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State of Alaska v. Harry Norman Powell (4/16/2021) ap-2698

State of Alaska v. Harry Norman Powell (4/16/2021) ap-2698

                                                                    NOTICE
  

            The text of this opinion can be corrected before the opinion is published in the  

           Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

            errors to the attention of the Clerk of the Appellate Courts:  



                                            303 K Street, Anchorage, Alaska  99501
  

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                                                E-mail:  corrections @ akcourts.us
  



                     IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



STATE OF ALASKA,  

                                                                                        Court of Appeals No. A-13326  

                                              Petitioner,                           Trial Court No. 3AN-17-07280 CR  



                                   v.  

                                                                                                      O P I N I O N  

HARRY NORMAN POWELL,  



                                              Respondent.                                  No. 2698 - April 16, 2021  



                       Petition  f                                   

                                       or  Review  from  the  Superior  Court,  Third  Judicial  

                       District, Anchorage, Catherine M. Easter, Judge.  



                       Appearances:               Hazel  C.  Blum,  Assistant  Attorney  General,  

                                                                                                                 

                       Office  of  Special  Prosecutions,  Anchorage,  and  Kevin  G.  

                                          

                       Clarkson, Attorney General, Juneau, for the Petitioner.  Brooke  

                                                                                                                    

                       V.  Berens,  Assistant  Public  Advocate,  and  James  Stinson,  

                                                                                                                  

                       Public Advocate, Anchorage, for the Respondent.  



                       Before:   Allard, Chief Judge, and Wollenberg and Harbison,  

                                                               

                       Judges.  



                       Judge HARBISON.  



                       The State has petitioned for review of a superior court order dismissing two                                              



counts of an indictment against Harry Norman Powell - one count of second-degree                                              


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

sexual   abuse   of   a   minor   and   one   count   of   second-degree   misconduct   involving  a  



                                                                                                                                                     1  

controlled substance, both involving fourteen-year-old A.S.                                                                                              



                                                                                                                                                                                                        

                                 During its presentation to the grand jury, the State introduced a video  



                                                                                                                                                                                                           

recording of a forensic interview of A.S. conducted at a child advocacy center. The State  



                                                                            

did not call A.S. as a witness.  



                                                                                                                                                                                               

                                 Powell moved to dismiss the indictment, arguing that the video recording  



                                                                                                                                                                                                  

was inadmissible hearsay because it did not fall within any exception to Alaska Criminal  



                                                                                                                                                                                                                 

Rule 6(r)  or  any  general exception  to  the hearsay  rules under the Alaska Rules of  



                                                                                                                                                                                                         

Evidence.  In response, the State argued that the video recording was admissible under  



                                                                                                                                                                                                

Alaska Evidence Rule 801(d)(3).  This rule declares that the recorded pretrial statement  



                                                                                                                                                                                                     

of  a  child  under  sixteen  years  old  is  exempted  from  the  hearsay  rule  if  certain  



                                                                           

foundational criteria are met.  



                                                                                                                                                                                       

                                 The  superior  court  found  that  at  least  one  of  this  rule's  foundational  



                                                                                                                                                                                                                

requirements, the requirement under Evidence Rule 801(d)(3)(B) that the victim "is  



                                                                                                                                                                                                   

available for cross-examination," cannot be met at the time of grand jury.  The superior  



                                                                                                                                                                                                          

court noted thatthereis no cross-examination at grand jury proceedings and found, based  



                                                                                                                                                                                                             

on the plain  language and  legislative  history of Evidence Rule 801(d)(3),  that this  



                                                                                                                                                                                                              

provision  of  the  rule  "contemplates  a  cross-examination  contemporaneous  to  the  



         1       AS 11.41.436(a)(1) and AS 11.71.030(a)(2), respectively. We granted the petition and                                                                                                           



ordered full briefing, but while this petition was pending, Powell died.   The parties then   

agreed that we should decide the petition under the public interest exception to the mootness  

                                                                                                                                                                          

doctrine.  We agree that the issues presented by this case are capable of repetition and raise  

important issues of first impression, and accordingly we consider the petition on the merits.                                 

See Hayes v. Charney                                  , 693 P.2d 831, 834 (Alaska 1985) ("The public interest exception  

involves the consideration of three main factors:                                                                   1) whether the disputed issues are capable  

of repetition, 2) whether the mootness doctrine, if applied, mayrepeatedlycircumvent review                                                                                 

of the issues and, 3) whether the issues presented are so important to the public interest as   

to justify overriding the mootness doctrine.").  



                                                                                                      - 2 -                                                                                                 2698
  


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

introduction of the recording." The superior court accordingly granted Powell's motion                                                                                                                                                       



to dismiss.   



                                        In its order, the superior court first drewa distinction between the provision                                                                                                                



set out in Evidence Rule 801(d)(3)(B) and one of the grand jury hearsay exceptions set                                                                                                                                                                   



out in Criminal Rule 6(r)(2).                                                          Evidence Rule 801(d)(3)(B) requires that the victim "is"                                                                                                                     



available for cross-examination.                                                                    In contrast, under Criminal Rule 6(r)(2), a hearsay                                                                                



statement by a child victim under ten years old may be admitted before the grand jury   



if certain circumstances are met, including that the child either testifies at the grand jury                                                                                                                                                        

or "will be" available to testify at trial.                                                                        2  



                                                                                                                                                                                                                                      

                                        Second, the superior court noted that the legislative sponsor of Evidence  



                                                                                                                                                                                                                                             

Rule 801(d)(3) declared, before the Senate Judiciary Committee, that the "most crucial  



                                                                                                                                                                                                                                                       

aspect" of the proposed rule was that "the victim [must be] present at the proceeding and  



                                                            3  

                                    

available to testify." 



                                                                                                                                                                                                                                                         

                                        Because the foundational requirement of Evidence Rule 801(d)(3) that the  



                                                                                                                                                                                                                                                      

victim "is available for cross-examination" could not be met at the time of the grand jury  



                                                                                                                                                                                                                                   

proceeding, the court concluded that the video recording was inadmissible.  The court  



                                                                                                                                                                                                                                                      

further found that, without the video, the remaining evidence before the grand jury was  



                                                                                                                                                                                                                                                   

insufficient to support the indictment against Powell on the two counts involving A.S.  



                                                                                                                                                                                                                                                      

                                        On petition before this Court, the State argues that the video recording was  



                                                                                                                                                                                                                                                        

admissible before the grand jury because the prosecutor had a good-faith belief at the  



                                                                                                                                                                                                                                                   

time of the grand jury proceeding that the foundational requirements of Evidence Rule  



                                                                                                                                                                                                                                  

801(d)(3) would be met at the time of Powell's trial.   The State points to legislative  



          2         Alaska R. Crim. P. 6(r)(2).  



          3         Senate Judiciary Comm., Senate Bill 117, statement of Senator Hollis French, 9:31-                                                                           



9:33 a.m. (Mar. 31, 2005).  



                                                                                                                          -  3 -                                                                                                                    2698
  


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

history suggesting that the legislature intended that a child victimunder sixteen years old                                                                                                                                                                                                                                                   



would only have to describe an alleged offense once, during a video-recorded interview                                                                                                                                                                                                                               



at a child advocacy center, and would not have to discuss the offense again until the time                                                                                                                                                                                                                                               



of trial.   



                                                      But   it   is   also   clear   from the                                                                                 legislative   history   - and                                                                                  from the                                plain  



language of several of the conditions that the legislature attached to Evidence Rule                                                                                                                                                                                                                                                  



 801(d)(3) - that the legislature's focus was on the admissibility of the video recording                                                                                                                                                                                                                           



at trial.                     The legislative history contains no discussion of the grand jury proceeding or                                                                                                                                                                                                                                      



how the conditions that the legislature specifically included to protect a defendant's                                                                                                                                                                                                                     



rights at trial could apply at the time of grand jury.  And the legislature did not amend                                                                                                                                            



the criminal rules governing the admissibility of evidence before the grand jury to allow                                                                                                                                                                                                                                            



this type of hearsay to be introduced at a grand jury proceeding despite the fact that the                                                                                                                                                                                                                                                    



legislature had previously amended these rules to permit other types of child hearsay                                                                                                                                                                                                                                      



                                                                                                                                                                          4  

statements to be presented to a grand jury.                                                                                                                                    



                                                                                                                                                                                                                                                                                                                    

                                                      For these reasons, we agree with the superior court that the video recording  



                                                                                                                                                                                                                                                                                                                        

of the interview with A.S. was inadmissible under Evidence Rule 801(d)(3) at Powell's  



                                                                                                                                                                                                                                                                                                                              

grand jury proceeding. Accordingly, we affirm the superior court's dismissal of Counts  



                                                                                

I and II of Powell's indictment.  



                                                                                                                                                                                                                                                                                                           

                           The  plain  language  and  legislative  history  of  Alaska  Evidence  Rule  

                                                                   

                           801(d)(3)  



                                                                                                                                                                                                                                                                                                                              

                                                      The State argues that the video recording was admissible under Alaska  



                                                                                                                                                                                                                                                                                                                                              

Evidence Rule 801(d)(3).  Under this rule, the recorded statements of victims under the  



             4             SLA 1985, ch. 41,  1; see also AS 12.40.110.  



                                                                                                                                                                    - 4 -                                                                                                                                                                 2698
  


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

age  of  sixteen  are  not  hearsay  and  may  be  admitted  if  certain  foundational  requirements  



are  met.   These  requirements  are:  



                    (A)      the  recording  was  made  before  the  proceeding;  



                    (B)      the  victim  is  available  for  cross-examination;  



                    (C)      the   prosecutor   and   any   attorney  representing   the  

                    defendant  were  not  present  when  the  statement  was  taken;  



                    (D)      the   recording  is   on   videotape   or   other   format   that  

                    records    both    the    visual    and    aural    components    of    the  

                    statement;  



                    (E)      each   person   who   participated   in   the   taking   of   the  

                    statement  is  identified  on  the  recording;  



                    (F)      the  taking  of  the  statement  as  a  whole  was  conducted  

                    in  a  manner  that  would  avoid  undue  influence  of  the  victim;  



                    (G)      the     defense       has     been      provided         a    reasonable  

                    opportunity  to  view  the  recording  before  the  proceeding;  and   



                    (H)      the  court  has  had  an  opportunity  to  view  the  recording  

                    and  determine  that  it  is  sufficiently  reliable  and  trustworthy  

                    and  that  the  interests  of  justice  are  best served  by admitting  

                    the  recording  into  evidence.[5]  



                           

                                                                                                                           

                    The  parties  agree  that  three  of  these  requirements  - those  set  out  in  



                                                                                                                         

subsections  (B),  (G),  and  (H)  - were  not  met  at  the  time  the  State  presented  the  



                                                                                                                        

recordings to Powell's grand jury and ordinarily cannot be met during the grand jury  



                                                                                                                      

phase.  The plain meaning of the rule therefore suggests that it is inapplicable to grand  



                            

jury proceedings.  



                                                                                                                  

                    But when we interpret a statute, we do not rigidly rely upon the statute's  



                                                                                                                

plain meaning; instead, weemploy asliding scaleapproach incorporatingbothlegislative  



     5    Alaska R. Evid. 801(d)(3).  



                                                           -  5 -                                                      2698
  


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

                                                                                                                                           6  

history and the plain text of the statute to understand the legislature's intent.                                                              The plainer   



the language is, the more convincing the evidence of contrary legislative purpose or                                                                            



                            7  

intent must be.                                                                                                                                                

                                In interpreting Evidence Rule 801(d)(3), we therefore look both to the  



                                                                                                                                    

plain meaning and to the legislature's purpose and intent in enacting it.  



                                                                                                                                                                  8  

                                                                                                                                                                      

                         Evidence Rule 801(d)(3) was promulgated by legislative action in 2005. 



                                                                                                                                                          

According to the rule's sponsor, Senator Hollis French, the rule would allow child  



                                                                                                                                                              

victims  to describe the offense in  a safe,  "child  friendly  environment," free of the  



                                                                                                 9  

                                                                                                                                                       

intimidating environment inherent to a courtroom.                                                    The rule was intended to protect  



                                                                                                                                                    

children frombeing re-traumatized byhaving to repeatedly articulatethe"most shameful  



                                                                                             10  

                                                                                                                                                                  

and painful private acts that one can imagine."                                                    Instead of subjecting a child to a  



                                                                                                                                                      

"gauntlet of interviews," which begin with the child's first report and continue through  



                                                                                                                                                              

the child's testimony at trial, the proposed rule would allow a child to describe the  



                                                                                                  11  

                                                                                                                                                             

incident a single time at a child  advocacy  center.                                                     Senator  French  explained that  



                                                                                                                                                              

"through the use of videotape, this single interview can be the record of the incident, and  



      6      State v. Thompson, 425 P.3d 166, 169 (Alaska App. 2018).  



      7      Fyfe v. State, 334 P.3d 183, 185 (Alaska App. 2014) (quoting  State, Dep't of Comm.,  



Cmty & Econ. Dev., Div. of Ins. v. Alyeska Pipeline Serv. Co.                                                    , 262 P.3d 593, 597 (Alaska  

2011)).  



      8      SLA 2005, ch. 64,  59.  This legislation was initially introduced in 2005 as Senate  

                                                                                                                

Bill 117, but it subsequently was incorporated into House Bill 53. The portion of House Bill  

                                                                                                                                                  

53 that was previously Senate Bill 117 was signed into law as SLA 2005, ch. 64,  59.  



      9      Senate Judiciary Comm., Senate Bill 117, statement of Senator Hollis French, 9:27- 

                                                                                                                 

9:29 a.m. (Mar. 31, 2005).  



       10    See Senate Floor Session, 24th Alaska Legislature, Debate on House Bill 53, Gavel  



Audio Part 1 at 30:00-33:00 (May 9, 2005).  



       11   Id.  



                                                                             -  6 -                                                                         2698
  


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

if used correctly, we can spare a child the pain of having to go through this story over   

and over and over again."                   12  



                                                                                                                                                

                       Although the legislature wanted to allow the use of video recordings of the  



                                                                                                                            

statements of child crime victims rather than live testimony under certain circumstances,  



                                                                                                                                                 13  

                                                                                                                                                      

it also wanted to ensure that the rule would survive a confrontation clause challenge. 



                                                                                                                                              

(In  Crawford  v.  Washington,  the  United  States  Supreme  Court  interpreted  the  



                                                                                                                                                 

confrontation clause of the United States Constitution to limit the government's use of  



                                                               14  

                                                                                                                                        

testimonial hearsay in criminal cases.                            Under Crawford, even if this testimonial hearsay  



                                                                                                                                     

fits within a recognized hearsay exception, it is inadmissible unless (1) the declarant  



                        

testifies (and is thus available for cross-examination) at the defendant's trial or (2) the  



                                                                                                                                                

declarant  is  shown  to  be  unavailable  and  the  defendant  had  the  opportunity  to  



                                                                                          15 

                                                                                                                                                

cross-examine the declarant in aprevious proceeding.                                        ) Senator French explained to the  



                                                                                                                                                

committee that subsection (B) of the rule - requiring that "the victim is available for  



                                                                                                                                           

cross-examination" - was included to ensure that the rule was constitutional under  



                  16  

Crawford.    



                                                                                                                                                  

                       A final goal of the legislature in enacting Evidence Rule 801(d)(3) was to  



                                                                                                                                               

ensure that permitting the use of recorded statements of child crime victims would not  



                                                                                                                                             

deprivedefendantsofafundamentally fair proceeding. Senator French spoke of the need  



                                                                                                                             

to include safeguards in the rule to avoid "leading the child . . . to an incriminating  



      12   Id. (emphasis added).  



      13    Senate Judiciary Comm., Senate Bill 117, 9:40-9:45 a.m. (Mar. 31, 2005).  



      14    Crawford v. Washington, 541 U.S. 36, 68 (2004).  



      15   Id.  



      16    Senate Judiciary Comm., Senate Bill 117, statement of Senator Hollis French, 9:31-         



9:33 a.m. (Mar. 31, 2005).   



                                                                      -  7 -                                                                 2698
  


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

statement."   He noted that "[k]ids are obviously easily led, and it's real important that                                                            



                                                                                                                                        17  

you not put words in their mouths, [that] you let them tell their own story."                                                                



                        To protect against the possibility that children could be led to make false  



                                                                                                                                                

accusations, subsections (F) and (H) were added to the rule.  These subsections require  



                                                                                                                                          

that,  in  order  for  the  statements  to  be  admissible,  a  trial  judge  must:                                                       "(1)  .  .  .  



                                                                                                                                                    

affirmatively determine that the child's statement was elicited in a neutral and non- 



                                                                                                                                                         

leading manner, and (2) . . . independently evaluate the reliability and trustworthiness of  



                                                            18  

                                                                                                                                                           

the statement if it is challenged."                              The legislature also included, in subsection (G), a  



                                                                                                                                           

requirement that the defense be given a reasonable opportunity to view the recording  



                                                                                                                                       

before the proceeding.                        This  provision  allows  a defendant to have the information  



                                                                                                                                                      

necessary to challenge the admission of a recording if the recording shows that the  



                                                                                                                                                      

child's  statement  either  was  not  elicited  in  the  required  neutral  manner  or  is  not  



                                             

sufficiently reliable and trustworthy.  



                                                                                                                                      

             Why we conclude that Evidence Rule 801(d)(3) does not apply to grand  

                     

           jury proceedings  



                                                                                                                                               

                        In Alaska, a defendant may not be held to answer for a felony crime without  



                                                               19  

                                                                                                                                          

first being indicted by a grand jury.                               In order for the grand jury to return an indictment  



                                                                                                                                                         

on  a  given  charge,  a  majority  of  the  grand  jurors  must  agree  that  the  evidence  is  



      17    Id. at 9:28-9:30 a.m.
  



      18    Augustine v. State , 355 P.3d 573, 584 (Alaska App. 2015).
  



      19    Alaska Const. art. I,  8.
  



                                                                          -  8 -                                                                    2698
  


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

                                                       20  

sufficient    to    support    the    charge.                   And,    with    certain    exceptions,    hearsay    is  

inadmissible.21  



                                                                                                                                

                    Grand  jury  proceedings  are  secret;  only  the  prosecuting  attorney,  the  



                                                                                                                             

witness under examination, the court clerk who is recording the proceedings, and, when  



                                                                                                                        22  

                                                                                                                               

needed,  an  interpreter,  may  be  present  while  the  grand  jury  is  in  session.                                        The  



                                                                                                                               

prosecuting  attorney  prepares  the  indictment  and  instructs  the  grand  jury  on  the  



                       23  

                                                                                                                                

applicable law,            and it is the prosecutor, rather than a judge, who presides over the  



                                                                                                                                 

proceeding.   Neither the defendant nor the defendant's attorney has the right to be  



present.  



                                                                                                                      

                    As we have explained, the legislative history of Evidence Rule 801(d)(3)  



                                                                                                                                 

shows that when the legislature promulgated the rule, it wanted to create a procedure by  



                                                                                                              

which a child victim of a crime could describe the offense once, during a video-recorded  



                                                                                                                               

interview, and would not have to discuss the offense again until the time of trial.  The  



                                                                                                                           

State  argues  that  the  legislative  goal  of  protecting  children  from  having  to  testify  



                                                                                                                               

repeatedly about an offense would be thwarted if the rule did not apply to grand jury  



                                                                                                                                   

proceedings.  According to the State, video recordings of a child's statement made at a  



                                                                                                                  

child advocacy center are presumptively admissible at grand jury, and the foundational  



                                                                                                   

requirements of Rule 801(d)(3) may be met later, at the time of trial.  



                                                                                                                              

                    TheState's argument for admissibility is grounded in AlaskaCriminal Rule  



                                                                                                                                  

6(r)(1).  The State contends that this rule relieves the prosecution of the obligation to  



     20   Alaska R. Crim. P. 6(n).   



     21   Alaska R. Crim. P. 6(r)(1).  



     22   Alaska R. Crim. P. 6(k), (l).  



     23   Alaska R. Crim. P. 6(i).   



                                                               -  9 -                                                         2698
  


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

establish   a   foundation   for   the   admission   of   evidence   at   the   time   of   a   grand   jury  



proceeding.   Criminal Rule 6(r)(1) provides:                                      



                               Evidence which would be legally admissible at trial shall be                                                                            

                                admissible before the grand jury. . . . Except as stated in                                                                            

                                subparagraphs (2), (3), and (6), hearsay evidence shall not be                                                                         

                               presentedto                  thegrand jury absent compelling justification for                                                         

                               its introduction. If hearsay evidence is presented to the grand                                                                 



                                                                                                                                                                  [24]  

                               jury, the reason for its use shall be stated on the record.                                                                               



                                                                                                                                              

In the State's view, because this rule specifically allows for the admission of evidence  



                                                                                                                                                                                     

which "would be" legally admissible at trial, a recording of a child victim's statement  



                                                                                                                                                                                                        

need not meet Evidence Rule 801(d)(3)'s foundational prerequisites for admissibility at  



                                                                                                                                                                                                 

the time it is presented to a grand jury - so long as the prosecutor believes in good faith  



                                                                                                               

that the recording would later be admissible at trial.  



                                                                                                                                                                                   

                               As supportfor its contention, theState notes that the language of subsection  



                                                                                                                                                                        25  

                                                                                                                                                                                              

                                                                                                                                                                                 That  ABA  

(r)(1)  was  derived  from  American  Bar  Association  Standard  3.6(a). 



                       

Standard provided:  



                                                                                                                                                        

                               A prosecutor should present to the grand jury only evidence  

                                                                                                                                                                        

                               which he believes would be admissible at trial.  However, in  

                                                                                                                                                                       

                                appropriate cases the prosecutor may present witnesses to  



        24      Subparagraph (2) permits hearsay evidence of the statement of a child abuse victim                       



to be admitted before a grand jury under prescribed circumstances, subparagraph (3) allows   

the admission of certain hearsay statements of police officers on the same investigative team,                                                                    

and subparagraph (6) allows the admission of hearsay received from APSIN regarding prior                                                                 

convictions of the defendant.   



        25  

                                                                                                                                                          

                State v. Gieffels, 554 P.2d 460, 462 (Alaska 1976). But cf.  4 ABA Standards for  

                                                                                                                                                                                                  

Criminal Justice  3-4.6(c) (4th ed. 2015) ("A prosecutor should present to a grand jury only  

                                                                                                                                                                

evidence which the prosecutor believes is appropriate and authorized by law for presentation  

to a grand jury.").  



                                                                                               -  10 -                                                                                           2698
  


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

                      summarize admissible evidence available to him which he                                         

                      believes he will be able to present at trial.                        [26]  



                                                                                                                                          

Based on this standard, the State argues that Criminal Rule (6)(r)(1) authorizes the  



                                                                                                                                         

prosecutor to present evidence to the grand jury that the prosecutor believes in good faith  



                                                                                                                                           

will later be admissible at trial, even if the prosecutor cannot establish a foundation for  



                                                                                                                                       

the admission of the evidence at the time of the grand jury proceeding.   The State  



                                                                                                                

maintains that because the prosecutor in this case believed that the recorded interview  



                                                                                                                                          

of A.S. would later meet the requirements of Evidence Rule 801(d)(3), the recording was  



                                                         

admissible before the grand jury.  



                                                

                      But there is no indication that the legislature contemplated the admission  



                                                                                             

of this type of hearsay at a grand jury proceeding.  The legislative history of Evidence  



                                                                                                                                            

Rule 801(d)(3) contains no discussion at all about whether or how the rule could be  



                                                                                                                                          

applied in the grand jury context.   In contrast, there was extensive discussion in the  



                                                                                                                             

legislative history about the application of the rule's requirements at trial.  



                                                                                                                           

                      For instance, as we have explained, a primary focus of the legislature's  



                                                                                                                                       

discussion was the constitutionality of the rule and the need to ensure that the child  



                                                                                                                                     

victim "is available for cross-examination" in  order to meet a confrontation clause  



                27  

                                                                                                                                        

objection.           And, although a defendant has the right to cross-examine witnesses at trial,  



                                                                                                                            

there is no right to cross-examination at a grand jury proceeding. Thus, the legislature's  



                                                                                              

confrontation clause discussion would not apply to that context.  



                                                                                                                                     

                      Another focus ofthelegislaturewas onensuringthereliability ofthechild's  



                                                                                                                       

recorded statements and protecting the defendant's right to challenge the trustworthiness  



      26   ABA Standards Relating to the Prosecution Function and the Defense Function    



3.6(a) (Approved Draft 1971).  



      27   Senate Judiciary Comm., Senate Bill 117, 9:40-9:45 a.m. (Mar. 31, 2005).  



                                                                   -  11 -                                                              2698
  


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

                                               28  

 of those statements.                                The subsections of the rule that the legislature included to protect                                                                       



 a defendant from false accusations, subsections (F), (G), and (H), are readily applied in                                                                                                                  



the trial context but cannot be applied to a grand jury proceeding.  As we explained in             



Augustine v. State                           , subsections (F) and (H) of the rule require a trial judge:                                                                                      "(1) to   



 affirmatively determine that the child's statement was elicited in a neutral and non-                                                                                                               



leading manner, and (2) to independently evaluate the reliability and trustworthiness of                                                                                                                    



                                                                              29  

the statement if it is challenged."                                                                                                                                                           

                                                                                    Moreover, subsection (G) requires that "the defense  



                                                                                                                                                                                                            30  

                                                                                                                                                                                                                   

 [be] provided a reasonable opportunity to view the recording before the proceeding." 



                                                                                                                                                                                                            

Neither of the requirements set out in subsections (G) and (H) - permitting a review of  



                                                                                                                                                                                                           

the recording by the defendant and the court prior to the pertinent proceeding - can be  



                                                            

met at the time of grand jury.  



                                                                                                                                                                                        

                                Additionally, when the legislature promulgated Evidence Rule 801(d)(3),  



                                                                                                                                                                                          

 creating a procedure that is clearly applicable to the admission of a recorded statement  



                                                                                                                                                                                                        

 of a child witness at trial, it took no action to broaden Criminal Rule 6(r)(2), the rule that  



                                                                                                                                                                                                      

 allows certain hearsay statements made by child victims to be admitted at grand jury  



                                                                                                                                                                                                 

proceedings.   Criminal Rule 6(r)(2), provides that, in a prosecution for child abuse,  



                                                                                                                                                                                                 

hearsay evidence of a statement related to the offense made by a child who is the victim  



                                                                                                                                 

 of the offense may be admitted before the grand jury if:  



        28       Senate Judiciary Comm., Senate Bill 117, statement of Senator Hollis French, 9:31-                                             



 9:36 a.m. (Mar. 31, 2005).  



        29  

                                                                                                                                                                

                Augustine v. State , 355 P.3d 573, 584 (Alaska App. 2015).   As we noted earlier,  

                                                                                                                                                  

 subsection (F) requires that "the taking of the statement as a whole was conducted in a  

                                                                                                                                      

manner that would avoid undue influence of the victim."  And subsection (H) requires that  

                                                                               

"the court has had an opportunity to view the recording and determine that it is sufficiently  

                                                                                                                                                                                 

reliable and trustworthy and that the interests of justice are best served by admitting the  

recording."  Alaska R. Evid. 801(d)(3).  



        30      Alaska R. Evid. 801(d)(3)(G) (emphasis added).  



                                                                                                 -  12 -                                                                                              2698
  


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

                           (i)          the    circumstances    of    the    statement    indicate    its  

                           reliability;  



                           (ii)         the child is under 10 years of age when the hearsay                                         

                           evidence is sought to be admitted;                



                           (iii)        additional evidence is introduced to corroborate the                                                 

                           statement; and   



                           (iv)         the child testifies at the grand jury or the child will be                                             

                           available to testify at trial.              



                                                                                                                              31  

Although this rule was promulgated by the legislature in 1985,                                                                                                          

                                                                                                                                  the legislature did not  



                                                                                                                 

expand the rule's scope when it enacted Evidence Rule 801(d)(3).  



                                                                                                                                                                      

                           The Nevada Supreme Court considered an argument similar to the one now  



                                                                                                                                                                    32  

                                                                                                                                                                          

advanced by the State when it decided Rugamas v. Eighth Judicial District Court.                                                                                         In  



                                                                                                                                                          

Nevada, as in Alaska, a grand jury cannot receive hearsay unless a specific exception  



                33  

applies.                                                                                                                                                              

                      The question in Rugamas  was whether a statutory hearsay exception that  



                                                                                                                                                                            

allows the admission of certain statements about sexual or physical abuse, made by a  



                                                                                                                             34  

                                                                                                                                  

victim under the age of ten, applies to grand jury proceedings. 



                                                                                                                                                                           

                           In Rugamas, the child victim of a sexual assault was interviewed by a  



                                                                                                                                                                          

forensic interviewer prior to the grand jury proceeding.  The State called the child to  



                                                                                                                                                                        

testify before the grand jury, but the child was unable to recall significant details of the  



                                                                                                                                                                                

alleged sexual conduct with the defendant.  The State then presented the testimony of  



       31     SLA 1985, ch. 41, 1.  



       32    Rugamas v. Eighth Judicial Dist. Court, 305 P.3d 887, 890 (Nev. 2013).  



       33    Id. at 892-93.  



       34    Id. at 894.  



                                                                                 -  13 -                                                                             2698
  


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

the forensic interviewer who told the grand jury about the statements made to her by the                                                                                                               



child about the alleged sexual assault.                                                      



                                At the time, the Nevada statute governing the admissibility of evidence in                                                                                               



a grand jury proceeding stated:                                             "The grand jury can receive none but legal evidence, .                                                                          



                                                                                                                                 35  

. . to the exclusion of hearsay or secondary evidence."                                                                                                                               

                                                                                                                                       The State therefore attempted  



                                                                                                                                                                                      

to rely on a recently-promulgated statutory hearsay exception that allowed the admission  



                                                                                                                                                                                                         

of certain statements about sexual or physical abuse, made by a victim under the age of  

ten.36  



                                                                                                                                                                                                

                                In determining whether the child hearsay exception that the State relied  



                                                                                                                                                                                                   

upon was applicable to a grand jury proceeding, the Nevada Supreme Court noted that,  



                                                                                                                                                                                                 

pursuant to the exception, hearsay may not be admitted in evidence unless the court  



                                                                                                                                                                                       

conducts a hearing outside the presence of the jury and finds "that there are sufficient  



                                                                                                                    37  

                                                                                    

guarantees that the statements are trustworthy."                                                                                                                                          

                                                                                                                            The court also explained that the  



                                                                                                                                                                                                           

statutory child hearsay exception "contemplates notice to the defendant, a ruling by a  



                                                                                                                                                                                       

court as a precondition to admissibility, and a vigorous contest regarding the reliability  



                                                                              38  

                                                 

of the child-victim's statements."                                                                                                                                                                   

                                                                                   Because thegrand jury proceeding did not afford any  



                                                                                                                                                                                                      

of these safeguards, and because the legislature did not amend the statute governing the  



                                                                                                                                                                                                 

admissibility of evidence before a grand jury when it promulgated the statutory child  



        35      Nev. Rev. Stat.  172.135(2) (pre-2015 version).
  



        36      Rugamas, 305 P.3d at 891.
  



        37      Id. at 894. 
 



        38      Id. at 895.
  



                                                                                                -  14 -                                                                                            2698
  


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

hearsay exception, the court concluded that the exception did not apply to grand jury                                                    

proceedings.39  



                                                                                                                                  

                      We reach a similar conclusion here.   Evidence Rule 801(d)(3) attaches  



                                                                                                                                     

 specific conditions to the admission of evidence that necessitate a hearing and certain  



                                                                                               40  

                                                                                                                              

findings by the court before the evidence is admissible.                                             Because these conditions  



                                                                                                                                          

cannot be met at the time of grand jury, and  because there is  no  indication  in  the  



                                                                                                                                       

legislative history that the legislature considered the application of this rule to the grand  



                                                                                                                            

jury,  we  conclude  that  Evidence  Rule  801(d)(3)  does  not  apply  to  grand  jury  



proceedings.  



                      We acknowledge the legislature's stated goal of allowing the statement a  

                                                                                                                                              



child makes during a recorded forensic interview to be the only statement the child  

                                                                                                                                       



makes about a crime prior to being cross-examined at trial.  But when the legislature  

                                                                                                                              



promulgated Evidence Rule 801(d)(3), it did not consider the grand jury proceeding and  

                                                                                                                                          



how the rule would  operate in relation to  that proceeding.                                            As a result,  the rule it  

                                                                                                                                             



promulgated does not accomplish its stated goal.  Moreover, the important safeguards  

                                                                                                                              



that are provided  by  Rule 801(d)(3) when video recordings are offered at trial are  

                                                                                                                                          



entirely absent from a grand jury proceeding.  

                                                                              



                      The  separation  of  powers  doctrine  prohibits  this  Court  from  enacting  

                                                                                                                                 



                                                                     41  

                                                                                                                                          

legislation or redrafting defective statutes.                           It is therefore up to the legislature in the first  

                                                        



      39   Id.  



      40   Augustine v. State , 355 P.3d 573, 584-85 (Alaska App. 2015).  



      41   State v. Campbell, 536 P.2d 105, 111 (Alaska 1975) (citing Alaska Const. art. II,  1,  



                                                                                                                               

and art. IV,  1), overruled on other grounds by Kimoktoak v. State, 584 P.2d 25 (Alaska  

                                                  

 1978); see Gottschalk v. State, 575 P.2d 289, 296 (Alaska 1978) (noting that the court may  

not "step [] over the line of interpretation and engag[e] in legislation").  



                                                                   -  15 -                                                              2698
  


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

instance to decide whether, and under what conditions, this evidence should be admitted  

                                                                                                                    



before a grand jury.  

                                



                    Because  we  conclude  that  the  recordings  of  child  advocacy  center  

                                                                                                                      



interviews cannot be admitted at a grand jury proceeding under the hearsay exception set  

                                                                                                                            



out in Evidence Rule 801(d)(3), and because we agree with the superior court that the  

                                                                                                                            



admission of A.S.'s recorded interview at the grand jury proceeding in this case was not  

                                                                                                                            



harmless, we uphold the superior court's decision to dismiss Counts I and II of Powell's  

                                                                                                                   



indictment.  



          Conclusion  



                    We  AFFIRM the  superior  court's  dismissal  of  Counts  I  and  II  of  the  

                                                                                                                           



indictment.  



                                                           -  16 -                                                       2698
  

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