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Leggett v. State (3/7/2014) ap-2411

Leggett v. State (3/7/2014) ap-2411


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VALERIE LEGGETT,                                                        )  

                                                                        )            Court of Appeals No. A-11136 

                                      Appellant,                        )            Trial Court No. 3KN-11-583 CR  


                  v.	                                                   )  

                                                                        )                          O  P  I  N  I  O  N  

STATE OF ALASKA,                                                        )  

                                                                        )                No. 2411 - March 7, 2014   

                                      Appellee.	                        ) 


                        Appeal from  the  District Court, Third  Judicial District, Kenai,  

                        Peter G. Ashman, Judge.  

                        Appearances:   Olena   Kalytiak   Davis,   Anchorage,   for   the  

                        Appellant.  Mary Gilson, Assistant Attorney General, Office of  

                        Special Prosecutions  and  Appeals, Anchorage, and  Michael C.  

                        Geraghty, Attorney General, Juneau, for the Appellee.  

                        Before:   Mannheimer,   Chief   Judge,   and   Allard,   Judge,  and  

                        Hanley, District Court Judge.*  


                        Judge HANLEY.  

                        A jury convicted Valerie Leggett of driving under the influence, and she   

appeals.  Leggett argues the trial court erred in finding her admission of driving was  

sufficiently corroborated to satisfy the corpus delicti rule.  A central issue in this appeal  


            *     Sitting  by  assignment  made  pursuant  to  article  IV,  section  16  of  the  Alaska  

Constitution and Administrative Rule 24(d).  

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

is whether a trial judge can consider inadmissible evidence in determining whether a  


defendant's confession is sufficiently corroborated to satisfy Alaska's corpus delicti rule.  

                    Because Alaska takes an "evidentiary foundation" approach to corpus delicti,  

we conclude that Alaska Evidence Rule 104(a) applies to corpus delicti determinations.  


This evidence rule declares that when a judge is making preliminary determinations  


concerning the admissibility of proposed evidence, the judge is not bound by the rules  


of evidence.  Thus, under Evidence Rule 104(a), a trial judge may consider inadmissible  


evidence when determining whether a defendant's confession is sufficiently corroborated  

to satisfy the corpus delicti rule.  

                    Leggett also argues that the court erred in not sua sponte granting a mistrial  


after a key government witness invoked the Fifth Amendment, and that the court later  


erred in denying Leggett's motion for a new trial on this same basis.  We conclude the  

trial court was not required to declare a mistrial sua sponte, and that the court did not err  


when it denied Leggett's motion for a new trial.  

          Facts and proceedings  

                    Valerie Leggett and her husband, Dustin Leggett, were drinking at a bar near  

their home in Sterling.  Later that evening, Dustin called 911 to report that Leggett had  


tried to run him over.  Troopers responded, and Leggett admitted she had driven.  She  

stated that a friend had been driving them home but she and Dustin argued during the trip.  


The friend and Dustin got out of the vehicle, and Leggett drove the rest of the way to their  


house - a short distance - to get to their son before Dustin did.  Leggett denied trying  


to run Dustin over.  Both Leggett and Dustin were intoxicated.  

                    Dustin gave conflicting information to the troopers.  He said that after he  


got out of the car, Leggett tried to run him over and headbutted him.  But the trooper did  


                                                              - 2 -                                                         2411

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

not believe Dustin's allegations.  In fact, the evidence indicated that Dustin had assaulted  

Leggett.  Leggett was injured; she had a concussion and appeared to have a fractured nose.  

The State charged Dustin with assault, and he ultimately pleaded guilty to harassment.  


                     Based  on  the  evidence  that  Leggett  had  driven  the  car  while  she  was  

intoxicated, Leggett was charged with driving under the influence. The State's evidence  


that Leggett had driven consisted of her own admissions that she drove, plus the contents  


of Dustin's 911 call and his statements to the troopers.   

                     Leggett's defense was that her mother had driven her and Dustin home from  

the bar, that Dustin lied about her driving to distract the troopers from his assault on her,  


and that she had told the troopers that she had driven because she had been "extremely  


intoxicated" and injured.  Leggett did not contest her intoxication.    

                     The parties and the court started trial with the assumption that Dustin would  


testify.  The prosecutor subpoenaed Dustin as a witness for trial, and the prosecutor told  


the jury during the State's opening statement that Dustin would testify that Leggett had  

driven the car.  But in the middle of trial, after the two troopers testified, the prosecutor  


learned that Dustin would be asserting his Fifth Amendment privilege.  The prosecutor  


then announced that he would not be calling Dustin as a witness.   

                     District Court Judge pro tem Peter G. Ashman found the prosecutor had not  


intentionally misled the defense and the court about his intent to call Dustin as a witness,  


but Judge Ashman found that the defense would be prejudiced if Dustin did not testify.  


The   judge   required   the   prosecutor   to   attempt   to   call   Dustin.      But   after   an  


in camera hearing, the court ruled that Dustin had a valid Fifth Amendment claim.   

                     Because Dustin's anticipated testimony had already been described to the  


jury, Judge Ashman told Leggett's attorney that he would grant a mistrial if the defense  

attorney requested one.  But he clearly stated that if Leggett did not request a mistrial,  


                                                               -  3 -                                                         2411

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

he would not grant one sua sponte.  Despite the court's offers, Leggett's attorney did not  

request a mistrial.   

                   Judge Ashman also asked Leggett's attorney if Dustin's statements to the  


troopers - which had been described during the testimony - should be stricken from  


the record.  But Leggett's attorney told the judge that she did not want the statements  


stricken.  The attorney told the judge that Dustin's statements should not be admitted for  


the truth of the matters asserted, but that the statements should remain in the record to  


show the context of the troopers' investigation.  Judge Ashman instructed the jury as  

requested by Leggett.  

                   Judge Ashman denied the State's request to admit a recording of Dustin's  

911 call - ruling that Dustin's hearsay statements during that call were not admissible  


as excited utterances or statements of present sense impression.  

                   After these evidentiary matters were resolved, Leggett's attorney moved  

to dismiss the case, arguing that the corpus delicti rule was not satisfied.  Judge Ashman  


denied Leggett's motion to dismiss.  He concluded that even though Dustin's out-of-court  

statements were inadmissible hearsay, it was nevertheless proper for him to rely on these  


hearsay  statements  to  determine  whether  Leggett's  admissions  were  sufficiently  

corroborated to satisfy the corpus delicti rule.  Judge Ashman analyzed the motivation  


behind Leggett's and Dustin's statements, as well as the details each described.  He ruled  

that Leggett's admissions that she had driven were corroborated by Dustin's statements  


to the 911 dispatcher and the troopers, as well as the details of Leggett's own multiple  



                   The jury convicted Leggett of DUI.  Leggett's attorney then moved for a  

new trial, arguing (in pertinent part) that Leggett's trial was unfair because of the mid-trial  

development that Dustin would not be testifying.  

                                                           - 4 -                                                       2411

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

                   Judge Ashman denied this motion.  He concluded that Leggett's attorney   

had been given multiple opportunities to move for a mistrial once it was learned that  

Dustin would not be testifying, and that the attorney had made a tactical decision not to  


request one.  

                   Leggett now appeals her conviction.  

         Leggett's corpus delicti claim  

                   The major issue on appeal is whether a trial judge can consider inadmissible  

testimony when evaluating the admissibility of a defendant's confession under Alaska's  


corpus delicti rule.  Leggett argues that only admissible evidence can be considered -  


and, for this reason, her trial judge committed error by relying on inadmissible evidence  

(in particular, Dustin's out-of-court statements) when the judge found that Leggett's  

admissions to the troopers were sufficiently corroborated to satisfy the corpus delicti rule.  

                   Under Alaska's corpus delicti rule, a defendant cannot be convicted solely  


                                                                 1                                                          2  

on the basis of an uncorroborated confession.  


                                                                    As this Court held in Langevin v. State , 


Alaska follows the "evidentiary foundation" approach to corpus delicti.   Under this  


                    [t]he decision regarding corpus delicti is made by the trial  

                   judge before the case is submitted to the jury.  The judge  

                   assesses the sufficiency of the State's evidence to prove the  

                   corpus delicti, and this decision is one of law - similar to the  


                   judge's assessment of the sufficiency of any other evidentiary  


          1   Dodds v. State , 997 P.2d 536, 538 (Alaska App. 2000).  

          2   258 P.3d 866 (Alaska App. 2011).  

          3   Id. at 870.  

                                                           - 5 -                                                         2411  

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

                    foundation        under      Alaska       Evidence         Rule     104(a)-(b).  

                    Assuming the judge rules that the corpus delicti had been  

                    established, then, at the end of trial, the jury considers all of  


                    the  evidence  (including  the  defendant's  confession)  and  


                    decides whether the State has established each element of the  


                    charged crime beyond a reasonable doubt.4  


                    Alaska's "evidentiary foundation" approach to the corpus delicti rule appears  

to be the minority position among American jurisdictions.  Many American jurisdictions  

consider the corpus delicti to be an implicit element of the government's proof - an  

element that must be proved to the jury whenever the government's case includes evidence  

of the defendant's confession. 5  

                                                Under this "implicit element" approach to the corpus  


delicti rule, the government's proof of the corpus delicti must, of necessity, be based on  


admissible evidence - because the jury makes the ultimate decision as to whether the  

government has established the corpus delicti.   

                    But under Alaska's "evidentiary foundation" approach to corpus delicti, the  

trial judge makes a foundational evidentiary ruling as to whether the jury should hear  

evidence of  the  defendant's  confession  -  i.e.,  whether  the  government  has  offered  


sufficient  corroboration  of  the  defendant's  confession  to  allow  the  confession  to  be  


presented to the jury.   Because the judge's corpus delicti decision is a foundational  


evidentiary ruling, the judge's ruling is governed by Alaska Evidence Rule 104.  And  


Evidence Rule 104(a) declares that, when a judge makes this kind of ruling (determining  


whether the proponent of certain evidence has established the requisite foundation), the  


judge "is not bound by the rules of evidence except those with respect to privileges."  

          4    Id. at 869-70 (quoting Dodds , 997 P.2d at 540 (alterations omitted)).  

          5    1 Kenneth S. Broun et al.,          McCormick on Evidence  145 Vol. 1, pp. 804-07 (7th  

ed. 2013).  

                                                            -  6 -                                                        2411  

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

                                  In addition, Alaska Evidence Rule 101(c)(1) states that the rules of evidence  

 (except those relating to  privilege) do not apply to "questions of fact preliminary to  


 [determining the] admissibility of evidence when the issue is to be determined by the judge  

under Rule 104(a)."  

                                  Because Alaska's "evidentiary foundation" approach to the corpus delicti  


rule  is  the  minority  approach,  there  are  not  a  lot  of  judicial  decisions  from  other  

jurisdictions on this point of law.  However, the few that we could find reach the same  


 conclusion that we have reached here:  the judge may consider evidence that would not  


be admissible in the trial itself.6  



                                  For these reasons, we hold that when the trial judge in Leggett's case was  


 deciding whether Leggett's confession was sufficiently corroborated to satisfy Alaska's  

 corpus  delicti  rule,  the  judge  could  properly  consider  Dustin  Leggett's  out-of-court  

 statements  for  the  truth  of  the  matters  asserted,  even  though  those  statements  were  

 inadmissible hearsay.  

                 6       See   State v. Sweat, 727 S.E.2d   691, 697 (N.C. 2012) ("Whether a defendant's  

 confession satisfies the corpus delicti rule is a preliminary question of admissibility governed  

by Civil Procedure Rule 104(a).  In ruling on this question of admissibility, a trial court 'is               

not bound by the rules of evidence except those with respect to privileges.' N.C.G.S.  8C-1,           

 Rule 104(a) (2011). Therefore, ... hearsay statements can be considered in determining if the                                 

 confession satisfies the                                 corpus delicti rule."); State v. Gerlaugh , 654 P.2d 800, 806 (Ariz.  

 1982) ("While the statement made by [Gerlaugh's] codefendant could not be considered by                                   

 the jury to determine appellant's guilt, we find it could be used to help establish the corpus  

 delicti  for  the  crimes  involved,  i.e.,  the  fact  that  the  offenses  were  actually  committed,  

without regard [to] who committed them.")  

                                                                                                      -  7 -                                                                                                 2411

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         Leggett's motion for a new trial  

                   Prior to sentencing, Leggett's attorney moved for a new trial.  The attorney  

argued that, due to the mid-trial development that Dustin would not be testifying, Leggett's  

trial became fundamentally unfair.  Judge Ashman denied the motion for a new trial  


because he concluded that the defense attorney had made a tactical decision to proceed  

with the trial rather than request a mistrial.  

                   On appeal, Leggett contends that, because of Dustin's mid-trial assertion  


of privilege, Judge Ashman should have sua sponte granted a mistrial.  But Leggett's  

attorney pointedly refused to request a mistrial even when Judge Ashman prompted her  


to ask for one.   

                   Judge Ashman later explicitly found that Leggett's attorney made a tactical  

choice to reject the remedy of a mistrial and, instead, to take the trial to completion.  The  


record fully supports the judge's finding.  And because Leggett's attorney made this  


tactical choice, Leggett is not allowed to now claim, on appeal, that Judge Ashman  

committed plain error by failing to declare a mistrial sua sponte.  

                   Leggett further contends that she was unfairly surprised when Dustin refused  

to testify, and that she therefore was deprived of the opportunity to confront Dustin and  


his out-of-court statements.  But again, Leggett's attorney expressly declined the trial  

judge's offer to strike Dustin's statements in their entirety.  Instead, the defense attorney  

asked the judge to leave Dustin's statements in the evidentiary record (to explain the  

course of the investigation), but to bar the jury from considering those statements for their  

truth.  The trial judge did as the defense attorney asked.   

                                                         -  8 -                                                   2411

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                  This means that Leggett has no claim under the Confrontation Clause -  

because when statements are not offered for the truth of the matters asserted, the admission  

of those statements does not implicate a defendant's right to confrontation.7  

                  After the jury returned an unfavorable verdict, the defense attorney asked  

for  a  new  trial,  arguing  that  the  trial  became  unfair  after  Dustin  invoked  his  Fifth  


Amendment privilege.  But as our supreme court explained in Owens v. State,  a defendant 

should not be allowed to "take a gambler's risk and complain only if the cards [fall] the  


wrong way."9  



                  The judgment of the district court is AFFIRMED.  

         7    See   Christian   v.   State,       276    P.3d    479,    488    (Alaska      App.    2012)   ("The  

[Confrontation] Clause ... does not bar the use of testimonial statements for purposes other   

than establishing the truth of the matter asserted.") (quoting  Crawford v. Washington, 541  

U.S. 36, 59 n.9 (2004)) (alteration in Christian).  

         8    613 P.2d 259 (Alaska 1980).  

         9    Id. at 261 (quoting Mares v. United States , 383 F.2d 805, 808 (10th Cir. 1967)).  

                                                        -  9 -                                                     2411  

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