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              IN THE COURT OF APPEALS OF THE STATE OF ALASKA


AARON L. ARREDONDO,
                                                     Court of Appeals No. A-11380
                           Appellant,               Trial Court No. 3AN-11-3873 CR

                    v.
                                                             O P I N I O N
STATE OF ALASKA,

                           Appellee.                  No. 2581 — January 12, 2018


             Appeal from the Superior Court, Third Judicial District,
             Anchorage, Gregory Miller, Judge.

             Appearances: Callie Patton Kim, Assistant Public Defender,
             and Quinlan Steiner, Public Defender, Anchorage, for the
             Appellant. Terisia K. Chleborad, Assistant Attorney General,
             Office of Criminal Appeals, Anchorage, and Craig W. Richards,
             Attorney General, Juneau, for the Appellee.

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

             Judge MANNHEIMER.


             Aaron L. Arredondo appeals his conviction for felony driving under the
influence. Arredondo’s wife Jackie refused to testify at his trial. (She invoked her
spousal immunity privilege under Alaska Evidence Rule 505(a).) But the State called
Jackie’s mother (Arredondo’s mother-in-law) to testify about a conversation she had
with Jackie on the night of this incident. During this conversation with her mother,
Jackie described a statement that Arredondo had made to her — a statement suggesting
that Arredondo had been driving.
             Arredondo’s attorney objected that Jackie’s mother’s testimony on this
subject was (1) inadmissible hearsay and, in any event, (2) protected by the marital
communications privilege codified in Alaska Evidence Rule 505(b). The trial judge
overruled these objections and allowed the State to present this testimony.
             On appeal, Arredondo renews his objections to this testimony — but for the
reasons explained in this opinion, we uphold the trial judge’s rulings and we therefore
affirm Arredondo’s conviction.


      Underlying facts


             In the early morning hours of April 3, 2011, the Anchorage police found
Arredondo’s truck resting on a steep embankment below the freeway exit where
Muldoon Road meets the Glenn Highway. Soon after, the police found Arredondo
walking alone; he had keys to the vehicle in his pocket, and he was intoxicated.
However, Arredondo told the police that the keys in his pocket were not the only keys
to his truck. He stated that he kept a spare set of keys in the vehicle itself, and he
declared that someone else had been driving the vehicle.
             The primary question litigated at Arredondo’s trial was whether Arredondo
was the person who was driving his truck when it skidded off the freeway exit and down
the embankment — or whether (as Arredondo’s attorney argued) it was Arredondo’s
wife Jackie who was driving the truck.




                                         –2–                                      2581

             In fact, this was the primary question litigated at all three of Arredondo’s
trials for this offense. Arredondo’s first two trials ended in mistrials when the jury was
unable to reach a verdict.
             At the third trial, to bolster its case that Arredondo had been driving the
truck, the State called Arredondo’s mother-in-law, Annette McDole, to testify about a
conversation she had with her daughter Jackie (Arredondo’s wife).
             At the time of these events, Arredondo and Jackie were separated, and
Jackie was staying at McDole’s house. According to McDole’s testimony, Jackie woke
up McDole in the early morning hours and reported that Arredondo had just been inside
the house. Jackie told McDole that she had awakened to find Arredondo in her bedroom,
and that Arredondo said that he needed her help — but in response, Jackie told
Arredondo to leave the house.
             (As Arredondo correctly notes in his brief, when the prosecutor made his
offer of proof concerning McDole’s testimony, he made broader assertions about what
Arredondo told Jackie. According to the prosecutor’s offer of proof, Jackie told McDole
that Arredondo asked for her help because he had “wrecked the truck”. And later, when
McDole gave foundational testimony during voir dire examination outside the presence
of the jury, McDole said that Jackie reported that Arredondo asked for help “with his
vehicle”. But when McDole actually testified in front of the jury about her conversation
with Jackie, she never asserted that Arredondo had said anything about wrecking the
truck, or about needing help with his vehicle — only about needing help for some
unspecified purpose.)
             Soon after Jackie had this conversation with her mother, a friend of Jackie’s
arrived at the house. (Apparently, Jackie had already called this friend for assistance
before she woke her mother up.) Jackie, McDole, and Jackie’s friend then drove to



                                          –3–                                        2581

where Arredondo’s truck was resting beside the highway — but the police were already
in the process of impounding it.
              Arredondo’s attorney objected to McDole’s testimony about what Jackie
said during their conversation. The defense attorney argued that McDole’s testimony
was inadmissible hearsay to the extent that it was offered to prove the truth of what
Jackie said. The defense attorney also argued that whatever Arredondo had said to
Jackie was protected by the marital communications privilege codified in Alaska
Evidence Rule 505(b).
              The trial judge overruled both of these objections and allowed McDole to
testify about her conversation with Jackie — including Jackie’s statement that Arredondo
had asked for her help (although the subject of this help remained unspecified).
              The jury convicted Arredondo of driving under the influence, and he now
appeals.


      Arredondo’s hearsay objection to McDole’s testimony


              McDole’s testimony was double hearsay: it was offered to prove (1) that
Jackie had, in fact, had the prior conversation with Arredondo (the conversation she
related to her mother), and (2) that Arredondo had, in fact, asked Jackie for help during
this conversation.
              When this hearsay issue was litigated in the trial court, the judge found that
McDole’s testimony was not barred by the hearsay rule because Jackie’s statements to
McDole fell within the exception for excited utterances codified in Alaska Evidence Rule
803(2).    More specifically, the judge found that, at the time of Jackie’s initial
conversation with McDole, Jackie had just experienced a “startling event” — i.e.,
Arredondo’s early-hour intrusion into her bedroom — and that Jackie “was still under


                                           –4–                                         2581

the stress” of this event when she woke her mother and told her what had happened. We
conclude that the record supports the trial judge’s ruling.
              When hearsay is offered under the excited utterance exception, “the
ultimate question is whether the proponent of the evidence has shown that the
circumstances surrounding the utterance produced a condition of excitement which
temporarily stilled the speaker’s capacity of reflection and produced utterances free of
conscious fabrication.” Sipary v. State, 91 P.3d 296, 305-06 (Alaska App. 2004). This
is a question of fact, and we will uphold the trial judge’s conclusion on this issue unless
that conclusion is shown to be clearly erroneous. Ibid.
              As we have explained, McDole’s daughter Jackie was married to
Arredondo at the time of this incident, but they were separated, and Jackie was living in
McDole’s house. According to McDole’s testimony, Jackie awakened her in the middle
of the night by shaking her and saying, “Mom”.
              Duringher voir dire testimony, McDole described Jackie’s demeanor at the
time as “startled” and “a little shocked”. When McDole was asked whether Jackie was
crying or angry, McDole answered, “She was just startled. ... I think [she was] more
shocked than anything.”
              When Arredondo’s attorney cross-examined McDole outside the presence
of the jury, he asked McDole a series of questions about Jackie’s mental state at the time
of their conversation. But rather than challenge McDole’s assertion that Jackie was
“startled” and “shocked”, the defense attorney only asked McDole to confirm that
Jackie’s emotional reaction was mainly in response to Arredondo’s unexpected
appearance in her bedroom — and not in response to his request for help with his truck:

                      Defense Attorney: Isn’t it true that if [Jackie] was
              startled about anything, it was that Aaron [Arredondo] was in
              the home?


                                           –5–                                        2581

                     McDole: Yeah, it’s a little startling to wake up and
              find someone that shouldn’t be there, standing over you.

                    Defense Attorney: But ... really, [Jackie’s] focus was
              that he was in the house, correct? ... The focus of her
              waking you up was to let you know that Aaron was in the
              house, and she wanted him out of there?

                     McDole: Right.

Thus, the defense attorney did not challenge McDole’s assertion that Jackie was
“startled” and “shocked” when she made the statements.
              Based on this record, we conclude that the trial judge’s finding about
Jackie’s mental state (i.e., Jackie’s mental state at the time of her conversation with her
mother) is not clearly erroneous. We therefore affirm the judge’s ruling that Jackie’s
statements to her mother were admissible as excited utterances.
              (Because we reach this conclusion, we need not address the trial judge’s
other two rationales for finding that McDole’s testimony was admissible hearsay.)


       Arredondo’s argument that McDole’s testimony violated the marital
       communications privilege


              Arredondo argues that even if McDole’s testimony did not violate the
hearsay rule, her testimony nevertheless violated Arredondo’s marital communications
privilege — the privilege codified in Alaska Evidence Rule 505(b).
              Alaska Evidence Rule 505 encompasses two distinct evidentiary privileges
that apply to married couples. Subsection (a) defines the “spousal immunity” privilege
— the right of one spouse to refuse to take the stand in a legal proceeding involving the




                                           –6–                                        2581

other spouse. This privilege belongs solely to the spouse who is being called as a
witness, not the other spouse. 1
              As we explained at the beginning of this opinion, Jackie Arredondo invoked
the spousal immunity privilege and refused to testify at Arredondo’s trial.
              Subsection (b) of Evidence Rule 505 defines a separate and distinct eviden­
tiary privilege — the “marital communications” privilege. This privilege does not give
spouses the right to refuse to take the stand, but it does give spouses the right to refuse
to answer any questions about confidential communications they had with their other
spouse during the marriage — and the right to prevent their spouse from answering such
questions, even if their spouse would otherwise be willing to answer.
              The general rule of privilege is stated in Evidence Rule 505(b)(1):

                    Neither during the marriage nor afterwards shall either
              spouse be examined as to any confidential communications
              made by one spouse to the other during the marriage, without
              the consent of the other spouse.

              As can be seen from the final clause of this definition, the marital
communications privilege belongs to both spouses — both the spouse who is being
examined as a witness and the other spouse. Thus, one spouse can effectively veto the
other spouse’s willingness to testify about their confidential communications.
              Arredondo argues that he was entitled to invoke the marital communi­
cations privilege to prevent his mother-in-law, Annette McDole, from testifying about
her conversation with her daughter Jackie — specifically, the portion of that




   1
       The general rule of privilege is stated in Evidence Rule 505(a)(1): “A husband shall
not be examined for or against his wife, without his consent, nor a wife for or against her
husband, without her consent.”

                                           –7–                                        2581

conversation in which Jackie informed McDole about Arredondo’s statement that he
needed Jackie’s help.
             At first blush, Evidence Rule 505(b) seemingly does not apply to the facts
of Arredondo’s case. The rule declares that a “spouse [shall not] be examined” as to any
confidential communication between them and their spouse. But in Arredondo’s case,
Jackie was not examined regarding any communication she had with Arredondo.
Indeed, Jackie refused to take the stand at all (by invoking her spousal immunity
privilege). The evidence in question was elicited, not through the testimony of Jackie
Arredondo, but rather through the testimony of her mother, Annette McDole.
             Several of the more recent appellate decisions in this area have held that
statutes worded like our Evidence Rule 505(b)(1) apply only when a spouse is examined
about confidential marital communications — and that “the privilege does not prevent
another person from testifying to [these] statements”, nor does it prevent “the
introduction of documents containing references to such communications.” Kenneth S.
Broun et alia, McCormick on Evidence (7th ed. 2013), § 82, Vol. 1, pp. 513-14.
             See Kidd v. State, 955 S.W.2d 505 (Ark. 1997) (holding that a police
detective could testify about the defendant’s wife’s statement to the detective); People
v. Fisher, 503 N.W.2d 50, 56-57 (Mich. 1993) (upholding the admission of the wife’s
statement contained in a pre-sentence report); State v. Clark, 570 N.W.2d 195 (N.D.
1997) (allowing evidence of the wife’s statements to a police officer); State v. Lindley,
502 P.2d 390, 391-92 (Or. App. 1972) (same: wife’s statements to a deputy sheriff)
(relying on the Oregon Supreme Court’s decision in State v. Wilkins, 142 P. 589, 590
(Or. 1914)); State v. Bonaparte, 660 P.2d 334, 336 (Wash. App. 1983) (allowing
evidence of the wife’s statements to a third person).
             Although these decisions are based on statutes or rules that are worded like
our Evidence Rule 505(b)(1), we also note that Alaska has a separate rule, Evidence Rule


                                          –8–                                       2581

511, that forbids the admission of privileged communications if they were disclosed
“without opportunity to claim the privilege”. With regard to the marital communications
privilege, both spouses hold the privilege. Thus, if Jackie disclosed privileged matters
to her mother in circumstances where Arredondo had no opportunity to object, one could
argue that the privilege had been breached without Arredondo’s having the “opportunity
to claim the privilege”.
              We say only “one could argue”, because the meaning of Evidence Rule 511
in this context is itself problematic. Here, Arredondo surprised his estranged wife by
appearing unannounced (and uninvited) in her bedroom. Even if Arredondo had
remained in the house and had accompanied Jackie when she went upstairs to waken and
alert her mother, and even if Arredondo had been present when Jackie began telling her
mother about what Arredondo said in the bedroom, it is unclear whether Arredondo
could “claim the privilege” and stop Jackie from talking to her mother, or “claim the
privilege” and prospectively prevent his mother-in-law from testifying later about what
Jackie told her.
              We leave these matters undecided because we conclude that we can resolve
Arredondo’s case without resolving these questions.
              Arredondo does not contend that his marital communications privilege
would prevent McDole from testifying that Jackie woke her up in the middle of the night,
or from testifying that Jackie reported that she had awakened to find Arredondo in her
bedroom. Arredondo argues only that his assertion of the marital communications
privilege should have barred McDole from testifying “about Jackie’s statement ... that
Arredondo had asked for her help with his vehicle.”
              As we have already explained, McDole did not testify that Arredondo asked
Jackie for help “with his vehicle”. This is what McDole said during her foundational



                                          –9–                                       2581

testimony outside the presence of the jury. But when McDole testified in front of the
jury, she said only that Arredondo asked Jackie “for help”.
              Nevertheless, if (as Arredondo argues) the marital communications
privilege applied in this situation, then McDole would arguably be prohibited from
offering even this truncated version of Arredondo’s statement to Jackie.
              But we conclude that the marital communications privilege does not apply
to Arredondo’s statement to Jackie about needing her help.
              The marital communications privilege defined in Evidence Rule 505(b)(1)
applies only to confidential communications between the spouses. Evidence Rule 505
itself does not contain a definition of “confidential communication”, but the commentary
to Evidence Rule 505(b)(1) declares that this phrase “is analogous to a similar concept
[defined] in [the] lawyer-client and [the] physician/psychotherapist-patient privileges”
— i.e., it is analogous to the definitions of “confidential communication” found in
Evidence Rule 503(a)(5) and Evidence Rule 504(a)(4).
              Evidence Rules 503(a)(5) and 504(a)(4) both codify the principle that a
communication is “confidential” only if the speaker does not intend for the statement to
be disclosed to persons outside the umbrella of privilege. And, indeed, the marital
communications privilege has long been construed in accordance with this principle.
              As McCormick on Evidence explains, even when a marital communication
takes place when only the two spouses are present, “a variety of factors, including the
nature of the message or the circumstances under which it was delivered, may serve to
rebut a claim that confidentiality was intended.” Kenneth S. Broun et alia, McCormick
on Evidence (7th ed. 2013), § 80, Vol. 1, p. 508. Thus, for example, the privilege does
not apply to communications that relate to business transactions where one spouse will
transact the business, or will otherwise deal with third parties, as the agent of the other
spouse. Id. at 509-510.


                                          – 10 –                                      2581

             See Schmied v. Frank, 1882 WL 6459 (Ind. 1882), where the Indiana
Supreme Court held that the privilege did not apply to a wife’s testimony that she
authorized her husband to buy a commercial note as her agent. The court noted that a
husband’s authority to act on his wife’s behalf “is not confidential, nor [is it] intended
to be private.” Rather, the husband’s authority was “intended to be known and would
be worthless unless known”. Id. at *5.
             See also People v. Byrd, 525 N.W.2d 507, 509 (Mich. App. 1994) (holding
that a husband’s statements to his wife, delegating to her the authority to sell his
marijuana to a third person, were not confidential, and thus not within the privilege);
Lurty’s Curator v. Lurty, 59 S.E. 405, 407 (Va. 1907) (holding that a husband’s account
of the money owed to his wife from the sale of their joint property was not privileged).
             In Arredondo’s case, the trial judge could reasonably find that Arredondo’s
request for his wife’s help with his vehicle was not intended to stay private between the
two of them. According to the testimony, the vehicle was restingon a steep embankment
and it could not be removed without towing equipment. Clearly, Arredondo’s wife was
not going to locate the truck without Arredondo’s assistance, nor could she remove the
vehicle single-handedly. Rather, it was reasonable to conclude that Arredondo was
seeking his wife’s aid in summoning and dealing with third parties who could retrieve
the vehicle — so that Arredondo would not have to risk self-incrimination by doing this
himself.
             This conclusion is supported by the State’s offer of proof in the trial court.
According to the prosecutor’s offer, Jackie and her mother, Annette McDole, showed up
at the site of the accident while the police were still there, getting ready to impound
Arredondo’s truck. Jackie told the officer, “That’s my truck” — and when the officer
asked her what she meant by that statement, Jackie told the officer that Arredondo had
asked for her help with his truck.


                                          – 11 –                                      2581

              Given these facts, Arredondo’s request for Jackie’s help was essentially a
delegation of authority in any dealings with third parties, and not a confidential
communication. For this reason, we uphold the trial judge’s ruling that the marital
communications privilege did not bar McDole from testifyingabout Arredondo’s request
for Jackie’s help.
              We note one other rationale for allowing McDole to testify about
Arredondo’s statement to Jackie: at Arredondo’s trial, his defense attorney wished to use
the marital privilege as a sword rather than a shield.
              The evidence was uncontradicted that Jackie showed up at the scene of the
accident while the police were conducting their investigation. Arredondo’s attorney
based his trial strategy on the fact that there was no direct evidence concerning how
Jackie knew that Arredondo’s truck would be at that location, or how she knew that
intervention was required. Arredondo’s attorney took advantage of this evidentiary gap
by expressly arguing to the jury that Jackie was the one who drove the truck off the
highway exit and down the embankment:

                     Defense Attorney: Jackie operated the truck. She
              arrived at the scene; how does she know [where the truck
              was]? Because she was the one who drove the truck. She’s
              going through a divorce. ... We don’t know why people do
              things that they do. ... [But] we do know ... , through
              Ms. McDole’s testimony, [that Jackie has] knowledge of the
              spare keys in the truck. She wakes up Mrs. McDole, tells
              [her that] Aaron needs help, and he was in my bedroom. Then
              she takes [McDole] to the scene. ...

                    [Jackie] made a phone call to her friend before she
              woke up her mother, then they [all] go to the scene. Now
              how does [Jackie] know where the truck is? Because that’s
              who crashed the truck — her and her friend, Sarah. You
              heard the 911 recording, the woman on the phone said

                                          – 12 –                                    2581

              “they”: “they” may have been driving under the influence;
              I saw “them” drive off the road.

                     This is why Aaron Arredondo’s not guilty.

              Courts have long held that litigants should not be allowed to use
evidentiary privileges in ways that affirmatively distort the fact-finding process. “The
privilege may implicitly be waived when [a] defendant asserts a claim that in fairness
requires examination of protected communications.” United States v. Bilzerian, 926 F.2d
1285, 1292 (2nd Cir. 1991); see also Clark v. United States, 289 U.S. 1, 15; 53 S.Ct. 465,
469; 77 L.Ed. 993 (1933) (“The privilege takes flight if the relation is abused.”).
              Thus, a party waives the marital communications privilege if the party
“injects a matter that, in the context of the case, creates such a need for the opponent to
obtain the information allegedly protected by the privilege that it would be unfair to
allow that party to assert the privilege”. State Farm Mutual Auto. Ins. Co. v. Lee, 13
P.3d 1169, 1178 (Ariz. 2000). Similarly, a party waives the privilege if the party
“selectively disclose[s] part of a privileged communication in order to gain an advantage
in litigation”. S.E.C. v. Lavin, 111 F.3d 921, 933 (D.C. Cir. 1997).
              In the present case, Arredondo asserted his marital communications
privilege for the purpose of excluding evidence that would have helped to explain how
Jackie came to know that Arredondo’s truck was sitting disabled on the highway
embankment — thus allowing the defense attorney to argue that Jackie’s unexplained
presence at the accident scene showed that she was the one who drove the truck off the
highway and down the embankment.
              (The defense attorney had made this same argument at both of Arredondo’s
earlier trials — the two trials that ended in a mistrial when the jury was unable to reach
a verdict.)


                                          – 13 –                                      2581

              Under these circumstances, even if we assume that Arredondo’s marital
communications privilege might otherwise have given him the right to prevent McDole
from testifying about her conversation with Jackie (to the extent that Jackie revealed
Arredondo’s communications to her), Arredondo’s litigation strategy worked a waiver
of that privilege. For this reason as well, we uphold the trial judge’s ruling on the marital
communications privilege.


       Conclusion


              The judgement of the superior court is AFFIRMED.




                                           – 14 –                                       2581

