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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA


ROBERT JAMES LUCH,
                                                      Court of Appeals No. A-11756
                            Appellant,              Trial Court No. 3AN-10-11122 CR

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

                            Appellee.                  No. 2586 — January 19, 2018


              Appeal from the Superior Court, Third Judicial District,
              Anchorage, Jack W. Smith, Judge.

              Appearances: Phillip Paul Weidner and A. Cristina Weidner
              Tafs, Weidner & Associates, Anchorage, for the Appellant.
              Diane L. Wendlandt, Assistant Attorney General, Office of
              Criminal Appeals, Anchorage, and Craig W. Richards, Attorney
              General, Juneau, for the Appellee.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
              Superior Court Judge. *

              Judge MANNHEIMER.


              Robert James Luch was convicted of first-degree murder for shooting and
killing his wife, Jocelyn. In this appeal, Luch argues that the trial judge committed error


   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
by failing to instruct the jury on the defense of heat of passion. Luch also contends that
the trial judge made several erroneous evidentiary rulings at his trial.
              For the reasons explained in this opinion, we conclude that none of Luch’s
claims have merit, and we therefore affirm his conviction.


       Underlying facts


              In the summer of 2010, Robert Luch and his family — his wife Jocelyn and
their four children (Brent, Delia, Letitia, and Marcelyn) — moved back to Anchorage
from their winter home in Arizona. One night in June, Luch awakened and noticed that
the telephone was in use. When he picked up the receiver, Luch discovered that his wife
Jocelyn was speaking with a man — Bryan Fuqua. Luch exchanged words with Fuqua.
During their short but heated conversation, Fuqua indicated that his relationship with
Jocelyn either was, or would shortly become, sexual. After hearing this, Luch hung up
the phone. He woke up the children, and he angrily accused Jocelyn of having an affair.
              During the next several months, the family lived in a state of uneasy
tension. Luch and Jocelyn spoke little, and Jocelyn began staying out late, sometimes
not coming home until the following day. The couple’s daughter Marcelyn later told the
police that, during this period, Luch repeatedly threatened to kill both Jocelyn and the
man he believed she was seeing.
              In August, two of the Luchs’ children (Delia and Letitia) moved back to
Arizona to attend college. This left four people in the Anchorage household: Luch,
Jocelyn, and their children Marcelyn and Brent.
              On September 17, 2010, Luch purchased a handgun, purportedly for
protection at the family cabin near Sutton. Luch did not inform Jocelyn of this purchase;
the only other family member who knew about the gun was Luch’s son Brent.

                                           –2–                                       2586

              Eleven days later, on the morningof September 28, 2010, Luch learned that
a car he had loaned to his daughter Delia had been impounded in Arizona. Luch was
incensed, and he began yelling at Delia on the telephone. Brent overheard this
conversation and tried to calm things down, but Luch turned on Brent, and a fist fight
ensued. Luch’s daughter Marcelyn eventually intervened and stopped the fight, but Luch
was still angry.
              Luch then drove to the hotelwhere his wife Jocelyn worked and tried to see
her, purportedly so that he could tell her about the impoundment of Delia’s car and his
fight with Brent. When Jocelyn could not leave her work station immediately, Luch
parked his vehicle behind the hotel and waited for several hours, becoming angrier as
time passed. Eventually, Luch drove home without Jocelyn, and Brent and Marcelyn
later picked Jocelyn up.
              That same night, Marcelyn and Jocelyn were scheduled to run in a race
held at Kincaid Park. A friend of Jocelyn’s, a runner named Steve Crook, came to pick
them up. At the last minute, Marcelyn decided not to go.
              When Luch learned that Marcelyn had not accompanied Jocelyn to the race,
he insisted that Marcelyn go with him to Kincaid Park to confirm that Jocelyn was
actually at the race. At the park, they stood near the finish line and watched as hundreds
of racers crossed the finish line, but they did not see Jocelyn.
              Once the race was over, Marcelyn called Jocelyn on her cell phone.
Jocelyn said that she was at a nearby bunker. (Kincaid Park was built on the site of a
former missile installation.) Marcelyn suggested to Luch that he drive to the bunker
while she walked over there and found Jocelyn. But as Marcelyn was walking toward
the bunker, Jocelyn spoke to her again on the phone: Jocelyn corrected herself and said
that she was not at the bunker, but rather at the adjacent Kincaid chalet. Marcelyn was



                                           –3–                                       2586

unable to inform Luch of this new information because she (Marcelyn) had his cell
phone.
             Marcelyn went to the chalet and found her mother, but Luch did not arrive
to pick them up. Luch had apparently driven around the Kincaid parking lot, honking
repeatedly and becoming increasingly agitated, until finally he drove home alone.
             When Jocelyn and Marcelyn realized that Luch was not coming for them,
Marcelyn called her brother Brent, who came and picked them up.
             When Jocelyn and the children arrived home, Luch was sitting in his
recliner in the downstairs living room. He repeatedly accused Jocelyn of not having run
the race.
             Brent and Marcelyn soon went to their bedrooms upstairs. Jocelyn also
went upstairs and began preparing for bed. Luch came upstairs and confronted her —
accusing her of lying about participating in the race, and accusing her of seeing another
man. Jocelyn assured Luch that she had been at the race, and she denied any
wrongdoing, but Luch was not convinced. He went downstairs to the garage, where he
retrieved the newly purchased handgun from a locked storage room. He then went back
upstairs.
             According to Luch’s testimony at trial, he did not retrieve the gun with the
intent of harming his wife. Rather, Luch told the jury that he intended to use the gun
“to posture, to stage.” Luch testified that, by simply displaying the gun to Jocelyn, he
hoped to convince her that he was willing to shoot any man she was seeing, so that she
would then “relay a message” to this man.
             By the time Luch returned upstairs, Jocelyn had gone into the bathroom.
Luch followed her there. Shortly thereafter, Marcelyn heard Jocelyn say, “Don’t push
me” — and then she heard two gunshots. Marcelyn and Brent rushed into the hallway,



                                          –4–                                       2586

and Marcelyn saw Luch leave the bathroom and go downstairs carrying the handgun.
Luch said nothing to his children.
              The children had to force their way into the bathroom because Jocelyn’s
body was blocking the door. Jocelyn was still alive, but she was bleeding from two
gunshot wounds. Brent located Jocelyn’s cell phone and called 911.
              The police arrived within minutes. Anchorage Police Officer Mark Bakken
entered the house and stayed with Jocelyn until an ambulance arrived. During that brief
conversation, Jocelyn told the officer that Luch had shot her because she wanted to
divorce him and she refused to return to Arizona with him.
              While this was happening, Luch took the handgun back to the storage room
of the garage, and he then left the house. The police found Luch walking down the
street. Luch told them, “I’m the one you want.”
              Jocelyn was taken to the hospital, but she died from her wounds. Luch was
indicted for this homicide under alternative theories of first- and second-degree murder.


       Luch’s claim that he was entitled to a jury instruction on the defense of
       heat of passion


              Luch contends that the trial judge committed error by rejecting his
attorney’s request for a jury instruction on the defense of “heat of passion”. We will first
describe the law in Alaska regarding heat of passion, and then we will explain why Luch
was not entitled to a jury instruction on this defense.


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


              The defense of heat of passion is defined in AS 11.41.115. This statute
declares that heat of passion is a partial defense to two types of murder:

                                           –5–                                         2586

       •	 a homicide charged under AS 11.41.100(a)(1)(A) — i.e., an intentional killing
          that would otherwise be first-degree murder, or
       •	 a homicide charged under AS 11.41.110(a)(1) — i.e., a killing that would
          otherwise be second-degree murder because it resulted from an assault where
          the defendant intended to inflict serious physical injury, or where the
          defendant knew that the assault was substantially certain to cause death or
          serious physical injury.
              The defense of heat of passion applies to instances where the defendant
“acted in a heat of passion ... result[ing] from a serious provocation by the intended
victim”, and where the defendant assaulted the victim “before there [was] a reasonable
opportunity for the passion to cool”. AS 11.41.115(a).
              For purposes of the heat of passion defense, the term “serious provocation”
is defined to mean “conduct ... sufficient to excite an intense passion in a reasonable [and
unintoxicated] person in the defendant’s situation, ... under the circumstances as the
defendant reasonably believed them to be”. AS 11.41.115(f)(2). However, the statute
limits the scope of “serious provocation” by adding that “insulting words, insulting
gestures, or hearsay reports of conduct engaged in by the intended victim do not, alone
or in combination with each other, constitute serious provocation.” Ibid.
              Although heat of passion is a defense to first-degree murder charged under
AS 11.41.100(a)(1)(A) or second-degree murder charged under AS 11.41.110(a)(1), it
is only a partial defense. Heat of passion does not exonerate the defendant; instead, it
reduces the crime to manslaughter. See AS 11.41.115(e).
              Moreover, because the heat of passion statute declares that this defense
applies only to charges of first-degree murder under AS 11.41.100(a)(1)(A) and charges
of second-degree murder under AS 11.41.110(a)(1), Luch could only claim heat of
passion with respect to one of the murder charges against him.

                                           – 6 –	                                      2586

              Luch was indicted for first-degree murder under AS 11.41.100(a)(1)(A),
so the heat of passion defense potentially applied to that charge. But Luch was indicted
for second-degree murder, not under AS 11.41.110(a)(1), but rather under
AS 11.41.110(a)(2) — i.e., causing Jocelyn’s death while engaging in conduct
manifesting an extreme indifference to the value of human life. The defense of heat of
passion does not apply to charges under this subsection of the second-degree murder
statute.


              (b) There was insufficient evidence that Luch was subjected to a
           “serious provocation” within the meaning of the heat of passion statute


              A defendant is entitled to have the jury instructed on a defense if the
defendant presents “some evidence” of that defense. In this context, the phrase “some
evidence” is a term of art. It means evidence which, if viewed in the light most favorable
to the defendant, is sufficient to allow a reasonable juror to find in the defendant’s favor
on every element of the defense. 1
              As we explained in the preceding section of this opinion, the elements of
the defense of heat of passion are (1) that Luch shot his wife “in a heat of passion”,
(2) that this passion was the result of a “serious provocation” (as that phrase is defined
in the statute), and (3) that Luch shot his wife before there was a reasonable opportunity
for his passion to cool.
              Even when the evidence in this case is viewed in the light most favorable
to Luch’s proposed defense, there was insufficient evidence that Luch was subjected to
a “serious provocation”.


   1
      Dandova v. State, 72 P.3d 325, 332 (Alaska App. 2003); Lacey v. State, 54 P.3d 304,
308 (Alaska App. 2002).

                                           –7–                                         2586

              The governing statute, AS 11.41.115(f)(2), defines “serious provocation”
as “conduct ... sufficient to excite an intense passion in a reasonable [and unintoxicated]
person in the defendant’s situation, ... under the circumstances as the defendant
reasonably believed them to be”. Here, the alleged “serious provocation” was the
purported fact that Luch’s wife was having an affair.
              As we explained earlier in this opinion, there was evidence that, several
months before the shooting, Luch learned that his wife might have been having an affair
— in particular, the testimony about the overheard phone call, and about Jocelyn’s
refusal to explain why she was spending several nights a week away from the marital
home.
              But in Luch’s trial testimony, he conceded that his relationship with his
wife was significantly better in the two months immediately preceding the shooting. And
there was no evidence that Luch knew or even reasonably believed at the time of the
shooting that Jocelyn was having an affair. There was plenty of evidence that Luch
suspected that his wife was having an affair at that time, but even Luch conceded in his
trial testimony that he did not know whether his suspicions were well-founded.
              At trial, Luch’s attorney asked him whether his suspicions intensified on
the day of the killing (September 28, 2010), after Luch went to pick up Jocelyn from
work and ultimately left without her. Luch’s attorney asked him, “At [that] point, are
you thinking she’s cheating?”, Luch responded:

                     Possibly. I — I don’t want to believe that. I want to
              trust my wife very badly. ... I want to believe the best
              scenario, so I’m trying to resist going that direction in my
              thought. But there’s, of course, there’s a, there’s some
              doubts. I’m not sure.




                                           –8–                                        2586

             Later that day, after the incident in Kincaid Park where Luch was unable
to locate Jocelyn at the race, Luch was waiting at home when Jocelyn and the children
(Marcelyn and Brent) arrived home from Kincaid Park. According to Luch, he was
“festering” because he strongly suspected that his wife had not run the race at Kincaid
Park — that she was “off on another tryst”. But Luch added that he was not sure about
this. He explained that he was “trying to hold it all together” because “there might be
something [he was] not aware of” — for instance, the possibility of “a mechanical
breakdown”, or a “different finish line” to the race.
             When Jocelyn got home, Luch repeatedly accused her of not having run in
the race. But Jocelyn did not respond to these accusations; instead, she went upstairs
after a few minutes and started preparing for bed. Luch followed her upstairs and
confronted her — accusing her of lying about participating in the race, and accusing her
of seeing another man. Jocelyn assured Luch that she had been at the race, and she
denied any wrongdoing, but Luch was not convinced. At that point, Luch went to the
garage, obtained the handgun, and returned to his wife’s bathroom.
             At common law, one classic example of “serious provocation” was the
defendant’s discovery of their spouse’s adultery. 2 However, the common law required
that the defendant find their spouse in flagrante delicto — that is, in the very act of
committing adultery. 3    Reflecting this principle, Alaska’s statutory definition of
“serious provocation”, AS 11.41.115(f)(2), expressly declares that a “serious provoca­
tion” cannot be based on hearsay reports.




   2
      Dandova v. State, 72 P.3d 325, 336 (Alaska App. 2003); Martin v. State, 664 P.2d
612, 617 (Alaska App. 1983).
   3
       Rollin M. Perkins & Ronald N. Boyce, Criminal Law (3rd ed. 1982), pp. 96-97.

                                          –9–                                         2586

              Thus, when a defendant claims that they committed a deadly assault in
response to a discovery of adultery, that “discovery” must be based on the defendant’s
personalknowledge, and not the defendant’s suspicions or conclusions based on hearsay
accounts (which are expressly excluded by the statute).
              The fact that, several months before the shooting, Luch may have had good
reason to believe that Jocelyn was having an affair does not mean that Luch was
experiencing a “serious provocation” when, on the day of the race, he could not find
Jocelyn where he expected her to be. Luch never claimed that he had personal
knowledge of his wife’s adultery, and there was no evidence that Jocelyn admitted
adultery to him. In fact, the evidence was that Jocelyn denied any wrongdoing when
Luch confronted her on the day of the killing.
              Nor was there evidence that Luch reasonably believed that Jocelyn was
committing adultery. Although Luch repeatedly expressed suspicions that his wife was
having an affair, he conceded on the stand that his doubts about his wife’s fidelity were
unconfirmed, and that he knew there were other potential explanations for his failure to
see Jocelyn at the finish line of the race at Kincaid Park.
              We therefore hold that Luch failed to present some evidence that he was
subjected to a “serious provocation” as that term is defined in AS 11.41.115(f)(2).
Because of this, we affirm the trialjudge’s decision not to instruct the jury on the defense
of heat of passion.




                                           – 10 –                                      2586

      Luch’s contention that the trial judge committed error by allowing the
      prosecutor to introduce evidence of Jocelyn’s statements to a police officer
      soon after the shooting


             Shortly after the Luch children entered their parents’ bedroom and
discovered that Jocelyn had been shot, they called 911. Anchorage Police Officer Mark
Bakken responded to the 911 call.
             Officer Bakken found Jocelyn lying on the bathroom floor in a fetal
position, clutching her stomach. He confirmed that Jocelyn had been shot, and he
testified that she was in pain and scared. According to Bakken, Jocelyn repeatedly asked
him for help, and she expressed her belief that she was “not going to make it.”
             Bakken radioed for medicalassistance, and he waited with Jocelyn until the
paramedics arrived, holding her hand to give her emotional support. While they were
waiting for the paramedics, Officer Bakken asked Jocelyn about her physical condition
and how she had sustained her injuries. The audio recording of this conversation was
introduced by the State at Luch’s trial.


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

                Jocelyn told Officer Bakken that she and her husband were getting
divorced, that her husband had threatened to kill her, and that he had shot her twice.
Regarding her physical condition, Jocelyn told Officer Bakken that she was in pain and
that she “[couldn’t] make it any longer.” Here is a transcription of Jocelyn’s statements
to Officer Bakken about the shooting:

                    Jocelyn Luch: Please help me.

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

                                           – 11 –                                    2586

        Jocelyn: Please help me.


        Officer Bakken: Who shot you?


        Jocelyn: My husband.


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

medics in red.

        Jocelyn: Help me. Please help me. [He is outside
killing himself.] (Initially transcribed as indiscernible.)

      Officer Bakken: Okay, we got him right now. What’s
his name?

        Jocelyn: Robert Luch. (Indiscernible).

       Officer Bakken: She’s saying — she’s confirmed the
suspect is Robert, [her] husband Robert. We have him
(indiscernible).

        Jocelyn: Please help me.

        Officer Bakken: Okay, (indiscernible). What’s your
name?

        Jocelyn: Please help me.

        Officer Bakken: What’s your name?

        Jocelyn: Jocelyn Luch.

        Officer Bakken: What is it?

        Jocelyn: Jocelyn Luch.

                           – 12 –                             2586

     Officer Bakken: Jocelyn. Okay; the medics are
coming in, the information (indiscernible).

      Jocelyn: Please help me. Please help me.

       Officer Bakken: I know, we’re coming. I promise
you, they’re (indiscernible) waiting for us. We’ve got him
too, okay?

      Jocelyn: Please help me.

      Officer Bakken: Why did he shoot you?

      Jocelyn: We’re getting a divorce.

      Officer Bakken: Okay.

      Jocelyn: Please help me.

      Officer Bakken: Okay, sweetie. I got you.

      Jocelyn: Please.

      Officer Bakken: I got your hand.

      Jocelyn: It hurts.

      Officer Bakken: Where does it — how many times did
you get shot?

      Jocelyn: Two times.

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

      Jocelyn: In my stomach. Please help me.

                           – 13 –                            2586

      Officer Bakken: 26, we got two gunshot wounds in the
stomach. She is still apparently conscious and aware.

        Jocelyn: (Indiscernible.)

        Officer Bakken: I got you.

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

       Officer Bakken: We’ve got — he’s not going to kill
you, I promise you. We’ve got him, so you’re safe.

      Jocelyn: [Because I am not going with him to
Arizona.] (Initially transcribed as indiscernible.)

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

       Jocelyn: [Please help me.] (Initially transcribed as
indiscernible.) Please, can you call my friend Carol?

        Officer Bakken: ... We’re going to take care of that,
okay?

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

       Officer Bakken: Okay, they’re coming; they just
pulled up. Paramedics. We’re upstairs. Upstairs.

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

      Officer Bakken: She’s conscious and aware, but she’s
been shot twice in the stomach.

        Jocelyn: One in my shoulder.


                             – 14 –                             2586

                     Officer Bakken: And one in the shoulder, okay.

              Two days later, on September 30th, Jocelyn died in the hospital as a result
of the gunshot wound to her abdomen.
              Before trial, the State filed a motion seeking permission to introduce
Jocelyn’s statements to Officer Bakken, arguing that Jocelyn’s statements constituted a
dying declaration as defined in Alaska Evidence Rule 804(b)(2). This evidence rule
authorizes the admission of a person’s out-of-court statement if the person is unavailable
as a witness, if the person made the statement “while believing that [their] death was
imminent”, and if the statement “concern[s] the cause or circumstances of what the
[person] believed to be impending death.”
              To resolve this issue, the trial court held an evidentiary hearing at which
Officer Bakken testified. Based on Bakken’s testimony and the audio recording of the
statements, the trial judge found that Jocelyn’s statements were admissible as a dying
declaration. The judge noted the severity of Jocelyn’s injuries, as well as Officer
Bakken’s testimony that Jocelyn was “terrified” and that she believed she was dying.
The judge also relied on the fact that, toward the end of the audio recording, Jocelyn can
be heard saying that she needed the ambulance to arrive quickly “because she cannot
make it anymore”.
              The trial judge also found that Jocelyn’s statements were independently
admissible as excited utterances as defined in Alaska Evidence Rule 803(2). Under this
evidence rule, an out-of-court statement is admissible if it “relat[es] to a startling event
or condition” and if it was “made while the [speaker] was under the stress of excitement
caused by the event or condition.”




                                           – 15 –                                      2586

              (b) Luch’s argument that Jocelyn’s statements did not qualify as a
           dying declaration

              On appeal, Luch argues that Jocelyn’s statements to the officer were not
admissible as a dying declaration. In particular, Luch argues that Jocelyn did not make
these statements while believing that her death was imminent.
              In Johnson v. State, 579 P.2d 20 (Alaska 1978), the Alaska Supreme Court
clarified the requirement that the speaker believe that their death is imminent:

                     We believe that to require that the declarant have
              abandoned all hope of recovery is overly demanding. In light
              of modern medical science it is rare indeed that all hope of
              recovery is abandoned, yet a victim may be aware of the
              probability that his death is impending to the extent necessary
              to create sufficient solemnity to give adequate assurance of
              the trustworthiness of his testimony. What is required for a
              dying declaration to be admissible is that the declarant have
              such a belief that he is facing death as to remove ordinary
              worldly motives for misstatement. In that regard, the court
              may consider the totality of the circumstances including the
              presence or absence of motive to falsify and the manner in
              which the statement was volunteered or elicited.

Johnson, 579 P.2d at 25.
              Under this test, the question of Jocelyn’s state of mind when she made the
statements to Officer Bakken is a question of historicalfact — and we must uphold a trial
court’s findings of historical fact unless those findings are clearly erroneous. 4 Having


   4
        See Sipary v. State, 91 P.3d 296, 305-06 (Alaska App. 2004) (holding that it is a
question of fact whether a speaker had the state of mind that is required for their out-of-court
statement to qualify as an “excited utterance” under Evidence Rule 803(2) — and that, for
this reason, an appellate court “will uphold the trial judge’s conclusion on this issue unless
                                                                                   (continued...)

                                             – 16 –                                         2586

reviewed the record, we conclude that the trial judge’s finding on this issue is not clearly
erroneous.
              Luch argues in the alternative that several of Jocelyn’s statements to the
officer did not concern the “cause or circumstances” of Jocelyn’s impendingdeath. Luch
asserts that this phrase encompasses only Jocelyn’s statements that directly describe the
actual shooting and her resulting wounds — not Jocelyn’s statements describing the
events leading up to the shooting, or describing her husband’s motive for shooting her,
or describing the events immediately attending the shooting (such as Jocelyn’s assertion
that, while she was speaking to the officer, she believed that Luch was “outside killing
himself”).
              We conclude that Luch’s proposed interpretation of the phrase “cause or
circumstances” is too narrow. As McCormick on Evidence explains, this phrase is meant
to codify the rule that the out-of-court statements are admissible only to the extent that
they relate “to the circumstances of the killing and to the events more or less nearly
preceding it in time and leading up to it”:

                      Under this [limitation], declarations about previous
              quarrels between the accused and the victim would be
              excluded, while transactions between them leading up to and
              shortly before the present attack would be received. Some
              limitation as to time and circumstances is appropriate to
              enhance trustworthiness, but proper phrasing is difficult. ...
              Statements identifying an attacker are clearly admissible
              under [the “cause or circumstances” limitation], and those
              [statements] describing prior threats by, or fights and
              argument with, such person also meet its requirements.



   4
       (...continued)
that conclusion is shown to be clearly erroneous.”).

                                              – 17 –                                   2586

Kenneth S. Broun et alia, McCormick on Evidence (7th ed. 2013), § 311, Vol. 2, p. 516.
             This same approach is echoed in Dean Wigmore’s classic treatise on the
law of evidence: John Henry Wigmore, Evidence in Trials at Common Law (Chadbourn
revision, 1974).
             As explained in Wigmore, a dying declaration “must concern the facts
leading up to or causing or attending the injurious act which has resulted in the
declarant’s death”. Id., § 1434, Vol. V, p. 282 (emphasis in the original). (See also the
many cases collected in accompanying footnote 1.) Wigmore acknowledges that this
limitation provides “opportunity for prolific quibbling”, id. at 284, but the treatise
suggests that the rule should be applied in a common-sense manner.
             When we apply these principles to Luch’s case, we conclude that Jocelyn’s
out-of-court statements to Officer Bakken concerned the “cause or circumstances” of
what she believed to be her impending death.
             Accordingly, we conclude that the trial judge properly characterized
Jocelyn’s statements as a dying declaration under Evidence Rule 804(b)(2).


             (c) Luch’s argument that Jocelyn’s statements did not qualify as
          excited utterances

             Luch also challenges the trial judge’s alternative ruling that Jocelyn’s
statements qualified as excited utterances under Evidence Rule 803(2).
             Luch notes that the prosecutor did not argue this theory of admissibility in
his motion, and that the trial judge apparently reached this conclusion independently,
after hearing Officer Bakken’s testimony and reviewing the statements. Luch notes in
passing that the judge made this ruling “without allowing the defense to address the
issue”, but Luch does not ask this Court to remand his case to the trial court so that he
can present further evidence on this issue.

                                         – 18 –                                     2586

               Instead, Luch takes the position that Jocelyn’s statements could not qualify
as excited utterances because they were made in response to Officer Bakken’s questions.
Luch contends that any statement made in response to police questioning must be the
product of reflection — and therefore cannot qualify as an excited utterance.
               This is not the law in Alaska. In both Charles v. State, 780 P.2d 377, 382
(Alaska App. 1989), and Anderson v. State, 163 P.3d 1000, 1001 (Alaska App. 2007),
this Court upheld trial court rulings that out-of-court statements qualified as excited
utterances even though the statements were made in response to questions by a 911
dispatcher and by police officers who were attempting to find out what had happened.
               Luch’s case is analogous to Charles and Anderson. After Officer Bakken
arrived on the scene and confirmed that Jocelyn had been shot, he asked her a series of
open-ended questions designed to clarify what had happened. Both the content and the
circumstances of Jocelyn’s responses — the nature of her wounds, her repeated pleas for
help, and her assertion that she did not think she could “make it much longer” — all
support the trial judge’s conclusion that these statements were excited utterances under
Evidence Rule 803(2).
               It is a question of fact whether a speaker had the state of mind that is
required for their out-of-court statement to qualify as an “excited utterance” under
Evidence Rule 803(2). 5 For this reason, an appellate court “will uphold the trial judge’s
conclusion on this issue unless that conclusion is shown to be clearly erroneous.” 6 In
Luch’s case, the trial judge’s conclusion is not clearly erroneous, and we therefore
uphold the trial judge’s ruling.




   5
       Sipary v. State, 91 P.3d 296, 305-06 (Alaska App. 2004).
   6
       Ibid.

                                           – 19 –                                     2586

             (d) Luch’s argument that the admission of Jocelyn’s statements
          violated his right of confrontation under the Sixth Amendment

              Finally, Luch argues that even if Jocelyn’s statements to Officer Bakken
were admissible under the hearsay exceptions for excited utterances or a dying
declaration, the admission of these statements nevertheless violated his right of
confrontation under the Sixth Amendment as construed in Crawford v. Washington,
541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). (In Crawford, the Supreme Court
held that the confrontation clause bars the introduction of “testimonial” hearsay against
a criminal defendant unless the defendant had an earlier adequate opportunity to cross-
examine the speaker.)
              We reject Luch’s confrontation clause argument for two reasons.
              First, because we have upheld the trial court’s ruling that Jocelyn’s
statements to Officer Bakken were excited utterances, Luch’s position is at odds with this
Court’s decision in Anderson v. State, 163 P.3d 1000 (Alaska App. 2007). In Anderson,
we held that an injured crime victim’s statements to a police officer were not
“testimonial” for confrontation clause purposes when the primary purpose of the officer’s
questions “was to sort out an ongoing emergency situation rather than to investigate a
past crime”, 7 and when the crime victim’s answers “[were] relevant to communicate or
explain the nature and extent of [their] current injuries.” 8
              Second, viewing Jocelyn’s statements to Officer Bakken as a dying
declaration, we conclude that Luch’s case is governed by the United States Supreme
Court’s decision in Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 79 L.Ed.2d 93
(2011). In Bryant, the Supreme Court held that a mortally wounded shooting victim’s


   7
       Anderson, 163 P.3d at 1004.
   8
       Id. at 1005.

                                           – 20 –                                    2586

responses to on-the-scene questioning by a police officer were not testimonial for
purposes of the confrontation clause.
              The Supreme Court relied on the fact that the primary purpose of the
officer’s inquiries was to enable police and medical responders to meet the ongoing
emergency by finding out what had happened (id., U.S. at 374-76, S.Ct. at 1165-66) —
“the exact type of questions necessary to allow the police to assess the situation, the
threat to their own safety, and possible [continuing] danger to the ... victim and to the
public”. Id., U.S. at 376, S.Ct. at 1166.
              The Supreme Court also relied on the mental state of the shooting victim:

                     When he made the statements, [the victim] was lying
              in a gas station parking lot bleeding from a mortal gunshot
              wound to his abdomen. His answers to the police officers’
              questions were punctuated with questions about when
              emergency medical services would arrive. ... He was
              obviously in considerable pain and had difficulty breathing
              and talking. ... From this description of his condition and
              report of his statements, we cannot say that a person in [the
              victim’s] situation would have had a “primary purpose” to
              establish or prove past events potentially relevant to later
              criminal prosecution.

Bryant, 562 U.S. at 375, 131 S.Ct. at 1165.
              Finally, the Supreme Court considered “the informality of the situation and
the interrogation”:

                     [This] informality suggests that the interrogators’
              primary purpose was simply to address what they perceived
              to be an ongoing emergency, and the circumstances lacked
              any formality that would have alerted [the victim] to[,] or
              focused him on[,] the possible future prosecutorial use of his
              statements.


                                            – 21 –                                  2586

Bryant, 562 U.S. at 377, 131 S.Ct. at 1166.
              Based on these facts, the Supreme Court ruled that the victim’s statements
to the police were not testimonial hearsay — and, thus, the confrontation clause did not
bar the admission of these statements. Id., U.S. at 378, S.Ct. at 1167.
              We reach the same conclusion here.


             (e) Luch’s argument that the admission of Jocelyn’s statements
          violated his right of confrontation under the Alaska Constitution


              Luch argues that even if the admission of Jocelyn’s statements did not
violate the confrontation clause of the federal constitution, we should hold that the
admission of these statements violated the confrontation clause of our state constitution
(Article I, Section 11).
              But Luch’s argument of this point is cursory: it consists of two conclusory
sentences, without citation to any legal authority. As this Court has repeatedly stated,
a provision of the Alaska Constitution will not be interpreted to provide greater
protection than a corresponding provision of the federal constitution unless there is
“something in the text, context, or history of the Alaska Constitution” to justify this
divergent interpretation. 9
              We therefore reject Luch’s argument that the confrontation clause of the
Alaska constitution barred the admission of Jocelyn’s statements to the officer.




   9
      See, e.g., Shorty v. State, 214 P.3d 374, 379 (Alaska App. 2009); Harris v. State, 195
P.3d 161, 181 (Alaska App. 2008); Aaron v. Ketchikan, 927 P.2d 335, 336 (Alaska App.
1996); State v. Zerkel, 900 P.2d 744, 758 n. 8 (Alaska App. 1995).

                                           – 22 –                                      2586

          (f) Our conclusion on this issue


             For the reasons explained here, we conclude that Jocelyn Luch’s statements
to Officer Bakken were properly admitted at Luch’s trial.


      Luch’s argument that the State failed to establish a proper foundation for
      admitting evidence of Marcelyn Luch’s prior inconsistent statementstothe
      police


             When the police responded to the shooting, they found the Luchs’ daughter
Marcelyn at the residence, and they transported her to the police station. During the ride
to the police station, Marcelyn was informally asked about what had happened, and then
the police conducted a more formal interview when Marcelyn arrived at the station.
Marcelyn’s statements in the patrol car were audio recorded, and her interview at the
station was video recorded.
             Marcelyn told the police that her father had been planning to murder her
mother. She said that Luch had talked about this plan eight to ten times during the
summer. According to Marcelyn, Luch told her that, if he killed Jocelyn, he would claim
temporary insanity. Marcelyn urged the police not to be fooled by any claim of insanity.
             Shortly before Marcelyn was called to testify at Luch’s trial, the prosecutor
alerted the trial judge and the defense attorney that the State intended to introduce the
recordings of Marcelyn’s statements to the police if Marcelyn denied making these
statements, or if she claimed to have no memory of them, or if she claimed that the
statements were lies.
             Marcelyn took the stand later that day. When the prosecutor questioned
Marcelyn about her statements to the police, she repeatedly claimed to have no memory
of makingthose statements. Then, when the defense attorney cross-examined Marcelyn,

                                          – 23 –                                     2586

she declared that if she had indeed made those statements, the statements were false. On
redirect, the prosecutor asked Marcelyn about this inconsistency:

                    Prosecutor: When I was asking you questions, you
             said, “My dad didn’t say those statements, and I never said
             those to the police.” And then when Mr. Lambert asked you
             questions, you said, “I said them, but I lied.” So which is it?
             Did you lie, or did you not say those things?

                   Marcelyn: (Whispered conversation) I think I lied
             about saying those things back in the police interview.

                    Prosecutor: Tell us about your thought process in
             deciding to lie about things your dad said to you.

                    Marcelyn: What do you mean?

                     Prosecutor: How did you decide that you were going
             to lie to the police that night? ... What were you thinking?

                    Marcelyn: I — I can’t really remember. I just
             remember [that] I didn’t want to see him ever again that
             night.

                   Prosecutor: Did you realize, at the time you were
             saying those statements, that you were lying to the police?
             Or did you realize it later?

                    Marcelyn: Later.

                    Prosecutor: When?

                    Marcelyn: Like last week, when everyone was talking
             about it all.



                                         – 24 –                                    2586

                    Prosecutor: So you didn’t realize you had lied to the
             police until last week?

                    Marcelyn: Yes.

                   Prosecutor: Who’d you tell? Who was the first
             person you told that you realized you had lied?

                    Marcelyn: Like over the weekend?

                     Prosecutor: When you realized you lied, who was the
             first person you told?

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

             The trialjudge ruled that Marcelyn’s recorded statements to the police were
admissible as prior inconsistent statements. More specifically, the judge concluded that
it was “essential” for the jury to know whether Marcelyn made those statements to the
police, and “how she presented those statements to the officers.”
             On appeal, Luch challenges this ruling on two grounds.
             First, Luch points out that when the prosecutor asked Marcelyn about her
statements to the police, the prosecutor failed to expressly ask Marcelyn about several
specific factual assertions contained in those statements. Because of this, Luch argues
that the prosecutor failed to satisfy the foundational requirements of Alaska Evidence
Rule 613(b) and Alaska Evidence Rule 801(d)(1)(A)(i) — that is, the requirement of
examining Marcelyn in such a way as to give her the opportunity “to explain or deny”
those specific statements.
             Luch’s argument is answered by this Court’s decision in Active v. State, 153
P.3d 355 (Alaska App. 2007).



                                         – 25 –                                     2586

                In Active, we addressed the question of whether a litigant who wishes to
introduce a witness’s prior inconsistent statements during police interviews “[is] obliged
to expressly question [the witness] about each and every assertion of fact that [the
witness] made in those interviews.”          Id. at 363.     We held that Evidence Rule
801(d)(1)(A) does not require the litigant to do this if, when the witness is asked about
the prior statements, the witness’s answers provide a reasonable basis for the trial judge
to conclude that the witness “would continue to disown any and all statements she had
previously made to the contrary.” Id. at 364.
                In Active, the witness repeatedly asserted that she did not remember making
the prior incriminatory statements — and she further asserted that, if she had indeed
made those statements, they were false. Ibid. Given the witness’s answers, we held that
the trial judge could reasonably conclude that the witness had been given sufficient
opportunity to explain or deny the statements she made to the police investigator, and
that “it was pointless to require the prosecutor to continue asking [the witness] about
every other statement she had made during that interview.” 10
                We reach the same conclusion in Luch’s case.
                Luch argues in the alternative that even if the prosecutor met the
foundational requirements of Evidence Rule 801(d)(1)(A), the trial judge nevertheless
abused his discretion when he allowed the prosecutor to introduce extrinsic evidence
(i.e., recordings) of the particular statements that Marcelyn admitted making to the
police.
                Again, Luch’s argument is answered by this Court’s decision in Active.
In Active, we reviewed our prior decisions on this question, and we re-affirmed the rule
that even when a witness acknowledges making the prior inconsistent statement, a trial


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

                                             – 26 –                                   2586

judge may allow a party to introduce extrinsic evidence of the witness’s prior statement
if (1) it is crucial for the jury to decide whether to credit the witness’s in-court testimony
as opposed to the prior inconsistent statement, and (2) the extrinsic evidence will give
the jury a more complete context in which to evaluate the witness’s prior statement. Id.
at 362-63.
              Stated somewhat differently, the question is whether the trial judge could
reasonably conclude that the jury might view the facts differently if they heard the audio
or video record of the conversation in which the witness made the prior inconsistent
statements — as opposed to simply hearing the witness’s unelaborated concession that
they made the prior statements. Id. at 362.
              In Luch’s case, the trial judge concluded that the recordings of Marcelyn’s
statements to the police should be admitted because it was “essential” for the jury to hear
“how she presented those statements to the officers.” Given the record in this case,
we conclude that the judge’s ruling was not an abuse of discretion, and we therefore
uphold it.


       Luch’s contention that the case against him should be dismissed because
       the State came into possession of (1) several pages of Luch’s handwritten
       notes about the case, and (2) Luch’s annotations and highlighting of the
       transcripts of Brent’s and Marcelyn’s statements to the police


              Toward the end of April 2012, one of the prosecutors assigned to Luch’s
case received a telephone call from Adrien Mercille, a prison inmate who had been
housed at the same correctional facility as Luch. Mercille told the prosecutor that, in
anticipation of Mercille’s release from custody, Luch gave him letters to mail to Luch’s
sister. According to Mercille, Luch wanted him to mail these letters from outside prison
so that Luch would not have to worry about corrections officers screening the letters.

                                            – 27 –                                       2586

              The letters were contained in envelopes that were addressed in Luch’s
handwriting. These envelopes were addressed to Luch’s daughter Letitia (“Letty”) in
care of Luch’s sister, Elaine Shephard, residing in Sun Lakes, Arizona.
              The envelopes also bore the hand-written return address of the house on
Telstar Circle in Anchorage where Luch’s family was residing at the time of the
homicide. This was significant because all inmates are told that the Department of
Corrections will not send letters for prisoners unless the letter bears their inmate number
and the return address of the correctional facility where they are housed.
              These letters contained several handwritten pages in which Luch described
his view of the case, as well as Luch’s hand-annotated transcripts of Brent’s and
Marcelyn’s prior statements, both to the police and to the defense.
              After Mercille alerted the prosecutor’s office to these letters, police
detectives were sent to interview Mercille and to take possession of the letters from him.
Two days after that, the prosecutor sent Luch’s attorney a recording of the detectives’
interview with Mercille and copies of the written materials.
              Luch’s attorney did not respond to the recording and the written materials
for more than seven months. But in early January 2013, the defense attorney filed a
motion to dismiss the case against Luch, arguing that the State’s possession of the letters
constituted a breach of Luch’s attorney-client privilege and, by extension, a denial of his
right to counsel.
              More specifically, Luch’s attorney disputed Mercille’s account of how he
came into possession of the letters. Luch’s attorney contended that Luch had written the
letters to his attorney, and that Luch had never given these letters to Mercille. Rather,
the defense attorney asserted, Mercille had stolen the letters.
              The superior court held an evidentiary hearing to resolve this dispute. At
this hearing, both Luch and Mercille testified.


                                          – 28 –                                      2586

              Luch asserted that Mercille stole several documents from his cell in mid-
April 2012 — “letters, notes, written statements, [and] discovery”. According to Luch,
Mercille demanded that Luch pay him $2000 for the return of these documents — and
he threatened Luch that he would turn the documents over to the police if Luch did not
pay the money.
              Luch further testified that these written materials were never intended for
his children, and that he never asked Mercille to mail these materials to his children, or
to anyone else. Instead, Luch said, he intended to turn these materials over to his
attorney at some future time when his attorney visited him in jail.
              For his part, Mercille testified that Luch approached him and asked if he
would mail some letters for Luch. Luch knew that Mercille was going to be transferred
to a Veterans Administration residential facility for treatment, and Luch wanted his
letters to be mailed from outside the prison, to avoid the chance that they would be read
by corrections officials. Mercille told the court that he later decided to turn the letters
over to the police because he thought that Luch was a trouble-maker, and because he
thought that Luch was guilty of murdering his wife.
              Mercille denied stealing the letters and he denied asking Luch for money.
Mercille also testified that if Luch had asked him to return the letters before Mercille
turned them over to the police, he would have returned them.
              After hearing this conflicting testimony, the trial judge found that Luch’s
testimony about the documents and the envelopes was false — i.e., that Luch was not
credible when he asserted that these documents were intended for his attorney, and not
for his children. Instead, the judge found that Mercille’s account of events was credible.
              In particular, the judge noted that many of Luch’s handwritten notations on
the transcripts were worded in a way that showed that the notation was intended as a
communication to the speaker (i.e., the child who gave the statement), not a
communication to some third-party evaluator such as Luch’s attorney.

                                          – 29 –                                      2586

              Based on these findings, the judge concluded that the documents were not
attorney-client documents, and that they therefore were not privileged: “They are not
from ... client to attorney.”
              On appeal, almost all of Luch’s arguments pointedly ignore the trial judge’s
findings. That is, Luch’s arguments are premised on the assertion that the documents
were protected by the attorney-client privilege because Luch prepared these documents
for his attorney, not for his children. But the trial judge explicitly rejected this assertion
when he issued his findings, and Luch has not shown that the judge’s findings are clearly
erroneous.
              Luch does raise one proceduralchallenge to the judge’s findings: he argues
that when a criminal defendant asserts that statements or documents are covered by the
attorney-client privilege, and if the defendant presents some evidence in favor of the
asserted privilege, a judge must presume that the defendant’s assertion of privilege is
correct — that is, the judge must resolve any conflicts in the evidence against the
government and in favor of the claim of privilege.
              This position is contrary to established law. When a party or witness
asserts an evidentiary privilege, it is their burden to establish that the privilege
applies. 11 More specifically, when a defendant asserts the attorney-client privilege, the
burden of proving each element of the privilege rests upon the defendant. 12


   11
       N.G. v. Superior Court, 291 P.3d 328, 336 (Alaska App. 2012). See Fuller v. City of
Homer, 75 P.3d 1059, 1063 (Alaska 2003) (addressing the deliberative process privilege);
James v. State, 75 P.3d 1065, 1068 (Alaska App. 2003), and Gyles v. State, 901 P.2d 1143,
1149 (Alaska App. 1995) (addressing the privilege against self-incrimination); and Plate v.
State, 925 P.2d 1057, 1066 (Alaska App. 1996) (addressing the privilege for confidential
communications to a clergyman).
   12
      See People v. Meredith, 631 P.2d 46, 50 (Cal. 1981); Zimmerman v. Superior Court,
163 Cal.Rptr.3d 135, 145 (Cal. App. 2013); Black v. State, 920 So.2d 668, 671 (Fla. App.
                                                                           (continued...)

                                            – 30 –                                       2586

              Luch was not entitled to a presumption that he was telling the truth when
he described his purpose for preparing the documents and when he identified the
intended recipients of those documents. Much less was Luch entitled to the “merely
some evidence” rule that he proposes — a rule that would require the trial judge to
completely ignore any conflicting evidence and to resolve all evidentiary conflicts in
favor of Luch’s claim of privilege.
              Rather, the judge was required to do precisely what he did here: allow the
parties to present their evidence pertaining to the claim of attorney-client privilege, and
then make findings of fact and credibility. Here, the judge found, based on the testimony
and on the content of the documents themselves, that Luch’s explanation of the
documents was not credible. Specifically, the judge found that the documents were not
intended to be communications to Luch’s attorney; rather, they were intended to be
communications to Luch’s children — to influence their testimony.              The judge
accordingly ruled that the attorney-client privilege did not cover the documents.
              The judge’s findings of fact are not clearly erroneous. Accordingly, we
uphold the judge’s ruling that the documents were not privileged.




   12
       (...continued)
2006); State v. Tensley, 249 N.W.2d 659, 661 (Iowa 1977); Purcell v. Dist. Attorney for
Suffolk Dist., 676 N.E.2d 436, 440 (Mass. 1997); State ex rel. Stivrins v. Flowers, 729
N.W.2d 311, 316 (Neb. 2007); People v. Mitchell, 448 N.E.2d 121, 123 (N.Y. 1983); State
v. Love, 271 S.E.2d 110, 112 (S.C. 1980); State v. Rickabaugh, 361 N.W.2d 623, 624-25
(S.D. 1985); State v. Kennison, 546 A.2d 190, 193 (Vt. 1987); United States v. Stern, 511
F.2d 1364, 1367 (2nd Cir. 1975); United States v. Harrelson, 754 F.2d 1153, 1167 (5th Cir.
1985).

                                          – 31 –                                      2586

      Luch’s argument that the trial judge should have allowed Luch’s attorney
      to introduce evidence of Luch’s statements to the police following his
      arrest, while he was being transported to the police station


               After Luch shot his wife, he returned the gun to its storage place in the
garage, he ingested a handful of pills, and then he went outside. The police found him
walking along the street, and he was taken into custody.
               While Luch was being transported to the police station in a patrol car, the
police recorded their conversation with him. In this conversation, Luch volunteered
various statements about the shooting — statements that were not solicited by police
questioning:

                      Luch: There’s no excuse for that. I just couldn’t
               control myself anymore. I just lost control. There’s nothing
               I could do. (Indiscernible) break. Control. I just (indiscern­
               ible). I just lost it. I just lost it. Wish I had wifi; I could
               update my blog. I just don’t want to make a spectacle out of
               myself and embarrass my kids. That’s the only thing I want.
               I have good kids, and they’re going to hate me now. I just
               don’t want to embarrass them. I did something terrible to my
               kids. Lord, they’re never going to forgive me.

               Anticipating that Luch’s attorney might wish to introduce these statements
at trial, the State filed a motion in limine to bar the defense from introducing these
statements. Luch’s attorney opposed the State’s motion, arguing that Luch’s statements
to the police were admissible as present sense impressions under Alaska Evidence Rule
803(1), as excited utterances under Alaska Evidence Rule 803(2), or as evidence of
Luch’s then-existing mental state under Alaska Evidence Rule 803(3).




                                           – 32 –                                    2586

              After reviewing the audio recording and the transcript of Luch’s
conversation with the police in the patrol car, the trial judge ruled that Luch’s out-of­
court statements were inadmissible hearsay.
              In particular, the judge found — “[having] listened to the tape” — that it
was “abundantly clear from the nature of [Luch’s] statements” and from Luch’s “very
calm demeanor” that Luch’s statements were not excited utterances. The judge also
rejected the contention that Luch’s statements reflected his “present sense impression”.
Finally, the judge rejected the argument that Luch’s statements qualified as statements
of his then-existing mental state.
              On appeal, Luch argues that the judge reached the wrong conclusion —
that, in fact, Luch’s statements in the patrol car qualified for admission under each of
these three exceptions to the hearsay rule.
              With regard to whether Luch’s statements qualified as excited utterances
under Evidence Rule 803(2), the ultimate question is whether, at the time Luch made
these statements, he was speaking “under the stress of excitement” caused by the
shooting — whether the shooting had produced in Luch a condition of excitement which
temporarily stilled his “capacity for reflection”, thus “produc[ing] utterances free of
conscious fabrication.” 13
              This is a question of fact — and, for this reason, an appellate court must
uphold the trial judge’s finding unless it is clearly erroneous. 14
              As we have explained, the trial judge found, after listening to the audio
recording, that Luch’s statements in the patrol car were not excited utterances because
of Luch’s calm demeanor, and based on the nature of the statements themselves. The


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

   14
        Sipary v. State, 91 P.3d 296, 305-06 (Alaska App. 2004).


                                            – 33 –                                  2586

record provides ample support for the judge’s conclusion. That conclusion is therefore
not clearly erroneous, and we accordingly uphold the judge’s ruling on this issue.
                 With regard to whether Luch’s statements qualified as present sense
impressions under Evidence Rule 803(1), the test is whether Luch’s statements about the
shooting were made “while [he] was perceiving the event ... , or immediately thereafter”.
As we explained in Davis v. State, the defining characteristic of a statement of present
sense impression is its spontaneity — “the speaker’s lack of reflection about what he or
she should be saying.” 15 To qualify as a statement of present sense impression, the
statement must be uttered while the speaker is observing the event or condition at issue,
or “immediately thereafter”. 16
                 Luch’s statements in the patrol car were obviously not made while the
shooting was occurring, so the question is whether those statements were made
“immediately thereafter” as that phrase is used in Evidence Rule 803(1).
                 In Davis, we explained that the phrase “immediately thereafter” is meant
to describe circumstances where “there is hardly any interval between the observation
and the statement describing the observation — and, thus, no time for reflection.” 17 In
Luch’s case, the trial judge could reasonably find that Luch’s statements in the patrol car
did not meet this test. Accordingly, we uphold the trial judge’s ruling on this issue.
                 This leaves Luch’s argument that his statements qualified for admission
under Evidence Rule 803(3) as statements describing Luch’s then-existing mental or
emotional condition.




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

   16
        Ibid.

   17
        Ibid.


                                           – 34 –                                        2586

               Some of Luch’s statements in the patrol car were explicit descriptions of
his mental condition at the time of the shooting. But when Evidence Rule 803(3) speaks
of statements that describe a “then-existing” mental or emotional condition, the rule is
not speaking of statements in which a person describes their mental or emotional
condition at some earlier time.       Evidence Rule 803(3) is confined to a person’s
description of their mental or emotional condition at the time they are speaking.
               As explained in the first paragraph of the Commentary to Alaska Evidence
Rule 803(3), this rule “is essentially a specialized application” of Evidence Rule 803(1)
— i.e., a specialized application of the rule that covers statements of present sense
impression. Evidence Rule 803(3) does not apply to a person’s assertions about a mental
or emotional condition that they experienced in the past. 18
               See also Saltzburg, Martin, and Capra, Federal Rules of Evidence Manual
(11th ed. 2015), Rule 803, Vol. 4, p. 803-30 (explaining that the corresponding federal
hearsay exception does not apply to “[s]tatements of a past state of mind or physical
condition”).
               For this reason, Luch’s description in the patrol car of his state of mind at
the time of the shooting was not admissible under Evidence Rule 803(3).
               In sum, Luch’s statements in the patrol car were not admissible under any
of the three hearsay exceptions that he proposes. We therefore uphold the trial judge’s
ruling regarding this hearsay evidence.


        Conclusion


               The judgement of the superior court is AFFIRMED.

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

                                           – 35 –                                      2586

