Summary
The Alaska Supreme Court considered whether a murder defendant could introduce an unavailable witness's grand jury testimony under Alaska Evidence Rule 804. The court held that the State had a sufficiently similar motive to develop the testimony during the grand jury proceedings and that the lower court applied an overly demanding standard to the residual hearsay exception. However, the court affirmed the exclusion because the defendant had not used reasonable means to procure the witness's attendance and therefore had not established unavailability.
Topics
Practice areas
Questions Presented
- Whether Alaska Evidence Rule 804(b)(1) requires the opposing party to have had an identical or similarly intense motive, rather than merely a similar motive, to develop testimony during the prior proceeding.
- Whether the State had a similar motive to develop Hardwick's testimony before the grand jury and at trial.
- Whether the superior court applied an improperly heightened trustworthiness standard to Wahl's proffer under Alaska Evidence Rule 804(b)(5).
- Whether Wahl established that Hardwick was unavailable under Alaska Evidence Rule 804(a)(5) by showing that he had been unable to procure Hardwick's attendance through reasonable means.
Holdings
- The former-testimony exception requires a similar motive to develop the testimony, but not an identical motive or a similar intensity of motive.
- The State had a similar motive during the grand jury proceedings and at trial because its motive in both proceedings was to establish that Wahl, rather than someone else, committed the murder.
- When a criminal defendant offers hearsay under Rule 804(b)(5), the evidence need only have circumstantial guarantees of trustworthiness equivalent to those supporting the enumerated unavailable-declarant exceptions; the heightened Confrontation Clause standard applies when the State offers hearsay against a criminal defendant.
- Wahl did not establish that Hardwick was unavailable because he failed to use reasonable means to procure Hardwick's attendance, including seeking state or local police assistance, using the Uniform Act, or requesting additional time.
Key quotations
“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.” (at 429)
“Here the State had the same motive during the grand jury proceedings and trial: to establish that Wahl, and not someone else, committed the crime of murder.” (at 429)
“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.” (at 430)
“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.” (at 431)
Factual background
Elisa Orcutt was murdered in June 2009, and police arrested Kenneth Wahl, who had suggested that investigators examine his acquaintance Lewis Hardwick. Hardwick testified before the grand jury about his relationship with Wahl and their activities during the weekend of the murder. At Wahl's 2013 trial, Hardwick could not be located; although the defense investigator searched records, databases, former addresses, employers, a possible family member, a Florida public defender agency, traffic-ticket information, and social media, Wahl did not request state or local police assistance, use the Uniform Act to Secure Attendance in Criminal Proceedings, or seek a continuance.
Procedural history
Wahl was tried in the superior court for first- and second-degree murder and sought to introduce Lewis Hardwick's grand jury testimony after Hardwick could not be located. The superior court excluded the testimony, ruling both that the State lacked a similar motive to develop it before the grand jury and that Wahl had not shown Hardwick was unavailable through reasonable means. The Court of Appeals affirmed based on the similar-motive rationale and did not reach unavailability. The Alaska Supreme Court rejected the similar-motive and residual-exception reasoning but affirmed on the superior court's independent finding that Wahl had not used reasonable means to procure Hardwick's attendance.