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Estes v. State (3/4/2011) ap-2298

Estes v. State (3/4/2011) ap-2298

                                               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 

CYNTHIA J. ESTES, 
                                                             Court of Appeals No. A-10316 
                                Appellant,                  Trial Court No. 3PA-04-2796 Cr 

                        v. 
                                                                    O    P  I  N  I  O  N 
STATE OF ALASKA, 

                                Appellee.                     No. 2298    -   March 4, 2011 

                Appeal from the Superior Court, Third Judicial District, Palmer, 
                Eric Smith, Judge. 

                Appearances:  Dan S. Bair, Assistant Public Advocate, Appeals 
                &    Statewide    Defense     Section,   and   Rachel   Levitt,   Public 
                Advocate, Anchorage, for the Appellant.          Timothy W. Terrell, 
                Assistant Attorney General, Office of Special Prosecutions and 
                Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, 
                Juneau, for the Appellee. 

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

                MANNHEIMER, Judge. 

                Cynthia J. Estes and her husband, Richard Deremer, were suspected of 

killing Estes's cousin, David McKinney, and stealing his supplies of prescription pain 

medications.       During   the   investigation   of   this   homicide,   the   state   troopers   enlisted 

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

Deremer's cousin, Jason Chew, to engage Estes in a monitored conversation about the 

homicide.     During this conversation, Chew attempted to draw out Estes by telling her 

that he had spoken with Deremer about the homicide, and that Deremer had described 

how he and Estes plotted to kill McKinney. 

                Despite Chew's repeated assertions that Deremer had implicated Estes in 

the homicide, Estes staunchly denied that she had had anything to do with planning or 

committing the crime.   She admitted that she had driven Deremer to McKinney's house, 

but she declared that she had no idea that Deremer intended to commit murder.                    Estes 

told Chew that she thought Deremer was merely going to confront McKinney about an 

ongoing family dispute. 

                (Apparently, McKinney suspected that Estes had been stealing drugs from 

him.  McKinney had confronted Estes about this, and he had allegedly threatened Estes 

and her family.) 

                Estes admitted that she almost immediately found out that Deremer had 

murdered McKinney - because, when she came back to McKinney's house to pick 

Deremer up, Deremer told her to come inside the house, and then it become obvious 

what    Deremer     had   done.    Estes    also  conceded     that  she   assisted   in  the  theft  of 

McKinney's        prescription    pain   medications      by   retrieving   a  slip   of  paper    from 

McKinney's       wallet   -    a  paper  that  contained    the   combination     to  the  safe  where 

McKinney stored his medications - and by showing Deremer where the safe was. 

                After Estes had this conversation with Chew, she was interviewed by two 

state trooper investigators who used the same strategem - telling Estes that Deremer 

had   confessed   to   the   homicide,   and   that   Deremer   had   described   how   he   and   Estes 

planned   the   crime   together.   During   this   conversation   with   the   state   troopers,   Estes 

eventually admitted that, when she drove Deremer to McKinney's house, she knew that 

                                                 - 2 -                                            2298
 

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

Deremer intended to shoot McKinney - although she told the investigators that she did 

not want to believe that he would really go through with it. 

                Estes also again admitted that, after McKinney was shot and killed, she 

entered the house and searched McKinney's wallet for the piece of paper containing the 

combination to the floor safe where McKinney stored his pain medications.                   However, 

Estes claimed that she had no intent to steal these medications when she drove Deremer 

to McKinney's house - that she made this decision only after McKinney was already 

dead. 

                The primary questions presented in this appeal arise from the fact that, at 

Estes's murder trial, the State sought permission to introduce the contents of Estes's 

monitored   telephone   conversation   with   Chew   and   her   later   interview   with   the   state 

troopers.  Estes's attorney objected, arguing that the introduction of this evidence would 

violate Estes's Sixth Amendment right of confrontation as construed in  Crawford v. 

Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). 

                Specifically,     the  defense    attorney   pointed    out  that,  during   these   two 

conversations,      Chew     and    the  state   troopers   referred    to  out-of-court     statements 

purportedly made by Estes's husband, Deremer. In these purported statements, Deremer 

admitted his guilt of the murder, but he also incriminated Estes. 

                Estes's    attorney    argued   that   Deremer's     out-of-court    statements    were 

"testimonial   hearsay"      for  purposes    of  the  confrontation     clause,   and   therefore   any 

reference   to   these   statements   would   violate   Estes's   right   to   confrontation   -   since 

Deremer (who was tried separately for the murder) was not available as a witness at 

Estes's trial, and since Estes had had no prior opportunity to cross-examine Deremer 

concerning these purported statements. 

                The trial judge, Superior Court Judge Eric Smith, concluded that Estes's 

confrontation clause objection was meritless because, even if Deremer had in fact made 

                                                 - 3 -                                             2298
 

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

the statements attributed to him by Chew and by the trooper investigators, the State was 

not offering Deremer's statements for a hearsay purpose. 

         Why   we   conclude   that the   introduction   of this   evidence   did   not   violate 
        Estes's Sixth Amendment right of confrontation 

                Alaska Evidence Rule 801(c) defines "hearsay"   as   a statement (i.e., an 

                    1 
assertion of fact   ) that is "offered in evidence to prove the truth of the matter asserted [in 

the statement]." 

                In Estes's case, the State wished to introduce two recorded interviews with 

Estes - the surreptitiously recorded conversation with Chew, and the openly recorded 

interview with the state troopers.  Both of these interviews contained references to out­ 

of-court   statements   purportedly   made   by        Estes's   husband,   Deremer   -       statements 

implicating Estes in the planning and commission of the murder. 

                But this evidence was not   hearsay, because the State did not offer this 

evidence as proof of the matters asserted in the statements attributed to Deremer. Rather, 

Chew's assertions about what Deremer said, and the troopers' assertions about what 

Deremer said, were offered to provide the foundation or context for understanding the 

statements that Estes made when she responded to these assertions about what Deremer 

purportedly said. 

                As Judge Smith recognized, the probative aspect of this evidence was not 

that Deremer had said these things (if, in fact, Deremer did say these things).  Rather, the 

probative aspect of this evidence lay in the fact that Estes was told that Deremer had said 

these things, and in how she responded to these assertions. 

    1   Alaska Evidence Rule 801(a). 

                                                  - 4 -                                               2298 

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

                In other words, it was important for the jury to be apprised of how Chew 

and the troopers described or characterized Deremer's purported statements when they 

spoke to Estes - so that the jury could understand what Estes meant when she either 

conceded      or  denied    the  truth  of  these   various    assertions   about    the  planning    and 

commission of the murder.            As Judge Smith explained, "the statements [purportedly 

made] by Mr. Deremer are not coming in for their truth, but in order for the jury to 

understand Ms. Estes's reaction to [these purported statements]." 

                We have addressed this same issue in the past.             For example, in Linne v. 

State, 674 P.2d 1345, 1356 n. 8 (Alaska App. 1983), this Court held that an interview 

between a police officer and the defendant was properly admitted into evidence, even 

though, during this interview, the officer asked the defendant a number of questions 

based   on   hypothetical   facts.   This   Court   concluded   that   the   content   of   the   officer's 

questions was not being used to prove the truth of the matters asserted in those questions. 

"The significance of the interview was not in [the officer's] questions, but rather in [the 

defendant's] responses, many of which were highly incriminating when viewed in light 

of other evidence presented in the case."          Ibid.  We also noted that it "would not have 

been realistic" to exclude the officer's questions because, without them, the jury would 

have been unable to make sense of the defendant's responses.  Ibid . 

                Similarly, in Lipscomb v. State, 700 P.2d 1298, 1304-05 (Alaska App. 

1985), this Court rejected a robbery defendant's argument that the hearsay rule barred 

admission of the assertions of fact contained in questions posed by a police detective 

who     interviewed     the  defendant.    The    detective's   questions   included      references   to 

statements   made   by   the   victim,   who   died   before   trial,   implicating   Lipscomb   in   the 

robbery.  This Court held that the detective's questions were not hearsay:   they were not 

introduced as proof of the factual assertions contained in the questions, but were rather 

introduced to provide the context for understanding Lipscomb's answers.  Id. at 1305. 

                                                  - 5 -                                             2298
 

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

We noted that "Lipscomb's responses, even more so than Linne's, would have been 

nonsense without the questions eliciting them."        Ibid. 

               Returning to the present case, Estes's responses to the questions posed by 

Chew and by the trooper investigators would have made little sense unless the jurors 

were apprised of the content of those questions - in particular, the way in which Chew 

and the investigators referred to, and characterized, Deremer's purported out-of-court 

statements. Many of Estes's responses were either brief statements of agreement or brief 

denials.   These responses would be unintelligible unless one knew the content of the 

questions that prompted these responses. 

               In short, to the extent that Chew's questions to Estes and the troopers' 

questions to Estes contained references to Deremer's purported out-of-court statements, 

those references were offered for a non-hearsay purpose. 

               And because the evidence of Deremer's purported out-of-court statements 

was    offered  for  a  non-hearsay    purpose,   the  introduction   of   that   evidence  did  not 

implicate    Estes's   Sixth  Amendment   right   of   confrontation.    As    the  United   States 

Supreme      Court   explained    in Crawford      v.  Washington,    the   Sixth  Amendment's 

confrontation clause bars evidence that is both "testimonial" and "hearsay", but it does 

not bar testimonial evidence if that evidence is not hearsay: "The [Confrontation] Clause 

... does not bar the use of testimonial statements for purposes other than establishing the 

truth of the matter asserted."    Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. at 1369. 

               We note that, in the years since the  Crawford decision was issued, the 

federal circuit courts of appeal have repeatedly held that when out-of-court statements 

are introduced, not for proof of the matters asserted, but for the purpose of providing the 

                                              - 6 -                                          2298
 

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

context necessary for understanding admissible evidence, the admission of those out-of­ 
court statements does not violate the confrontation clause. 2 

                For   these   reasons,   we   hold   that   Judge   Smith   properly   rejected   Estes's 

confrontation clause objection to the evidence of Estes's conversations with Chew and 

with the state trooper investigators.        It is true that when Chew and the troopers spoke 

with Estes, they repeatedly referred to statements purportedly made by Deremer.  But 

these    statements    were   relevant   for   a  valid  non-hearsay     purpose    -    and,   thus,   the 

introduction      of  this  evidence    did   not   violate  Estes's    Sixth   Amendment       right   of 

confrontation. 

        The   related   issue   of   whether   this   evidence   should   have   been   excluded 
        under Alaska Evidence Rule 403 

                When Judge Smith considered (and denied) Estes's confrontation clause 

objection   to   the   challenged   evidence,   the   judge   also   recognized   that   Estes   had   an 

alternative ground for objecting to this evidence. 

                Even     though    the  State   offered   the   evidence    of  Deremer's     purported 

statements for a valid non-hearsay purpose, Judge Smith perceived that, given the nature 

    2   See  United States v. Walter, 434 F.3d 30, 35 (1st Cir. 2006) ("Crawford ... does not 

call into question this Court's precedents holding that statements introduced solely to place 
a defendant's admissions into context are not hearsay, and as such, do not run afoul of the 
Confrontation Clause."); United States v. Dominguez, 280 Fed. Appx. 81, 84 (2nd Cir. 2008); 
United States v. Fleming, 287 Fed. Appx. 150, 153-54 (3rd Cir. 2008);  United States v. 
Barraza, 365 Fed. Appx. 526, 530 (4th Cir. 2010);  United States v. Rios, 298 Fed. Appx. 
312, 314 (5th Cir. 2008); United States v. Grooms, 194 Fed. Appx. 355, 358-360 (6th Cir. 
2006); United States v. Bermea-Boone, 563 F.3d 621, 626 (7th Cir. 2009); United States v. 
Spencer, 592 F.3d 866, 879 (8th Cir. 2010); United States v. Moore, 365 Fed. Appx. 800, 802 
(9th   Cir. 2010);  United States v. Lopez-Medina, 596 F.3d 716, 735-36 (10th Cir. 2010); 
United States v. Valdes-Fiallo, 213 Fed. Appx. 957, 961 (11th Cir. 2007). 

                                                  - 7 -                                             2298
 

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

of this evidence (i.e., statements purportedly made by Estes's husband that incriminated 

both himself and Estes), there was a danger that the jurors would improperly use this 

evidence for a hearsay purpose.      That is, there was a danger that the jurors would view 

this evidence as independent proof that (1) Deremer had in fact said these things, and that 

(2) what Deremer said about Estes's participation in the homicide was true. 

               Judge Smith concluded that he needed to address this problem under the 

rubric of Alaska Evidence Rule 403 - the rule that allows judges to limit or exclude 

relevant evidence if that evidence poses a danger that the jury will be led to decide the 

case on improper grounds: 

                      The Court:  [T]he State's not trying to [introduce these 
               references to Deremer's statements] for their truth, and so the 
               question [is] ... essentially [an] Evidence Rule 403 argument, 
               ... [an argument] that [the evidence] is more prejudicial than 
               probative, given the danger that the jury will attribute truth to 
               those statements even though they're being told not to.  Is 
               that a reasonable summary of your position, Mr. [Defense 
               Attorney]?  ... 

                      Defense Attorney :    Right. 

                      The    Court:   ...   And    that's  really  a  [Rule]  403 
               prejudice-versus-probative [value] analysis.      So I will think 
               [further] about that. 

               The next day, Judge Smith told the defense attorney that he was willing to 

give the jury a cautionary instruction - instructing the jurors that they were to consider 

the content of Deremer's purported statements only to the extent that these statements 

shed light on Estes's responses to Chew and to the troopers: 

                      The    Court:    The    [purported]   statements   by   Mr. 
               Deremer are not coming in for their truth, but in order for the 

                                             - 8 -                                        2298
 

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

                jury to understand Ms. Estes's reaction to them.  And so I'm 
                 prepared to give the jury an instruction that tells them that 
                 they're    only   to  consider     the  content    of  Mr.    Deremer's 
                 statements with respect to Ms. Estes's answers.               So if Ms. 
                 Estes says "No, I didn't plan it" [when she is confronted with 
                 the assertion that Deremer said she did plan the homicide], 
                 then   that's   the   relevant   evidence   here.  If   Ms.   Estes   says, 
                 "Yeah, I agree with him; he went in there and blew the guy's 
                 head off", then that's essentially her testimony.           And so Mr. 
                 Deremer's statements are being used to give content to her 
                 testimony.   ...  And Mr. [Defense Attorney], I'm going to let 
                 you     draft   the    [jury]    instruction     [that   contains     this 
                 explanation]. 

                 In response, the defense attorney drafted the following jury instruction, 

which Judge Smith later gave to the jurors: 

                         During the course of the questions asked to Cynthia 
                 Estes[,] you heard reference to statements allegedly made by 
                 other people.  You are not to accept these statements for their 
                 truth.   The     reliability   of  these   statements     has  not   been 
                 determined. 

                         The reason you are hearing these statements is so that 
                 you    will   have   some    context    for   the  answers     given    by 
                 Ms.   Estes.   Ms.   Estes'   answers   are   the   evidence,   not   the 
                 questions     or   the  statements     of  others    contained     in  the 
                 questions. 

                 At the same time, however, the defense attorney preserved an objection that 

no cautionary instruction, no matter how well drafted, could obviate the unfair prejudice 

of the challenged evidence.         Estes renews this argument on appeal. 

                 Estes's primary argument as to why no jury instruction could solve the 

problem is essentially a re-working of her confrontation clause argument.  She reiterates 

                                                   - 9 -                                              2298
 

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

her   position   that   much   of   the   challenged   evidence   (i.e.,   many   of   the   references   to 

Deremer's purported out-of-court statements) had no valid non-hearsay purpose - no 

real   relevance     other   than   to  prove   the   matters   asserted    in  Deremer's     purported 

statements.     We reject this argument for the reasons explained in the preceding section 

of this opinion. 

                Estes's alternative argument is that, despite the cautionary instruction, the 

jurors inevitably must have concluded that Deremer actually made the incriminating out­ 

of-court   statements   reported   by   Chew   and   the   state   trooper   investigators,   and   that 

Deremer's       statements    were   true.    Estes   points   out  that  the  content   of  Deremer's 

purported statements conformed in large measure to the State's theory of the case - the 

theory that Deremer and Estes plotted together to kill McKinney. 

                Although Estes does not flesh out this argument further, her reasoning 

appears to be that, because of the congruence between Deremer's out-of-court statements 

as reported by Chew during his monitored conversation with Estes, and as reported by 

the state trooper investigators during their subsequent interview with Estes, the jurors 

would inevitably conclude that Deremer had in fact made these statements, and that the 

State's theory of the case was derived from Deremer's statements. 

                But rather than viewing Deremer's purported statements as the cause and 

the State's theory of the case as the effect, one could validly view things the other way 

around.    When Chew engaged in his monitored conversation with Estes, and when the 

state troopers later interviewed Estes, they were attempting to draw her out - get her to 

make self-incriminating statements by having her respond to assertions about her role in 

the McKinney homicide.   The jurors could reasonably conclude that, regardless of what 

Deremer may actually have said (or failed to say) about the homicide, the troopers would 

want to confront Estes with accusations that conformed to the State's working theory of 

the case.     In other words, the State's theory of the case may well have provided the 

                                                 -  10 -                                            2298
 

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

template for how Deremer's statements would be reported to Estes by Chew and by the 

state troopers. 

                The cautionary instruction told the jurors that the reports of Deremer's out­ 

of-court statements should not be taken at face value, and that what mattered was the way 

Estes responded or reacted when she was told of these purported out-of-court statements. 

We believe that the jurors could understand this concept - understand that the troopers 

might embellish what they knew about the crime, or might even invent "facts" about the 

crime, for the purpose of confronting Estes with these purported facts and then seeing 

how she would respond. 

                Accordingly, we conclude that Judge Smith did not abuse his discretion 

when   he   concluded   that   the   cautionary   instruction   was   an   adequate   solution   to   this 

problem. 

                We   also   conclude   that,   even   if   the   cautionary   instruction   was   not   an 

adequate remedy for the potential danger posed by this evidence, the error was harmless. 

Given the incriminatory statements that Estes herself made, or that she adopted during 

her conversations with Chew and with the state troopers, any additional incriminatory 

implications   of   Deremer's   reported   out-of-court   statements   could   not   have   had   an 
appreciable effect on the jury's verdict. 3 

                Estes personally admitted most of the facts of the murder.               In particular, 

Estes ultimately admitted to the troopers that she knew Deremer was going to murder 

McKinney when she drove him to McKinney's house. 

                We acknowledge that the evidence was conflicting as to whether Estes 

helped plan the murder. There was significant evidence that Estes and Deremer planned 

to kill McKinney - for example, the fact that Estes and Deremer used two-way radios, 

    3   See, e.g., Wyatt v. State, 981 P.2d 109, 115-16 (Alaska 2009). 

                                                 -  11 -                                             2298 

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

rather than their cell phones, to communicate with each other during this incident, and 

the fact that Estes walked right into McKinney's house and straight to his bedroom, 

where     she   proceeded     to  search   his  wallet   for  the   piece   of  paper   containing     the 

combination to his safe.  On the other hand, in her conversations with Chew and with the 

state troopers, Estes persistently denied that she helped plan the murder, or that she 

personally   wanted   Deremer   to   kill   McKinney   (even   though   she   drove   Deremer   to 

McKinney's house knowing that he intended to murder McKinney). 

                But the State did not need to prove that Estes participated in the advance 

planning of the murder.         The statute defining accomplice liability, AS 11.16.110(2), 

declares   that   vicarious   liability   for   another's   conduct   can   be   premised   on   several 

different types of conduct:  soliciting another person to commit the crime, encouraging 

or assisting another person in planning the crime, or encouraging or assisting another 
person in committing the crime. 4 

                Here, Estes herself admitted performing an act that assisted Deremer in 

committing the murder:         she drove him to McKinney's house.             The only real question 

was whether, when Estes did so, she acted with the mens rea that would establish her 

liability   as   an   accomplice:  that   is,   whether   she   acted   with   the   intent   to   promote   or 
facilitate the homicide. 5 

                Estes admitted to the troopers that she knew Deremer was going to murder 

McKinney when she drove him to McKinney's house.                     She told the troopers that she 

    4   Andrew v. State , 237 P.3d 1027, 1043 (Alaska App. 2010); Riley v. State, 60 P.3d 204, 

207 (Alaska App. 2002). 

    5   See Riley v. State, 60 P.3d 204, 210 (Alaska App. 2002), explaining that, to prove a 

defendant's liability as an accomplice under AS 11.16.110(2), the government must show 
that the defendant acted with the intent to promote or facilitate the crime, and not merely with 
the knowledge that another person intended to commit the crime. 

                                                 -  12 -                                            2298
 

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

viewed the situation as "us die or him die".             Moreover, immediately after the killing, 

Estes entered McKinney's house, retrieved the slip of paper from his wallet that had the 

combination   to   his   safe,   and   then   led   Deremer   to   the   safe   so   that   they   could   steal 

McKinney's pain medications.             This evidence was sufficient to support the conclusion 

that Estes acted with the mens rea for accomplice liability, and thus to justify a verdict 

finding Estes guilty of first-degree murder. 

                 Admittedly,   the   State's   case   became   stronger   if   the   jurors   improperly 

viewed Deremer's purported out-of-court statements as proof of the matters asserted - 

primarily, the assertions that Estes helped plan the murder and that she discussed various 

methods   of   committing   the   crime   with   Deremer.         But   whether   or   not   Estes   helped 

Deremer   with   this   advance   planning,   the   evidence   presented   at   Estes's   trial   amply 

supported the jury's decision. 

         The remaining issue:        Estes's criticism of a comment that the trial judge 
        made to the jury 

                 Estes's trial judge, Judge Smith, allowed the jurors to suggest additional 

questions   that   might   be   posed   to   witnesses   during   the   trial.    In   one   of   these   jury 

suggestions, a juror asked about the precise content of the conversation that purportedly 

took place between Jason Chew and Richard Deremer.  Judge Smith told the jurors that 

they would not hear any evidence on this point: 

                         The Court:      [To the jury] One of the questions [you 
                 have suggested, which] I'm not going to ask, [is] what was 
                 revealed   [in]   the   [surreptitiously   monitored]   conversation 
                 [between Jason Chew and Richard Deremer].                    You are not 
                 going   to   hear   the   conversation   between   Jason   Chew   and 
                 Richard Deremer.        And the reason you're not going to hear 
                 [that earlier conversation] is that Mr. Deremer obviously was 

                                                   -  13 -                                             2298
 

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

                 Ms. Estes's co-defendant - and, under our rules, ... he's not 
                 available for cross examination, [so] what he said outside of 
                 court   can't   be   introduced   to   the   jury.   That's   one   of   our 
                 evidentiary rules, [a rule] that actually was the subject of a 
                 recent United States Supreme Court case called United States 
                 versus Crawford.         [sic] [The Crawford decision] set pretty 
                 tight limits on what can be done with unavailable witnesses, 
                 especially ... co-defendants. 

                         So    that's   just  to  give   you   a  sense    [of  why    I  am 
                 rejecting   your   suggestion].       I'm   going   to   ask   you   not   to 
                 speculate   as   to   what   Mr.   Deremer   and   Mr.   Chew   talked 
                 about.     All right?   ...  As I've told you many times, please 
                 only analyze [this] case in terms of the evidence you hear in 
                 court.   And ... when the tape [of the conversation between] 
                 Mr.   Chew   and   Ms.   Estes   [is   played   for   you],   I'll   have   a 
                 further instruction for you about that tape as well.   So I'm - 
                 I always talk to juries at the end of the case, and I can tell you 
                 a whole lot more about this stuff, outside the context of the 
                 case,   once   [you]   complete   your   deliberations.       But   at   this 
                 point, I'll ask you not to speculate about anything. 

                 In an argument comprising three sentences at the end of her opening brief, 

Estes takes issue with the next-to-last sentence of Judge Smith's above-quoted comments 

to the jurors.    Estes contends that when Judge Smith told the jurors, "I can tell you a 

whole lot more about this stuff ... once [you] complete your deliberations", the judge was 

essentially     telling   the  jurors   that   Deremer      had   said   even   more    things    that  were 

incriminating to Estes, and that the judge was willing to apprise the jury of this additional 

information once the trial was over. 

                 Estes made no objection to Judge Smith's remarks at the time, so she must 

show that these remarks amounted to plain error. 

                                                   -  14 -                                              2298
 

----------------------- Page 15-----------------------

               We find no plain error. Estes's claim of error is based on the worst possible 

construction of the judge's words.  When Judge Smith's comments are read as a whole, 

those comments appear to be addressed primarily toward explaining the legal reason why 

the judge was required to reject their suggestion for additional evidence.            Judge Smith 

told the jurors about the Crawford decision, and the principle that a witness's statements 

should not be admitted into evidence if the witness is not available to be cross-examined. 

                It was in this context that Judge Smith said to the jurors, "I can tell you a 

whole lot more about this stuff, outside the context of the case, once [you] complete your 

deliberations."    As we have explained, Judge Smith's remarks (taken as a whole) were 

primarily   focused   on   the   constitutional   and   procedural   reasons   why   the   suggested 

evidence was improper.  Thus, when Judge Smith said that he could tell the jurors more 

about "this stuff", but only "outside the context of this case", it seems most probable that 

Judge Smith was speaking of his willingness to   tell the jurors more about the legal 

principles that prohibit or restrict the admission of out-of-court statements   made by 

witnesses who can not be cross-examined. 

                This conclusion is bolstered by the fact that Judge Smith explicitly asked 

the jurors "not to speculate as to what Mr. Deremer and Mr. Chew talked about". 

               For these reasons, we conclude that Estes has failed to show plain error in 

Judge Smith's above-quoted comments to the jurors. 

        Conclusion 

                The judgement of the superior court is AFFIRMED. 

                                               -  15 -                                         2298
 
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