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Linehan v. State (2/5/2010) ap-2253

Linehan v. State (2/5/2010) ap-2253

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


MECHELE K. LINEHAN,                
                                   
                    Appellant,       Court of Appeals No. A-10190
                                   Trial Court No. 3AN-06-10140 Cr
               v.                  
                                   
STATE OF ALASKA,                         O  P  I  N  I  O  N
                                   
                    Appellee.      
End of Caption                       No. 2253    February 5, 2010
                                   
          Appeal  from the Superior Court,  Third  Judi
          cial  District, Anchorage, Philip R. Volland,
          Judge.

          Appearances:   Susan  Orlansky,  Jeffrey   M.
          Feldman,  and Alexander O. Bryner of  Feldman
          Orlansky  &  Sanders,  Anchorage,   for   the
          Appellant.   Diane  L.  Wendlandt,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Richard A. Svobodny, Acting Attorney General,
          Juneau, for the Appellee.

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

          MANNHEIMER, Judge.
          COATS, Chief Judge, concurring.

          Mechele  K.  Linehan appeals her conviction for  first-
degree murder.  She challenges three evidentiary rulings made  by
the trial judge.
          First,  Linehan argues that the trial court  improperly
allowed  the State to introduce evidence of a letter  written  by
the victim of the homicide shortly before he was killed.  In this
letter,  the  victim  asserted that if he died  under  suspicious
circumstances,  Linehan  would probably be  responsible  for  his
death.
          Second,   Linehan   contends  that  the   trial   court
improperly  allowed the State to introduce evidence that  Linehan
expressed admiration for, and a desire to emulate, the  evil  and
manipulative female protagonist of the movie The Last Seduction.
          Third,  Linehan argues that the trial court  improperly
allowed the State to introduce evidence that, during a portion of
the time period involved in this case, Linehan made her living as
an exotic dancer  that is, as a stripper.
          For  the reasons explained in this opinion, we conclude
that  it  was  error  to  allow the State to  introduce  evidence
concerning  the accusatory statements in the victims letter   and
we further conclude that this error requires reversal of Linehans
conviction.
          In  addition,  to clarify matters for any  retrial,  we
conclude  that  it  was  error to allow the  State  to  introduce
evidence of Linehans statements about The Last Seduction.
          Finally,  with  regard  to the  evidence  that  Linehan
worked  as  an exotic dancer, we conclude that this evidence  was
admissible to explain the relationship of the main actors in this
case,  and  we further conclude that any potential error  in  the
trial judges ruling on this issue was harmless.

     Underlying facts
     
          Between mid-1994 and mid-1996 Mechele Linehan
(whose 
name was then Mechele Hughes) maintained romantic relationships with several men, three of whom are important to this case: Scott Hilke, John Carlin, and Kent Leppink. Linehans romantic relationships with these three men were essentially simultaneous, and all three men were aware (to a greater or lesser extent) of the nature of the others relations with Linehan. Indeed, for several months, Linehan, Carlin, and Leppink all lived in the same house in Anchorage. (Hilke lived in California.)
On the morning of May 2, 1996, Leppink was found shot to death outside of the small town of Hope (about 90 miles by road from Anchorage). According to the pathologists investigation, Leppink was killed sometime between 6 hours and 48 hours before his body was discovered that is, sometime between mid- day on April 30th and the early morning hours of May 2nd.
When the Alaska State Troopers investigated this homicide, they interviewed Linehan, Carlin, and Hilke. However, the troopers were not able to identify any culprits, and the case remained unsolved for several years. In 2004, the state trooper Cold Case Unit re-opened the investigation. Based on a review of the earlier investigation, plus new witness interviews and a forensic examination of the e-mails and other materials recovered from two computers, the troopers concluded that Carlin had lured Leppink to Hope and had shot him there.
The troopers further concluded that Linehan was Carlins accomplice not that she physically assisted Carlin during the shooting, but rather that she solicited Carlin to commit this murder, and that she also helped Carlin compose a note that would be left for Leppink to find, and that would make Leppink want to go to Hope (by falsely making him think that Linehan was staying there in a cabin with another man).
In March and April 2007, the State successfully prosecuted Carlin for this murder.1 Following Carlins conviction, the State brought Linehan to trial. Linehans trial took place in the Anchorage superior court over the course of six weeks in September and October 2007.
The States case was lengthy and detailed, but it was primarily circumstantial. In an effort to convince the jury to view the circumstantial evidence in a light that would support Linehans conviction for murder, the State offered two pieces of evidence that had no direct relevance to the events being litigated, but which strongly suggested that Linehan was the kind of person who would conspire to have Leppink murdered.
The first of these pieces of evidence was a letter that Leppink sent to his parents on April 30th, shortly before his death. This letter was sealed inside another package, and Leppink instructed his parents to open the letter only in the event that he died under suspicious circumstances.
In this letter, Leppink told his parents that if he was found dead, Mechele Hughes (i.e., Mechele Linehan), John Carlin, and/or Scott Hilke would probably be the ones responsible. Leppink told his parents that Linehan had a split personality, and that the part [he] fell in love with is very beautiful, but Leppink also admonished his parents to take Mechele down, to [m]ake sure she is prosecuted, and to [m]ake sure they [i.e., Linehan, Carlin, and/or Hilke] get burned.
The second piece of evidence was the testimony offered by Lora Aspiotis, who was Linehans co-worker and friend until they had a falling out at the end of February 1996. According to Aspiotis, she and Linehan would often watch movies together, and one of these movies was The Last Seduction.
In her testimony, Aspiotis described the plot of this movie as follows:
[The story is about] a woman whos married to a doctor, and she ... talked him into doing [an illegal] drug deal, selling pharmaceutical cocaine, and he got $700,000. ... [Later,] while he was in the shower, she stole the money, [and she] took off and went to a small town where a young man lived that she met at a bar. And she could tell right away that he was very naive, ... just [a] pretty innocent guy. And eventually she talked him into trying to murder her husband for the insurance. ... [In the movie, the innocent young man] ended up in prison, and she went free with all the money.
According to Aspiotis, after she and Linehan watched this movie, Linehan told her that the protagonist was her heroine, and that she wanted to be ... just like her.
Why  we  conclude  that  it  was
error   for  the  superior  court  to  let  the   State
introduce   the  accusatory  statements  contained   in
Leppinks letter to his parents

          We  turn first to the question of whether the
State  should  have  been  allowed  to  introduce   the
portions  of  Leppinks letter to his parents  in  which
Leppink  asserted that Linehan had a split personality,
and  that  if  he  died under suspicious circumstances,
Linehan,  Carlin, and/or Hilke would  probably  be  the
ones responsible.
          Under  Alaska  Evidence Rule 803(3),  hearsay
evidence   may  be  introduced  concerning  a   persons
assertion about their own current state of mind  (i.e.,
their  state  of  mind  at  the  time  they  made   the
assertion).   In  other  words,  evidence  of  such  an
assertion is admissible as proof of the matter asserted
i.e., proof that the other person really did have  that
self-declared state of mind at the time they  made  the
out-of-court assertion.
          Sometimes, a persons state of mind will be an
element  of  the claim being litigated  for example,  a
defendants   intent   or  knowledge,   or   a   victims
apprehension  of  danger.  In  such  cases,  statements
reflecting the pertinent aspect of the persons state of
mind will be direct proof of a matter being litigated.
          Generally, however, when hearsay evidence  of
a  persons  state of mind is relevant,  that  relevance
will  rest upon an inference about the persons  related
conduct.   In  some instances, evidence of the  persons
state  of  mind will be relevant because  it  tends  to
prove  or  disprove  some assertion about  the  persons
ensuing  actions (or the persons failure to  act).   In
other instances, evidence of the persons state of  mind
will be relevant because it tends to explain the nature
of  the persons actions  in the sense that the evidence
tends  to  prove or disprove some assertion  about  the
intent or knowledge with which the person acted.
          Even  though Evidence Rule 803(3)  authorizes
hearsay  evidence  of  a persons statements  concerning
their  own  then-existing  state  of  mind,  the   rule
expressly declares that hearsay testimony concerning  a
persons  beliefs is not admissible if it is offered  to
prove   the  truth  of  those  beliefs.   Such  hearsay
testimony  is  admissible only if it  does  not  matter
whether the persons belief was true or false  when  the
important  point is the fact that the person held  this
belief  (generally, again, because the  fact  that  the
person  held  the  belief  is relevant  to  proving  or
explaining their actions).
          This  second principle  that hearsay evidence
of  a  persons  belief is not admissible to  prove  the
truth  of  that  belief   is  especially  important  in
homicide prosecutions where there is evidence that  the
victim expressed apprehension that the defendant  might
do them harm.
          As  our  supreme  court stated  in  Wyatt  v.
State, 981 P.2d 109, 113 (Alaska 1999), [e]vidence of a
murder  victims fear of the accused is inadmissible  if
its only relevance is as circumstantial evidence of the
accuseds  conduct.   (Emphasis  added)   That  is,  the
evidence  is  not  admissible if  its  probative  value
depends  on  the impermissible inference that,  because
the  victim feared the accused, the accused likely  did
something [in the past] or planned to do something  [in
the future] to justify the fear.2
          Evidence of the victims statements expressing
fear  of  the defendant, or expressing the belief  that
the defendant would harm them, is not admissible unless
the  State demonstrates that this evidence is  directly
relevant  to  some  [other] genuinely  disputed  issue.
Wyatt, 981 P.2d at 113.3  Normally, this means that the
State must show that the fact that the victim held this
belief (whether the belief was well-founded or not)  is
directly  relevant  to  prove or  explain  the  victims
actions (or failure to take action).  In addition,  the
State must show that there is a genuine dispute between
the  parties  concerning  the  aspect  of  the  victims
conduct to which this belief pertains.
          Thus, in Wyatt, a case in which the defendant
was  prosecuted  for  murdering his  wife,  the  States
theory  of  the case hinged on the premise that  Wyatts
wife  was  about to divorce him  and that, in response,
Wyatt killed her because he feared losing control  over
his wife and over her money.
          At  trial, the State introduced evidence that
the   wife  had  expressed  a  fear  of  death  at  the
defendants hand if she pressed forward with  her  plans
for  a  divorce.  Id. at 111.  The supreme  court  held
that, even though this evidence tended to suggest  that
Wyatts  past actions provided good reason for his  wife
to   fear   him,  or  that  Wyatts  subsequent  actions
conformed  to his wifes fear (both improper  purposes),
the   evidence  was  nevertheless  admissible   for   a
separate,  proper  purpose:  it was relevant  to  prove
the   victims   subsequent  conduct:    [The   victims]
fearfulness of [Wyatts] reaction served as  a  tangible
measure  both of how serious she was about obtaining  a
divorce[,]  and of the likely imminence of her  action.
Id. at 114.
          The supreme court further concluded that this
evidence  was directly relevant to a genuinely disputed
fact   because, at trial, Wyatt actively disputed  that
his  wife was serious about divorcing him.  Id.   Thus,
the evidence met the test for admissibility.
          Similarly, in Linton v. State, 880  P.2d  123
(Alaska App. 1994), another case where a defendant  was
prosecuted  for murdering his wife, this  Court  upheld
the  admission  of  evidence that  the  wife  had  told
friends  that she was afraid that Linton might  do  her
harm, or that he might cause her to be deported to  her
home country  but she refused to leave him because  she
would not leave her children behind.  Id. at 130.
          We    concluded   that   these   out-of-court
          statements were admissible because they were directly
relevant  to a genuinely disputed issue other than  the
happening  of the event[s] which produced the [victims]
state of mind.  Id.
          As we explained in our opinion, after Lintons
wife  disappeared, Linton made a number of  conflicting
statements indicating that [his wife] had left him  for
another  man[,]  or  that  she  had  returned  home  to
Germany.  Id. at 131.  At trial, the State attempted to
show  that Lintons explanations were false  by  proving
that  Lintons deceased wife would never have considered
leaving  without  her two children.   Id.   The  States
theory  of  the case was that Lintons wifes refusal  to
leave  was  the thing that motivated him  to  kill  her
because  their  marriage was deteriorating  and  Linton
wanted his wife to go home to Germany, leaving him with
sole custody of their children.  Id.
          Given this evidentiary backdrop, we concluded
that the challenged evidence of the wifes state of mind
was  relevant to prove her ensuing conduct, and Lintons
reaction to that conduct:
     
          [I]t  [is]  apparent that the state  did
     not  offer the testimony concerning  [Lintons
     wifes]  fear  of Linton to prove that  Linton
     had  in  fact  previously harmed  her  or  to
     support    the    impermissible    subsidiary
     inference  that  Lintons past  acts  of  harm
     toward [his wife] made it more likely that he
     was  her  killer.  Rather, the state  offered
     this  evidence to suggest a plausible  motive
     for   Lintons   commission  of  the   alleged
     [homicide]:  that Linton resorted  to  murder
     when  his  attempts to talk [his  wife]  into
     leaving  and his attempts to drive  her  away
     ...  failed.  For this purpose, the  disputed
     evidence was admissible under [Evidence Rule]
     803(3).
     
     Linton, 880 P.2d at 131.
          In  other  words, in Linton  as  in
Wyatt,  (1)  the victims state  of  mind  was
relevant  to  prove the victims  own  ensuing
conduct,  and (2) the nature of  the  victims
ensuing  conduct  was  actively  disputed  at
trial.
          With  this discussion as a preface,
we   turn   now  to  the  evidence  that   is
challenged  in Linehans case:  the statements
contained  in  the letter that  Kent  Leppink
sent to his parents shortly before his death.
          For   purposes   of  this   appeal,
Leppinks    letter   contained   two    major
accusatory  assertions.  The first  of  these
assertions was Leppinks statement that, if he
died under suspicious circumstances, Linehan,
Carlin,  and/or  Hilke  would  be  the   ones
responsible  for  his  death.    The   second
assertion was Leppinks statement that Linehan
had a split personality, and that one part of
her  personality  the part [he] fell in  love
with    was   very  beautiful.    The   clear
implication of this second assertion was that
Leppink  believed  that Linehan  also  had  a
darker,   murderous  side  to   her   nature.
Indeed,    while   Leppink   professed    his
continuing  love for Linehan,  he  urged  his
parents  to do everything in their  power  to
take Mechele down.
          Despite  the  fact that  these  two
assertions are contained in the same  letter,
the   admissibility  of  each  assertion  was
litigated  at  a  separate  time  during  the
trial.

(a) The admissibility of Leppinks assertion that, if
he died under suspicious circumstances, the guilty
parties  were  probably  Linehan,  Carlin,  and/or
Hilke

     The  admissibility  of the  first  accusatory
assertion in the letter  Leppinks statement  that,
if   he   died   under  suspicious  circumstances,
Linehan, Carlin, and/or Hilke would be the  guilty
parties   was  litigated at  a  pre-trial  hearing
shortly  before  the trial, and  the  trial  judge
announced  his  final ruling on  this  issue  just
before   the   parties  delivered  their   opening
statements to the jury.
          During  the parties arguments on this  issue,
the  prosecutor conceded that Leppinks statement  could
not  be admitted to prove that Linehan probably  had  a
hand  in  Leppinks death.  Nevertheless, the prosecutor
argued  that, as was true in Wyatt and Linton, Leppinks
statements  about  his  own  beliefs  and  fears   were
relevant  to prove his ensuing conduct, or the  reasons
for his ensuing conduct.
          Specifically, the prosecutor told  the  trial
judge:
     
          Prosecutor:  [Leppinks fear that Linehan
     and  Carlin  might  kill him]  ...  tells  us
     something about whats going [in Mr. Leppinks]
     mind with respect to these other people.  ...
     We  have  a  man  that  is  so  obsessed,  so
     adamant, so persistent about his relationship
     with   [Linehan],   and  ...   making   [that
     relationship]  work, that  even  though  [Mr.
     Leppink]  believes [that] its very  dangerous
     to him, hes [still] going to pursue it.[4]
     
          Linehans  attorney argued that  the
accusatory   statement  in  Leppinks   letter
should   not  be  admitted,  even   if   that
statement   might   reveal  something   about
Leppinks   mental  state,  because   Leppinks
mental state was not going to be contested at
trial  and thus the accusatory statement  did
not  tend  to  prove, or refute, any  dispute
concerning  Leppinks mental state or  ensuing
conduct.
          The   defense  attorney  explicitly
told the trial judge that no one is disputing
[Leppinks]  state  of  mind,  and  that   the
defense   did  not  intend  to  raise[]   any
challenge to [Leppinks] relevant mental state
[no  challenge to the fact that], at the time
that  he  went to Hope, he was in  love  with
her,   confused,   wanted   her   back.    In
particular, the defense attorney stated  that
Linehan  would not dispute that  Leppink  was
confused,  and was looking for her  in  Hope,
nor  would  Linehan dispute that  there  were
problems  in their relationship at  the  time
... , [and] Leppink [believed] that they were
engaged, [and] then he couldnt find her,  and
[he  believed that] she was off with somebody
else  and, as not atypical in [situations] of
either  jealousy  or  [doubt],  he  went  and
looked for her.
          After hearing these arguments,  the
trial  judge  ruled that the State  would  be
allowed   to  introduce  Leppinks  accusatory
statement  from  the letter.  The  underlying
problem with the trial judges ruling on  this
issue  is  that the judge focused exclusively
on   the   fact  that  Leppinks  out-of-court
accusatory  statement was  probative  of  his
mental  state,  and  the judge  neglected  to
address the other aspects of the Wyatt-Linton
test   whether the statement tended to  prove
anything about Leppinks mental state  or  his
related   conduct  that  would  actually   be
disputed at trial.
          In  his preliminary ruling on  this
issue, the trial judge declared that Leppinks
letter (including the accusation that Linehan
and  Carlin  would  be  responsible  for  his
death) [was] a clear reflection of [Leppinks]
emotional  state at the time  [he  wrote  the
letter].  The judge pointed out that Leppinks
statements in the letter tended to show  that
he  was  torn  between  ...  believing  [that
Linehan  and Carlin] may be out to  get  him,
and  at  the  same  time  still  wanting   to
reconcile   with  Ms.  Linehan.   The   judge
concluded  that  Leppinks statements  in  the
letter  were  relevant because his  emotional
state  at the time ... explains, or at  least
in   part   explains,  or  helps   the   jury
understand,  why  hes  maybe  going  to  Hope
trying  to  find out things  in  Hope.   Why,
maybe, hes lured there by Mr. Carlin.
          One  week  later (just  before  the
parties opening statements), the trial  judge
revisited this question and issued his  final
ruling.   In  this  final ruling,  the  judge
confirmed   his   earlier   conclusion   that
Leppinks    out-of-court    statement     was
admissible:

     The Court:  [A] central question in this
case  ...  is  the  [susceptibility]  of  Mr.
Leppink to be lured or manipulated because of
his  feelings  about Ms. Linehan.   ...   Its
something   that   goes  directly   to   both
Mr.  Leppinks  actions [and]  the  defendants
actions    in    this   case.     And    that
[vulnerability]  to be lured  or  manipulated
... can only be understood ... in the context
of  the letter he writes to his parents.  ...
[I]n  the letter[, not only] does he  express
an  unrequited love for Ms. Linehan, [but] he
also  expresses this belief that Ms.  Linehan
is  one of the people who might do him  harm.
...    And  that  reflects  a  depth  of  ...
commitment to Ms. Linehan, and I think  makes
it  understandable how he can be  manipulated
to  put himself in a vulnerable position,  or
to  be lured to Hope, as the State argued  in
[Mr. Carlins] trial.

     ...   I  am persuaded by [the fact that]
in  Wyatt ... the court held that evidence of
[Mrs.  Wyatts] determination to divorce  [her
husband,  the defendant], despite [her]  fear
of   a  lethal  situation,  demonstrated  the
seriousness  of her purpose and intent,  and,
therefore, was probative of her state of mind
and plan for future action.  You substitute a
few   words  here,  and  we  have  the   same
situation  [in this case].  Evidence  of  Mr.
Leppinks determination to pursue and stay  in
a  relationship with Ms. Linehan, despite ...
the  fear  of a lethal situation coming  from
her,  demonstrates  the  seriousness  of  his
purpose   and  intent,  and  is,   therefore,
probative of his state of mind and  plan  for
future action.

          In  other  words, the  trial  judge
concluded  that Leppinks statement  asserting
his  belief that Linehan and Carlin might try
to kill him was relevant because (1) the fact
that   Leppink  would  put  aside  this  fear
demonstrated  the  depth of  his  infatuation
with  Linehan, and (2) the depth of  Leppinks
infatuation with Linehan  the seriousness  of
his  purpose and intent  was probative of his
plan  for future action and helped to explain
how  he [could] be manipulated to put himself
in  a vulnerable position, or to be lured  to
Hope.
          As  we  noted earlier, the  problem
with the trial judges analysis is that, under
Wyatt and Linton, the fact that Leppinks out-
of-court  statement revealed something  about
his   emotional   state,  or   revealed   his
conflicted  feelings about  Linehan,  is  not
sufficient,   by  itself,  to   justify   the
admission  of Leppinks accusatory  statement.
Our  law requires the proponent of this  type
of evidence to show that the particular state
of  mind revealed by the victims out-of-court
statement is relevant to a disputed issue  in
the case.
          In   particular,  under  Wyatt  and
Linton,  the  proponent of the evidence  must
show that the victims state of mind tends  to
prove  that  the victim engaged (or  did  not
engage)  in  specific conduct  that  will  be
disputed at trial, or that the victims  state
of  mind  tends  to  prove  that  the  victim
performed  this  conduct  with  a  particular
intent,  motive, or knowledge  that  will  be
disputed at trial.
          When the parties argued this issue,
the  defense attorney affirmatively  declared
that  the defense would not be disputing  any
aspect  of  Leppinks mental state or  conduct
that  the State was trying to prove with  the
accusatory  out-of-court  statement.    Under
Wyatt  and Linton, after the defense attorney
declared that the challenged evidence was not
relevant to any disputed issue, the judge had
to  resolve  this question before  the  judge
could   decide   whether  the  evidence   was
admissible.
          If  the  judge  believed  that  the
defense attorney was wrong  that is,  if  the
judge could already identify a disputed issue
to which the challenged evidence was relevant
the  judge  could  point  out  this  disputed
issue.   Alternatively, the judge  might  not
know  enough  about  the case  (i.e.,  enough
about  how  the parties intended to  litigate
the  case)  to  be  able  to  identify  which
factual  issues would be disputed.   In  that
event, the judge could ask the prosecutor  to
expressly  identify  the victims  actions  or
mental  states  that the  State  intended  to
prove  with  the out-of-court statement,  and
then   the  defense  attorney  either   could
concede  that these actions or mental  states
would be disputed, or expressly confirm  that
they  would not be disputed.  And, of course,
another  possibility is that the judge  might
agree  with  the  defense attorney  that  the
challenged evidence was not relevant  to  any
disputed issue  in which case the judge would
exclude the evidence.
          But  in  Linehans case,  the  trial
judge  did none of these things.  Even though
the  defense  attorney expressly argued  that
the proposed evidence was not relevant to any
disputed  issue,  the trial judge  failed  to
resolve this question.
          This error might have turned out to
be  insignificant if the trial evidence  had,
in  fact,  revealed a genuine  dispute  about
Leppinks  feelings toward Linehan,  or  about
Leppinks  ensuing actions.  But the  opposite
is the case.
          As  we  explained above, a  victims
mental  state  is sometimes relevant  because
that mental state is an element of the States
proof   but  that was not the case  here.   A
charge   of  first-degree  murder  does   not
require   proof  that  the  victim  had   any
particular  mental state.  Thus, if  Leppinks
mental  state  had relevance, that  relevance
had  to  lie in the fact that Leppinks mental
state was circumstantial evidence tending  to
prove  or  disprove his ensuing  actions,  or
tending  to explain the nature of his actions
(i.e., the intent, motive, or knowledge  with
which he engaged in those actions).
          When the trial judge explained  why
he concluded that the State should be allowed
to  introduce  the  accusatory  statement  in
Leppinks  letter,  the core  of  that  ruling
(which we quoted more fully earlier) was  the
trial judges conclusion that, if Leppink  was
willing  to  continue his  relationship  with
Linehan  despite  his fear that  Linehan  and
Carlin  might  kill him, this demonstrated  a
depth of ... commitment to Ms. Linehan [that]
makes  it  understandable how he  [could]  be
manipulated  to put himself in  a  vulnerable
position,  or  to be lured to  Hope,  as  the
State argue[s].
          The    fact   that   Leppink    was
infatuated or even obsessed with Linehan  was
obviously relevant to explain why he would go
to  Hope  looking for her, and why  he  might
risk  taking  Carlin along with  him  on  his
second  trip  to  Hope.   But  there  was  no
dispute that Leppink engaged in these actions
no dispute that Leppink was lured to Hope, or
that he was manipulated into asking Carlin to
accompany  him  to Hope on his  second  trip,
thus putting himself in a vulnerable position
that allowed Carlin to murder him.
          In particular, there was no dispute
that  Leppink  went to Hope on two  occasions
shortly before his death  the first time,  on
the  weekend  of  April  27th-28th,  and  the
second time, on April 30th or May 1st.  There
was  no  dispute  that,  on  both  occasions,
Leppink was looking for Linehan, and that his
motivation   for  doing  so   was   jealousy,
frustration,    and   doubt    about    their
relationship.  And there was no dispute that,
on   the  second  occasion,  Leppink  allowed
Carlin  to  accompany him   and  that  Carlin
murdered him.  The disputed issue was whether
Linehan   was  Carlins  accomplice  in   this
murder.
          Moreover,  there was no dispute  at
trial   concerning  the  depth  of   Leppinks
infatuation  with  Linehan.   The  record  is
replete   with  evidence  that  Leppink   was
infatuated   with  Linehan    and   that   he
repeatedly    refused    to    abandon    his
relationship  with her, even though  he  knew
that  she  was  seeing other  men,  and  even
though  his lawyer and members of his  family
advised or warned him that he should end  the
relationship.
          Leppinks   lawyer,  Brian  Brundin,
testified  that  Leppink  came  to  see   him
several  times in April 1996 (i.e., the  last
month  of his life).  On April 18th,  Leppink
revised  his will to make Linehan the primary
beneficiary  of his estate.  (Up  until  that
time,  the  primary  beneficiaries  had  been
Leppinks parents.)
          The  next day, April 19th,  Leppink
returned to Brundins office, asking about the
possibility  of suing North Star Hospital  (a
mental    care    hospital   in   Anchorage).
According  to Brundin, Leppink said  that  he
visited  North Star Hospital because  he  had
heard  that  Linehan  was getting  counseling
there, and he wanted to check up on her.  The
hospital  staff told Leppink that they  could
not  discuss  another persons treatment  with
him   and  then the hospital staff apparently
alerted Linehan that Leppink had been  making
inquiries about her.  This upset Leppink;  he
believed that the hospital staff had violated
some  duty  of  confidentiality by  revealing
that  he  had  come  to the  hospital  asking
questions about Linehan.
          During  this same April 19th visit,
Leppink  informed  Brundin that  Linehan  was
having an affair with Carlin, a man who lived
in   the  same  household  with  Leppink  and
Linehan.   (Brundins notes refer to this  man
as  Callin,  but the reference to  Carlin  is
obvious.)
          Although   Leppink   referred    to
Linehan  as  his fianc‚e when he spoke  about
her  to  Brundin, it seemed to  Brundin  that
this was not a good relationship for Leppink,
and  that this would not be a happy marriage.
Brundin  told  Leppink his thoughts  on  this
matter.
          One  week  later,  on  April  26th,
Leppink returned to Brundins office,  and  he
was   again  angry.   He  told  Brundin  that
Linehan had left, that he did not know  where
she  was, and that his expensive computer was
missing,  along with some rugs and  a  bronze
statue  that  Leppink asserted was  worth  at
least  $4000.  Leppink told Brundin  that  he
had  just  removed Linehan as the beneficiary
of  his  life insurance policy,  and  now  he
wanted  to  remove her as the beneficiary  of
his  will  (the one he had just signed  eight
days  earlier).   Acting on Brundins  advice,
Leppink  tore  up  the  April  18th  will  in
Brundins  presence   thus  reactivating   the
earlier  will that made Leppinks parents  the
beneficiaries of his estate.
          The   statements  and   events   of
Leppinks  visit to Brundins office  on  April
26th  might  appear to indicate that  Leppink
had   considered  Brundins  warning  and  had
decided  to take Brundins advice and end  his
engagement to Linehan.  But the next day  (or
perhaps  the day after), Leppink was down  in
Hope,  showing people a photograph of Linehan
and  asking  if they had seen her.   He  told
people   that  the  photograph  was  of   his
fianc‚e.
          Leppinks   mother,  Betsy  Leppink,
also  testified about conversations  she  had
with  Leppink  in April 1996.   Mrs.  Leppink
testified that she received a telephone  call
from   her  son  toward  the  end  of  April.
Leppink  told  her that he was  calling  from
Girdwood, and that he was on his way to Hope.
He  added, Mom, you know [that] often I  cant
find Mechele.  Shes missing again, and I want
to  find her; I need to find her.  And I have
learned that shes in Hope.
          Leppinks  mother tried to talk  him
out  of  it.  She said, Kent, have  you  even
been in Hope?  ...  [I]ts [just] a little ...
village.   Theres just nothing there.   Where
would  she be in Hope?  Leppink replied  that
Linehan  was in a cabin, and when his  mother
continued to protest, he added, Well, I  have
reason  to  believe thats where she  is,  and
thats where Im going.
          Later  in  the  same  conversation,
Leppink  mentioned that he had  received  his
first   wedding   gift:    a   million-dollar
insurance  policy on his life,  purchased  by
Linehans   grandfather.    Leppinks    mother
testified that she was shocked at this news:

     Mrs.  Leppink:   I said,  What  are  you
saying?  And he repeated [what he had  said],
and   I   said,   Kent,  thats  sick,   thats
absolutely sick.  Ive never heard of  such  a
thing  in all my life.  And I said,  And  now
youre  going to Hope  [but] she  cant  be  in
Hope;  theres  nothing  there  but  a  little
fishing  village.  And I was afraid for  him,
and  I told him that.  I said, Dont go;  dont
go alone; and just get out of there.

          As  we  explained a few  paragraphs
earlier,  Leppink  disregarded  his   mothers
warnings  and  proceeded to  Hope,  where  he
asked about Linehan and showed her photograph
to  people.   That was the weekend  of  April
27th-28th.   Mrs. Leppink spoke  to  her  son
after  he  returned to Anchorage.  She  asked
him  if he had found Linehan, and he told her
that  he  had  not.  But then he added,  John
Carlin knows where she goes, and he wont tell
me.
          Then, on the morning of April  30th
(which  was either the day of Leppinks death,
or  the  day  before it), Leppink called  his
brother Craig in Michigan, and they spoke for
about   an   hour  and  a  half.    In   this
conversation, Leppink expressed concern  that
he  could  not  find  Linehan;  he  told  his
brother  that he hadnt seen her  in  a  week,
[and  he] didnt know where she was.   Leppink
also  told his brother that Linehan had taken
his laptop computer and bronze statue.
          Leppinks  brother  told  him   that
there  were other fish in the ocean  in other
words,  that  if  Leppinks relationship  with
Linehan  was  not  working  out  the  way  he
wanted,   there   were  other   women.    But
according to his brothers testimony,  Leppink
was  very adamant about not wanting any other
woman.   He  told his brother, No,  I  really
love  [Linehan];  I really  love  this  lady.
Leppinks  brother testified that Leppink  was
goofy about Linehan  that he was like a love-
struck puppy.
          There  was yet additional testimony
suggesting that Leppink was aware of Linehans
relationships  with the other men  and  that,
despite this knowledge, he remained caught up
in his relationship with her.
          When the troopers searched Leppinks
vehicle  following his death, they found  one
of   Scott  Hilkes  business  cards   and   a
reservation  in Hilkes name  at  a  hotel  in
Natchez,  Mississippi.   And  during   Hilkes
testimony,  he  described  an  incident  that
occurred  while he and Linehan were  spending
time together in Metairie, Louisiana (outside
of   New  Orleans):   Leppink  showed  up  in
Metairie  unexpectedly  and  he  even  served
coffee to Hilke and Linehan when they were in
bed together.
          None of the foregoing testimony was
disputed by Linehans attorneys at the  trial.
In  other words, there was no genuine dispute
concerning Leppinks infatuation with Linehan,
or the conflicted nature of Leppinks feelings
toward  Linehan, or the actions that  Leppink
took which were motivated in whole or in part
by those feelings.
          We   further  note  that  when  the
prosecutor  delivered his  summation  to  the
jury,  he  never  asserted  (either  in   his
opening  summation or his rebuttal) that  the
contents  of Leppinks letter proved  anything
about  Leppinks  actions  or  about  Leppinks
state  of mind.  In fact, the prosecutor  did
not  even  mention Leppinks  letter,  or  any
statement contained in that letter,  in  this
context.    (The   prosecutor   did   mention
Leppinks letter in another context, which  we
explain later in this opinion.)
          For these reasons, we conclude that
it was error for the trial judge to allow the
prosecutor to present evidence of  the  first
accusatory  statement in Leppinks  letter  to
his  parents  Leppinks assertion that, if  he
died under suspicious circumstances, Linehan,
Carlin,  and/or Hilke would probably  be  the
ones responsible for his death.

(b)  The admissibility of Leppinks assertion  that
Linehan had a split personality

          The   error   with  respect  to   the   first
accusatory  statement in the letter was  compounded  by
the  trial  judges decision to allow the prosecutor  to
present evidence of the second accusatory statement  in
Leppinks letter  Leppinks assertion that Linehan had  a
split personality.
          The  admissibility of this statement was  not
litigated  at the same time as the first.  Rather,  the
defense  raised  this issue during the fourth  week  of
trial  (on  Monday, October 8, 2007),  when  the  State
called  Leppinks  mother to the stand and  proposed  to
have  her  read  the text of Leppinks letter  into  the
record.
          At  this  point, the trial judge had  already
ruled that Leppinks first accusatory statement could be
presented to the jury, but the defense asked the  trial
judge  to  redact Leppinks comment in the letter  about
Linehan  having a split personality.  The  trial  judge
denied the defense attorneys request.  Here is the text
of the judges ruling:
     
          The  Court:   I  dont  take  [the  split
     personality]  statement  as  some   kind   of
     medical  or clinical diagnosis of Ms. Linehan
     that  Mr.  Leppink was making  even  [if  it]
     were  being  offered for the  truth  [of  the
     matter asserted], which its not.
     
          [Mr. Leppinks assertion that Ms. Linehan
     has  a  split personality] strikes me as  the
     kind  of comment that people in relationships
     often  make about one another.  And certainly
     Mr.  Leppink  had  enough of  a  relationship
     [with Ms. Linehan] to have observations about
     Ms.  Linehan,  and  he shared  them  in  this
     letter.  ...
     
     In  the context of [the letter], I  dont
find    [this   assertion   to   be]   unduly
prejudicial  to Ms. Linehan at all.   And  it
sort  of  sets in context [Mr. Leppinks]  own
kind  of  split reaction to her:  on the  one
hand,  accusing her of being involved in  his
death,  [and]  on the other hand,  expressing
his  undying affection toward her and  asking
[his] parents to continue to visit her,  even
if  she  goes to jail  matters that I thought
were  relevant to his own state of mind.   So
the  objection ... to [the split personality]
statement is overruled.

          This  ruling suffers from the  same
flaw  as  the  trial  judges  earlier  ruling
regarding the first accusatory statement.  It
may  be  true  that Leppinks  assertion  that
Linehan  had  a  split  personality  revealed
something about Leppinks state of mind.   But
this  assertion  revealed nothing  about  any
issue that was disputed at trial.
          Moreover, the trial judge was wrong
when he concluded that this split personality
assertion posed no danger of unfair prejudice
to  Linehan.   Viewed in the context  of  the
other  assertions that Leppink made  in  this
letter, Leppinks assertion that Linehan had a
split  personality posed a  clear  danger  of
unfair prejudice.
          Leppink   was  obviously  asserting
that    Linehan   had   two   distinct    and
contradictory  sides to her personality.   In
his  letter,  Leppink described one  side  of
Linehans  personality as  beautiful,  and  he
declared that this was the part [he] fell  in
love   with.    Leppink  did  not   expressly
characterize  the  second  side  of  Linehans
personality.   But given the context  of  the
other  assertions that Leppink  made  in  his
letter,  Leppinks clear implication was  that
the  other  side of Linehans personality  was
conniving and homicidal.
          This  is  not the kind  of  comment
that people in relationships often make about
one  another.  It is an assertion of Linehans
fundamental immorality or duplicity,  and  it
significantly enhances Leppinks accusation of
murder.   Moreover, Leppinks assertion  about
Linehans    purported    split    personality
constituted an implicit warning to the jurors
not  to  give any credence to the exculpatory
explanations  that Linehan or  her  attorneys
might offer to the murder charge.
          For these reasons, we conclude that
it was error for the trial judge to allow the
prosecutor to present evidence of this second
accusatory  statement in Leppinks  letter  to
his parents.

(c)  Whether  these  errors  require  reversal  of
Linehans murder conviction

     The  State argues that any error in the trial
judges  rulings was harmless because there was  an
independent  basis  for admitting  Leppinks  first
accusatory assertion (Leppinks statement that,  if
he  died  under suspicious circumstances, Linehan,
Carlin, and/or Hilke were probably responsible).
     (The  State  fails to offer  any  alternative
justification  for  the trial judges  decision  to
admit  Leppinks second accusatory  assertion   the
split personality statement.)
     According   to  the  State,  Leppinks   first
accusatory  statement  was admissible  to  explain
Linehans  state  of  mind  more  specifically,  to
explain  her  apparent  willingness  to  cooperate
during  her  May  5th  interview  with  the  state
troopers.
     To establish that the accusatory out-of-court
statement  was probative on this point, the  State
relies on the testimony of Leppinks brother,  Lane
Leppink.
     Lane   Leppink   (who  lived   in   Michigan)
testified that he learned of his brothers death on
May 4, 1996.  Because he knew that Linehan was his
brothers fianc‚e, Leppink called Linehan  to  make
sure  that  she  knew  about his  brothers  death.
According to Lane Leppinks testimony, he spoke  to
Linehan  by telephone that day (May 4th), as  well
as several more times during the following days.
          In   his   testimony  about   his   May   4th
conversation with Linehan, Lane Leppink was asked if he
indicate[d]  to her that she should be careful  because
[his]  parents  would  blame  her.   His  answer   was,
Conversation like that did get spoken, yeah.   However,
it  is  apparent from Lane Leppinks testimony that  his
May  4th  comment to Linehan (about his parents blaming
Linehan  for the death) was not based on the accusatory
statement  contained  in his brothers  letter   because
Leppink  repeatedly stated that he did not learn  about
his brothers letter until the next day, May 5th.
          Lane  Leppink  did  testify  that,  after  he
learned  about  his  brothers letter,  he  had  further
conversations  with Linehan in which he  mentioned  his
brothers  accusation.  But neither the defense attorney
nor  the  prosecutor asked Leppink to  clarify  exactly
when he told Linehan about this accusation.
          At  the  end  of the trial, when the  parties
made  their  arguments to the jury, the prosecutor  did
not  once  mention Leppinks letter during  his  opening
summation.   The  prosecutor made one  mention  of  the
letter during his rebuttal summation, in the context of
trying  to  explain  why  Linehan  was  apparently   so
forthcoming  with information when she was  interviewed
by  the  state  troopers  on  May  5th.   Here  is  the
prosecutors argument:
     
          Prosecutor:   Now, [about] the  [defense
     attorneys]     reference     to     [Linehan]
     volunteering  information  about   the   life
     insurance, and volunteering information about
     the  Hope  note [during her May 5th interview
     with the troopers]:  There is no reference by
     her  to either one of those things, the  Hope
     note   or  the  life  insurance,  until   her
     interview on May the 5th.
     
          Youll  recall that on May the  4th  shes
     had   extensive   conversations   with   Lane
     Leppink.  And Lane Leppink has learned  about
     the  package  that  [his brother]  Kent  sent
     home,  [the letter that was] in it, and  what
     the   allegations  are.   So  by   the   time
     [Linehan] is interviewed on May the 5th,  she
     knows  very  well that the police know  about
     life  insurance, and that everybody knows  he
     was  down  in  Hope when he was killed.   And
     [the  troopers] havent [yet] found  the  Hope
     note,  remember.  ...  So this woman  is  not
     without  brains.  This is an intelligent  ...
     woman  who ... knows exactly when she  should
     admit, and when she should not admit.

The  prosecutors argument rests on two  major
misstatements of the evidence.
          First,  as  we have just explained,
the    testimony   does   not   support   the
prosecutors   assertion  that  Lane   Leppink
informed   Linehan  on  May  4th  about   the
accusation contained in his brothers  letter.
In   fact,  the  testimony  contradicts   the
prosecutors    assertion.     Lane    Leppink
testified  that he himself was not  aware  of
the letter and its accusation until May 5th.
          (As  we noted earlier, Lane Leppink
did  testify  that, after he learned  of  his
brothers  letter  on  May  5th,  he  informed
Linehan   about  the  letter   in   a   later
conversation.   But  neither  attorney  asked
Leppink  to specify the date or time of  that
later conversation.)
          Second, the troopers had found  the
Hope   note  by  the  time  they  interviewed
Linehan  on  May  5th.   According   to   the
testimony   of  Trooper  David  Tullis,   the
troopers   found  the  note  in   the   glove
compartment  of Kent Leppinks car  when  they
searched the car on May 4th.
          We   note,   moreover,   that   the
prosecutors  argument runs  contrary  to  the
various  cautionary  instructions  that   the
trial  judge  gave  to the jurors  about  the
contents  of  Kent  Leppinks  letter.    Both
during  the presentation of the evidence  and
at  the  end  of  the  trial  (following  the
summations  of the parties), the trial  judge
instructed the jurors that they could use the
assertions  in Leppinks letter for  only  one
purpose:     these   assertions   could    be
considered  only  to  the  extent  that  they
revealed  Leppinks state of mind.  Here,  for
example,  is the instruction that the  jurors
received at the very end of the trial:

     The  Court:   Evidence of a letter  Kent
Leppink  wrote to his parents was  introduced
for  the purpose of showing his state of mind
close  to  the time of his death.   You  have
previously  been instructed that  the  letter
could  be  considered only  for  the  limited
purpose  of deciding Kent Leppinks  state  of
mind.  As previously instructed, you may  not
consider that evidence for any other purpose.
It  may not be considered as proof of whether
John  Carlin III, Mechele Linehan,  or  Scott
Hilke  did in fact participate in the  murder
of  Kent Leppink.  Do not consider or discuss
[this]  evidence for any other  purpose.   It
would [be] improper and unfair for you to  do
this.

Under    the   terms   of   this   cautionary
instruction,  the jurors were forbidden  from
considering the assertions in Leppinks letter
for  the  purpose that the prosecutor  argued
that   is,   for  the  purpose  of  assessing
Linehans  state of mind or her strategy  when
dealing with the troopers.
          In  its  brief to this  Court,  the
State   again  argues  that  the   accusatory
statement  in Leppinks letter to his  parents
was  independently admissible to explain  why
Linehan  appeared to be cooperative with  the
troopers  during the May 5th interview.   The
State concedes that Lane Leppink did not know
about  his brothers letter when he  spoke  to
Linehan  on  May  4th.   However,  the  State
asserts  that the trial testimony shows  that
Lane Leppink told Linehan about the letter on
the following day, May 5th.
          This  is  not accurate.  The  trial
testimony  shows  that Lane Leppink  informed
Linehan  of the accusation contained  in  his
brothers  letter,  and  that  he  might  have
informed  Linehan  about this  accusation  as
early  as  May 5th.  But, as we have  already
explained,  Leppinks  testimony  contains  no
information as to exactly when he first spoke
to  Linehan  about the letter.   And  because
this question of fact was never presented  to
the  trial  judge, we have no  ruling  as  to
exactly  when  Lane  Leppink  first  informed
Linehan  of the accusation contained  in  his
brothers letter.
          On  appeal, the appellee (that  is,
the  party seeking to defend the lower courts
decision) is entitled to argue for affirmance
of  the  trial  courts ruling on  any  ground
revealed  by the record.5  However, when  the
appellee argues that the trial courts  ruling
should be upheld on alternative grounds,  the
appellees  argument must rest  on  undisputed
facts.6
          Here,    the   States   alternative
argument is that the accusatory statement  in
Leppinks letter was relevant because Linehans
knowledge of this accusatory statement  helps
to  explain Linehans conduct during  her  May
5th  interview with the state troopers.  This
argument hinges on the assertion that Linehan
learned   of  the  accusatory  statement   in
Leppinks letter before she was interviewed by
the  troopers on May 5th.  Because the States
proposed alternative ground for affirming the
trial   judges  ruling  rests  on  a  factual
assertion whose truth is not obvious from the
record,  and  which the trial  judge  had  no
occasion  to  address  or  resolve,  we  must
reject the States argument.
          This   brings  us,  then,  to   the
question  of whether the erroneous  admission
of  the two accusatory statements in Leppinks
letter  to his parents was so prejudicial  to
the  fairness of Linehans trial that we  must
reverse the jurys verdict.
          To  answer this question, our first
task  is  to identify the applicable standard
for  assessing  whether  the  error  requires
reversal.
          Linehan  asserts that the erroneous
admission  of  the accusatory  statements  in
Leppinks  letter violated her Sixth Amendment
right of confrontation as defined in Crawford
v.  Washington,7 and thus we must  apply  the
standard that governs cases of constitutional
error:    that   is,  we  must  reverse   her
conviction unless we conclude that the  error
is harmless beyond a reasonable doubt.8
          Given  our conclusion that Leppinks
out-of-court  accusation was  not  admissible
for  any  proper purpose, and given the  fact
that  Leppink  obviously  intended  for   his
parents  to  convey  his  accusation  to  the
authorities, there is an argument to be  made
that  Leppinks out-of-court accusation should
          be deemed testimonial hearsay under Crawford,
and that we should therefore reverse Linehans
conviction if we are not convinced  that  the
error  was harmless beyond a reasonable doubt
that  is,  if  we believe that there  is  any
reasonable   possibility   that   the   error
affected the jurys verdict.
          However, we conclude that  we  need
not  resolve  the  question  of  whether  the
accusatory statements in Leppinks letter were
testimonial hearsay  because we conclude that
the   error  in  admitting  these  statements
requires reversal of Linehans conviction even
under  the  standard  that  applies  to  non-
constitutional errors.  Under this  standard,
we must reverse Linehans conviction unless we
are able to fairly say that the error did not
appreciably  affect the jurys verdict.9   For
the  reasons  we  are about  to  explain,  we
conclude  it  is likely that  the  error  did
appreciably affect the verdict in this case.
          Many   courts   have   noted    the
extremely prejudicial and inflammatory nature
of  a victims accusatory statements from  the
grave.   See,  e.g., People v.  Coleman,  695
P.2d  189, 198; 211 Cal.Rptr. 102, 111  (Cal.
1985); State v. Prudden, 515 A.2d 1260,  1263
(N.J.  App. 1986); State v. Downey, 502  A.2d
1171,  1178 (N.J. App. 1986).  Even in  cases
where  the  victims accusatory statement  was
found  to  be properly admitted to  prove  or
explain    the   victims   ensuing   actions,
appellate courts have acknowledged that  this
type  of  evidence is fraught  with  inherent
dangers,   and   that   it   requires   rigid
limitations on its admission and its  use  by
the  jury.   See United States v. Brown,  490
F.2d 758, 766 (D.C. Cir. 1973).
          When  the  victim of a  murder  was
involved  in  a close relationship  with  the
person  accused of the murder, and  when  the
jury hears evidence that the victim feared or
predicted that they would meet death  at  the
hand  of  the  defendant,  it  is  a  natural
tendency  for  the jury to  surmise  (in  the
words  of  our supreme court in  Wyatt)  that
[if]  the  victim  feared  the  accused,  the
accused likely did something [in the past] or
planned  to  do something [in the future]  to
justify the fear.
          In    Linehans   case,   when   the
prosecutor  delivered his opening  statement,
the  prosecutor informed the  jurors  of  the
accusation  contained  in  Leppinks   letter.
Thereafter,  the  prosecutor  asked   several
          witnesses to confirm that Leppink had accused
Linehan   and  Carlin  of  being   the   ones
responsible   for   his  death.    We   note,
specifically, the testimony of retired  state
trooper Ron Belden, the testimony of Leppinks
mother,  Betsy Leppink, and the testimony  of
Leppinks brother, Lane Leppink.
           It is true that, in Linehans case,
the  trial  judge instructed the jurors  that
the  accusatory statements in Leppinks letter
could  be considered only for the purpose  of
ascertaining Leppinks state of mind near  the
time  of  his death.  The prosecutor likewise
reminded the jurors of this limitation.   But
the  repeated  incantation of state  of  mind
could   not  cure  the  prejudice   of   this
evidence.
          No one ever explained to the jurors
how,  or  why,  Leppinks belief or  suspicion
that  Linehan  and Carlin might  conspire  to
kill   him  had  any  bearing  on  the  jurys
decision  of the case.  Indeed,  as  we  have
explained at length in this opinion, Leppinks
accusation  had  no  bearing  on  the   jurys
decision of the case  except for the improper
inference  that, if Leppink had  an  intimate
relationship with Linehan, and if  he  feared
her  or suspected her of wanting to kill him,
then  there  must have been some good  reason
for his fears or suspicions.
          We   note  that  courts  of   other
jurisdictions  have  generally  rejected  the
claim  that the erroneous admission  of  this
type  of  evidence is harmless.   See,  e.g.,
Clark v. United States, 412 A.2d 21, 30 (D.C.
App. 1980); State v. Ulvinen, 313 N.W.2d 425,
427-28 (Minn. 1981); People v. Lew, 441  P.2d
942,  945-46; 69 Cal.Rptr. 102, 105-06  (Cal.
1968); People v. Hamilton, 362 P.2d 473, 481;
13  Cal.Rptr. 649, 657 (Cal. 1961);10  People
v.  Coleman, 451 N.E.2d 973, 977  (Ill.  App.
1983).
          In  Shepard  v. United States,  290
U.S.  96,  54 S.Ct. 22, 78 L.Ed. 196  (1933),
the  Supreme  Court reversed  the  defendants
conviction for the murder of his wife because
the  trial judge permitted the prosecutor  to
introduce a statement made by the wife  three
weeks  prior  to  her  death,  in  which  she
accused  the defendant of poisoning her.  The
Supreme   Court   rejected  the   governments
various theories as to why this evidence  was
properly   admissible,  although  the   Court
conceded that the wifes statement might  have
been  relevant to negate any suggestion  that
          she had purposely committed suicide.11
          In    spite    of   this   possible
relevance, the Court held that the  admission
of  the  wifes  out-of-court  accusation  was
prejudicial error.  The Court stated:

     It  will  not  do to say that  the  jury
might accept the [wifes] declarations for any
light that they cast upon the [wifes will  to
live],  and  reject them to the  extent  that
they  charged [her] death to [someone]  else.
Discrimination so subtle is a feat beyond the
compass of ordinary minds.  The reverberating
clang  of those accusatory words would  drown
all weaker sounds.

Shepard,  290  U.S. at 104-06,  54  S.Ct.  at
25-26.
          Likewise, in State v. Prudden,  the
New   Jersey  appellate  court  rejected  the
argument   that  the  trial  judges  limiting
instruction  was sufficient  to  prevent  the
jurors from improperly using the victims out-
of-court   accusation   as   proof   of   the
defendants   likely   conduct:    [W]e    are
convinced that even had more precise limiting
instructions been given, they would have been
to  no avail.  The reverberating clang of the
accusatory  words contained in the  [victims]
letter   would   drown  all  weaker   sounds.
Prudden,  515 A.2d at 1263 (quoting  Shepard,
290 U.S. at 104, 54 S.Ct. at 25).
          Or, as the California Supreme Court
stated in People v. Coleman,

     Although  the  trial court ruled  [that]
the  letters contents [were] admissible  only
for  the limited purposes of impeaching [the]
defendants  credibility and  to  explain  and
challenge the basis for the opinions  of  the
psychiatric experts, and [although the  trial
court] carefully instructed the jury on these
limited proper uses for the letters, we agree
with  [the] defendant that these instructions
did  not   and  could not  adequately  insure
that  the letters would not be considered  as
proof of the truth of the hearsay accusations
they contained.
     .  .  .

How  could the jury possibly disentangle  the
charges  in [those] letter[s] and  treat  the
letter[s] only as evidence of state of  mind,
and   forget  about  the  substance  of   the
charges?

Coleman, 695 P.2d at 196, 198.12
          In  the  present case, we  likewise
find   that   the   trial   judges   limiting
instructions  were ineffective  to  cure  the
prejudice   of   the   erroneously   admitted
evidence.   The jury heard several  witnesses
testify  that,  shortly  before  Leppink  was
killed, he wrote a letter accusing Linehan of
complicity  in  his murder   essentially,  an
accusation  from  the grave.   Moreover,  the
States  evidence was not limited to witnesses
characterizations of the letter.  During  the
prosecutors  direct examination  of  Leppinks
mother,  Betsy  Leppink, the  prosecutor  and
Mrs.  Leppink  read the text  of  the  letter
aloud to the jury.
          As  we  have already noted, neither
the  prosecutor  nor  the  trial  judge  ever
offered the jury any explanation as to how or
why  the  state of mind revealed by  the  two
accusations  in  Leppinks  letter   (Leppinks
assertions  that  Linehan  and  Carlin  might
murder  him,  and that Linehan  had  a  split
personality)  made  any  difference  to   any
aspect  of  the jurys decision in this  case.
This  being so, it is almost inevitable  that
the jurors would view Leppinks assertions  as
at  least circumstantial proof of the matters
asserted.   In other words, the jurors  would
suspect  that Leppink probably knew  what  he
was  talking  about   and  that,  if  Leppink
believed that Linehan had a split personality
and  was  capable of plotting to murder  him,
there  was probably some good basis for those
beliefs.
          The  unfair prejudice of this  type
of  evidence  is most acute in a  prosecution
like this one, where the States case is based
almost  entirely on circumstantial  evidence.
The States ability to secure a guilty verdict
hinged on convincing the jury to view a large
number  of ambiguous facts in the light  most
favorable   to  Linehans  guilt.    In   this
situation,    the   evidence   of    Leppinks
posthumous accusations may well have been the
weight that tipped the jurys decision.
          As  we  explained earlier, we  must
reverse  Linehans conviction  unless  we  are
able  to  fairly say that the error  did  not
appreciably  affect the jurys verdict.  Here,
we believe there is a substantial possibility
that   the  error  did  affect  the  verdict.
Accordingly, we reverse Linehans conviction.
          Although  we  have  concluded  that
          Linehans conviction must be reversed because
of  the  improper admission of the accusatory
statements  contained in Leppinks letter,  we
will  also  address the other two evidentiary
rulings  that  Linehan  challenges  in   this
appeal,  to provide guidance to the  superior
court in the event that Linehan is retried.

Why we conclude that it was error for the superior
court  to  let the State introduce testimony  that
Linehan   admired  and  wished  to   emulate   the
protagonist of the movie, The Last Seduction

     Linehan  challenges the trial judges decision
to allow the prosecutor to introduce evidence that
Linehan   admired  and  wished  to   emulate   the
homicidal  protagonist  of  the  movie,  The  Last
Seduction.   In order to explain our  analysis  of
this  question, we must first describe  the  trial
evidence concerning Leppinks life insurance.
     In mid-1995, and again in early 1996, Linehan
told  Leppink  that  she  would  marry  him.    In
February  1996,  Linehan and  Leppink  visited  an
insurance agent and applied for insurance policies
on   their  lives.   Initially,  they  wished   to
purchase  $1,000,000 insurance on  each  of  their
lives, but the insurance company would only insure
Linehans  life  for $150,000.  On April  1,  1996,
after  the  underwriting  was  complete  and   the
company  had agreed to issue the policies, Linehan
paid  the premium for both policies.  Leppink  was
the sole beneficiary of Linehans policy (i.e.,  he
would  receive  a death benefit of $150,000),  and
Linehan  was an 80-percent beneficiary of Leppinks
policy (i.e., she would receive a death benefit of
$800,000).  (The remaining 20 percent was to go to
Leppinks parents.)
          During  the month of April, Leppink  returned
to  the  insurance agent several times  to  change  the
beneficiary designation on his policy.  On April  22nd,
Leppink  removed Linehan as a beneficiary  and  instead
designated his parents as the sole beneficiaries.   The
next  day,  April 23rd, Leppink removed his parents  as
beneficiaries  and  made Linehan the sole  beneficiary.
On  that  same  day, Leppink asked the insurance  agent
about canceling the policy and getting his money back.
          Then,  three days later (April 26th), Leppink
again  removed Linehan as a beneficiary and  designated
his  father, his mother, and his brother Ransom as  the
three beneficiaries.  This was the status of the policy
when Leppink died a few days later.

     (a)  A description of the challenged evidence  and
  of the trial judges rulings on this evidence

          It   was   the  States  theory  that  Linehan
conspired  to have Leppink murdered so that  she  could
collect  the  life insurance.  To support this  theory,
the prosecutor asked the trial judge for permission  to
present the testimony of Lora Aspiotis, a woman who was
Linehans friend from 1994 through February 1996.
          The  prosecutor  told the  trial  judge  that
Aspiotis  would  testify that, in late  1995  or  early
1996,  she  and  Linehan watched  the  movie  The  Last
Seduction   together.   According  to  the  prosecutor,
Aspiotis  would testify that Linehan declared that  the
protagonist [of this movie] was her heroine,  and  that
she  wanted to be just like her.  The prosecutor argued
that Aspiotiss testimony on this point was probative of
Linehans  guilt  because the protagonist  of  The  Last
Seduction was very manipulative, and because the  movie
told the story of a woman who [set] up a husband to  be
murdered  by getting involved with another man  who  is
manipulated into believing [that] the circumstances are
not what they [really] are.
          When  the defense attorney objected  to  this
proposed  evidence,  arguing  that  it  was  prohibited
evidence of Linehans bad character, the trial judge was
openly  skeptical  of the defense attorneys  assertion.
The judge repeatedly challenged the defense attorney to
explain how a persons act of watching a movie, or  even
a persons act of declaring that they identified with an
evil character in a movie, qualified as a bad act under
Evidence Rule 404.  The trial judge also challenged the
defense  attorney to identify how the proposed evidence
would  create a risk of unfair prejudice,  or  how  the
proposed  evidence would have any tendency to lead  the
jurors to decide Linehans case on an improper basis.
          The  trial  judge ultimately ruled  that  the
prosecutor  would  be  allowed  to  present   Aspiotiss
proposed testimony:
     
          The  Court:  I dont think the remark  by
     Ms.  Linehan that ... shes my heroine  is  an
     act   as  contemplated  by  [Evidence   Rule]
     404(b).   I  think that [it is] an admission,
     and  its  admissibility under  that  analysis
     would  be governed by Evidence Rule 403   [in
     other  words,]  is  ... that  admission  more
     prejudicial [than probative].
     
          I  find  that  its  probative  value  is
     important  to  the jury.  It is  a  statement
     that [tends] to reflect a certain intent  and
     identification   with  the  particular   lead
     actress  in that plot, or the person in  that
     movie.   There are some similarities  between
     that  movie and what happened here.  And,  in
     my  view,  given the States theory that  this
     was part of a plan that unfolded over months,
     her  state  of  mind months before,  and  her
     identification with this particular person as
     her  heroine, is a relevant consideration for
     the  jury.   ...   It is [her]  admission  of
     identification  with the ... perpetrator  [of
     the murder] in the movie.
          .  .  .
     
          [S]ince the defendant has urged a [Rule]
     404(b) analysis with respect to Ms. Aspiotiss
     testimony about the movie, I think I do  need
     to  address  [that issue].  I think,  in  the
     context   of  this  case,  if  [Ms.  Linehans
     reaction to the movie] was determined  to  be
     an act for [purposes of Rule 404], ... [then]
     it   is   evidence  that  goes   to   intent,
     preparation, and plan.
     
     Where  I  differ with [defense  counsel]
about   the   analysis  of  those  particular
factors  is that I think theyre really  case-
specific, and there does not necessarily have
to  be  an extremely close proximity in terms
of time, or extremely close identity in terms
of  acts,  for the evidence to be necessarily
admissible.  I think you need to look  at  it
in  the  context of the particular cases  and
the  claims  asserted by  the  State  in  its
theory  of  the prosecution.   And  here  the
claim  is  one  of  a plan that  appeared  to
evolve over months.  I see a sufficient nexus
between  the  plot  line of  this  particular
movie, where a lover is used as a vehicle  to
kill   a   husband,   to   establish   [this]
defendants intent, preparation, and plan over
months  in engaging Mr. Carlin ... to  commit
this particular homicide.

     So  ... I do find that the evidence,  if
considered  as an act, is ... admissible  for
the    purposes   of   establishing   intent,
preparation,  or  plan.   [Under]  the   same
analysis  I [explained] earlier, I find  that
its probative value outweighs its prejudicial
effect  on  the jury.  And I will permit  Ms.
Aspiotis  to testify to her understanding  of
the  content  of the movie and  Ms.  Linehans
admission about it.

          Following    this    ruling,    the
prosecutor  called  Aspiotis  to  the  stand.
Aspiotis testified that she was friends  with
Linehan  from 1994 until February 1996,  when
they ended their friendship.  During the time
they were friends, Aspiotis would often watch
movies with Linehan at John Carlins house  in
south Anchorage.  Aspiotis then told the jury
about The Last Seduction:

     Ms. Aspiotis:  [There was one movie, The
Last  Seduction,] about a woman whos  married
to  a  doctor,  and she had talked  him  into
doing   [an   illegal]  drug  deal,   selling
pharmaceutical cocaine, and he  got  $700,000
[from  selling the cocaine].   ...   [Later,]
while  he  was in the shower, she  stole  the
money, [and she] took off and went to a small
town where a young man lived that she met  at
a bar.  And she could tell right away that he
was  very naive, ... just [a] pretty innocent
guy.   And  eventually she  talked  him  into
trying   to  murder  her  husband   for   the
insurance.

     Prosecutor:   And  how did  [the  movie]
end?

     Ms.  Aspiotis:   [The naive  young  man]
ended  up  in prison, and she went free  with
all the money.

     Prosecutor:   ...  What  was  [Linehans]
reaction to that movie?

     Ms.  Aspiotis:  She told me  that  [this
woman]  was her heroine, and that she  wanted
to  be  ...  just  like her.   ...   She  was
talking about the character [in] the movie[.]

          Later  in the trial, the prosecutor
asked  the trial judge to allow the State  to
hold a screening of the entire movie for  the
jurors.  The prosecutor told the trial  judge
that  the States case against Linehan  hinged
on having the jury adopt a particular view of
a  web  of circumstantial evidence, and  that
the  strength  of the States  case  would  be
significantly enhanced if the State comes  in
with [evidence of] a plan, with [evidence of]
a   motive  that  [Linehan]  has  [expressly]
adopted.    That  evidence,  the   prosecutor
asserted, was Linehans statement to  Aspiotis
about   the  main  character  in   The   Last
Seduction   her statement, Thats my  heroine.
I  would  like  to  be just  like  her.   The
prosecutor  argued that the  jury  should  be
allowed to see the entire movie, to give  the
State actual evidence to back [its theory] up
a  piece of evidence that shows the plan that
fits all of whats going on[.]
          The  prosecutor conceded  that  the
evidence might be inflammatory  but he argued
that Linehan should not be heard to object on
this ground:

     Prosecutor:    If  [this  evidence]   is
inflammatory, [Ms. Linehan] has adopted  that
inflammatory  nature,  whatever  may  be   in
there.  She has looked at this character, and
she  has said, I want to be like that  person
who is pretty bad  and I want to do something
like  that  person has done  which is  pretty
bad.  And then she has carried it out in this
case.   So,  yeah,  in  that  respect,   [the
evidence is inflammatory].  But shes the  one
that looked at [the movie]; shes the one that
adopted it.  ...  She said, Thats what I want
to be like, and thats what I want to do.  And
to  the  extent that ... you could call  that
inflammatory, thats what she said; thats what
she adopted.

          But,  by  now, the trial judge  had
taken  the  time to watch The Last  Seduction
for   himself,  and  he  was  having   second
thoughts  about  the  admissibility  of  this
evidence.   The judge described the  plot  of
the  movie in some detail on the record.   He
conceded  that  there were some  similarities
between the plot of the movie and the  States
theory  of  Linehans case, but he noted  that
there  are a lot of differences.  (The  judge
then described many of these differences.)
          The trial judge also stated that he
now  agreed  with the defense attorneys  that
the   State  had  failed  to  establish   any
temporal     proximity    between    Linehans
statements about the movie and the occurrence
of  Leppinks  murder.   The  judge  explained
that,  when he ruled on the admissibility  of
Aspiotiss   testimony,  he  was   under   the
impression  that the watching of  the  movie,
and  Linehans statements about the movie, had
taken place in February 1996 (i.e., about two
months before the murder).  But when Aspiotis
testified, she could not remember when  these
events  had  occurred  thus  diminishing  the
probative value of the evidence.
          The trial judge concluded:

     The  Court:   [A]lthough there  is  some
similarity  in the theme [of the movie],  the
theme  of  manipulation, there are  too  many
differences between the facts [of] this case,
as  Ive  heard  them and as alleged  [by  the
State],   and   the  [plot  of   the]   movie
differences that, when I read the case law on
admitting  these  movies, would  seem  to  be
significant.   We dont have a situation  here
of  repeated viewings [by the defendant],  or
[of] stark similarities between scenes in the
movie  and the crime in question.  There  are
significant difference[s] here[.]
     .  .  .

     [This  evidence] seems to me to  have  a
tendency  to let jurors convict [Ms. Linehan]
because   of   her  identification   with   a
character  in  the movie who committed  other
murders and a large theft, rather than on the
basis of the evidence in this case.

          Based  on  these  conclusions,  the
trial   judge  not  only  denied  the  States
request  to screen the movie for the  jurors,
but  the  judge  also barred the  State  from
introducing any more testimony describing the
plot of the movie:

     The  Court:  Ms. Aspiotis ...  described
the  plot  line  in  a sufficiently  accurate
sense  that [the testimony] ought to be  left
at  that.  And I think this piece of evidence
has to stand [or] fall on its own legs, as it
is ... .


(b)  Why  we conclude that the admission  of  this
testimony was error

     The trial judges initial ruling on this issue
was  flawed  by  the mistaken dichotomy  that  the
trial judge drew between (1) admissions of a party
opponent and (2) evidence of bad character.
          The   fact  that  a  particular  out-of-court
statement  was  made  by  a party-opponent  means  that
evidence  of  the statement is admissible  despite  the
normal  bar  on  hearsay evidence.  See  Evidence  Rule
801(d)(2).   However,  it  is  a  completely   separate
question whether this out-of-court statement is  barred
by  the rules that govern the admissibility of evidence
of  a  persons character.  See Evidence Rules  404  and
405.
          For  example, the defendant in a robbery case
might  remark  to a police officer that  he  habitually
cheats   at  cards.   If  the  prosecution  wished   to
introduce  this  statement at the defendants  trial  by
calling  the officer who heard the defendant  make  the
statement, there would be no hearsay objection  to  the
proposed  testimony   because  the  officer  heard  the
defendant utter the out-of-court statement, and because
the  out-of-court statement is an admission of a  party
opponent.   But  the  defendant  might  well  have   an
objection to this evidence under Evidence Rule  404(a),
because  the  proposed  evidence  appears  to  have  no
relevance  to  the robbery charge except to  prove  the
defendants bad character.
          In  the  present case, the State proposed  to
introduce  evidence  (1)  that  Linehan  had  expressed
admiration  for  the  scheming, treacherous,  murderous
villain in The Last Seduction, and (2) that Linehan had
declared that she wanted to be just like this villain.
          Linehan  had  no  hearsay objection  to  this
proposed  evidence.  It was her own statement,  it  was
being introduced through the testimony of a witness who
personally  heard  her  make  the  statement,  and  the
evidence  was  being  offered by her  opponent  in  the
litigation  (the  State).  But  this  evidence  clearly
raised  concerns  under Evidence Rule 404,  because  it
tended  to  prove  Linehans bad character  and  it  was
apparently  being  offered to show that  Linehan  acted
true  to  character.  Thus, the trial  judge  committed
error  when he initially failed to analyze the proposed
evidence as character evidence under Evidence Rule 404.
          When  this  issue  was litigated,  the  trial
judge repeatedly asked the defense attorney how the act
of  watching a movie, or even a statement of admiration
for a villainous character in a movie, could qualify as
a  bad act for purposes of Evidence Rule 404(b).  It is
true  that  courts and attorneys often use a  shorthand
when they speak about Evidence Rule 404(b):  they refer
to  the  rule as governing evidence of bad  acts.   But
Rule  404(b) is not limited to evidence of conduct that
qualifies as a crime or conduct that would generally be
regarded as immoral.  Rather, it applies to evidence of
any   conduct  that  tends  to  prove  a  persons   bad
character.
          By  its very language, Rule 404(b) applies to
all evidence of other crimes, wrongs, or acts.  And  as
the Commentary to Alaska Evidence Rule 404(b) explains,
this  rule  is merely a specialized ... application  of
the  general  rule  [stated in  Evidence  Rule  404(a)]
excluding circumstantial use of character evidence.
          Evidence  Rule 404(a) declares that  evidence
of  a persons character is normally not admissible when
it  is  offered  as  circumstantial evidence  that  the
person  acted in conformity with their character  on  a
particular  occasion.   And even  when  evidence  of  a
persons  character  is  admissible  under  one  of  the
exceptions  to  this general rule,  Evidence  Rule  405
declares that, in most instances, the persons character
must  be established by reputation or opinion evidence,
and  not  by  evidence  of specific  instances  of  the
persons behavior.
          Alaska Evidence Rule 404(b)(1) is essentially
an  amalgam  of  these  two concepts.   Rule  404(b)(1)
declares  that  evidence of a specific  instance  of  a
persons  behavior  is  not  admissible  when  the  sole
purpose  of  this  evidence is  to  prove  the  persons
character  so that the persons character  can  then  be
used  as circumstantial evidence that the person  acted
in conformity with their character on another occasion.
This  is  a  restatement of the principles codified  in
Rule  404(a) and 405.  Indeed, as Professors Saltzburg,
Martin, and Capra note in their treatise on the Federal
Rules   of  Evidence,  The  first  sentence   of   Rule
404(b)[(1)]  ... is probably unnecessary  in  light  of
[the general rule stated in] Rule 404(a).13
          Given the purpose of Evidence Rule 404(b), it
is  evident that the rule applies not just to acts that
are  intrinsically  bad, but  rather  to  any  and  all
conduct that is offered as a specific manifestation  of
a  persons  character.14  Thus,  Rule  404(b)(1)  would
apply  to  evidence  that  a  defendant  has  expressed
admiration  for,  or a desire to emulate,  a  notorious
villain   if that evidence was being offered  to  prove
the   defendants  character,  so  that  the  defendants
character  could be used as circumstantial evidence  of
the defendants behavior on another occasion.
          On  the  other  hand, neither  Evidence  Rule
404(a)  nor  Evidence Rule 404(b) bars evidence  simply
because the evidence tends to demonstrate a persons bad
character.   These two rules bar the evidence  only  if
the    purpose   of   the   evidence   is   to   prove,
circumstantially,  that  the  person  acted   true   to
character  on the particular occasion being  litigated.
If  the  evidence is legitimately being offered  for  a
different purpose, then Rules 404(a) and 404(b) do  not
bar the evidence.
          When  litigation occurs under  Evidence  Rule
404(b)(1),  the dispute most often arises  because  the
proponent  of  the evidence asserts that they  are  not
offering  the  evidence for the prohibited  purpose  of
establishing character, but instead for some other case-
specific,  non-character  purpose  (such  as  the  ones
listed in the second sentence of the rule).  The  trial
judge  must  then decide whether the proposed  evidence
truly has a case-specific, non-character relevance,  or
whether the evidence has no genuine purpose other  than
to  show  the  defendants character and the  consequent
likelihood that the defendant acted in conformity  with
that  character  during  the episode  being  litigated.
Smithart v. State, 946 P.2d 1264, 1270-71 (Alaska  App.
1997).15
          In  the  present case, the State proposed  to
introduce   evidence   that   Linehan   had   expressed
admiration  for,  and  a desire to  emulate,  the  main
character   in  The  Last  Seduction    a   woman   who
manipulated men and who was a treacherous murderer.  If
the  primary relevance of the proposed evidence  rested
          on the assertion that people who admire murderous
villains can be expected to act like those villains  if
given  the  opportunity, then the evidence should  have
been excluded under Evidence Rules 404(a)-(b).  On  the
other hand, if the proposed evidence had a significant,
case-specific  relevance  other  than  using   Linehans
purported character as circumstantial evidence  of  her
actions, then the evidence would not be barred by Rules
404(a)-(b), and the trial judge would then  be  obliged
to  weigh  the probative value of the evidence  against
its  potential for unfair prejudice under Evidence Rule
403.
          The  parties have alerted us to several court
decisions dealing with the question of whether evidence
of  a  defendants admiration for the protagonist  of  a
movie, or the defendants obsession with a movie, should
be  admissible  when the defendant  is  prosecuted  for
committing  a  crime  similar  to  the  criminal   acts
portrayed in the movie.
          Conceivably, a defendants admiration for  the
protagonist  of  a  movie might  be  probative  of  the
defendants  plan  or intent to commit acts  similar  to
those  committed  by the protagonist.   But  many  law-
abiding people are drawn to characters in literature or
in  the  cinema  who are villainous  or  roguish   even
though  they  would not dream of engaging in  the  same
crimes  or  misdeeds.  Moreover, even if  a  defendants
statement  of  admiration  for  a  villain  really  did
manifest the defendants true character, evidence of the
defendants statement would be barred by Evidence  Rules
404(a)  and  404(b)(1) if the evidence had  no  genuine
purpose other than to establish, circumstantially, that
the  defendant probably acted true to character on some
occasion.
          For   these   reasons,  courts  require   the
government  to show a particularly close nexus  between
the  protagonist  or  the  plot  of  a  movie  and  the
defendants  charged criminal acts before this  type  of
evidence will be admitted.
          Thus, in Oree v. State, 630 S.E.2d 390,  393-
94  (Ga.  2006), the court found that the evidence  was
admissible because the defendant watched the  movie  on
the  night  of the homicide and had watched it  several
times before, and because certain details of the murder
mirrored the actions of the murderous character in  the
movie.   In Rushin v. State, 502 S.E.2d 454,  456  (Ga.
1998),  the  defendant owned a video of the  movie  and
watched  it repeatedly, and (again) there were  certain
distinctive  details of the murder  that  mirrored  the
murder portrayed in the film.  In Beasley v. State, 502
S.E.2d  235, 238 (Ga. 1998), the defendant watched  the
movie  twenty times.  And in Jones v. State, 780 N.E.2d
373, 377-78 (Ind. 2002), the defendant rented the movie
just  a week before the murder, and several significant
details of the homicide (the murderers use of a  knife,
his  infliction of numerous stab wounds to the  victims
back,  and his act of washing the knife in the  victims
kitchen sink after the attack) mirrored the details  of
the murder portrayed in the movie.
          In the present case, the trial judge made two
rulings  on this issue.  In the first of these rulings,
the   judge   concluded  that  evidence   of   Linehans
admiration  for  the protagonist of The Last  Seduction
was  admissible  for  the purpose of  establishing  her
intent,  preparation, or plan.   In  other  words,  the
judge  found  that this evidence tended  to  show  that
Linehan  conspired with Carlin, or that she manipulated
Carlin, to accomplish the murder.
          But  after  the  trial judge heard  Aspiotiss
testimony,  and  after  the  judge  had  a  chance   to
personally  view the movie and to review the  cases  in
this area, the judge essentially changed his mind.   In
his  second  ruling  (made in response  to  the  States
request  to  play the entire movie for the  jury),  the
judge  declared that there [were] too many  differences
between  the facts [of] this case ... and the [plot  of
the]  movie.  The judge pointed out that [w]e dont have
a   situation  here  of  repeated  viewings   [by   the
defendant],  or [of] stark similarities between  scenes
in  the  movie  and  the crime in question.   [Instead,
t]here are significant difference[s] here[.]
          Given  the  absence of a close nexus  between
the  movie  and  the  actual  crime,  the  trial  judge
concluded that the primary effect of the evidence would
be  to  prompt  the jurors [to] convict  [Ms.  Linehan]
because of her identification with a character  in  the
movie  who  committed other murders and a large  theft,
rather than on the basis of the evidence in this case.
          This  ruling, of course, gave rise to another
significant issue:  what to do about the testimony that
Aspiotis   had   already  given?    As   we   explained
previously,  the trial judge decided to  let  Aspiotiss
testimony   stand,  but  to  curtail  the  State   from
introducing any other evidence about the movie:
     
          The  Court:  Ms. Aspiotis ...  described
     the  plot  line  in  a sufficiently  accurate
     sense  that [the testimony] ought to be  left
     at  that.  And I think this piece of evidence
     has to stand [or] fall on its own legs, as it
     is ... .
     
               The  problem with this approach  is
     that Aspiotiss description of the plot of The
     Last Seduction was not sufficiently accurate.
     Instead,   it   was   misleading.    Aspiotis
     described   the   actions   of   the   movies
     protagonist this way:

     [S]he  met [a young guy] at a bar.   And
she  could tell right away that he  was  very
naive, ... just [a] pretty innocent guy.  And
eventually  she  talked him  into  trying  to
murder her husband for the insurance.

          This description makes the plot  of
the  movie  sound  like the  States  view  of
Linehans  case  a murder that was plotted  to
obtain  life insurance benefits.  This  is  a
misleading  portrayal  of  the  movie.    The
protagonist   of  The  Last   Seduction   did
manipulate  a young man to kill her  husband,
but  she did not do so with the intention  of
collecting life insurance benefits.   Rather,
she  plotted her husbands murder so that  her
husband  would not be able to pursue her  and
retrieve  the  $700,000 that she  had  stolen
from him.
          In   other   words,   evidence   of
Linehans  statements about this movie  should
not  have  been admitted in the  first  place
and  the  jury heard an account of the  movie
that was misleadingly favorable to the States
case.  These errors should not be repeated at
any retrial.

Why we conclude that the trial judge did not abuse his
discretion  when  he  allowed  the  prosecutor  to
elicit testimony that Linehan met the men involved
in this case through her work as an exotic dancer

     Before  Linehans  trial  began,  the  parties
litigated the question of whether the State should
be  allowed  to introduce testimony  that  Linehan
worked as an exotic dancer.
          The  prosecutor argued that Linehans work  as
an  exotic dancer was relevant because that was how she
became acquainted with Leppink, Carlin, and Hilke.  The
prosecutor  asserted  that Linehans  employment  as  an
exotic  dancer was a fact that weave[d] throughout  her
relationships  with [these] men  that it explained  why
the men were accustomed to ... giv[ing] money [to her],
and  it  also explained the certain amount  of  rivalry
that [was] going on ... between [the men].
          The  prosecutor promised the trial judge  the
State  [would]  not  attempt  to  use,  or  attempt  to
attribute to [Linehan], any kind of label or  any  kind
of character simply because she was an exotic dancer.
          The defense attorney argued that it would  be
prejudicial  to the fairness of the trial  to  let  the
State  use  the  label exotic dancer  because  everyone
understands  that  this  phrase  is  a  euphemism   for
stripper.   The  defense attorney further  argued  that
most  people assume that strippers are not just dancing
with  their  clothes off; rather, they are involved  in
other acts that would be illegal [and] unsavory to most
people.  Finally, the defense attorney contended  that,
despite the States protestations, the State did want to
rely  on  the  fact that Linehan worked  as  an  exotic
dancer  to prove her character  specifically, to  prove
that  she was skilled at manipulating men for  her  own
ends.
          The  trial  judge concluded  that  the  State
should  be  allowed to refer to the fact  that  Linehan
worked as an exotic dancer:
     
          The  Court:   [W]ith  regard  to  [this]
     issue  ...  ,  I have the benefit  of  having
     heard  most of the States evidence in a prior
     trial  [i.e., John Carlins trial].   And  ...
     some facts ... are so inextricably woven into
     the  fabric  of  [the]  case,  in  terms   of
     understanding  ... the relationships  between
     people,  the possible motivations of  people,
     that   [these  facts]  become  relevant   and
     important ... regardless of whether ...  they
     are   directly  related  to  [the]  essential
     elements  of  the crime.  In this  case,  ...
     understanding  how  those  people  interacted
     together, how they met, what motivations they
     might  have  had to compete with one  another
     and/or  be  manipulated by  Ms.  Linehan   if
     thats  the  States theory  is all related  to
     ... Ms. Linehans employment.
     
     The   jury  would  have  a  far   better
understanding  of  the relationships  between
the  various  people  who  were  living  with
Ms.  Linehan  at the time, and competing  for
her  affections,  by understanding  how  they
met, [and] the context of how they met her.

     [And]  putting  [a] characterization  on
her  employment,  she was a  performer.   The
fact  that  she was a performer enables  [the
jury]  to understand how and why she  related
to   the   various  people  [in  this  case],
including Mr. Carlin, [and his son], and  Mr.
Leppink.  And I think that it is one of those
things that is necessary for the jury to have
a  complete understanding of the  case   and,
indeed,  how  and  why the crime  may  [have]
occurred here.  [I]ts the States theory  that
Ms.  Linehan  [was] an aider and abetter,  or
manipulated others into committing the  crime
here.   I  think  [the jurors  will]  have  a
better  understanding of how that could  have
happened by understanding what her employment
was at the time.

          This  ruling  has  two  components.
The trial judge first concluded that Linehans
employment  as an exotic dancer was  relevant
to explain her relationships with the various
men involved in this case, and to explain the
mens  relationships with each other.  Second,
the   trial  judge  concluded  that  Linehans
employment  as an exotic dancer was  relevant
to  explaining her conduct in this  case  and
her  influence  over the men.   Specifically,
the judge concluded that, because Linehan was
a  performer, this made it more  likely  that
she   manipulated   Carlin  into   committing
Leppinks murder.
          The first portion of this ruling is
the kind of decision that was properly within
the  trial  judges discretion.  However,  the
second  portion  of the trial  judges  ruling
poses difficult questions.
          In   this  second  portion  of  the
ruling,  the trial judge found that  Linehans
employment    was   relevant    because    it
demonstrated  that she was likely  a  skilled
manipulator.    The   judges    ruling    was
apparently  based on the following rationale:
(1)  Linehans  success as  an  exotic  dancer
hinged  on  her  skill as  a  performer   her
ability to manipulate men into spending large
sums  of  money by convincing them  that  she
cared  about them, or that they would  obtain
some   benefit  by  doing  this;   and   thus
(2)  Linehans employment as an exotic  dancer
was  circumstantial evidence that she  could,
and   would,  manipulate  Carlin  to   murder
Leppink.
          Under  this  reasoning,  the  trial
judge  was essentially approving the  use  of
Linehans profession as character evidence.
          As  we  explained above, when  this
matter  was litigated in the superior  court,
the  prosecutor  expressly declared  that  he
would  not use the evidence for this  purpose
that  he  would not attempt to  attribute  to
[Linehan]  ...  any kind of character  simply
because  she was an exotic dancer.  Moreover,
this   use   of  the  evidence  is  seemingly
prohibited by Evidence Rule 404(a).
          However,   we  have  reviewed   the
entire transcript of Linehans trial, and  the
prosecutor never attempted to use evidence of
Linehans  employment as an exotic dancer  for
the  purpose  of proving her character.   The
prosecutor  never argued or  suggested  that,
because  Linehan worked as an exotic  dancer,
she was more likely to have manipulated a man
into  committing a murder for her  own  ends.
Thus,  to the extent that the second  portion
of  the  trial  judges ruling may  have  been
error, that error did not prejudice Linehan.

Conclusion

     For  the  reasons explained here, we conclude
that  the judgement of the superior court must  be
reversed, and that Linehan is entitled  to  a  new
trial.
COATS, Chief Judge, concurring.

          Shortly before his death, Kent Leppink sent a
letter  to his parents.  The letter contained a  sealed
envelope.  Leppink directed his parents to not open the
sealed envelope unless something fishy happened to him.
            After Leppink died, his parents opened  the
envelope.  In a note contained in the envelope, Leppink
stated  that  if he died under suspicious circumstances
that  Mechele, John [Carlin] or Scott [Hilke] were  the
people, or persons that probably killed me.  Make  sure
they  get  burned.  He instructed his parents to  [u]se
the  information enclosed to take Mechele  down.   Make
sure she is prosecuted.  Leppinks accusations that were
contained in the note are the key evidence in  question
in this appeal.
          All  of  the authority of which we are  aware
holds  that  these  accusations  from  the  grave   are
extremely  prejudicial.  As Judge Mannheimer states  in
his majority opinion:
          Many   courts   have   noted    the
          extremely      prejudicial      and
          inflammatory  nature of  a  victims
          accusatory  statements   from   the
          grave.    See,  e.g.,   People   v.
          Coleman,  695  P.2d 189,  198;  211
          Cal.Rptr.  102,  111  (Cal.  1985);
          State  v.  Prudden, 515  A.2d  1260
          (N.J.  App. 1986); State v. Downey,
          502  A.2d  1171 (N.J.  App.  1986).
          Even  in  cases where  the  victims
          accusatory statement was  found  to
          be  properly admitted to  prove  or
          explain    the   victims    ensuing
          actions,   appellate  courts   have
          acknowledged  that  this  type   of
          evidence  is fraught with  inherent
          dangers, and that it requires rigid
          limitations  on its  admission  and
          its  use  by the jury.  See  United
          States v. Brown, 490 F.2d 758,  766
          (D.C. Cir. 1973).
          
(In  addition,  in State v. Sanchez,1 the  court  found
that  admission of this kind of accusation  to  support
the  inference  that the victim feared the  accused  or
that  the  accused  was  the perpetrator  violates  the
confrontation clause of the United States Constitution.
The  court held that because the intended audience  [of
the  note] reasonably included law enforcement and  the
circumstances  surrounding the note  indicate  that  an
objective  declarant reasonably should have anticipated
that  the  State  would make use of the  statements  at
trial ... [the] note was testimonial ...).2
          Decisions  of  the Alaska Supreme  Court  are
          consistent with these holdings.  In Wyatt v. State,3
the  court  stated that the fact that a  murder  victim
feared  the  accused is inadmissible if  its  probative
value  depends  on  the impermissible  inference  that,
because  the  victim  feared the accused,  the  accused
likely  did  something or planned to  do  something  to
justify the fear.4
          The  State  does not dispute this  authority.
The  State  concedes  that  Leppinks  accusations  that
Mechele, John or Scott were the people, or persons that
probably killed me would be inadmissible hearsay if  it
was  offered to prove the truth of Leppinks  prediction
that Linehan would kill him.  The State argues that the
note was admissible to explain Leppinks actions shortly
before   the  murder   actions  which  could  only   be
understood  when  viewed in relation to  the  confusion
reflected in Leppinks letter ....
          As Judge Mannheimer points out in the opinion
of the court, there was, however, no dispute concerning
Leppinks deep infatuation with Linehan and his confused
feelings   about  her,  nor  was  there   any   dispute
concerning  Leppinks  actions.   The  easiest  way   to
demonstrate this is to discuss the Hope note.  This was
the  note  that  Linehan participated in  writing  that
lured Leppink to Hope, where he was murdered.
          Linehan  conceded that in April of 1996,  she
had  arranged  to  take a trip to Sacramento  and  Lake
Tahoe  so that she could be with Scott Hilke,  who  was
then  living  in California.  Linehan was gone  between
April  25 and May 2.   Before she left, she and  Carlin
wrote a note that they placed where Leppink would  find
it.   The  note, purportedly from Carlin,  mentioned  a
cabin which he had worked on for Linehan in Hope.   The
letter implied that Linehan would be at the cabin  this
weekend  with another man.  At the bottom of  the  note
was  a  handwritten  message  from  Linehan  indicating
please dont let anyone know where we are at.
          It  is  uncontested  that  the  note  was   a
fabrication  and that there was no cabin in  Hope.   On
the  weekend  of  April 27, Leppink  traveled  to  Hope
looking  for  Linehan.  It was during  this  time  that
Leppink changed the beneficiaries on his life insurance
three times, tore up the will that named Linehan as the
beneficiary, and wrote the letter to his parents.   The
parties do not dispute that Leppink contacted Carlin to
help  him find Linehan in Hope, and that Carlin  killed
Leppink there.
          This evidence, which was uncontested, clearly
demonstrates  Leppinks relationship with  Linehan.   He
was  infatuated with her, didnt trust her and had  very
confused  feelings about her, and would likely  respond
to  the Hope note by trying to find her.  Linehan  knew
this  and wrote the Hope note.  Linehan contended  that
she  wrote the note to divert Leppink so that she could
have  her  romantic encounter with  Hilke.   The  State
          contended that Linehan wrote the Hope note to lure
Leppink  to  Hope so Carlin could kill  him.   But  the
relationship between Leppink and Linehan was clear   he
had  strong and conflicted feelings about her  and  she
could  easily manipulate him.  In short, there  was  no
reason  to admit the accusations that Leppink  made  in
his  letter to his parents to explain that relationship
or  show his actions shortly before the murder.  It  is
undisputed what Leppink did, why he did it, and how  he
felt.   The question was Linehans intent when she wrote
the Hope note.
          The  State  also argues that the  accusations
that  Leppink  made  in  the note  were  admissible  to
explain  Linehans cooperation with the  state  troopers
during  her  May 5 interview.  The State contends  that
the  defense  argued that Linehans conduct  during  the
investigation  was consistent with her innocence   that
Linehan had cooperated by volunteering knowledge  about
the Desert Eagle gun, had acknowledged her relationship
with Leppink, admitted her involvement in drafting  the
Hope  note,  and did not make a claim to the  insurance
proceeds or under Leppinks will.  The State argued that
it  needed  to explain Linehans cooperation by  showing
that,  before she talked to the troopers, she had  been
informed about Leppinks letter.
          There  are  several problems with the  States
claim that it needed to introduce the accusation in the
letter.  First, it is undisputed that, on May 4, a  day
before Linehans interview with the troopers, she talked
to  Lane  Leppink, Kent Leppinks brother, who told  her
that  she should be careful because [his] parents would
blame  her.  So Linehan had already been informed  that
she  was  a  suspect before she talked to the troopers.
Second,  as Judge Mannheimer points out in the  opinion
of  the  court, it is unclear when Linehan was actually
informed  about  the letter  it could  well  have  been
after   she   talked  to  the  troopers   on   May   5.
Furthermore, the trial court instructed the  jury  that
Leppinks  letter was only admissible to  show  Leppinks
state  of  mind  and was not admissible for  any  other
purpose.
          In  conclusion, courts appear to  universally
conclude  that admission of accusations from the  grave
similar  to  the kind admitted in this case are  highly
prejudicial.  The reasons which the State has  advanced
for  admitting  this  evidence  do  not  stand  up   to
analysis.    The  States  case  against   Linehan   was
circumstantial,  and  the  evidence  was   subject   to
different  interpretations and was hardly overwhelming.
We  accordingly conclude that Linehans conviction  must
be reversed.
_______________________________
1  See the CourtView docket for State v. Carlin, File No. 3AN-06-
10139  Cr.   According  to the superior court  record,  which  is
available online at:
www.courtrecords.alaska.gov/pa/pa.urd/pamw2000.o_case_sum?98208999
Carlins trial took place over several weeks in March 2007, and on
April 3rd the jury found Carlin guilty of first-degree murder.

Following his sentencing, Carlin appealed his conviction to  this
Court.   See Carlin v. State, Court of Appeals File No.  A-10155.
However, before briefing of the appeal was completed, Carlin died
in  prison.  Accordingly, this Court dismissed Carlins appeal and
abated the prosecution against Carlin ab initio.  See Order dated
December  12,  2008  in File No. A-10155.  In other  words,  this
Court  set  aside Carlins conviction because he  died  before  he
could  obtain appellate review of that conviction.  See  Hartwell
v. State, 423 P.2d 282, 283-84 (Alaska 1967).

2  Quoting this Courts decision in Linton v. State, 880 P.2d
123,  130 (Alaska App.1994), affirmed on rehearing, 901 P.2d
439 (Alaska App.1995).

3 Again, quoting this Courts decision in Linton, 880 P.2d at
130.

4 During these same remarks to the trial judge, the prosecutor
made  one  additional argument as to why Leppinks  assertion
might  be  admissible.  The prosecutor argued that  Leppinks
accusatory  assertion  was relevant because  it  would  have
affected  Linehans and Carlins perception  of  Leppink,  and
thus  it  might  have affected Linehans and Carlins  alleged
decision to murder Leppink:

  Prosecutor:  [Now, if Linehan and Carlin]  dont  want
[Leppink]  around  for  one  reason  or  another,  what
[Leppinks  letter] tells them is, This guy  aint  going
away.   You  cant  simply tell him, Its over;  goodbye.
Somebody with that mind set is simply not going  to  go
away.  ...  [He] is going to be very difficult to  deal
with.

But  in response, the defense attorney pointed out that  the
statements  in  Leppinks  letter  could  not  possibly  have
affected  Linehans  and Carlins alleged decision  to  murder
Leppink  because the contents of the letter did not come  to
light  until  after Leppink was killed.  After  the  defense
attorney  pointed this out, the prosecutor  never  mentioned
this argument again.

5See, e.g., Demoski v. New, 737 P.2d 780, 786 (Alaska 1987)
(An appellee may seek to defend a judgment on any basis
established by the record, whether or not it was relied
on  by  the trial court or even raised before the trial
court);  Millman  v. State, 841 P.2d 190,  195  (Alaska
App. 1992) (same).

6See Koyukuk River Tribal Task Force on Moose Management v.
Rue, 63 P.3d 1019, 1021 n. 8 (Alaska 2003).

7541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

8See Chapman v. California, 386 U.S. 18, 24; 87 S.Ct. 824,
828;  17  L.Ed.2d 705 (1967); Love v. State,  457  P.2d
622, 633 (Alaska 1969).

9Dague v. State, 81 P.3d 274, 282 (Alaska 2003); Love, 457
P.2d at 632.

10  Overruled on other grounds in People v. Wilson, 462 P.2d
22, 29-30; 82 Cal.Rptr. 494 (Cal. 1969).

11  Shepard, 290 U.S. at 99-102, 54 S.Ct. at 23-25.

12  Quoting People v. Talle, 245 P.2d 633, 645 (Cal. App.
1952).

13Stephen  A.  Saltzburg, Michael M. Martin, and  Daniel  J.
Capra, Federal Rules of Evidence Manual (9th ed. 2006), Vol.
1, p. 404-20.

14See  United States v. Vega, 188 F.3d 1150, 1154 (9th  Cir.
1999):  [Federal Evidence Rule 404(b)] applies to all  other
acts,  not just bad acts.  ...  Thus, despite the fact  that
there  is  nothing intrinsically improper about Vegas  prior
border  crossings  or  bank deposits, they  are  nonetheless
subject  to  404(b).  See also Huddleston v. United  States,
485  U.S.  681,  685; 108 S.Ct. 1496, 1499; 99  L.Ed.2d  771
(1988),  where the Supreme Court described Federal  Evidence
Rule  404(b) as generally prohibit[ing] the introduction  of
evidence  of extrinsic acts that might adversely reflect  on
the  actors  character, unless that evidence  bears  upon  a
relevant  issue in the case such as motive, opportunity,  or
knowledge.  (Emphasis added)

15Our decision in Smithart was reversed by the Alaska Supreme
Court,  but  on another ground.  See Smithart v. State,  988
P.2d 583 (Alaska 1999).

1 177 P.3d 444, 451-53 (Montana 2008).

2 Id. at 453.

3 981 P.2d 109 (Alaska 1999).

4  Id.  at  113, quoting Linton v. State, 880 P.2d 123,  130
(Alaska  App. 1994), affd on rehg 901 P.2d 439 (Alaska  App.
1995).

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