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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| TODD E. PORTERFIELD, | ) |
| ) Court of Appeals No. A-9033 | |
| Appellant, | ) Trial Court No. 4FA-04-103 Civ |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2064 October 13, 2006 |
| ) | |
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Charles R.
Pengilly, Judge.
Appearances: James M. Hackett, Fairbanks,
for the Appellant. Kenneth M. Rosenstein,
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.
Todd E. Porterfield was convicted of first-degree
murder and first-degree arson for intentionally starting a fire
for the purpose of killing another person.1 One important aspect
of the States case against Porterfield was evidence of various
statements that Porterfields wife, Michele, made about the arson
/ homicide to a woman named Diana Knight. Knight was a friend of
the Porterfields, and Michele Porterfield talked to her about the
crime in the belief that Knight was friendly toward her and her
husband. In fact, Knight was cooperating with the police and
secretly taping her conversations with Ms. Porterfield.2
Porterfields wife did not testify at his trial. (She
was tried separately for her role in the arson / homicide.)
However, edited versions of Ms. Porterfields taped statements to
Knight were introduced into evidence under the hearsay exception
for statements against penal interest.3 Knight also testified
about Ms. Porterfields initial, untaped statement to her about
these crimes (a statement that Ms. Porterfield made on the day
following the arson / homicide).4
In Porterfields direct appeal of his convictions, he
argued that his wifes statements to Knight should not have been
admitted under the statement against penal interest hearsay
exception. And, in the alternative, Porterfield argued that even
if his wifes statements were admissible under this hearsay
exception, the admission of these out-of-court statements
nevertheless violated his right of confrontation under the Sixth
Amendment to the United States Constitution.
We held that Ms. Porterfields out-of-court statements
were admissible as statements against penal interest, and we
further held that the admission of these statements did not
violate Porterfields right to confront the witnesses against him.
Porterfield v. State, 68 P.3d 1286, 1288-1291 (Alaska App. 2003).
However, one year after we decided Porterfields direct
appeal of his convictions, the United States Supreme Court
adopted a different interpretation of the confrontation clause.
In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158
L.Ed.2d 177 (2004), the Supreme Court interpreted the
confrontation clause to strictly prohibit the governments use of
testimonial hearsay in criminal cases, even though this
testimonial hearsay might fit within a recognized hearsay
exception, unless (1) the declarant testifies (and is thus
available for cross-examination) at the defendants trial or (2)
the declarant is shown to be unavailable and the defendant had
the opportunity to cross-examine the declarant in a previous
proceeding. Id., 541 U.S. at 68, 124 S.Ct. 1374.
Based on the Crawford decision, Porterfield filed a
petition for post-conviction relief in which he renewed his
argument that the admission of his wifes out-of-court statements
violated his right of confrontation. The superior court denied
Porterfields petition, and Porterfield now appeals the superior
courts decision.
The Supreme Court has not yet provided an explicit
definition of testimonial hearsay.5 However, in Crawford, the
Supreme Court indicated that while accusatory statements made to
government officials are likely testimonial, statements made to a
friend or acquaintance are likely not: An accuser who makes a
formal statement to government authorities bears testimony in a
sense that a person who makes a casual remark to an acquaintance
does not. Id., 541 U.S. at 51, 124 S.Ct. at 1364.
Courts from around the country have concluded,
consistent with this assertion, that when someone makes
statements to an informant (a false friend), not knowing that
these statements are being relayed to the police, the statements
are not testimonial.
For example, in United States v. Hendricks, 395 F.3d
173 (3rd Cir. 2005), the Third Circuit concluded that
conversations surreptitiously recorded by police wiretaps during
the investigation of a drug trafficking and money laundering
scheme were more analogous to casual remark[s] to an acquaintance
than to formal statements to government officials and that,
therefore, these statements were not testimonial for purposes of
Crawford. Id. at 181. In addition, the Third Circuit held that
even statements made directly to a confidential informant (who
was wearing a taping device) were not testimonial since the
various defendants and coconspirators [under investigation] ...
did not realize that their statements were going to be used
prosecutorially; rather, their statements constitute[d]
admissions unwittingly made. Id. at 182 n. 9, 183-84.
The same result was reached by the Oregon Court of
Appeals in State v. Chio Hang Saechao, 98 P.3d 1144 (Or. App.
2004). This case involved hearsay testimony concerning
statements made by a co-defendant, while in jail, during a
telephone conversation with a friend. (This telephone
conversation was secretly being taped).6 The court held that the
co-defendants statements were not testimonial for purposes of
Crawford. Id. at 1145-46.
In United States v. Saget, 377 F.3d 223 (2nd Cir.
2004), the Second Circuit noted that all three of Crawfords
formulations of the core meaning of testimonial to wit, (1) ex
parte in-court testimony or its equivalent; (2) extrajudicial
statements contained in formal testimonial materials like
affidavits or depositions; and (3) statements made under a
reasonable belief that they would be used at a later trial all
dealt with situations where the declarant reasonably expects [at
the time the statement is made] that the statement might be used
in future judicial proceedings. Crawford, 541 U.S. at 51-52, 124
S.Ct. at 1364; Saget, 377 F.3d at 229. In contrast,
incriminating statements made to a police informant are generally
made only because the declarant does not believe that the
statements will be available to the authorities for use in a
criminal prosecution.
In Saget, for example, the defendant and his co-
conspirator, Shawn Beckham, were engaged in an illegal firearms
trafficking scheme.7 Believing that a police informant was
actually a friend who was interested in joining their scheme,
Beckham made statements to this informant implicating both
himself and Saget.8 Beckhams statements to the informant were
recorded, and these statements were later admitted at Sagets
trial under the hearsay exception for statements against penal
interest.9
Beckham was unavailable to testify at Sagets trial,10
and Saget argued that the admission of Beckhams out-of-court
statements violated his right of confrontation. But the Second
Circuit held that Beckhams statements were not testimonial
hearsay because Beckham had not made these statements in a
formal interrogative environment, and because Beckham had not
been aware that he was speaking to a police informant. Id. at
228-230.
Although the Saget court recognized that the Supreme
Court had not completely defined the boundaries of testimonial
hearsay, the court noted that Crawford at least suggests that the
determinative factor ... is the declarants awareness or
expectation that his or her statements may later be used at a
[criminal] trial.11
The Second Circuit noted that, in the Crawford opinion,
the Supreme Court spoke approvingly of the result reached in an
earlier case, Bourjaily v. United States, 483 U.S. 171, 107 S.Ct.
2775, 97 L.Ed.2d 144 (1987).12 In Bourjaily, the Supreme Court
upheld the admission of a co-conspirators statements (recorded by
an FBI informant) against the assertion that the admission of
these out-of-court statements violated the defendants right of
confrontation.13 Bourjaily was decided under pre-Crawford law,
but the Supreme Courts opinion in Davis v. Washington describes
the Bourjaily result as being consonant with the interpretation
of the confrontation clause that the Supreme Court adopted in
Crawford. The Davis opinion declares that the hearsay at issue
in Bourjaily was clearly nontestimonial.14
Other cases likewise reach the conclusion that a co-
conspirators statements to a government informant are not
testimonial for Crawford purposes. See United States v.
Underwood, 446 F.3d 1340, 1347 (11th Cir. 2006) (holding that
hearsay testimony concerning a co-conspirators recorded
statements to a police informant was not testimonial for purposes
of Crawford because the co-conspirators statements clearly were
not made under circumstances which would have led [the declarant]
to believe that his statement would be available for use at a
later trial. Had [the declarant] known that [he was speaking to]
a confidential informant, it is clear that he never would have
spoken to her in the first place.); United States v. Holmes, 406
F.3d 337, 348-49 (5th Cir. 2005) (asserting that statements made
by a co-conspirator to a government informant, in furtherance of
a conspiracy, are generally non-testimonial and therefore
admissible against an accused despite the declarants absence from
the trial); United States v. Reyes, 362 F.3d 536, 540 n. 4 (8th
Cir. 2004) (explaining that co-conspirator statements made to a
government agent are non-testimonial).
Porterfields case involves hearsay testimony that was
admitted under the hearsay exception for statements against penal
interest, rather than the exception for co-conspirator
statements. For this reason, the fact that the result in
Bourjaily is consistent with Crawfords interpretation of the
confrontation clause does not directly answer the issue raised in
Porterfields case. But in Davis v. Washington, the Supreme Court
stated that the result reached in Dutton v. Evans a case dealing
with hearsay statements against penal interest is likewise
consonant with Crawfords interpretation of the confrontation
clause.15
In Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27
L.Ed.2d 213 (1970), the Supreme Court upheld the admission of a
statement made by one prisoner to another; this statement
implicated both the declarant and the defendant in a murder. The
Supreme Court held that the admission of this statement did not
violate the defendants right of confrontation, even though the
declarant was not available as a witness at trial.16
According to the Court, the statement was spontaneous,
and it was against [the declarants] penal interest to make it.17
Obviously, Evans was decided under pre-Crawford law.
But in Davis v. Washington, the Supreme Court declared that the
hearsay in Evans was clearly nontestimonial for purposes of
Crawford.18
Given this case law, we readily conclude that the
statements made by Porterfields wife to Diana Knight were not
testimonial for purposes of Crawford.
Michele Porterfield had no knowledge that Knight was
cooperating with the police and had agreed to tape record their
conversations. Ms. Porterfield had no reason to believe that
Knight was anything other than a friend. The evidence showed
that Ms. Porterfield confided in Knight because her husband had
told her that Knight could be trusted. As we noted in
Porterfields direct appeal,
In [the] first conversation [i.e., the
untaped conversation in which Michele
Porterfield first informed Knight that she
and Porterfield had killed a man,] and in the
following taped conversations, there was no
apparent reason for [Michele] Porterfield to
fabricate her admissions. ... Even though
[Michele] Porterfields account implicated
[her husband Todd] Porterfield in the arson
and murder, Judge Pengilly found that there
was no indication that Mrs. Porterfield
minimized her own role or tried to shift
blame to Porterfield.
Mrs. Porterfield had no reason to
believe that her statements to Knight would
curry any favor with the police or the State
because[, as] Judge Pengilly found[,] she had
no reason to anticipate [that her] statements
would be relayed to law enforcement.
Porterfield, 68 P.3d at 1291.
The hearsay testimony concerning
Michele Porterfields out-of-court statements
to Diana Knight was not testimonial for
purposes of the confrontation clause of the
Sixth Amendment as interpreted in Crawford.
Accordingly, the superior court correctly
rejected Porterfields claim that he was
entitled to post-conviction relief based on
Crawford.
The judgement of the superior court
is AFFIRMED.
_______________________________
1AS 11.41.100(a) (first-degree murder) and AS 11.46.400(a)
(first-degree arson).
2These facts are described in more detail in Porterfield v.
State, 68 P.3d 1286, 1288 (Alaska App. 2003).
3Id. See Alaska Evidence Rule 804(b)(3).
4Porterfield, 68 P.3d at 1288.
5See Crawford, 541 U.S. at 68, 124 S.Ct. at 1374 (We leave
for another day any effort to spell out a comprehensive
definition of testimonial. ).
6Chio Hang Saechao, 98 P.3d at 1145.
7Saget, 377 F.3d at 225.
8Id.
9Id.
10Id.
11Id. at 228.
12Saget, 377 F.3d at 229.
13Bourjaily, 483 U.S. at 173-74, 181-82; 107 S.Ct. at 2778,
2782.
14Davis v. Washington, 547 U.S. __, __; 126 S.Ct. 2266,
2275; 165 L.Ed.2d 224 (2006).
15Davis, 547 U.S. at __, 126 S.Ct. at 2275.
16Evans, 400 U.S. at 88-89, 91 S.Ct. at 219-220.
17Id., 400 U.S. at 89, 91 S.Ct. at 220.
18Davis, 547 U.S. at ___, 126 S.Ct. at 2275.
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