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Porterfield v. State (10/13/2006) ap-2064

Porterfield v. State (10/13/2006) ap-2064

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) Court of Appeals No. A-9033
Appellant, ) Trial Court No. 4FA-04-103 Civ
v. )
) O P I N I O N
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
          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
          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
          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
          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
          The judgement of the superior court

     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.




11Id. at 228.

     12Saget, 377 F.3d at 229.

     13Bourjaily, 483 U.S. at 173-74, 181-82; 107 S.Ct. at  2778,

     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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