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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kenneth Arnold Wahl v State of Alaska (5/17/2019) sp-7363

Kenneth Arnold Wahl v State of Alaska (5/17/2019) sp-7363

        Notice:   This op inion  is subj ect  to correction bef ore p ublication  in  the PA CIFI C REPORTER.  

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        303 K Street, Anchorage, Alaska 99501, p hone  (907)  264-0608, f ax  (907)  264-0878, email 

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                THE SUPREME COURT OF THE STATE OF ALASKA 



KENNETH ARNOLD WAHL,                          ) 

                                              )   Supreme Court No. S-16805 

                       Petitioner,            ) 

                                              )   Court of Appeals No. A-11825 

        v.                                    ) 

                                              )   Superior Court No. 3AN-09-08618 CR 

STATE OF ALASKA,                              ) 

                                              )   O P I N I O N 

                       Respondent.            ) 

                                              )   No. 7363 - May  17, 2019 



               Petition for Hearing from the Court of Appeals of the State of 

               Alaska,  on  appeal  from  the  Superior  Court  of  the  State  of 

               Alaska,  Third  Judicial  District,  Anchorage,  Jack  Smith, 

               Judge. 



               Appearances:  Sharon Barr, Assistant Public Defender, and 

               Quinlan Steiner, Public Defender, Anchorage, for Petitioner.  

               Eric A. Ringsmuth, Assistant Attorney General, Anchorage, 

               and   Jahna   Lindemuth,   Attorney   General,   Juneau,   for 

               Respondent. 



               Before:  Bolger, Chief Justice, Winfree,  Stowers, Maassen, 

               and Carney, Justices. 



               BOLGER, Chief Justice. 

               CARNEY, Justice, with whom WINFREE, Justice, j oins, dissenting. 



I.      INTRODUCTION 



               At  trial  a  murder  defendant  offered  an  acquaintance's  testimony  given 



during grand jury proceedings, invoking the former-testimony exception to the hearsay 


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

rule.  The superior court excluded the evidence, reasoning that the State did not have the 



same motive to develop the acquaintance's testimony at grand jury.  The court of appeals 



agreed. 



               We  conclude  that  the  former-testimony  exception  does  not  require  the 



opposing party  to  have  had  an  identical  motive  to  develop the  testimony  during  the 



previous  proceeding.    Here  the  prosecutor's  motives  at  grand jury  and  at  trial  were 



sufficiently  similar to fit this exception.  But we affirm based on the  superior court's 



alternate rationale:  The defendant did not establish that he had used reasonable means 



to  secure  the  witness's  attendance, and  thus  the  witness  was  not  "unavailable" -  a 



requirement for the former-testimony exception to apply. 



II.    FACTS AND PROCEEDINGS 



       A.      Facts 



               In June 2009 Elisa Orcutt was found murdered in her home.  Police arrested 



Kenneth Arnold Wahl, whom Orcutt had previously hired to perform odd j obs.  In a 



statement given to the police, Wahl encouraged them to investigate an acquaintance of 



his, Lewis "Buddy" Hardwick.  The police interviewed Hardwick, but they ultimately 



charged Wahl with the murder.  Hardwick testified during the grand jury proceedings 



and offered information about the nature of his relationship with Wahl as well as details 



about his and Wahl's activities during the weekend in which Orcutt was murdered.  In 



July 2009 the grand jury indicted Wahl for murder in the first and second degree.  



       B.      Proceedings 



               1.     Superior court trial 



               The charges against Wahl proceeded to trial in superior court in May and 



June 2013.  Wahl's primary defense at trial was that someone else, likely Hardwick, was 



responsible for Orcutt's murder and the police had failed to follow up on any suspects 



other that Wahl.  During the trial Wahl notified the court at a bench conference that he 



                                              -2-                                           7363 


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

could  not  locate  Hardwick  to  call  him  as  a  witness.    Wahl  had  asked  the  State  for 



Hardwick's  contact information, but the  State  also  could not locate Hardwick;  it had 



been looking "everywhere" for him and believed he had left Alaska.  



               Wahl sought to introduce Hardwick's grand jury testimony under Alaska 



Evidence Rule 804(b)(1), which provides that the hearsay rule does not exclude certain 



former  testimony  of  an  unavailable  declarant.    The  State  moved  to  exclude  this 



testimony.  



               The superior court held a hearing to consider the admissibility of Wahl's 



prior  testimony.    A  defense  investigator  testified  that  she  initially  tried  to  locate 



Hardwick in 2009 but ceased shortly thereafter, believing Hardwick to be deceased.  The 



investigator resumed her search for Hardwick about a week before the start of the trial.  



She searched death records and various databases but was unable to identify his present 



location.  She also testified that she contacted former addresses, employers, a potential 



family  member,  and  the  public  defender  agency  in  Florida  that  had  previously 



represented  Hardwick,  all  without  success.    She  was  able  to  uncover  a  traffic  ticket 



issued to Hardwick several weeks prior to the trial and called the state officer who issued 



the ticket, but her messages were not returned.  Finally she attempted to locate Hardwick 



through social media, but that too was ineffective.  The investigator concluded her search 



efforts on May 30, 2013, after the trial commenced.   



               Wahl's counsel also related that prior to the trial, the State had provided her 



with a witness list that included Hardwick.  Because Hardwick was on the State's list, 



Wahl's counsel "had no reason . . . to believe that [the State] didn't have him," especially 



given  that  the  State  had  previously  procured  Hardwick's  testimony  at  grand  jury 



proceedings.  Only after the trial had commenced did she learn that Hardwick was not 



in the State's custody, could not be located, and might not be called as a State witness.  



                                               -3-                                            7363 


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

                 After hearing testimony from the defense investigator and argument from 



both parties, the superior court sustained the State's obj ection to admitting Hardwick's 



grand jury testimony.  The court first ruled that the defense had not used "reasonable 



means" to secure Hardwick's attendance, specifically noting that Wahl had neither asked 



for state or local police help nor sought a court order under the Uniform Act to Secure 



                                                                             1 

Attendance   in   Criminal   Proceedings   (the   Uniform   Act).       The   superior   court 



characterized the defense investigator's efforts to locate Hardwick as "reasonable steps" 



and noted that, based on the State's acknowledgment that it could not locate Hardwick, 



"seeking the State's help in this case might have been futile."  But the court concluded 



that a defendant must seek the State's help in locating a witness "even if it's a long shot."  



Therefore  the  court  concluded  that  by  "neither  ask[ing]  for  state  or  local  police 



help, nor us[ing] the terms of [the Uniform Act]," nor asking for a continuance to allow 



time to locate Hardwick, Wahl did not meet his burden to show he employed reasonable 



means to locate Hardwick.  



                 The  court  additionally  concluded  that  Hardwick's  testimony  did  not 



constitute "former testimony" under the hearsay exception because the State did not have 



a  similar  motive  to  develop  Hardwick's  testimony  during  grand  jury  proceedings.  



According  to  the  court,  grand jury  proceedings  involve  "an  entirely  different  set  of 



guidelines  or  .  .  .  rules."    Such  proceedings  do  not  afford  an  opportunity  for  cross- 



examination  and  questions  are  usually  "limited  to  those  sufficient  to  support  the 



indictment, with little or no delving into the facts provided or challenging the testimony 



given."   



        1        AS  12.50.010-.080. 



                                                    -4-                                                 7363 


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

                 Finally the court concluded that the testimony was not admissible under the 



                                                  2                                       3 

residual  exception  to  the  hearsay  rule,   in  part  because  Ry an  v.  State   and Idaho  v. 

Wright4 require the defendant to show that the proffered testimony was "so trustworthy 



                                                                       5 

that adversarial testing would add little to its reliability."   



                 Later in the trial, Wahl renewed his request to admit Hardwick's grand jury 



testimony under Evidence Rule 804(b)(1), arguing that the testimony of an investigating 



police officer demonstrated that it would have been futile for Wahl to request the State's 



assistance  in  locating  Hardwick  because  the  State  also  could  not  locate  Hardwick 



through its independent efforts.  According to Wahl his failure to enlist the State's help 



should therefore not count against him in the reasonable-efforts determination because 



this  failure  did  not  affect  the  outcome.    The  superior  court  again  declined  to  admit 



Hardwick's   testimony,   reiterating   that   Wahl   should   have   "asked   the   state   to 



help[,] . . . issued or requested the subpoena, or come to the court and asked for help" in 



order to satisfy the reasonable-efforts requirement.  



                 The  jury  ultimately  found  Wahl  guilty  of  both  murder  counts.    The 



convictions were merged for the purposes of sentencing, and Wahl received a mandatory 



        2        Alaska R. Evid. 804(b)(5) ("The following are not excluded by the hearsay 



rule if the declarant is unavailable as a witness:  A statement not specifically covered by 

any  of  the  foregoing  exceptions  but  having  equivalent  circumstantial  guarantees  of 

trustworthiness, if the court determines that (A) the statement is offered as evidence of 

a material fact; (B) the statement is more probative on the point for which it is offered 

than any other evidence which the proponent can procure through reasonable efforts; and 

(C) the general purposes of these rules and the interests of justice will best be served by 

admission of the statement into evidence."). 



        3        899 P.2d  1371 (Alaska App.  1995). 



        4        497 U.S. 805 (1990). 



        5        See Ry an, 899 P.2d at  1375 (quoting  Wright, 497 U.S. at 820-2 1). 



                                                     -5-                                                 7363 


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

sentence of 99 years' imprisonment.  



                 2.      Court of appeals proceedings 



                 Wahl  appealed,  arguing  in relevant part that the  superior  court  erred  in 



excluding Hardwick's grand jury testimony and that this error was not harmless.  The 



court of appeals affirmed the superior court's exclusion of Hardwick's prior testimony 



                                         6 

and affirmed Wahl's conviction.   It agreed that the testimony was not admissible under 



the  former-testimony  exception  because  the  State's  motive  to  develop  Hardwick's 



testimony during the grand jury proceeding was dissimilar from the motive it would have 



               7 

had  at trial.    The  court  of  appeals reasoned that  "[n]othing  in the  grand jury record 



suggests that the prosecuting attorney had reason to believe that someone might later 



claim  that  it  was  Hardwick,  not  Wahl,  who  committed  the  murder,  and  that  it  was 

necessary to examine Hardwick on this issue."8  The court reasoned that, because the 



State  could  not  have  known  when  it  questioned  Hardwick  during  the  grand  jury 



proceedings four years prior that Wahl would later attempt to cast blame on Hardwick, 



it had "a significantly different motive" during those questions, and Hardwick's answers 



                              9 

were thus inadmissible.   The court of appeals did not consider whether Hardwick was 



unavailable  because  it  held  the  testimony  inadmissible  on  the  basis  of  this  different 

motive.10 



         6       Wahl v. State, 402 P.3d 4 19, 420 (Alaska App. 2017).  



         7       Id. at 422-23. 



         8       Id. at 423. 



         9       Id.  



         10      Id. at 422. 



                                                     -6-                                                  7363 


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

                 The  court  also  concluded  that  Hardwick's  testimony  was  inadmissible 

under  the  residual  exception.11    It  reasoned  that  when  testimony  fails  to  satisfy  the 



"similar motive" requirement under the former-testimony exception, then the testimony 



will  almost  inevitably  fail  to  satisfy  the  requirement  that  it  have  "guarantees  of 



                                                                                                12 

trustworthiness"  equivalent  to  the  more  specific  exceptions  in  Rule  804.      Wahl 



petitioned for our review, and we granted his petition.  



III.    DISCUSSION 



                 "Hearsay  is  a  statement,  other  than  one  made  by  the  declarant  while 



testifying  at  the  trial  or hearing,  offered  in  evidence  to prove  the  truth  of  the  matter 

asserted."13    Hearsay  is  generally  inadmissible,14  but  the  Alaska  Rules  of  Evidence 



contain  specific  exceptions that permit the  admission  of  some hearsay.15   One  set  of 



exceptions, contained in Rule 804, is made for hearsay evidence of a declarant who is 



        11       Id. at 423-24. 



        12       Id. at 424.  The superior court also found that Hardwick's testimony was 



inadmissible under  an  alternative theory.  We held  in Smithart  v. State that  "when  a 

defendant wishes to implicate a specific individual, evidence of the third party's guilt is 

admissible only if the defense can produce evidence that 'tend[s] to directly connect such 

other person with the  actual  commission  of the  crime  charged.'  "  988 P.2d  583,  586 

(Alaska  1999) (alteration in original) (quoting Marrone v. State, 359 P.2d 969, 984-85 

n.19 (Alaska  1961)).  The superior court here found that even if Hardwick's testimony 

was admissible under one of the hearsay exceptions, Wahl did not offer evidence that 

would be sufficient to directly connect Hardwick to Orcutt's murder.  Because we affirm 

the  superior  court's judgment  on  alternative  grounds, however, we  do not reach this 

issue. 



        13       Alaska R. Evid. 801(c).  



        14       Alaska R. Evid. 802.  



        15       Alaska R. Evid. 803, 804.  



                                                    -7-                                                 7363 


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

"unavailable"  as  defined  by  the  Rule.16    Wahl  argues  that  Hardwick  qualifies  as  an 



unavailable witness  and that his  grand jury testimony  is  admissible under two  of the 



Rule 804 hearsay exceptions for such declarants - the former-testimony exception and 



the  residual  exception.    The  former-testimony  exception  allows  hearsay  by  an 



unavailable declarant to be introduced when it is 



                [t]estimony given as a witness at another hearing of the same 

                or  a  different  proceeding,  or  in  a  deposition  taken  in 

                compliance with law in the course of another proceeding, if 

                the party against whom the testimony is now offered . . . had 

                an opportunity and similar motive to develop the testimony 

                by direct, cross, or redirect examination.[17] 



The residual  exception  also  allows  for the  introduction  of  an unavailable  declarant's 



former testimony if it is "not specifically covered by any of the  [other] exceptions but 

[has] equivalent circumstantial guarantees of trustworthiness."18  



                In  the  case  of  Hardwick's  grand  jury  testimony,  the  court  of  appeals 



determined that the State lacked the similar motive necessary for the former-testimony 



exception  to  apply  and  that  the  testimony  lacked  the  guarantees  of  trustworthiness 

necessary for the residual exception to apply.19  It affirmed the superior court's exclusion 



of Hardwick's grand jury testimony on these grounds.20  But we find error in the court 



of appeals's reasoning with respect to both exceptions, so we cannot affirm the superior 



court's decision on those grounds.  Instead we affirm the superior court's decision based 



        16      See Alaska R. Evid. 804(a). 



        17      Alaska R. Evid. 804(b)(1). 



        18      Alaska R. Evid. 804(b)(5). 



        19      Wahl v. State, 402 P.3d 4 19, 423-24 (Alaska App. 2017). 



        20      Id.  



                                                  -8-                                               7363 


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

on an element of Rule 804 not considered by the court of appeals - whether Hardwick 



was unavailable.  The superior court did not abuse its discretion when it concluded that 



Hardwick was not unavailable under Rule 804.  On this ground, we affirm the  superior 



court's exclusion of his grand jury testimony. 



        A.     The State Had A Similar Motive When Developing Hardwick's 

               Testimony During The Grand Jury Proceedings. 



               The  State  argues,  as  it  did  successfully before the  court  of  appeals, that 



Hardwick's grand jury testimony was inadmissible under the former-testimony exception 



because the prosecution did not have a similar motive to develop the testimony at that 



time.    Wahl  argues  that  this  court  should  adopt  a  broader  interpretation  of  "similar 



motive" than did the court of appeals.  When an evidentiary ruling "turns on a question 



of law, such as the 'correct scope or interpretation of a rule of evidence,' we apply our 

independent judgment."21  We will "adopt the rule of law that is 'most persuasive in light 



of reason, precedent and policy.' "22 



               Though we have not previously considered how to determine whether a 



party had a similar motive to develop testimony at a prior proceeding, numerous federal 



courts of appeal have analyzed the federal equivalent to this exception, Federal Rule of 

Evidence 804(b)(1).23  As both parties acknowledge, there are two theories these courts 



use to determine whether grand jury testimony was developed with a motive similar to 



        21     Sanders v. State, 364 P.3d 4 12, 4 19-20 (Alaska 2015) (quoting Barton v. 



N. Slop e Borough Sch. Dist., 268 P.3d 346, 350 (Alaska 2012)).  



        22     Id. at 420 (quoting Barton, 268 P.3d at 350).  



        23     Similar  to  Alaska  Evidence  Rule  804(b)(1),  Federal  Rule  of  Evidence 



804(b)(1) permits admission of prior testimony of an unavailable witness if the party 

against whom the testimony is offered "had  .  .  . an opportunity and similar motive to 

develop it by direct, cross-, or redirect examination."  



                                               -9-                                            7363 


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

the prosecution's  at trial.   The Ninth,  Sixth,  and D.C.  Circuits have  adopted  a broad 



interpretation of "similar motive," considering the government's motive to examine a 



witness at a grand jury proceeding as generally similar to the one it has at trial since both 

proceedings are directed at the same issue:  the guilt or innocence of the defendant.24  In 



contrast  the  First  and  Second  Circuits  require  the  government  to  have  a  similar 

intensity  of  motive.25    Noting  that  prosecutors  in  a  grand jury  proceeding  may  not 



necessarily act with adversity toward a witness, these courts have found that prosecutors 



may seek not to discredit a witness and thus lack a similarly intense motivation as they 

would have at trial.26 



               We disagree with this latter approach.  As the Ninth Circuit explained, "the 



requirement of similar 'intensity' of motivation conflicts with the rule's plain language, 

which  requires  'similar'  but  not  identical  motivation."27    The  plain  text  of  Alaska 



Evidence Rule 804(b)(1) requires neither an identical motive nor a similar intensity of 



motive to develop the testimony during a prior proceeding.  Rule 804(b)(1) requires only 



"an opportunity and  similar motive."  Here the  State had the  same motive during the 



grand  jury  proceedings  and  trial:    to  establish  that  Wahl,  and  not  someone  else, 



        24     See  United States v. McFall,  558 F.3d  951,  963  (9th  Cir. 2009);  United 



States v. Foster, 128 F.3d 949, 955-56 & n.6 (6th Cir. 1997); United States v. Miller, 904 

F.2d 65, 68 (D.C. Cir.  1990). 



        25     See United States v. Omar, 104 F.3d 519, 523-24 ( 1st Cir. 1997);  United 



States v. DiNap oli, 8 F.3d 909, 912 & 914-15 (2d Cir.  1993) (en banc). 



        26     Omar,  104 F.3d at 523; DiNap oli, 8 F.3d at 912-13. 



        27     McFall,  558  F.3d  at  963  (citing  DiNap oli,  8  F.3d  at  916  (Pratt,  J., 



dissenting)). 



                                               -10-                                           7363 


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

committed the crime of murder.28  The State has failed to identify any convincing way 



that  its motive  in presenting Hardwick's testimony  during the  grand jury proceeding 



would have differed from its motive to cross-examine him at trial. 



                We  therefore  conclude  that  the  court  of  appeals  erred  in  affirming  the 



superior  court  when  it  ruled  that  the  grand jury  testimony  was  inadmissible  under 



Rule 804(b)(1) for lack of similar motive.  



        B.      It Was  Legal Error  To  Use A  Heightened  Standard  When  Holding 

                That Hardwick's  Testimony  Could Not Be Admitted Under Alaska 

                Evidence Rule 804(b)(5). 



                The  superior court also ruled that Hardwick's grand jury testimony was 



inadmissible under  the  residual  exception,  and  the  court  of  appeals  affirmed,  in part 



because the grand jury testimony was not "so trustworthy that adversarial testing would 

add little to its reliability."29  Wahl contends that the  standard applied by the court of 



appeals  is  inconsistent  with  our precedent,  raising  a  question  of  law  that  we  review 



           30 

de novo.       



        28       Cf .  Id.,  558  F.3d  at  963  (holding  that  "the  government's  fundamental 



obj ective in questioning [a witness] before the grand jury was to draw out testimony that 

would support its theory that  [the  defendant]  conspired with  [the witness] to  commit 

extortion - the same motivation it possessed at trial"); Miller, 904 F.2d at 68 (holding 

that  the  trial  court  abused  its  discretion  by  excluding  grand  jury  testimony  when 

"[b]efore the grand jury and at trial, [the witness's] testimony was to be directed to the 

same issue - the guilt or innocence of [the defendants]"). 



        29       Wahl v. State, 402 P.3d 4 19, 424 (Alaska App. 2017) (citation omitted).  



        30      See Mengisteab  v.  Oates,  425  P.3d  80,  85  (Alaska  2018)  ("We  review 



de novo whether the trial court applied the correct legal standard."). 



                                                  -11-                                                7363 


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

                Though the text of Rule 804(b)(5) does not distinguish between the parties 

offering the evidence, we recognized in Sanders v. State that the Confrontation Clause31 



                                                                             32  Thus the heightened 

might be implicated by evidence introduced via Rule 804(b)(5). 



                                                                                                       33 

standard applies when the State offers hearsay evidence against a criminal def endant.                     



But when a criminal defendant proffers hearsay evidence under 804(b)(5), the evidence 



need only have " 'circumstantial guarantees of trustworthiness' that are 'equivalent' to 



the guarantees of trustworthiness that justify the enumerated hearsay exceptions when 

the declarant is unavailable."34  As it was Wahl who  sought to introduce Hardwick's 



testimony, the superior court committed legal error by applying too high a standard for 



him to overcome. 



        C.      Hardwick Was Not Unavailable For The Purposes Of Alaska Rule Of 

                Evidence 804(b). 



                The superior court additionally concluded that Rule  804(b)(1)'s former- 



testimony exception did not apply because there was insufficient evidence to show that 



Hardwick was "unavailable" as the exception requires.  The court of appeals, however, 



affirmed the superior court's decision based on its analysis of "similar motive" and did 



                                                           35 

not  decide  whether  Hardwick  was unavailable.                Because  we  have  decided  that  the 



        31      U.S.  Const.  amend. VI  ("In  all  criminal prosecutions, the  accused  shall 



enj oy the right . . . to be confronted with the witnesses against him . . . ."); Alaska Const. 

art.  I,    11  ("The  accused  is  entitled  .  .  . to be  confronted with the witnesses  against 

him."). 



        32      Sanders v. State, 364 P.3d 4 12, 424-25 (Alaska 2015). 



        33      See Idaho v.  Wright, 497 U.S. 805, 82 1-22 (1990). 



        34      Sanders, 364 P.3d at 425 (quoting Alaska R. Evid. 804(b)(5)). 



        35       Wahl v. State, 402 P.3d 4 19, 422 (Alaska App. 2017). 



                                                  -12-                                               7363 


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

former-testimony exception otherwise applies, we must consider whether we can affirm 



the superior court's judgment based on its analysis of Hardwick's unavailability.  



                 We review the superior court's exclusion of evidence, including witness 

                                         36  "We will find an abuse of discretion upon a showing 

testimony, for abuse of discretion. 



that a decision was 'arbitrary, capricious, manifestly unreasonable, or stemmed from an 

improper motive.' "37  Here we hold that the superior court did not abuse its discretion 



when it determined that Wahl had not used reasonable means to procure Hardwick's 



testimony. 



                 In order for the former-testimony exception to apply, the declarant must be 

"unavailable."38  As relevant here, Rule 804 provides that a declarant is unavailable if 



"the declarant . . . is absent from the [trial] and the proponent of the declarant's statement 



has been unable to procure the declarant's attendance . . . by reasonable means including 



            39 

p rocess."     The  court  of  appeals  has previously  noted  that  "[n]othing precludes  the 



defense from seeking state assistance in finding an absent witness," holding that such a 



                                                                                                        40 

request or use of the Uniform Act may be necessary to deem a witness unavailable.                           



The same reasoning applies here. 



                 The superior court found that Wahl's means were insufficient because he 



had not sought assistance from the state, used the Uniform Act, or requested additional 



time to  secure  Hardwick's presence.   The  court recognized that Wahl had  contacted 



        36      Lindbo v. Colaska, Inc., 4 14 P.3d 646, 650 (Alaska 2018). 



        37      Id. at 651 (quoting Tracy v. State, Dep 't of  Health & Soc. Servs., Off ice of 



 Children 's Servs., 279 P.3d 613, 616 (Alaska 2012)).   



        38       Alaska R. Evid. 804.  



        39       Alaska R. Evid. 804(a)(5) (emphasis added). 



         40      See Morton v. State, 684 P.2d  144,  147 (Alaska App.  1984).  



                                                   -13-                                               7363 


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

individuals in Florida at locations where Hardwick had previously frequented, identified 



a traffic ticket issued to Hardwick in Jacksonville, and believed that the State would call 



Hardwick as a witness.  But it also noted that "when [Wahl's] effort became unfruitful, 



[he] neither asked for state or local police help, nor used the terms of [the Uniform Act]."  



               This finding is amply supported by the record.  Throughout the four years 



preceding  the  trial,  Wahl  refrained  from  taking  advantage  of  the  state's  and  court's 



resources to locate an important witness, even when his own efforts were unsuccessful.  



Thus we cannot say that the superior court abused its discretion when it determined that 



Wahl had failed to use reasonable means to procure Hardwick's testimony and denied 



admission of the grand jury testimony on this ground.   



IV.     CONCLUSION 



               The  superior  court  reasonably  concluded  that  Alaska  Evidence  Rule 



804(b)(1) and (b)(5) did not apply to the hearsay evidence in question because Hardwick 



was not unavailable, as required for either exception.  We AFFIRM the superior court's 



judgment on this ground. 



                                              -14-                                           7363 


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

CARNEY, Justice, with whom WINFREE, Justice, j oins, dissenting. 



                 I agree with the court that the former-testimony exception does not require 



the  opposing  party  to  have  had  an  identical  motive  to  develop  the  testimony  in  the 



previous proceeding.  But I believe the trial court abused its discretion when it held that 



Hardwick was not unavailable  as a witness because Wahl had not taken measures to 



locate Hardwick that the trial court recognized would be futile.  I therefore respectfully 



dissent. 



                 As the court notes, there was a four-year-long delay between Wahl's arrest 



                1 

and his trial.   The defense investigator initially searched for Hardwick, and after being 



unable to  locate him  concluded that he had  died.  Years  later,  in anticipation  of trial 



beginning, the investigator resumed the search for Hardwick.  



                 The investigator "searched death records and various databases," "contacted 



former  addresses,  employers,  a  potential  family  member,"  and  the  Florida  defense 



                                                                                                             2 

agency that had represented Hardwick in the intervening years, "all without success."   



After learning that Hardwick had been cited for a traffic offense a few weeks before trial, 



the investigator left messages for the Florida police officer who had issued the ticket.  



But  that  officer  never  responded.    In  addition,  the  investigator's  attempts  to  find 



Hardwick via social media were unsuccessful.  



                                                                                  3 

                 Wahl's defense attorney also informed the trial court  that because the State 



had  listed  Hardwick  on  its  witness  list,  she  had  presumed  that  the  State  knew  his 



location.  She informed the court that when her investigator had been unable to locate 



Hardwick, she had asked the assigned prosecutor for Hardwick's contact information.  



         1       See Opinion at 2. 



         2       Id. at 3. 



        3        The trial court accepted this statement as the attorney's offer of proof.  



                                                    -15-                                                  7363 


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

In response, the prosecutor informed the defense attorney that the State had also been 



unable to locate him.  



                 Following a lengthy evidentiary hearing, the trial court "note[d] . . . seeking 



the [S]tate's help in this case might have been futile, given the available information the 



[S]tate had."  It further recognized that the defense "undertook some reasonable steps to 



find . . . Hardwick."  But the trial court concluded that the defense had not shown that 



                                                                                                    4 

Hardwick  was  unavailable  because  it  had  not  made  use  of  the  Uniform  Act,   "even 



[though] it [was] a long shot."  



                 The trial court's decision rested on its misreading of the court of appeals' 



                                  5 

decision in Morton v. State  - a misreading that this court now embraces.  The Morton 



court held that the trial court had not abused its discretion when it held that the witness 



was not unavailable because the defendant "had not shown due diligence in trying to 



locate" the witness by only making a single phone call to a number in Hawaii in the sixty 

days since last contacting the witness.6  The trial court had specifically "indicated that 



the defendant should have at least attempted to obtain a subpoena in Hawaii."7 



                 On those facts the court of appeals was "satisfied that  [the court] did not 



                                                       8 

abuse [its] discretion in making this finding"  - that is, that the trial court's decision was 



        4        Uniform Act to Secure Attendance of Witnesses in Criminal Proceedings, 



AS  12.50.010-.080.  



         5       684 P.2d  144 (Alaska App.  1984). 



         6       Id. at  146. 



         7       Id. 



         8       Id. 



                                                    -16-                                                  7363 


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

                                                                                                             9 

not "arbitrary, capricious, manifestly unreasonable, or stemmed from improper motive."   



In support of its approval of the trial court's decision, the court of appeals listed the many 



things that Morton had not done to try to locate the witness:  despite knowing the witness 



was likely in Kona or Maui, Hawaii, the defense in Morton did not attempt to contact the 



police or serve a subpoena in either place; it did not check for a forwarding address from 



Alaska to Hawaii; and the defense did not check with the union to which it knew the 

witness belonged.10  The court of appeals then stated that a defendant is "required to do 



more than [Morton] did to establish due diligence.  Nothing precludes the defense from 

seeking state assistance in finding an absent witness."11  The court found no abuse of 



discretion by  the  trial  court because  Morton had not  sought  the  State's  assistance  in 

locating  the  witness  after  his  single  phone  call  had  been  unsuccessful.12    Of  note, 



however, is the court of appeals' specific concession that if Morton had sought assistance 



from  the  State,  or  the  court,  and  the  State  had  failed  to  find  the  witness,  "we  might 



                                                                                                          13 

conclude that [Morton] had done all that was necessary to find the absent witness."                           



                 Wahl not only did much more than the Morton court believed a defendant 



should do to locate a witness, he notified the court that the  State itself was unable to 



locate  Hardwick.    Given  the  greater  resources that  the  State  had  employed  without 



success, the trial court acknowledged that requiring Wahl to invoke the Uniform Act 



         9       Lindbo v. Colaska, Inc., 4 14 P.3d 646, 651 (Alaska 2018) (quoting Tracy 



v. State, Dep 't of  Health & Soc. Servs., Off ice of  Children's Servs., 279 P.3d 6 13, 6 16 

(Alaska 2012)). 



         10      Morton, 684 P.2d at  146-47. 



         11      Id. at  147. 



         12      Id. 



         13      Id. 



                                                    -17-                                                  7363 


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

might have been  "futile."  But the  court nonetheless held that because Wahl had not 



taken  this  futile  action,  he  had  not  shown  that  Hardwick  was  unavailable.    That 



conclusion was manifestly unreasonable in the face of the facts that Wahl had presented.  



              I would therefore reverse the trial court's  conclusion that Wahl had not 



shown that Hardwick was unavailable, and remand for a new trial at which Hardwick's 



grand jury testimony would be admitted. 



                                             -18-                                        7363 

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