or
explained.14   But,  as stated  in  both  the
Federal   Rules   of  Evidence   Manual   and
McCormick on Evidence, the issue is  not  the
exact  amount of time between the  event  and
the statement.  Rather, the issue is whether,
          under the circumstances of the particular
case, the interval between the event and  the
statement  gave  the  speaker  a  significant
opportunity  to  reflect on what  he  or  she
should   say.    If  so,  then  the   hearsay
statement  does  not  qualify  for  admission
under the present sense impression exception.
          In the present case, Officer Hobson
happened  to  be on the scene to witness  the
collision  between  Daviss  truck   and   the
motorcycle.  He stopped Daviss vehicle almost
immediately.   And  Hobson interviewed  Hodge
some  five to ten minutes after this  traffic
stop.  Thus, the interval might be viewed  as
relatively short.  Nevertheless, during  this
interval, Hodge sat in the truck and  watched
while Hobson handcuffed Davis and placed  him
under arrest.  It was obvious that Davis  was
in  trouble   that the police  believed  that
Davis had just committed a crime.
          Moreover,  the testimony  presented
by  the  prosecution suggested that,  in  the
moments  leading  up to the collision,  Hodge
was  actively  involved in  discussions  with
Davis  concerning what to do  about,  or  to,
Owens.   Owens  testified  that,  during  his
moments  next to the truck, Davis  and  Hodge
were  talking back and forth and  looking  at
Owens.   And  Officer Hobson testified  that,
during the exchange between Owens and the two
occupants  of the truck, the passenger   that
is,  Hodge  was jabbering at Owens, and there
was a lot of arm swinging [by both Hodge] and
          In  other words, even though  Hodge
was  interviewed within five to  ten  minutes
after  the traffic stop, he was sitting alone
during  this  time,  he had  been  personally
involved in the event under investigation, he
was able to observe what was happening to his
friend  Davis, and he had time to reflect  on
his  own  situation.  Under the circumstances
of  this  case,  those five  to  ten  minutes
offered  Hodge  a significant opportunity  to
reflect  on what he should say to the  police
in  order to avoid sharing criminal or  civil
liability for what had happened.
          For these reasons, we conclude that
Judge  Card  abused  his discretion  when  he
ruled that Hodges statement could be admitted
under  the present sense impression exception
to the hearsay rule.

(c)  Analysis of Hodges out-of-court statement as a
potential excited utterance

     As  explained above, the interval between the
collision and Hodges statement is not so  critical
when  deciding whether Hodges statement  qualifies
as  an  excited  utterance.  Rather,  our  inquiry
focuses  on whether Hodge was under the stress  of
excitement  caused by the collision when  he  made
his statement.
     In  this  case, the problem for the State  is
that there is no evidence that Hodge was under the
stress  of  excitement when he made the statement.
Clearly, as Judge Card noted, the collision  would
have  been an exciting or startling event for most
people.   But there is no evidence that Hodge  was
still   feeling  excitement  when  he   gave   his
statement  to  Hobson.  In fact, Hobson  testified
that  Hodges demeanor was just the opposite   that
Hodge  was  calm  and  pleasant  when  Hobson  was
questioning him.
     See  Beech Aircraft Corp. v. Harvey, 558 P.2d
879,  884  (Alaska 1976), where our supreme  court
ruled  that  certain out-of-court statements  were
not admissible under the excited utterance hearsay
exception because the out-of-court statements were
a  deliberative narration of past events, and  the
speaker was not emotionally upset when questioned,
but rather appeared calm.
          For  this reason, we conclude that Judge Card
abused   his  discretion  when  he  ruled  that  Hodges
statement could be admitted under the excited utterance
exception to the hearsay rule.

  (d)   Why  we  reject  the States argument  that  the
  admission   of  Hodges  out-of-court  statement   was
  harmless error

          The  State argues that even if Hodges out-of-
court statement to Officer Hobson should not have  been
admitted,   the   admission  of   this   evidence   was
nonetheless harmless error.  We disagree.  The  crucial
factual  dispute  in  this case was  not  the  physical
interaction  between Daviss truck and  the  motorcycle.
Rather,  Daviss  trial centered on  two  other  issues:
Daviss  state  of  mind during the encounter  with  the
motorcyclist,  and  whether  Davis  was  personally  in
control  of his vehicle when it veered to the left  and
struck the motorcycle.
          Hodge  was the only person, other than Davis,
who  had  direct  knowledge of the facts  pertinent  to
these  issues.   We  note, moreover,  that  during  the
States  summation to the jury, the prosecutor expressly
relied  on  Hodges  statement that Davis  had  snapped.
Given  the  importance  of this evidence  to  the  main
factual  dispute at Daviss trial, we conclude that  the
jurys  decision  was  substantially  affected  by   the
hearsay  evidence that Hodge, when interviewed  shortly
after  the  collision, told the police that  Davis  had
snapped and that Davis was totally out of control.


          For  the reasons explained here, we hold  (1)
that  Davis was brought to trial within the time limits
of  Alaska Criminal Rule 45, but (2) that Daviss  trial
was  flawed by the introduction of the hearsay evidence
describing  Hodges post-collision statement to  Officer
Hobson.   Accordingly, the judgement  of  the  superior
court is REVERSED.  Davis is entitled to a new trial.

1 See, e.g., Deacon v. State, 575 P.2d 1225, 1228-29 (Alaska
1978);  Snyder v. State, 524 P.2d 661, 663-64 (Alaska 1974);
State  v.  Clouatre,  516  P.2d 1189,  1191  (Alaska  1973);
Wardlow  v.  State,  2 P.3d 1238, 1244 (Alaska  App.  2000);
State v. Angaiak, 847 P.2d 1068, 1072-73 (Alaska App. 1993);
Russell v. Anchorage, 626 P.2d 586, 589 (Alaska App. 1981).

2 Mustafoski, 954 P.2d at 1044.

3 Id.

4 Id.

5 Id.

6 Other examples of this broader usage include:  Criminal
Rule  6(m)  (a  defendants  right  to  listen  to   the
electronic  record  of the grand jury  proceedings,  to
obtain  a  transcript  of  those  proceedings,  and  to
examine  the  exhibits presented to  the  grand  jury);
Criminal  Rule 11(b) (a defendants right to  request  a
reasonable  delay  to  decide  what  plea  to   enter);
Criminal Rule 12(e) (the effect of a defendants failure
to  raise defenses or objections that, by law, must  be
made   before   trial);   Criminal   Rule   16(b)(1)(B)
(requiring  the  prosecuting  attorney  to  inform  the
defendant  of  the  names and addresses  and  curricula
vitae  of  expert  witnesses, as well as  summaries  of
their   proposed  testimony);  Criminal  Rule  16(c)(4)
(requiring  the  defendant to  inform  the  prosecuting
attorney  of  the same sorts of information  concerning
expert  witnesses);  Criminal Rule 16(c)(5)  (requiring
the  defendant  to notify the prosecuting  attorney  of
certain  intended  defenses); Criminal  Rule  18(e)  (a
defendant  may  move  for  a  change  of  venue  to  an
alternate  approved  court  location);  Criminal   Rule
27(a)(2)  (describing  the defense  opening  statement:
The  defendant,  or  the defendants counsel,  may  then
state  the defense, and may briefly state the  evidence
[that]  the  defendant expects to offer in  support  of
it.); Criminal Rule 29(a) (allowing the trial judge  to
grant  a  judgement  of  acquittal  on  motion   of   a

7 Glasgow, 469 P.2d at 688-89.

8 Id. at 688.

9 See Alvarez v. Ketchikan Gateway Borough, 91 P.3d 289,
295  (Alaska App. 2004);  Springer v. State,  666  P.2d
431, 435 (Alaska App. 1983).

10    Commentary  to Alaska Evidence Rules 803(1)  and  (2),
second  paragraph.  See also the Federal Advisory Committees
Note  to  proposed Federal Evidence Rule 803(1),  quoted  in
Stephen  A.  Saltzburg,  Michael M. Martin,  and  Daniel  J.
Capra,  Federal  Rules of Evidence Manual  (8th  ed.  2002),
803.02, Vol. 4, p. 80314.

11    See John W. Strong et alia, McCormick on Evidence (5th
ed.  1999),   271, Vol. 2, p. 202.  Two famous  scholars  of
evidence  law, John Henry Wigmore and James Bradley  Thayer,
disagreed   concerning  the  admissibility  of   non-excited
statements  of present sense impression.  Wigmore  took  the
position  that  the  out-of-court statement  should  not  be
admitted  unless  the  speaker  was  under  the  stress   of
excitement, while Thayer took the position that even a  non-
excited statement should be admitted, so long as it was made
contemporaneously  with  the event or  condition  perceived.
For  a  critique of Wigmores approach to this topic, and  an
explanation   of  how  the  position  espoused   by   Thayer
ultimately carried the day, see McCormick,  271, Vol. 2, pp.

12    Commentary  to Alaska Evidence Rules 803(1)  and  (2),
third  paragraph (citing J. Wigmore, Evidence in  Trials  at
Common Law,  1747, Vol. 6, p. 135).

13    Commentary  to Alaska Evidence Rules 803(1)  and  (2),
fifth paragraph.

14See United States v. Beck, 122 F.3d 676, 681-82 (8th Cir.
1997);  United States v. Blakey, 607 F.2d  779,  785-86
(7th  Cir.  1979);  United States v.  Mej¡a-V‚lez,  855
F.Supp.  607,  614 (E.D. N.Y. 1994);  Miller  v.  Crown
Amusements, Inc., 821 F.Supp. 703, 706 (S.D. Ga. 1993);
State v. Odom, 341 S.E.2d 332, 335-36 (N.C. 1986).  But
see Hilyer v. Howat Concrete Co., 578 F.2d 422, 426  n.
7  (D.C.  Cir. 1978) (interval of at least  15  minutes
held too long for the out-of-court statement to qualify
as a statement of present sense impression).

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