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Luch v. State (1/19/2018) ap-2586

Luch v. State (1/19/2018) ap-2586


               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@  

                                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                 



                                                                                                                   Court of Appeals No. A-11756  


                                                                                                               Trial Court No. 3AN-10-11122 CR  


                                                                                                                                  O  P  I  N  I  O  N  



                                                             Appellee.                                              No. 2586 - January 19, 2018  


                              Appeal   from  the   Superior   Court,  Third  Judicial                                                               District,  


                              Anchorage, Jack W. Smith, Judge.  


                              Appearances:   Phillip Paul  Weidner and A. Cristina Weidner  


                              Tafs,  Weidner  &  Associates,  Anchorage,  for  the  Appellant.  


                              Diane  L.  Wendlandt,  Assistant  Attorney  General,  Office  of  


                              Criminal Appeals, Anchorage, and Craig W. Richards, Attorney  


                              General, Juneau, for the Appellee.  


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


                               Superior Court Judge.*  



                              Judge MANNHEIMER.  

                              Robert James Luch was convicted of first-degree murder for shooting and                                                                                        

killing his wife, Jocelyn.                             In this appeal, Luch argues that the trial judge committed error                                                                  

        *      Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  

Constitution and Administrative Rule 24(d).                                      

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


by failing to instruct the jury on the defense of heat of passion.  Luch also contends that  


the trial judge made several erroneous evidentiary rulings at his trial.  


                    For the reasons explained in this opinion, we conclude that none of Luch's  


claims have merit, and we therefore affirm his conviction.  


           Underlying facts  


                    In the summer of 2010, Robert Luch and his family - his wife Jocelyn and  


their four children (Brent, Delia, Letitia, and Marcelyn) - moved back to Anchorage  


from their winter home in Arizona.  One night in June, Luch awakened and noticed that  


the telephone was in use.  When he picked up the receiver, Luch discovered that his wife  


Jocelyn was speaking with a man - Bryan Fuqua.  Luch exchanged words with Fuqua.  


During their short but heated conversation, Fuqua indicated that his relationship  with  


Jocelyn either was, or would shortly become, sexual.  After hearing this, Luch hung up  


the phone.  He woke up the children, and he angrily accused Jocelyn of having an affair.  


                    During  the  next  several months,  the  family  lived  in  a  state  of  uneasy  


tension.   Luch and Jocelyn spoke little, and Jocelyn began staying out late, sometimes  


not coming home until the following day.  The couple's daughter Marcelyn later told the  


police that, during this period, Luch repeatedly threatened to kill both Jocelyn and the  


man he believed she was seeing.  


                    In August, two of the Luchs' children (Delia and Letitia) moved back to  


Arizona to attend college.   This left four people in  the  Anchorage household:  Luch,  


Jocelyn, and their children Marcelyn and Brent.  


                    On  September  17,  2010,  Luch  purchased  a  handgun,  purportedly  for  


protection at the family cabin near Sutton.  Luch did not inform Jocelyn of this purchase;  


the only other family member who knew about the gun was Luch's son Brent.  

                                                               - 2 -                                                          2586

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


                    Eleven days later, on the morningof September 28, 2010, Luch learned that  


a car he had loaned to his daughter Delia had been impounded in Arizona.  Luch was  


incensed,  and  he  began  yelling  at  Delia  on  the  telephone.                                Brent  overheard  this  


conversation and tried to calm things down, but Luch turned on Brent, and a fist fight  


ensued.  Luch's daughter Marcelyn eventually intervened and stopped the fight, but Luch  


was still angry.  


                    Luch then drove to the hotelwhere his wife Jocelyn worked and tried to see  


her, purportedly so that he could tell her about the impoundment of Delia's car and his  


fight with Brent.   When Jocelyn could not leave her work station  immediately, Luch  


parked his vehicle behind the hotel and waited for several hours, becoming angrier as  


time passed.   Eventually, Luch drove home without Jocelyn, and Brent and Marcelyn  


later picked Jocelyn up.  


                    That same night, Marcelyn and Jocelyn were scheduled to run in a race  


held at Kincaid Park.  A friend of Jocelyn's, a runner named Steve Crook, came to pick  


them up.  At the last minute, Marcelyn decided not to go.  


                    When Luch learned that Marcelyn had not accompanied Jocelyn to the race,  


he insisted  that Marcelyn go with him to Kincaid Park to confirm that Jocelyn was  


actually at the race.  At the park, they stood near the finish line and watched as hundreds  


of racers crossed the finish line, but they did not see Jocelyn.  


                    Once  the  race  was  over,  Marcelyn  called  Jocelyn  on  her  cell phone.  


Jocelyn said that she was at a nearby bunker.   (Kincaid Park was built on the site of a  


former missile installation.)                Marcelyn suggested to Luch that he drive to the bunker  


while she walked over there and found Jocelyn.  But as Marcelyn was walking toward  


the bunker, Jocelyn spoke to her again on the phone: Jocelyn corrected herself and said  


that she was not at the bunker, but rather at the adjacent Kincaid chalet.  Marcelyn was  

                                                              - 3 -                                                          2586

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


unable to inform Luch of this new information because she (Marcelyn) had his cell  




                    Marcelyn went to the chalet and found her mother, but Luch did not arrive  


to pick them up.   Luch had apparently driven around the Kincaid parking lot, honking  


repeatedly and becoming increasingly agitated, until finally he drove home alone.  


                    When Jocelyn and Marcelyn realized that Luch was not coming for them,  


Marcelyn called her brother Brent, who came and picked them up.  


                    When  Jocelyn  and  the  children  arrived  home,  Luch  was  sitting in  his  


recliner in the downstairs living room.  He repeatedly accused Jocelyn of not having run  


the race.  


                    Brent and Marcelyn soon went to their bedrooms upstairs.   Jocelyn also  


went upstairs and began preparing for bed.  Luch came upstairs and confronted her -  


accusing her of lying about participating in the race, and accusing her of seeing another  


man.       Jocelyn  assured  Luch  that  she  had  been  at  the  race,  and  she  denied  any  


wrongdoing, but Luch was not convinced.  He went downstairs to the garage, where he  


retrieved the newly purchased handgun from a locked storage room.  He then went back  




                    According to Luch's testimony at trial, he did not retrieve the gun with the  


intent of harming his wife.   Rather, Luch told the jury that he intended to use the gun  


"to posture, to stage."  Luch testified that, by simply displaying the gun to Jocelyn, he  


hoped to convince her that he was willing to shoot any man she was seeing, so that she  


would then "relay a message" to this man.  


                    By the time Luch returned upstairs, Jocelyn had gone into the bathroom.  


Luch followed her there.  Shortly thereafter, Marcelyn heard Jocelyn say, "Don't push  


me" - and then she heard two gunshots.  Marcelyn and Brent rushed into the hallway,  

                                                              - 4 -                                                          2586

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


and Marcelyn saw Luch leave the bathroom and go downstairs carrying the handgun.  


Luch said nothing to his children.  


                    The children had to force their way into the bathroom because Jocelyn's  


body was blocking the door.   Jocelyn was still alive, but she  was  bleeding from two  


gunshot wounds.  Brent located Jocelyn's cell phone and called 911.  


                    The police arrived within minutes. Anchorage Police Officer Mark Bakken  


entered the house and stayed with Jocelyn until an ambulance arrived.   During that brief  


conversation, Jocelyn told  the  officer that Luch had shot her because she wanted to  


divorce him and she refused to return to Arizona with him.  


                    While this was happening, Luch took the handgun back to the storage room  


of the garage, and he then left the house.   The  police found Luch walking down the  


street.  Luch told them, "I'm the one you want."  


                    Jocelyn was taken to the hospital, but she died from her wounds.  Luch was  


indicted for this homicide under alternative theories of first- and second-degree murder.  


          Luch's claim that he was entitled to a jury instruction on the defense of  


          heat of passion  


                    Luch  contends  that  the  trial  judge  committed  error  by  rejecting  his  


attorney's request for a jury instruction on the defense of "heat of passion".  We will first  


describe the law in Alaska regarding heat of passion, and then we will explain why Luch  


was not entitled to a jury instruction on this defense.  


                     (a) Explanation of the defense of heat of passion under Alaska law  


                    The defense of heat of passion is defined in AS 11.41.115.   This statute  


declares that heat of passion is a partial defense to two types of murder:  

                                                               - 5 -                                                          2586

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


          *	   a homicide charged under AS 11.41.100(a)(1)(A) - i.e., an intentional killing  


               that would otherwise be first-degree murder, or  


          *	   a homicide charged under AS 11.41.110(a)(1) -  i.e.,  a killing that would  


               otherwise be second-degree murder because it resulted from an assault where  


               the  defendant  intended  to  inflict  serious  physical  injury,   or   where  the  


               defendant knew that the assault was substantially certain to cause death  or  


               serious physical injury.  


                    The defense of heat of passion applies to instances where the defendant  


"acted in a heat of passion ... result[ing]  from  a  serious provocation by the intended  


victim", and where the defendant assaulted the victim "before there [was] a reasonable  


opportunity for the passion to cool".  AS 11.41.115(a).  


                    For purposes of the heat of passion defense, the term "serious provocation"  


is defined to mean "conduct ... sufficient to excite an intense passion in a reasonable [and  


unintoxicated] person in the defendant's  situation, ... under the circumstances as the  


defendant reasonably believed them to be".  AS 11.41.115(f)(2).  However, the statute  


limits  the  scope  of  "serious  provocation"  by  adding that  "insulting words,  insulting  


gestures, or hearsay reports of conduct engaged in by the intended victim do not, alone  


or in combination with each other, constitute serious provocation."  Ibid.  


                    Although heat of passion is a defense to first-degree murder charged under  


AS 11.41.100(a)(1)(A) or second-degree murder charged under AS 11.41.110(a)(1),  it  


is only a partial defense.  Heat of passion does not exonerate the defendant; instead, it  


reduces the crime to manslaughter.  See AS 11.41.115(e).  


                    Moreover, because the heat of passion statute declares that this defense  


applies only to charges of first-degree murder under AS 11.41.100(a)(1)(A) and charges  


of second-degree murder under AS 11.41.110(a)(1),  Luch  could only claim heat of  


passion with respect to one of the murder charges against him.  

                                                               - 6 -	                                                         2586

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

                                               Luch was indicted for first-degree murder under AS 11.41.100(a)(1)(A),                                                                                                                                                                                             

so the heat of passion defense potentially applied to that charge.                                                                                                                                                           But Luch was indicted                                 

for              second-degree                                            murder,                            not               under                     AS                11.41.110(a)(1),                                                but                rather                       under  

AS   11.41.110(a)(2)   -    i.e.,    causing    Jocelyn's    death    while    engaging    in    conduct  

manifesting an extreme indifference to the value of human life.                                                                                                                                                              The defense of heat of                                                    

passion does not apply to charges under this subsection of the second-degree murder                                                                                                                                                                                                 


                                               (b)   There was insufficient evidence that Luch was subjected to a                                                                                                                                                                  

                                     "serious provocation" within the meaning of the heat of passion statute                                                                                                                                                     

                                               A defendant is entitled to have the jury instructed on a                                                                                                                                                 defense   if the   

defendant presents "some evidence" of that defense.                                                                                                                                      In this context, the phrase "some                                                              

evidence" is a term of art.                                                               It means evidence which, if viewed in the light most favorable                                                                                                                      

to the defendant, is sufficient to allow a reasonable juror to find in the defendant's favor                                                                                                                                                                                                


on every element of the defense.                                                                                        

                                               As we explained in the preceding section of this opinion, the elements of  


the defense of heat of passion are (1) that Luch shot his wife "in a heat of passion",  


(2) that this passion was the result of a "serious provocation" (as that phrase is defined  


in the statute), and (3) that Luch shot his wife before there was a reasonable opportunity  


for his passion to cool.  


                                               Even when the evidence in this case is viewed in the light most favorable  


to Luch's proposed defense, there was insufficient evidence that Luch was subjected to  


a "serious provocation".  


            1          Dandova v. State                                           , 72 P.3d 325, 332 (Alaska App. 2003);                                                                                         Lacey v. State                                  , 54 P.3d 304,                 

308 (Alaska App. 2002).                                                            

                                                                                                                                                - 7 -                                                                                                                                            2586

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


                    The governing statute, AS 11.41.115(f)(2), defines "serious provocation"  


as "conduct ... sufficient to excite an intense passion in a reasonable [and unintoxicated]  


person  in  the  defendant's  situation,  ...  under  the  circumstances  as  the  defendant  


reasonably believed them to be".                      Here,  the alleged   "serious  provocation" was the  


purported fact that Luch's wife was having an affair.  


                    As we explained earlier in this opinion, there was evidence that, several  


months before the shooting, Luch learned that his wife might have been having an affair  


-  in particular,  the testimony  about the overheard phone call,  and about Jocelyn's  


refusal to explain why she was spending several nights a week away from the marital  




                    But in Luch's trial testimony,  he conceded that his relationship with his  


wife was significantly better in the two months immediately preceding the shooting. And  


there was no evidence that Luch knew or even reasonably believed at the time of the  


shooting that Jocelyn was having an affair.   There was plenty  of evidence that Luch  


suspected that his wife was having an affair at that time, but even Luch conceded in his  


trial testimony that he did not know whether his suspicions were well-founded.  


                    At trial, Luch's attorney asked him whether his suspicions intensified on  


the day of the killing (September 28, 2010), after Luch went to pick up Jocelyn from  


work and ultimately left without her.   Luch's attorney asked him, "At [that] point, are  


you thinking she's cheating?", Luch responded:  



                              Possibly.  I - I don't want to believe that.  I want to  


                    trust my wife very  badly.                   ...   I want to believe the best  


                    scenario,  so I'm trying to resist going that direction in my  


                    thought.        But  there's,  of  course,  there's  a,  there's  some  


                    doubts.  I'm not sure.  

                                                              - 8 -                                                          2586

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

                                                       Later that day, after the incident in Kincaid Park where Luch was unable                                                                                                                                                                                                         

to locate Jocelyn at the race, Luch was waiting at home when Jocelyn and the children                                                                                                                                                                                                                                             

(Marcelyn and Brent) arrived home from                                                                                                                                        Kincaid Park.                                                    According to Luch, he was                                                                          

"festering" because he strongly suspected that his wife had not run the race at Kincaid                                                                                                                                                                                                                                            

Park - that she was "off on another tryst".                                                                                                                                       But Luch added that he was not sure about                                                                                                                 

this.   He explained that he was "trying to hold it all together" because "there might be                                                                                                                                                                                                                                                               

 something [he was] not aware of" - for instance,                                                                                                                                                                             the possibility of "a mechanical                                                      

breakdown", or a "different finish line" to the race.                                                                                                                                                                

                                                       When Jocelyn got home, Luch repeatedly accused her of not having run in                                                                                                                                                                                                                              

the race.                            But Jocelyn did not respond to these accusations; instead, she went upstairs                                                                                                                                                                                                                  

after a few minutes and started preparing for bed.                                                                                                                                                                         Luch followed her upstairs and                                                                                          

confronted her - accusing her of lying about participating in the race, and accusing her                                                                                                                                                                                                                                                              

of seeing another man.                                                                            Jocelyn assured Luch that she                                                                                                       had  been at the race, and she                                                                                

denied any wrongdoing, but Luch was not convinced.                                                                                                                                                                             At that point, Luch went to the                                                                                        

garage, obtained the handgun, and returned to his wife's bathroom.                                                                                                                                                                                                                   

                                                       At common law,                                                           one classic example                                                                    of "serious provocation" was the                                                                                              

                                                                                                                                                                                                       2        However, the common law required  

defendant's discovery of their spouse's adultery.                                                                                                                                                                                                                                                                                 

that the defendant find their spouse  in flagrante delicto - that is, in the  very act of  


                                                                                          3              Reflecting  this  principle,  Alaska's   statutory  definition  of  

committing  adultery.  


"serious provocation", AS 11.41.115(f)(2), expressly declares that a "serious provoca- 


tion" cannot be based on hearsay reports.  


              2            Dandova v. State                                                      , 72 P.3d 325, 336 (Alaska App. 2003);                                                                                                                      Martin v. State                                                , 664 P.2d            

612, 617 (Alaska App. 1983).                                                                                         



                            Rollin M. Perkins & Ronald N. Boyce, Criminal Law (3rd ed. 1982), pp. 96-97.  

                                                                                                                                                                         - 9 -                                                                                                                                                                     2586

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


                    Thus,  when a defendant claims that they committed a deadly assault in  


response to a discovery of adultery, that "discovery" must be based on the defendant's  


personalknowledge, and not the defendant's suspicions or conclusions based on hearsay  


accounts (which are expressly excluded by the statute).  


                    The fact that, several months before the shooting, Luch may have had good  


reason  to  believe  that  Jocelyn  was  having an  affair  does  not  mean  that  Luch  was  


experiencing a "serious provocation" when, on the day of the race, he could not find  


Jocelyn  where  he  expected  her  to  be.                     Luch  never  claimed  that  he  had  personal  


knowledge of his wife's adultery,  and there was no evidence that Jocelyn  admitted  


adultery to him.   In fact, the evidence was that Jocelyn denied any wrongdoing when  


Luch confronted her on the day of the killing.  


                    Nor was there evidence that Luch reasonably believed that Jocelyn was  


committing adultery.  Although Luch repeatedly expressed suspicions that his wife was  


having an affair, he conceded on the stand that his doubts about his wife's fidelity were  


unconfirmed, and that he knew there were other potential explanations for his failure to  


see Jocelyn at the finish line of the race at Kincaid Park.  


                    We therefore hold that Luch failed to present some evidence that he was  


subjected to a "serious  provocation" as that term is defined in AS 11.41.115(f)(2).  


Because of this, we affirm the trialjudge's decision not to instruct the jury on the defense  


of heat of passion.  

                                                             -  10 -                                                         2586

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


          Luch's contention that the trial judge committed  error by allowing the  


          prosecutor to introduce evidence of Jocelyn's statements to a police officer  


          soon after the shooting  


                     Shortly  after  the  Luch  children  entered  their  parents'  bedroom  and  


discovered that Jocelyn had been shot, they called 911.  Anchorage Police Officer Mark  


Bakken responded to the 911 call.  


                    Officer  Bakken  found  Jocelyn  lying on  the  bathroom  floor  in  a  fetal  


position,  clutching her stomach.                   He confirmed that Jocelyn had been shot,  and he  


testified that she was in pain and scared.  According to Bakken, Jocelyn repeatedly asked  


him for help, and she expressed her belief that she was "not going to make it."  


                    Bakken radioed for medicalassistance, and he waited with Jocelyn until the  


paramedics arrived, holding her hand to give her emotional support.   While they were  


waiting for the paramedics, Officer Bakken asked Jocelyn about her physical condition  


and how she had sustained her injuries.  The audio recording of this conversation was  


introduced by the State at Luch's trial.  


                     (a)  The content of Jocelyn's out-of-court statements, and the trial  


               judge's rulings  


                        Jocelyn  told  Officer  Bakken  that  she  and  her  husband  were  getting  


divorced, that her husband had threatened to kill her, and that he had shot her twice.  


Regarding her physical condition, Jocelyn told Officer Bakken that she was in pain and  


that she "[couldn't] make it any longer."  Here is a transcription of Jocelyn's statements  


to Officer Bakken about the shooting:  



                              Jocelyn Luch :  Please help me.  


                               Officer Bakken:  Okay, hold on, we're ...  

                                                              -  11 -                                                         2586

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


          Jocelyn :  Please help me.


          Officer Bakken:  Who shot you?


          Jocelyn :  My husband.


          Officer  Bakken:             Okay.       26C,  go  ahead  and  send


medics in red.  


          Jocelyn :  Help me.   Please help  me.   [He is outside  


killing himself.]  (Initially transcribed as indiscernible.)  


          Officer Bakken: Okay, we got him right now.  What's  


his name?  


          Jocelyn :  Robert Luch.  (Indiscernible).  


          Officer Bakken: She's saying - she's confirmed the  


suspect  is  Robert,  [her]  husband  Robert.                       We  have  him  



          Jocelyn :  Please help me.  


          Officer Bakken:  Okay, (indiscernible).   What's your  




          Jocelyn :  Please help me.  


          Officer Bakken:  What's your name?  


          Jocelyn :  Jocelyn Luch.  


          Officer Bakken:  What is it?  


          Jocelyn :  Jocelyn Luch.  

                                         -  12 -                                                       2586

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


          Officer  Bakken:              Jocelyn.        Okay;  the  medics  are  


coming in, the information (indiscernible).  


          Jocelyn :  Please help me.  Please help me.  


          Officer Bakken:   I know,  we're coming.                          I promise  


you, they're (indiscernible) waiting for us.   We've got him  


too, okay?  


          Jocelyn :  Please help me.  


          Officer Bakken:  Why did he shoot you?  


          Jocelyn :  We're getting a divorce.  


          Officer Bakken:  Okay.  


          Jocelyn :  Please help me.  


          Officer Bakken:  Okay, sweetie.  I got you.  


          Jocelyn :  Please.  


          Officer Bakken:  I got your hand.  


          Jocelyn :  It hurts.  


          Officer Bakken: Where does it - how many times did  


you get shot?  


          Jocelyn :  Two times.  


          Officer Bakken:  Twice?  Where at?  Both in the ...  


          Jocelyn :  In my stomach.  Please help me.  

                                         -  13 -                                                        2586

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


          Officer Bakken: 26, we got two gunshot wounds in the  


stomach.  She is still apparently conscious and aware.  


          Jocelyn :  (Indiscernible.)  


          Officer Bakken:  I got you.  


          Jocelyn :  He said he's going to kill me.  


          Officer Bakken:  We've got - he's not going to kill  


you, I promise you.  We've got him, so you're safe.  


          Jocelyn :        [Because  I  am  not   going  with  him  to  


Arizona.]  (Initially transcribed as indiscernible.)  


          Officer Bakken:  I'm not.  I'm right here with you.  


          Jocelyn :   [Please help me.]   (Initially transcribed as  


indiscernible.)  Please, can you call my friend Carol?  


          Officer Bakken:  ...  We're going to take care of that,  




          Jocelyn :  (Indiscernible), can't make it any longer.  


          Officer  Bakken:             Okay,  they're  coming;  they  just  


pulled up.  Paramedics.  We're upstairs.  Upstairs.  


          Jocelyn :  (Indiscernible) to breathe. (Indiscernible.)  


          Officer Bakken: She's conscious and aware, but she's  


been shot twice in the stomach.  


          Jocelyn :  One in my shoulder.  

                                         -  14 -                                                        2586

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


                               Officer Bakken:  And one in the shoulder, okay.  


                    Two days later, on September 30th, Jocelyn died in the hospital as a result  


of the gunshot wound to her abdomen.  


                    Before  trial,  the  State  filed  a  motion  seeking  permission  to  introduce  


Jocelyn's statements to Officer Bakken, arguing that Jocelyn's statements constituted a  


dying declaration as defined in Alaska Evidence Rule  804(b)(2).   This evidence rule  


authorizes the admission of a person's out-of-court statement if the person is unavailable  


as a witness, if the person made the statement "while believing that [their] death was  


imminent", and if the statement "concern[s] the cause or circumstances  of  what  the  


[person] believed to be impending death."  


                    To resolve this issue, the trial court held an evidentiary hearing at which  


Officer Bakken testified.  Based on Bakken's testimony and the audio recording of the  


statements, the trial judge found that Jocelyn's statements were admissible as a dying  


declaration.         The  judge  noted  the  severity  of  Jocelyn's  injuries,  as  well as  Officer  


Bakken's testimony that Jocelyn was "terrified" and that she believed she was dying.  


The judge also relied on the fact that, toward the end of the audio recording, Jocelyn can  


be heard saying that she needed the ambulance to arrive quickly "because she cannot  


make it anymore".  


                    The trial judge also found  that Jocelyn's statements were independently  


admissible as excited utterances as defined in Alaska Evidence Rule 803(2).  Under this  


evidence rule, an out-of-court statement is admissible if it "relat[es] to a startling event  


or condition" and if it was "made while the [speaker] was under the stress of excitement  


caused by the event or condition."  

                                                              -  15 -                                                         2586

----------------------- Page 16-----------------------

                                    (b)   Luch's argument that Jocelyn's statements did not qualify as a                                                                                                          

                           dying declaration   

                                    On appeal, Luch argues that Jocelyn's statements to the officer were not                                                                                                                   

admissible as a dying declaration.                                                         In particular, Luch argues that Jocelyn did not make                                                                         

these statements while believing that her death was imminent.                                                                                                          

                                    In  Johnson v. State                             , 579 P.2d 20 (Alaska 1978), the Alaska Supreme Court                                                                               

clarified the requirement that the speaker believe that their death is imminent:                                                                                                                               


                                                      We  believe  that  to  require  that  the  declarant  have  


                                    abandoned all hope of recovery is overly demanding.  In light  


                                    of modern medical science it is rare indeed that all hope of  


                                    recovery is abandoned,  yet a victim may be aware of the  


                                    probability that his death is impending to the extent necessary  


                                    to create sufficient solemnity to give adequate assurance of  


                                    the trustworthiness of his testimony.  What is required for a  


                                    dying declaration to be admissible is that the declarant have  


                                    such a belief that he is facing death  as  to remove ordinary  


                                    worldly motives for misstatement.   In that regard, the court  


                                    may consider the totality of the circumstances including the  


                                    presence or absence of motive to falsify and the manner in  


                                    which the statement was volunteered or elicited.  


Johnson, 579 P.2d at 25.  


                                    Under this test, the question of Jocelyn's state of mind when she made the  


 statements to Officer Bakken is a question of historicalfact - and we must uphold a trial  


                                                                                                                                                                                                             4      Having  

court's findings of historical fact unless those findings are clearly erroneous.  


         4        See Sipary v. State                               , 91 P.3d 296, 305-06 (Alaska App. 2004) (holding that it is a                                                                                                  

question of fact whether a speaker had the state of                                                                         mind that is required for their                                            out-of-court  

 statement to qualify as an "excited utterance" under Evidence Rule 803(2) - and that, for                                                                                                                                     

this reason, an appellate court "will uphold the trial judge's conclusion on this issue unless                                                                                                                         


                                                                                                             -  16 -                                                                                                        2586

----------------------- Page 17-----------------------

reviewed the record, we conclude that the trial judge's finding on this issue is not clearly                                                                                                                                                                                                                                                                                   


                                                              Luch argues in the alternative that several of Jocelyn's statements to the                                                                                                                                                                                                                                                      

officer did not concern the "cause or circumstances" of Jocelyn's impendingdeath. Luch                                                                                                                                                                                                                                                                                               

asserts that this phrase encompasses only Jocelyn's statements that directly describe the                                                                                                                                                                                                                                                                                                      

actual shooting and her resulting wounds - not                                                                                                                                                                                        Jocelyn's statements describing the                                                                                                                    

events leading up to the shooting, or describing her husband's motive for shooting her,                                                                                                                                                                                                                                                                                                   

or describing the events immediately attending the shooting (such as Jocelyn's assertion                                                                                                                                                                                                                                                                             

that, while she was speaking to the officer, she believed that Luch was "outside killing                                                                                                                                                                                                                                                                                        


                                                              We conclude that Luch's proposed interpretation of the phrase "cause or                                                                                                                                                                                                                                                              

circumstances" is too narrow. As                                                                                                                      McCormick on Evidence                                                                                               explains, this phrase is meant                                                                          

to codify the rule that the out-of-court statements are admissible only to the extent that                                                                                                                                                                                                                                                                                                 

they relate "to the circumstances of                                                                                                                                    the   killing and to the events more or less nearly                                                                                                                                                     

preceding it in time and leading up to it":                                                                                                                                                 


                                                                                            Under   this   [limitation],   declarations   about   previous  

                                                              quarrels   between   the   accused   and   the   victim   would   be  

                                                              excluded, while transactions between them leading up to and                                                                                                                                                                                                      

                                                              shortly before the present attack would be received.                                                                                                                                                                                                Some  

                                                              limitation   as   to   time   and   circumstances   is   appropriate   to  

                                                              enhance trustworthiness, but proper phrasing is difficult.                                                                                                                                                                                                           ...   

                                                              Statements   identifying   an   attacker   are   clearly   admissible   

                                                              under [the "cause or circumstances" limitation],                                                                                                                                                                                   and those   

                                                              [statements]                                                      describing    prior    threats    by,    or    fights    and  

                                                              argument with, such person also meet its requirements.                                                                                                                                                                                                        

                4              (...continued)  

that conclusion is shown to be clearly erroneous.").  


                                                                                                                                                                                           -  17 -                                                                                                                                                                                         2586

----------------------- Page 18-----------------------


Kenneth S. Broun et alia, McCormick on Evidence (7th ed. 2013),  311, Vol. 2, p. 516.  


                    This same approach is echoed in Dean Wigmore's classic treatise on the  


law of evidence: John Henry Wigmore, Evidence in Trials at Common Law (Chadbourn  


revision, 1974).  


                    As  explained in  Wigmore,  a dying declaration "must concern the facts  


leading  up  to  or  causing  or  attending  the  injurious  act  which  has  resulted  in  the  


declarant's death".  Id. ,  1434, Vol. V, p. 282 (emphasis in the original).  (See also the  


many cases collected in accompanying footnote 1.)   Wigmore acknowledges that this  


limitation  provides  "opportunity  for  prolific  quibbling",  id.  at  284,  but  the  treatise  


suggests that the rule should be applied in a common-sense manner.  


                    When we apply these principles to Luch's case, we conclude that Jocelyn's  


out-of-court statements to Officer Bakken concerned the "cause or circumstances" of  


what she believed to be her impending death.  


                    Accordingly,  we  conclude  that  the  trial  judge  properly  characterized  


Jocelyn's statements as a dying declaration under Evidence Rule 804(b)(2).  


                     (c)  Luch's argument that Jocelyn's statements did not qualify as  


               excited utterances  


                    Luch  also  challenges  the  trial  judge's  alternative  ruling  that  Jocelyn's  


statements qualified as excited utterances under Evidence Rule 803(2).  


                    Luch notes that the prosecutor did not argue this theory of admissibility in  


his motion, and that the trial judge apparently reached this conclusion independently,  


after hearing Officer Bakken's testimony and reviewing the statements.  Luch notes in  


passing that the judge made this ruling "without allowing the defense to address the  


issue", but Luch does not ask this Court to remand his case to the trial court so that he  


can present further evidence on this issue.  

                                                              -  18 -                                                         2586

----------------------- Page 19-----------------------

                                                            Instead, Luch takes the position that Jocelyn's statements could not qualify                                                                                                                                                                                                                          

as excited utterances because they were made in response to Officer Bakken's questions.                                                                                                                                                                                                                                                                                                           

Luch contends that any statement made in response to police questioning must be the                                                                                                                                                                                                                                                                                              

product of reflection - and therefore cannot qualify as an excited utterance.                                                                                                                                                                                                                                                                         

                                                            This is not the law in Alaska.                                                                                                   In both                            Charles v. State                                                        , 780 P.2d 377, 382                                                   

 (Alaska App. 1989), and                                                                                      Anderson v. State                                                                , 163 P.3d 1000, 1001 (Alaska App. 2007),                                                                                                                          

this Court upheld trial court rulings that out-of-court statements qualified as excited                                                                                                                                                                                                                                                                        

utterances even though the statements                                                                                                                                          were made in response to questions by a 911                                                                                                                                             

dispatcher and by police officers who were attempting to find out what had happened.                                                                                                                                                                                                                                                                                                              

                                                            Luch's case is analogous to                                                                                              Charles  and  Anderson .    After Officer Bakken                                                                                                                         

arrived on the scene and confirmed that Jocelyn had been shot, he asked her a series of                                                                                                                                                                                                                                                                                               

open-ended questions designed to clarify what had happened.                                                                                                                                                                                                                    Both the content and the                                                                           

circumstances of Jocelyn's responses - the nature of her wounds, her repeated pleas for                                                                                                                                                                                                                                                                                           

help, and her assertion that she did not think she                                                                                                                                                                            could "make it much longer" - all                                                                                                                     

 support the trial judge's conclusion that these statements were excited utterances under                                                                                                                                                                                                                                                                             

Evidence Rule 803(2).                                                                                 

                                                            It is a question of fact whether a speaker had the state of mind that is                                                                                                                                                                                                                                                   

required   for   their   out-of-court   statement   to   qualify   as   an   "excited   utterance"   under  

                                                                                                      5        For this reason, an appellate court "will uphold the trial judge's  

Evidence Rule 803(2).                                                                                                                                                                                                                                                                                                                                          


conclusion on this issue unless that conclusion is shown to be clearly erroneous."  



Luch's case,  the trial judge's  conclusion is not clearly erroneous,  and we therefore  


uphold the trial judge's ruling.  


               5              Sipary v. State                                                 , 91 P.3d 296, 305-06 (Alaska App. 2004).                                                                                                                                           

               6             Ibid.  

                                                                                                                                                                                    -  19 -                                                                                                                                                                                   2586

----------------------- Page 20-----------------------

                                               (d)    Luch's argument that the admission of Jocelyn's statements                                                                                                                                

                                   violated his right of confrontation under the Sixth Amendment                                                                                                                     

                                               Finally, Luch argues that even if Jocelyn's statements to Officer Bakken                                                                                                                                                          

were   admissible   under   the   hearsay   exceptions   for   excited   utterances   or   a   dying  

declaration,   the   admission   of   these   statements   nevertheless   violated   his   right   of  

confrontation under the Sixth Amendment as construed in                                                                                                                                                       Crawford v.                                  Washington,  

541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).                                                                                                                                      (In  Crawford, the Supreme Court                                                               

held that the confrontation clause bars the introduction of "testimonial" hearsay against                                                                                                                                                                                            

a criminal defendant unless the defendant had an earlier adequate opportunity to cross-                                                                                                                                                                                                 

examine the speaker.)                       

                                               We reject Luch's confrontation clause argument for two reasons.                                                                                                                                                                     

                                               First,   because   we   have   upheld   the   trial   court's   ruling   that   Jocelyn's  

statements to Officer Bakken were excited utterances, Luch's position is at odds with this                                                                                                                                                                                                       

Court's decision in                                              Anderson v. State                                             , 163 P.3d 1000 (Alaska App. 2007).                                                                                            In  Anderson,  

we   held   that   an   injured   crime   victim's   statements   to   a   police   officer   were   not  

"testimonial" for confrontation clause purposes when the primary purpose of the officer's                                                                                                                                                                                       

questions "was to sort out an ongoing emergency situation rather than to investigate a                                                                                                                                                                                                                 

                                           7  and when the crime victim's answers "[were] relevant to communicate or  

past crime",                                                                                                                                                                                                                                                                                          


explain the nature and extent of [their] current injuries."  


                                               Second,  viewing  Jocelyn's  statements  to  Officer  Bakken  as  a  dying  


declaration, we conclude that Luch's case is  governed by the United States Supreme  


Court's decision in Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 79 L.Ed.2d 93  


(2011).  In Bryant, the Supreme Court held that a mortally wounded shooting victim's  


            7          Anderson , 163 P.3d at 1004.                                                                      



                       Id. at 1005.  

                                                                                                                                             - 20 -                                                                                                                                            2586

----------------------- Page 21-----------------------


responses  to  on-the-scene  questioning by  a  police  officer  were  not  testimonial for  


purposes of the confrontation clause.  


                     The  Supreme Court relied on the fact that the primary purpose of the  


officer's inquiries was to enable police and medical responders to meet the ongoing  


emergency by finding out what had happened (id., U.S. at 374-76, S.Ct. at 1165-66) -  


"the exact type of questions necessary to allow the police to assess the situation, the  


threat to their own safety, and possible [continuing] danger to the ... victim and to the  


public".  Id. , U.S. at 376, S.Ct. at 1166.  


                     The Supreme Court also relied on the mental state of the shooting victim:  



                               When he made the statements, [the victim] was lying  


                     in a gas station parking lot bleeding from  a  mortal gunshot  


                     wound to his abdomen.   His answers to the police officers'  


                     questions  were   punctuated  with  questions  about  when  


                     emergency  medical  services  would  arrive.  ...                              He  was  


                     obviously in considerable pain and had difficulty breathing  


                     and talking.   ...         From this description of his condition and  


                     report of his statements, we cannot say that a person in [the  


                     victim's] situation would have had a "primary purpose"  to  


                     establish  or  prove  past  events  potentially  relevant  to  later  


                     criminal prosecution.  



Bryant, 562 U.S. at 375, 131 S.Ct. at 1165.  


                     Finally, the Supreme Court considered "the informality of the situation and  


the interrogation":  



                               [This]  informality  suggests   that  the  interrogators'  


                     primary purpose was simply to address what they perceived  


                     to be an ongoing emergency, and the  circumstances lacked  


                     any  formality that would have alerted [the victim] to[,] or  


                     focused him on[,] the possible future prosecutorial use of his  



                                                              - 21 -                                                          2586

----------------------- Page 22-----------------------

Bryant, 562 U.S. at 377, 131 S.Ct. at 1166.                                                                                                                                 

                                                             Based on these facts, the Supreme Court ruled that the victim's statements                                                                                                                                                                                                                  

to the police were not testimonial hearsay - and, thus, the confrontation clause did not                                                                                                                                                                                                                                                                                                 

bar the admission of these statements.                                                                                                                                         Id. , U.S. at 378, S.Ct. at 1167.                                                                                                                 

                                                             We reach the same conclusion here.                                                                                                                                    

                                                              (e)   Luch's argument that the admission of Jocelyn's statements                                                                                                                                                                                           

                                              violated his right of confrontation under the Alaska Constitution                                                                                                                                                                              

                                                             Luch argues that even if the admission of Jocelyn's statements did                                                                                                                                                                                                                                                         not  

violate the                                        confrontation clause of the federal constitution,                                                                                                                                                                                    we should hold that the                                                                          

 admission of these statements violated the confrontation clause of our state constitution                                                                                                                                                                                                                                                         

 (Article I, Section 11).                                                                               

                                                             But Luch's argument of this point is cursory: it consists of two conclusory                                                                                                                                                                                                               

 sentences, without citation to any legal authority.                                                                                                                                                                               As this Court has repeatedly stated,                                                                                                   

 a   provision   of   the   Alaska   Constitution   will   not   be   interpreted   to   provide   greater  

protection than a corresponding provision                                                                                                                                                             of   the federal constitution unless there is                                                                                                                                             

 "something in the text,                                                                                    context,   or history of the Alaska Constitution" to justify this                                                                                                                                                                                                         


 divergent interpretation.                                                                                         

                                                             We therefore reject Luch's argument that the confrontation clause of the  


Alaska constitution barred the admission of Jocelyn's statements to the officer.  


                9              See,  e.g.,  Shorty v. State                                                                             , 214 P.3d                                   374, 379 (Alaska App. 2009);  Harris v. State                                                                                                                                                  , 195   

P.3d 161, 181                                                      (Alaska App. 2008);                                                                         Aaron v. Ketchikan                                                                      , 927 P.2d 335, 336 (Alaska App.                                                                                             

  1996);  State v. Zerkel                                                                       , 900 P.2d 744, 758 n. 8 (Alaska App. 1995).                                                                                                                                                     

                                                                                                                                                                                         - 22 -                                                                                                                                                                                        2586

----------------------- Page 23-----------------------


               (f)  Our conclusion on this issue  


                    For the reasons explained here, we conclude that Jocelyn Luch's statements  


to Officer Bakken were properly admitted at Luch's trial.  


          Luch's argument that the State failed to establish a proper foundation for  


          admitting evidence of Marcelyn Luch's prior inconsistent statementstothe  



                    When the police responded to the shooting, they found the Luchs' daughter  


Marcelyn at the residence, and they transported her to the police station.  During the ride  


to the police station, Marcelyn was informally asked about what had happened, and then  


the police conducted a more formal interview when Marcelyn arrived at the station.  


Marcelyn's statements in the patrol car were audio recorded, and her interview at the  


station was video recorded.  


                    Marcelyn told the police that her father had been planning to murder her  


mother.   She said that Luch  had  talked  about this plan eight to ten times during the  


summer.  According to Marcelyn, Luch told her that, if he killed Jocelyn, he would claim  


temporary insanity.  Marcelyn urged the police not to be fooled by any claim of insanity.  


                    Shortly before Marcelyn was called to testify at Luch's trial, the prosecutor  


alerted the trial judge and the defense attorney that the State intended to introduce the  


recordings of Marcelyn's statements to the police if  Marcelyn  denied making these  


statements, or if she claimed to have no memory of them, or if she  claimed that the  


statements were lies.  


                    Marcelyn took the stand later that day.   When the prosecutor questioned  


Marcelyn about her statements to the police, she repeatedly claimed to have no memory  


of makingthose statements. Then, when the defense attorney cross-examined Marcelyn,  

                                                             - 23 -                                                          2586

----------------------- Page 24-----------------------


she declared that if she had indeed made those statements, the statements were false. On  


redirect, the prosecutor asked Marcelyn about this inconsistency:  



                              Prosecutor :  When I was asking you questions, you  


                     said, "My dad didn't say those statements, and I never said  


                    those to the police."  And then when Mr. Lambert asked you  


                    questions, you said, "I said them, but I lied."  So which is it?  


                    Did you lie, or did you not say those things?  


                              Marcelyn :   (Whispered conversation)   I think I lied  


                    about saying those things back in the police interview.  


                              Prosecutor :   Tell us about your thought process  in  


                    deciding to lie about things your dad said to you.  


                              Marcelyn :  What do you mean?  


                              Prosecutor :  How did you decide that you were going  


                    to lie to the police that night?  ...  What were you thinking?  


                              Marcelyn :          I  -  I  can't  really  remember.                    I  just  


                    remember [that] I didn't  want to see him ever again that  



                              Prosecutor :   Did you realize,  at the time you were  


                     saying those  statements, that you were lying to the police?  


                    Or did you realize it later?  


                              Marcelyn :  Later.  


                              Prosecutor :  When?  


                              Marcelyn : Like last week, when everyone was talking  


                    about it all.  

                                                              - 24 -                                                          2586

----------------------- Page 25-----------------------


                              Prosecutor :  So you didn't realize you had lied to the  


                    police until last week?  


                              Marcelyn :  Yes.  


                              Prosecutor :          Who'd  you  tell?             Who  was  the  first  


                    person you told that you realized you had lied?  


                              Marcelyn :  Like over the weekend?  


                              Prosecutor : When you realized you lied, who was the  


                    first person you told?  


                              Marcelyn :  I haven't really told anyone that [before].  


                    The trialjudge ruled that Marcelyn's recorded statements to the police were  


admissible as prior inconsistent statements.  More specifically, the judge concluded that  


it was "essential" for the jury to know whether Marcelyn made those statements to the  


police, and "how she presented those statements to the officers."  


                    On appeal, Luch challenges this ruling on two grounds.  


                    First, Luch points out that when the prosecutor asked Marcelyn about her  


statements to the police, the prosecutor failed to expressly ask Marcelyn about several  


specific factual assertions contained in those statements.  Because of this, Luch argues  


that the prosecutor failed to satisfy the foundational requirements of Alaska Evidence  


Rule 613(b) and Alaska Evidence Rule 801(d)(1)(A)(i) - that is, the requirement of  


examining Marcelyn in such a way as to give her the opportunity "to explain or deny"  


those specific statements.  


                    Luch's argument is answered by this Court's decision in Active v. State , 153  


P.3d 355 (Alaska App. 2007).  

                                                             - 25 -                                                          2586

----------------------- Page 26-----------------------

                                                   In  Active , we addressed the question of whether a litigant who wishes to                                                                                                                                                                                                

introduce a witness's prior inconsistent statements during police interviews "[is] obliged                                                                                                                                                                                                                

to expressly question [the                                                                             witness] about each and every assertion of fact that [the                                                                                                                                                     

witness]   made   in   those   interviews."     Id.   at   363.     We   held   that   Evidence   Rule  

 801(d)(1)(A) does not require the litigant to do this if, when the witness is asked about                                                                                                                                                                                                                     

the prior statements, the witness's answers provide a reasonable basis for the trial judge                                                                                                                                                                                                                      

to conclude that the witness "would continue to disown any and all statements she had                                                                                                                                                                                                                                  

previously made to the contrary."                                                                                               Id.  at 364.                                 

                                                   In  Active , the witness repeatedly asserted that she did not remember making                                                                                                                                                                           

the prior incriminatory statements - and she further asserted that, if she had indeed                                                                                                                                                                                                                    

made those statements, they were false.                                                                                                            Ibid.   Given the witness's answers, we held that                                                                                                                   

the trial judge could reasonably conclude that the witness had been                                                                                                                                                                                                   given   sufficient  

opportunity to explain or deny the statements she made to the police investigator, and                                                                                                                                                                                                                                

that "it was pointless to require the prosecutor to continue asking [the witness] about                                                                                                                                                                                                                        


every other statement she had made during that interview."                                                                                                                                                                              

                                                  We reach the same conclusion in Luch's case.  


                                                  Luch  argues   in  the  alternative  that  even  if  the  prosecutor  met  the  


foundational requirements of Evidence Rule 801(d)(1)(A), the trial judge nevertheless  


abused his discretion when he allowed the prosecutor to introduce extrinsic evidence  


(i.e.,  recordings) of the particular statements that Marcelyn admitted making to  the  




                                                  Again, Luch's argument is answered by this Court's decision in  Active .  


In Active , we reviewed our prior decisions on this question, and we re-affirmed the rule  


that even when a witness acknowledges making the prior inconsistent statement, a trial  


             10          Ibid., quoting                                   Nunn v. State                                     , 845 P.2d 435, 441 (Alaska App. 1993).                                                                                                           

                                                                                                                                                         - 26 -                                                                                                                                                       2586

----------------------- Page 27-----------------------


judge may allow a party to introduce extrinsic evidence of the witness's prior statement  


if (1) it is crucial for the jury to decide whether to credit the witness's in-court testimony  


as opposed to the prior inconsistent statement, and (2) the extrinsic evidence will give  


the jury a more complete context in which to evaluate the witness's prior statement.  Id.  


at 362-63.  


                     Stated somewhat differently, the question is whether the trial judge could  


reasonably conclude that the jury might view the facts differently if they heard the audio  


or video record of the  conversation in which the witness made the prior inconsistent  


statements - as opposed to simply hearing the witness's unelaborated concession that  


they made the prior statements.  Id.  at 362.  


                     In Luch's case, the trial judge concluded that the recordings of Marcelyn's  


statements to the police should be admitted because it was "essential" for the jury to hear  


"how she presented those statements to the officers."  Given the record in this case,  


we conclude that the judge's ruling was not an abuse  of discretion, and we therefore  


uphold it.  


          Luch's contention that the case against him should be dismissed because  


           the State came into possession of (1) several pages of Luch's handwritten  


           notes about the case, and (2) Luch's annotations and highlighting of the  


           transcripts of Brent's and Marcelyn's statements to the police  


                     Toward the end of April 2012, one of the prosecutors assigned to Luch's  


case  received a telephone call from Adrien Mercille,  a prison inmate who had been  


housed at the same correctional facility as Luch.   Mercille told the prosecutor that, in  


anticipation of Mercille's release from custody, Luch gave him letters to mail to Luch's  


sister.  According to Mercille, Luch wanted him to mail these letters from outside prison  


so that Luch would not have to worry about corrections officers screening the letters.  

                                                              - 27 -                                                          2586

----------------------- Page 28-----------------------


                    The  letters were contained in envelopes that were addressed in Luch's  


handwriting.   These envelopes were addressed to Luch's daughter Letitia ("Letty") in  


care of Luch's sister, Elaine Shephard, residing in Sun Lakes, Arizona.  


                    The envelopes also bore the hand-written return address of the house on  


Telstar  Circle  in  Anchorage  where  Luch's  family  was  residing  at  the  time  of  the  


homicide.         This was significant because  all inmates are told that the Department of  


Corrections will not send letters for prisoners unless the letter bears their inmate number  


and the return address of the correctional facility where they are housed.  


                    These letters contained several handwritten pages in which Luch described  


his  view  of  the  case,  as  well as  Luch's  hand-annotated  transcripts  of  Brent's  and  


Marcelyn's prior statements, both to the police and to the defense.  


                    After  Mercille  alerted  the  prosecutor's  office  to  these  letters,   police  


detectives were sent to interview Mercille and to take possession of the letters from him.  


Two days after that, the prosecutor sent Luch's attorney a recording of the detectives'  


interview with Mercille and copies of the written materials.  


                    Luch's attorney did not respond to the recording and the written materials  


for more than seven months.   But in early January 2013, the defense attorney filed a  


motion to dismiss the case against Luch, arguing that the State's possession of the letters  


constituted a breach of Luch's attorney-client privilege and, by extension, a denial of his  


right to counsel.  


                    More specifically, Luch's attorney disputed Mercille's account of how he  


came into possession of the letters.  Luch's attorney contended that Luch had written the  


letters to his attorney, and that Luch had never given these letters to Mercille.  Rather,  


the defense attorney asserted, Mercille had stolen the letters.  


                    The superior court held an evidentiary hearing to resolve this dispute.  At  


this hearing, both Luch and Mercille testified.  

                                                              - 28 -                                                          2586

----------------------- Page 29-----------------------


                    Luch asserted that Mercille stole several documents from his cell in mid- 


April 2012 - "letters, notes, written statements, [and] discovery".  According to Luch,  


Mercille demanded that Luch pay him $2000 for the return of these documents - and  


he threatened Luch that he would turn the documents over to the police if Luch did not  


pay the money.  


                    Luch further testified that these written materials were never intended for  


his children, and that he never asked Mercille to mail these materials to his children, or  


to anyone else.             Instead,  Luch said,  he intended to turn these materials over to his  


attorney at some future time when his attorney visited him in jail.  


                    For his part, Mercille testified that Luch approached him and asked if he  


would mail some letters for Luch.  Luch knew that Mercille was going to be transferred  


to a Veterans Administration residential facility for treatment,  and Luch wanted his  


letters to be mailed from outside the prison, to avoid the chance that they would be read  


by corrections officials.  Mercille told the court that he later decided to turn the letters  


over to the police because he thought that Luch was a trouble-maker, and because he  


thought that Luch was guilty of murdering his wife.  


                    Mercille denied stealing the letters and he denied asking Luch for money.  


Mercille also testified that if Luch had asked him  to return the letters before Mercille  


turned them over to the police, he would have returned them.  


                    After hearing this conflicting testimony, the trial judge found that Luch's  


testimony about the documents and the envelopes was false - i.e., that Luch was not  


credible when he asserted that these documents were intended for his attorney, and not  


for his children.  Instead, the judge found that Mercille's account of events was credible.  


                    In particular, the judge noted that many of Luch's handwritten notations on  


the transcripts were worded in a way that showed that the notation was intended as a  


communication  to  the   speaker  (i.e.,  the  child  who  gave  the  statement),  not  a  


communication to some third-party evaluator such as Luch's attorney.  

                                                             - 29 -                                                          2586

----------------------- Page 30-----------------------

                                                             Based on these findings, the judge concluded that the documents were not                                                                                                                                                                                                                                                  

 attorney-client documents, and that they therefore were not privileged:                                                                                                                                                                                                                                                          "They are not                                       

 from ... client to attorney."                                                                                               

                                                             On appeal, almost all of Luch's arguments pointedly ignore the trial judge's                                                                                                                                                                                                                            

 findings.    That is, Luch's arguments are premised on the assertion that the documents                                                                                                                                                                                                                                                           

were protected by the attorney-client privilege because Luch prepared these documents                                                                                                                                                                                                                                                                

 for his attorney, not for his children.                                                                                                                             But the trial judge explicitly rejected this assertion                                                                                                                                  

when he issued his findings, and Luch has not shown that the judge's findings are clearly                                                                                                                                                                                                                                                                              


                                                             Luch does raise one proceduralchallenge                                                                                                                                               to the judge's findings: he                                                                                          argues  

that when a criminal defendant asserts that statements or documents are covered by the                                                                                                                                                                                                                                                                                                  

 attorney-client privilege, and if the defendant                                                                                                                                                                 presents some evidence in favor of the                                                                                                                               

 asserted privilege, a judge must                                                                                                               presume  that the defendant's assertion                                                                                                                                              of privilege is                                         

 correct - that is,                                                                  the judge must resolve any                                                                                                          conflicts   in the evidence against the                                                                                                                      

 government and in favor of the claim of privilege.                                                                                                                                                                                

                                                             This position is contrary to established law.                                                                                                                                                               When a party                                                             or   witness  

 asserts   an   evidentiary   privilege,   it   is   their   burden   to   establish   that   the   privilege  

                                     11          More specifically, when a defendant asserts the attorney-client privilege, the  


burden of proving each element of the privilege rests upon the defendant. 12  


                11            N.G. v. Superior Court                                                                             , 291 P.3d 328, 336 (Alaska App. 2012).                                                                                                                                    See Fuller v. City of                                                            

Homer , 75 P.3d 1059, 1063 (Alaska 2003) (addressing the deliberative process privilege);                                                                                                                                                                                                                                                                 

James v. State                                                  , 75 P.3d 1065, 1068 (Alaska App. 2003), and                                                                                                                                                       Gyles v. State                                                , 901 P.2d 1143,                            

  1149 (Alaska App. 1995) (addressing the privilege against self-incrimination); and                                                                                                                                                                                                                                                                              Plate v.   

State, 925 P.2d 1057, 1066 (Alaska App. 1996) (addressing the                                                                                                                                                                                                                          privilege for confidential                                

 communications to a clergyman).                                                                                                                

                12             See People v. Meredith                                                                              , 631 P.2d 46, 50 (Cal. 1981);                                                                                               Zimmerman v. Superior Court                                                                                                         ,  


  163 Cal.Rptr.3d 135, 145 (Cal. App. 2013); Black v. State , 920 So.2d 668, 671 (Fla. App.  


                                                                                                                                                                                       - 30 -                                                                                                                                                                                       2586

----------------------- Page 31-----------------------

                                             Luch was not entitled to a presumption that he was telling the truth when                                                                                                                                                       

he   described   his   purpose   for   preparing the                                                                                                     documents   and   when   he   identified   the  

intended recipients of those documents.                                                                                                  Much less was Luch entitled to the "merely                                                                                 

 some evidence" rule that he proposes - a rule that would                                                                                                                                              require   the   trial judge to                                                   

completely ignore any conflicting evidence and to resolve all evidentiary conflicts in                                                                                                                                                                                                  

favor of Luch's claim of privilege.                                                                                 

                                             Rather, the judge was required to do precisely what he did here: allow the                                                                                                                                                              

parties to present their evidence pertaining to the claim of attorney-client privilege, and                                                                                                                                                                                        

then make findings of fact and credibility.                                                                                            Here, the judge found, based on the testimony                                                                           

and   on   the   content   of   the   documents   themselves,   that   Luch's   explanation   of   the  

documents was not credible.                                                                     Specifically, the judge found that the documents were not                                                                                                                           

intended to be communications to Luch's attorney; rather, they were intended                                                                                                                                                                                                to be   

communications   to   Luch's   children   -   to   influence   their   testimony.     The   judge  

accordingly ruled that the attorney-client privilege did not cover the documents.                                                                                                                                                                                       

                                             The judge's findings of fact are not clearly erroneous.                                                                                                                                  Accordingly, we   

uphold the judge's ruling that the documents were not privileged.                                                                                                                                                       

            12         (...continued)  


2006); State v. Tensley, 249 N.W.2d 659, 661 (Iowa 1977); Purcell v. Dist. Attorney for  


Suffolk Dist., 676 N.E.2d 436, 440 (Mass. 1997); State ex rel.  Stivrins v. Flowers, 729  


N.W.2d 311, 316 (Neb. 2007); People v. Mitchell, 448 N.E.2d 121, 123 (N.Y. 1983); State  


v. Love , 271 S.E.2d 110, 112 (S.C. 1980); State v. Rickabaugh, 361 N.W.2d 623, 624-25  


(S.D. 1985); State v. Kennison, 546 A.2d 190, 193 (Vt. 1987); United States v. Stern, 511  


F.2d 1364, 1367 (2nd Cir. 1975); United States v. Harrelson, 754 F.2d 1153, 1167 (5th Cir.  



                                                                                                                                       - 31 -                                                                                                                                     2586

----------------------- Page 32-----------------------


          Luch's argument that the trial judge should have allowed Luch's attorney  


          to  introduce evidence of Luch's statements to the police following his  


          arrest, while he was being transported to the police station  


                    After Luch shot his wife,  he returned the gun to its storage place in the  


garage, he ingested a handful of pills, and then he went outside.  The police found him  


walking along the street, and he was taken into custody.  


                    While Luch was being transported to the police station in a patrol car, the  


police recorded their conversation with him.   In this conversation, Luch volunteered  


various statements about the shooting - statements that were  not solicited by police  





                              Luch :   There's no excuse for that.                      I just  couldn't  


                    control myself anymore.  I just lost control.  There's nothing  


                    I could do. (Indiscernible) break.  Control.  I just (indiscern- 


                    ible).   I just lost it.   I just lost it.   Wish I had wifi; I could  


                    update my blog.  I just don't want to make a spectacle out of  


                    myself and embarrass my kids.  That's the only thing I want.  


                    I have good kids, and they're going to hate me now. I just  


                    don't want to embarrass them.  I did something terrible to my  


                    kids.  Lord, they're never going to forgive me.  


                    Anticipating that Luch's attorney might wish to introduce these statements  


at trial, the State filed a motion in limine to bar  the  defense from introducing these  


statements.  Luch's attorney opposed the State's motion, arguing that Luch's statements  


to the police were admissible as present sense impressions under Alaska Evidence Rule  


803(1),  as excited utterances under Alaska Evidence Rule 803(2),  or as evidence of  


Luch's then-existing mental state under Alaska Evidence Rule 803(3).  

                                                              - 32 -                                                          2586

----------------------- Page 33-----------------------

                                                            After    reviewing    the    audio    recording    and    the    transcript    of    Luch's  

conversation with the police in the patrol car, the trial judge ruled that Luch's out-of-                                                                                                                                                                                                                                                                       

court statements were inadmissible hearsay.                                                                                                                                                          

                                                            In particular, the judge found - "[having] listened to the tape" - that it                                                                                                                                                                                                                                                    

was "abundantly clear from the nature of [Luch's] statements" and from Luch's "very                                                                                                                                                                                                                                                                                     

calm demeanor" that Luch's statements were not                                                                                                                                                                                   excited utterances.                                                                      The judge also                                      

rejected the contention that Luch's statements reflected his "present sense impression".                                                                                                                                                                                                                                                                                                           

Finally, the judge rejected the argument that Luch's statements qualified as statements                                                                                                                                                                                                                                                         

of his then-existing mental state.                                                                                                               

                                                            On appeal, Luch argues that the judge reached the wrong conclusion -                                                                                                                                                                                                                                                     

that, in fact, Luch's statements in the patrol car qualified for admission under each of                                                                                                                                                                                                                                                                                             

these three exceptions to the hearsay rule.                                                                                                                                                 

                                                            With regard to whether Luch's statements qualified as excited utterances                                                                                                                                                                                                               

under Evidence Rule 803(2), the ultimate question is whether, at the time Luch made                                                                                                                                                                                                                                                                                     

these   statements,   he   was   speaking   "under   the   stress   of   excitement"   caused   by   the  

 shooting - whether the shooting had produced in Luch a condition of excitement which                                                                                                                                                                                                                                                                                

temporarily stilled his "capacity for reflection",                                                                                                                                                                         thus "produc[ing] utterances free of                                                                                                                       

conscious fabrication."                                                                                 13  

                                                            This is a question of fact - and, for this reason, an appellate court must  


uphold the trial judge's finding unless it is clearly erroneous. 14  



                                                            As we have explained, the trial judge found, after listening to the  audio  


recording, that Luch's statements in the patrol car were not excited utterances because  


of Luch's calm demeanor, and based on the nature of the statements themselves.  The  


                13           Davis v. State                                               , 133 P.3d 719, 727-28 (Alaska App. 2006).



                              Sipary v. State, 91 P.3d 296, 305-06 (Alaska App. 2004).

                                                                                                                                                                                     - 33 -                                                                                                                                                                                    2586

----------------------- Page 34-----------------------

record provides ample support for the judge's conclusion.                                                                                          That conclusion is therefore                     

not clearly erroneous, and we accordingly uphold the judge's ruling on this issue.                                                                                                                            

                                  With   regard   to   whether   Luch's   statements   qualified   as   present   sense  

impressions under Evidence Rule 803(1), the test is whether Luch's statements about the                                                                                                                             

shooting were made "while [he] was perceiving the event ... , or immediately thereafter".                                                                                                                                     

As we explained in                              Davis v. State                       , the defining characteristic of a statement of present                                                             

sense impression is its spontaneity - "the speaker's lack of reflection about what he or                                                                                                                              

                                                              15     To qualify as a statement of present sense impression, the  

she should be saying."                                                                                                                                                                                             

statement must be uttered while the speaker is observing the event or condition at issue,  


or "immediately thereafter". 16  


                                  Luch's statements in the patrol car were obviously not made while the  


shooting  was  occurring,  so  the  question  is  whether  those  statements  were  made  


"immediately thereafter" as that phrase is used in Evidence Rule 803(1).  


                                  In Davis, we explained that the phrase "immediately thereafter" is meant  


to describe circumstances where "there is hardly any interval between the observation  


                                                                                                                                                                                                               17     In  

and the statement describing the observation - and, thus, no time for reflection."  


Luch's case, the trial judge could reasonably find that Luch's statements in the patrol car  


did not meet this test.  Accordingly, we uphold the trial judge's ruling on this issue.  


                                  This leaves Luch's argument that his statements qualified for admission  


under Evidence Rule 803(3) as statements describing Luch's then-existing mental or  


emotional condition.  


         15      Davis v. State                    , 133 P.3d 719, 727 (Alaska App. 2006).

         16      Ibid.

         17      Ibid.


                                                                                                       - 34 -                                                                                                    2586

----------------------- Page 35-----------------------

                                            Some of Luch's statements in the patrol car were explicit descriptions of                                                                                                                                                            

his mental condition at the time of the shooting.                                                                                                       But when Evidence Rule 803(3) speaks                                                                      

of statements that describe a "then-existing" mental or emotional condition, the rule is                                                                                                                                                                                          

not   speaking of                                     statements   in   which   a   person   describes   their   mental   or   emotional  

condition   at   some   earlier   time.     Evidence   Rule   803(3)   is   confined   to   a   person's  

description of their mental or emotional condition                                                                                                              at the time they are speaking                                                                    .  

                                           As explained in the first paragraph of the Commentary to Alaska Evidence                                                                                                                                        

Rule 803(3), this rule "is essentially a specialized application" of Evidence Rule 803(1)                                                                                                                                                                         

-   i.e.,   a specialized application of the rule that                                                                                                             covers statements of                                                   present   sense  

impression.   Evidence Rule 803(3) does not apply to a person's assertions about a mental                                                                                                                                                                       


or emotional condition that they experienced in the past.                                                                                                                                     

                                           See also Saltzburg, Martin, and Capra, Federal Rules of Evidence Manual  


(11th ed. 2015), Rule 803, Vol. 4, p. 803-30 (explaining that the corresponding federal  


hearsay exception does not apply to "[s]tatements of a past state of mind or physical  



                                           For this reason, Luch's description in the patrol car of his state of mind at  


the time of the shooting was not admissible under Evidence Rule 803(3).  


                                            In sum, Luch's statements in the patrol car were not admissible under any  


of the three hearsay exceptions that he proposes.  We therefore uphold the trial judge's  


ruling regarding this hearsay evidence.  



                                            The judgement of the superior court is AFFIRMED.  


           18        Kelly v. State                            , 116 P.3d 602, 604 (Alaska App. 2005), and at 610 (Judge Mannheimer,                                                                                                            


                                                                                                                                    - 35 -                                                                                                                                 2586

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