Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

RYAN JOHN SANDERS, 

Petitioner, 

v. 

STATE OF ALASKA, 

Respondent. 

) 

) Supreme Court No. S-15403 

Court of Appeals No. A-10943 

Superior Court No. 3AN-07-00018 CR 

O P I N I O N 

No. 7058 – October 9, 2015 

) 

) 

) 

) 

) 

) 

) 

) 

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

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

Alaska, Third Judicial District, Anchorage, Michael Spaan, 

Judge. 

Appearances: Michael Schwaiger, Assistant Public 

Defender, and Quinlan Steiner, Public Defender, Anchorage, 

for Petitioner. Kenneth M. Rosenstein, Assistant Attorney 

General, Office of Special Prosecutions & Appeals, 

Anchorage, and Michael C. Geraghty, Attorney General, 

Juneau, for Respondent. 

Before: Fabe, Chief Justice, Stowers, Maassen, and Bolger, 

Justices, and Matthews, Senior Justice.* [Winfree, Justice, 

not participating.] 

FABE, Chief Justice.
 

BOLGER, Justice, with whom STOWERS, Justice, joins,
 

dissenting in part.
 

* Sitting by assignment made under article IV, section 11 of the Alaska 

Constitution and Alaska Administrative Rule 23(a). 
 

 

 

 

 

 

 

I. INTRODUCTION 

A criminal defendant on trial for two murders sought to admit a recording 

of a phone call to the police, placed by a young woman who had since died. On the 

recording, the young woman told a police officer that one of the victims had told her that 

both victims were conspiring to attack and rob the defendant. In support of his motion 

to admit the recording, the defendant argued that the recording was critical to his 

defense, which centered on justified self-defense and heat of passion. The defendant 

invoked the hearsay exceptions for a declarant’s then existing state of mind, an 

unavailable declarant’s statement against penal interest, and the residual exception for 

unavailable declarants, as well as his constitutional right to present a defense. The 

superior court denied the motion. The jury, presented with no evidence of the alleged 

conspiracy to attack and rob the defendant, convicted him of first- and second-degree 

murder. He appealed, and the court of appeals affirmed his conviction. 

We granted the defendant’s petition for hearing to decide whether the 

deceased witness’s statement should have been admitted at trial. We conclude that it 

should have been admitted, and we therefore reverse the defendant’s convictions and 

remand for a new trial. 

II. FACTS AND PROCEEDINGS 

A. Facts 

1. The incident 

On New Year’s Eve 2006, Ryan Sanders shot and killed Travis Moore and 

Ashlee Richards at his home. Sanders had invited Moore to a gathering at Sanders’s 

apartment after Moore called him several times that evening. Moore arrived in an SUV 

with Richards, Raven Ketzler, and his girlfriend, Sherrell Porterfield. Moore, who was 

carrying an unloaded 9mm caliber Beretta pistol, entered Sanders’s apartment with 

-2- 7058
 
 

 

 

 

 

 

 

Porterfield and Richards, who was carrying a push knife.1 The three left a machete in 

their SUV along with Ketzler, who did not come into Sanders’s apartment during the 

more than thirty minutes the other three were inside. Nine people were present in 

Sanders’s apartment: Sanders; Moore; Richards; Porterfield; Sanders’s brother, Joseph; 

Sanders’s one-year-old daughter; Sanders’s girlfriend, Melissa; Sanders’s girlfriend’s 

brother, Jeremy; and Jeremy’s girlfriend, Mary Jane. 

According to Sanders’s statement to the police, he was talking in his 

bedroom with his brother and Moore when Moore pulled out his Beretta and hit 

Sanders’s head with it, splitting open the skin above his eyebrow. Sanders fell to the 

ground between his bed and the wall, reached for a nearby .38 caliber revolver, and shot 

at Moore four or five times. Two bullets struck Moore. According to Sanders, everyone, 

including Moore, ran from the shots. Moore collapsed and died outside the apartment 

alongside the walkway leading to the front door. 

Sanders, who claimed he was unsure whether he had hit Moore, grabbed 

a .40 caliber Glock semi-automatic handgun and ran outside. He saw “a black coat with 

fur on it running towards [the] SUV” and remembered that Moore had been wearing a 

“big black jacket” with fur on it. Sanders stated that he pursued and shot at the running 

person, not noticing Moore’s body as he ran past it. The running person was Richards. 

Sanders shot Richards nine times, and a tenth bullet grazed her hand. Richards was 

pronounced dead at the hospital. 

Sanders claimed that he stopped shooting after Richards fell and that he was 

five to ten feet away. Forensic evidence and some witness testimony, however, 

suggested that some shots were fired into Richards after she fell. Sanders also stated that 

1 A push knife is a weapon designed to be grasped so the blade sticks out 

from the front of the fist. See People v. Owens, 2d Crim. No. B248606, 2014 WL 

3667199, at *1 n.3 (Cal. App. July 24, 2014). 

-3- 7058
 
 

 

 

 

 

 

 

he did not realize that he had been shooting at someone other than Moore until after it 

was over, when he approached Richards and saw her hair and then saw Moore’s body 

for the first time while returning to the apartment. Richards was an overweight 

Caucasian woman with hair past her shoulders. Moore was a fit African-American man 

with short-cropped hair. 

Back in his apartment, Sanders put down his Glock and waited. Before the 

police arrived Sanders asked his girlfriend’s brother, Jeremy, to get the .38 out of the 

apartment. Jeremy hid the .38 in a parking lot underneath a car, where the police later 

found it. 

The first police officer arriving on scene had to swerve to miss the SUV in 

which Moore arrived and which was pulling out of the driveway. After stopping for a 

moment when it almost hit the first officer’s car, the SUV continued to try to leave. The 

second officer to arrive blocked the street, stopping the SUV from leaving. 

Sanders, holding a “really bloody” towel to his head, told the first officer 

that he had been hit in the head with a pistol and then shot two people and that his Glock 

was inside on the coffee table. While being questioned later at the police station, Sanders 

denied that any weapons other than a disassembled rifle, Moore’s Beretta, and Sanders’s 

Glock had been in the apartment. When the police stated that someone had gotten rid of 

a gun and they had recovered it, Sanders then admitted that the .38 was involved and that 

he had asked Jeremy to remove it from the apartment. Sanders said that he did so and 

lied about it only because he had recently bought the .38 under questionable 

circumstances. Sanders also stated that he had no idea why Moore attacked him, but that 

Moore and Joseph, Sanders’s brother, had “real problems” because some people, 

including Joseph, had been at Moore’s house and “some money [came] up missing.” 

-4- 7058
 
 

 

 

 

 

 

 

 

 

 

2. Carmela Bacod’s statement to the police 

Two days after the shootings Detective Mark Huelskoetter, the lead 

detective in the case, received a phone call from Carmela Bacod, which he recorded.2 

The 17-year-old Bacod described a series of events stretching back “about two weeks 

now,” which had started when “Ryan Sanders, he stole money from one of our friends.” 

She explained that Richards had been her best friend since third grade, that she had 

known Moore “for a couple months,” and that she had met Ketzler once. She stated that 

she had never met Sanders. Bacod reported that she “was supposed to go with them to 

their house . . . that night,” and correctly stated that Ketzler and Porterfield, both of 

whom she physically described, had been present along with Moore and Richards. 

Bacod described a phone call with Richards “about a week and a half ago,” 

in which Richards told Bacod that Richards, Moore, Ketzler, and Porterfield had been 

hanging out with Sanders one night when they all fell asleep and woke up to discover 

Sanders gone, along with money that had belonged to Ketzler. Bacod told Detective 

Huelskoetter that “they wanted to go beat him up to get the money back,” and that 

“Ashlee [Richards] just told me that they wanted the money back, and then they were 

gonna jump ‘em for it.” Bacod also told Detective Huelskoetter that Richards “told me 

that earlier they tried before or something like that, and Ryan’s brother got mad or 

something and pulled a gun on [Raven Ketzler’s] face, or something like that.” And she 

answered affirmatively when Detective Huelskoetter asked her, “[Y]ou know that Travis 

[Moore] wanted to beat Ryan [Sanders] up over the money?” and “[W]hen they were 

goin’ over there that was pretty much the idea, is that Travis [Moore] was gonna beat 

[Sanders] up?” 

2 A transcript of the call follows this opinion as an appendix. 

-5- 7058 
 

 

 

 

 

 

Later in the call, Bacod was more circumspect. When Detective 

Huelskoetter asked her if she “knew that kinda the plan was that Travis [Moore] and his 

girlfriend and Ashlee [Richards] and — and some other girl named Raven [Ketzler] were 

gonna go over there and essentially jump them to get their money back,” Bacod stated, 

“Not — not jump, like, you know, like, talk.” She then stated, “But obviously they’re 

young, so, you know, there’s gonna be violence in it. But I couldn’t stop them.”3 

Bacod gave Detective Huelskoetter her name, date of birth, phone number, 

and address. She took his name and direct phone number, which she recorded with a pen 

she requested from her mother, and told him she would call if she thought of anything 

else. 

Sanders was not informed of Bacod’s call to Detective Huelskoetter until 

March 2008, more than a year later. Before trial and less than three months after Sanders 

had learned of her call, Bacod was killed in a car accident. 

B. Proceedings 

1. Charges 

Ten days after the shootings Sanders was indicted on five counts: 

first-degree murder of Moore (Count I), first-degree murder of Richards (Count II), 

second-degree murder of Moore (Count III), second-degree murder of Richards 

(Count IV), and tampering with physical evidence (Count V). 

2. Motion in limine to admit Bacod’s statement 

In February 2009 Sanders filed a motion in limine to admit Bacod’s 

statement at trial. Sanders argued for admission based upon his due process right to 

present a defense and Alaska Rules of Evidence 803(3) (the state of mind exception to 

According to the transcript, Bacod and Detective Huelskoetter were talking 

over one another during this exchange. 

-6- 7058 

3 
hearsay) and 804(b)(3) (the exception for statements against an unavailable declarant’s 

interest) for Richards’s statement to Bacod, and 804(b)(5) (the unavailable declarant 

residual hearsay exception) for Bacod’s statement to Detective Huelskoetter. 

The superior court denied Sanders’s motion, stating that “Ms. Richards’[s] 

statements to Ms. Bacod regarding her intention to go to the Defendant’s residence with 

Mr. Moore are not admissible under Rule 803(3) as circumstantial evidence that either 

Ms. Richards [or] Mr. Moore planned to rob and assault the Defendant.” The superior 

court stated its understanding of the specifics of Richards’s statement: 

There is no evidence Ms. Richards actually stated she or 

Mr. Moore planned to assault and rob the Defendant. In the 

recorded statement, Ms. Bacod extrapolates the inevitability 

of violence from Ms. Richards’[s] statements. . . . As earlier 

noted, Ms. Bacod states that Ms. Richards told them they 

were going over to the Defendant’s residence to talk. 

Ms. Bacod added that there would likely be violence, but she 

does not state that Ms. Richards affirmatively stated their 

intention was to rob or assault the Defendant. 

Regarding the applicability of Rule 804(b)(5) to Bacod’s statement, the 

superior court stated that “[t]he trustworthiness of the statement may not be established 

by corroborating evidence” — citing Ryan v. State,

4

 which in turn cited the United States

Supreme Court case Idaho v. Wright5

 — and therefore did not consider any extrinsic 

corroborating evidence. The superior court stated its understanding of the specifics of 

Bacod’s statement: 

The relationship between Ms. Bacod, the Defendant, 

and the shooting victims in this case is essentially unknown. 

It is clear that all four parties were in the same social circle, 

but the only evidence of their relationships to one another is 

4 899 P.2d 1371, 1375 (Alaska App. 1995). 

5 497 U.S. 805, 822-24 (1990). 

-7­ 7058 
 

 

 

 

 

 

 

_______________________________________________ 

 

contained in the recording itself. . . . The lack of evidence in 

this respect does not indicate any motivation for Ms. Bacod 

to lie in the Defendant’s favor, but neither does it explain her 

motivation for calling the police to speak against her fallen 

[ ] friends. 6

While it is true Ms. Bacod made her statement to a 

government agent, Ms. Bacod was not under oath and there 

were no subsequent interviews where Detective Huelskoetter 

or any other government agent could cross-examine 

Ms. Bacod regarding her statements or otherwise test her 

knowledge and veracity. The Detective merely took 

Ms. Bacod’s statements and indicated he might contact her 

again. Ms. Bacod gave her statement telephonically and 

there is no way to tell where she was or who else was in the 

room when she made the call. The statements simply are not 

“so trustworthy that adversarial testing would add little to its 

reliability.”21 

21 

Ryan, 899 P.2d at 1375 (quoting Idaho v. 

Wright, 497 U.S. at 821); see also Vaska v. State, 135 P.3d 

1011, 1020 (Alaska 2006). 

3. Trial 

Trial took place in August 2010. None of the nine adults who were at the 

house testified. No evidence was presented regarding Richards’s push knife or the 

machete in the SUV. 7 Bacod’s statement was not introduced, and no evidence was 

6 We note the conundrum created by the court’s statement that the lack of 

extrinsic evidence regarding the relationship between Bacod, Sanders, and others 

counted against Bacod’s statement’s admission, given the court’s prior conclusion that 

extrinsic evidence could not be considered when determining the statement’s 

trustworthiness. 

7 On the first day of trial the State moved for a protective order preventing 

Sanders from mentioning the push knife and machete during voir dire and his opening 

(continued...) 

-8- 7058
 
 

 

 

 

 

 

 

 

presented that Ketzler stayed in the SUV. The superior court instructed the jury 

regarding five defense theories: justified self-defense, heat of passion, defense of 

premises, defense of a third person, and reasonable mistake of fact (regarding Richards’s 

identity). 

During opening statements and closing arguments, the State maintained that 

self-defense and defense of others did not apply because Sanders’s actions were 

excessive. The State painted Sanders as a liar who also had others lie for him, and it 

questioned whether Moore had actually been the first aggressor. The State contended 

that even if the heat of passion defense initially applied, Sanders had time to cool down 

while he grabbed the second gun and chased Moore out of the apartment. The State also 

contended that no justification could defend against the first-degree murder of Richards 

because it would be an unreasonable mistake of fact to believe that she was Moore or that 

she was armed. 

During opening and closing arguments, counsel for Sanders argued that 

Sanders had been truthful, stating that he immediately took responsibility for the two 

deaths, waited quietly for the police, put down the Glock in a safe place, and answered 

the police officer’s questions. Sanders’s counsel argued that Sanders quickly told the 

truth about the .38 and that he had lied at first only because he was worried about that 

gun’s provenance. Counsel for Sanders argued that Sanders committed no crime in 

killing Moore, who had attacked him without warning in his home, because it was selfdefense. His counsel also argued that even if Sanders had not acted in self-defense, he 

7

(...continued) 

statement. The court granted this request because there was no evidence that “the knife” 

was brandished at Sanders or that he knew of “the knife,” and it admonished Sanders’s 

counsel not to mention either weapon in voir dire or his opening argument. The court 

indicated it would take up the issue later if evidence of either the knife’s or machete’s 

relevance developed during the trial. 

-9- 7058
 
 

 

 

 

 

 

acted in the heat of passion. Counsel further argued that he had made a reasonable 

mistake of fact regarding Richards’s identity, given the low lighting outside, the 

similarity of Richards’s and Moore’s coats, and the fast-paced, frenetic situation. 

The jury found Sanders not guilty of first-degree murder of Moore, but 

guilty of the lesser included second-degree murder of Moore under Count I. The jury 

also found Sanders guilty of the remaining counts, as charged: first-degree murder of 

Richards, second-degree murder of Moore under a different theory,8

 second-degree 

murder of Richards, and tampering with physical evidence. By returning these verdicts, 

the jury rejected all five defense theories.9 

4. Appeal to the court of appeals 

On appeal Sanders argued that the superior court had erred by refusing to 

allow him to introduce Bacod’s statement at trial. 10 The court of appeals concluded that 

8 Different second-degree murder theories were used for the lesser-included 

second-degree murder offenses under Counts I and II and the second-degree murder 

offenses charged directly in Counts III and IV. 

9 The jury was instructed that justified self-defense was a complete defense 

to first-degree murder, second-degree murder, and manslaughter. If the jury believed 

Sanders killed Moore in justified self-defense, it would have found Sanders not guilty 

of all charges related to Moore’s death. Instead, the jury found Sanders guilty of the 

second-degree murder of Moore under two theories. 

The jury also was instructed that heat of passion was a defense to the lesser 

included second-degree murder theories but not the direct second-degree murder charges. 

The jury found Sanders guilty of all second-degree murder offenses, demonstrating that 

it did not believe Sanders killed Moore or Richards in the heat of passion. 

10 See Sanders v. State, Mem. Op. & J. No. 5991, 2013 WL 6229377, at *1 

(Alaska App. Nov. 27, 2013). Sanders also argued that the superior court erred by 

allowing the State to introduce his girlfriend’s and his brother’s false statements to the 

police: Detective Huelskoetter testified that Sanders’s girlfriend said that Sanders’s 

(continued...) 

-10- 7058
 
 

 

 

 

 

 

 

 

the superior court “did not abuse [its] discretion” by finding Bacod’s statement 

inadmissible, stating: 

Bacod told the police that Richards said to her that they were 

going to go over to Sanders’s residence to confront him. 

Bacod added that she thought the confrontation was likely to 

be violent. 

. . . . 

In the present case, Sanders offered Bacod’s 

out-of-court statements for the purpose of proving that 

Richards and Moore went to Sanders’s house intending to use 

violence to retrieve money from Sanders or his brother. But 

even according to Bacod, Richards never said that she or 

Moore intended to use violence; instead Richards said that 

they wished to talk to Sanders about the money. In Bacod’s 

statements to the police, she acknowledged that the 

possibility of violence was only her speculation, or her after­

[ ] the-fact gloss on her conversation with Richards. 11

Like the superior court, the court of appeals quoted Ryan v. State for the 

proposition that “evidence admitted under the residual hearsay exceptions must possess 

‘particularized guarantees of trustworthiness’ making it ‘so trustworthy that adversarial 

testing would add little to its reliability.’ ”12 The court added, “[T]here was essentially 

10(...continued) 

brother fired a rifle inside the apartment; he also testified that Sanders’s brother said that 

Moore fired at Sanders first. Id. at *1, *5-6. The State labeled both statements “lies” in 

its closing argument while questioning Sanders’s veracity and whether Moore was the 

first aggressor. The court of appeals concluded that the admission of these statements 

was error, but was harmless. See id. at *1, *7. 

11 Id. at *1, *5. 

12 Id. at *5 (quoting 899 P.2d 1371, 1375 (Alaska App. 1995)). 

-11- 7058
 
 

 

 

 

no evidence regarding Bacod’s potential motivation for contacting the police.”13 The 

court of appeals upheld the trial judge’s ruling.14 

Regarding Sanders’s argument that the exclusion of Bacod’s statement 

violated his due process right to present a defense, the court of appeals stated, “[I]n 

general, a trial court does not commit error by properly applying the evidence rules.”15 

The court of appeals then concluded: “We have previously pointed out the lack of 

reliability of Bacod’s recorded statement to establish the proposition for which it was 

offered. We conclude that the trial court’s proper application of the evidence rules did 

not unfairly limit Sanders’s ability to present a defense.”16 

Chief Judge Mannheimer concurred with the court’s opinion, writing 

separately to point out that Sanders wished to introduce Richards’s statement to prove 

Moore’s future actions.17 Chief Judge Mannheimer cited the Commentary to Rule 803(3) 

(the state of mind hearsay exception) to explain that the Rule “does not allow a litigant 

to introduce one person’s statement about their current mental state (including their 

current plans) for the purpose of proving another person’s future actions.”18 This 

13 Id. 

14 Id. 

15 Id. 

16 Id. 

17 See id. at *7-10 (Mannheimer, C.J., concurring). 

18 Id. at *8 (emphasis in original). 

-12- 7058
 
 

 

 

 

 

 

provided, in his view, an additional reason that the contested statements were not 

admissible.19 

5. Petition for hearing 

Sanders filed a petition for hearing with this court, and we granted it, in 

part, on “whether exclusion of Carmela Bacod’s hearsay statement to the investigating 

detective was reversible error.” 

Sanders argues that Bacod’s statement was admissible under the Rules of 

Evidence — using both Rule 803(3) (the state of mind hearsay exception) and 

Rule 804(b)(5) (the unavailable declarant residual hearsay exception) — to show 

Richards’s intent and conduct in going to Sanders’s apartment on New Year’s Eve. 

Sanders also argues, based on his constitutional right to present a defense, that Bacod’s 

statement was admissible to show both Richards’s and Moore’s intent and conduct in 

going to Sanders’s apartment. Sanders argues that the failure to admit the statement 

under these theories was error and that the error was not harmless. 

III. STANDARD OF REVIEW 

A trial court’s “[f]actual findings are reviewed for clear error. We will 

reverse . . . factual findings only when, after a review of the entire record, we are left 

with a definite and firm conviction that a mistake has been made.”20 When the 

admissibility of evidence “turns on a question of law, such as the ‘correct scope or 

interpretation of a rule of evidence,’ we apply our ‘independent judgment . . . .’ ”21 

19 See id. at *8-10. 

20 Lee v. Konrad, 337 P.3d 510, 517 (Alaska 2014) (footnote and internal 

quotation marks omitted). 

21 Barton v. N. Slope Borough Sch. Dist., 268 P.3d 346, 350 (Alaska 2012)
 

(quoting City of Bethel v. Peters, 97 P.3d 822, 825 (Alaska 2004)). In contrast, when we
 

(continued...)
 

-13- 7058
 
 

 

 

 

Under the de novo standard of review, we adopt the rule of law that is “most persuasive 

in light of reason, precedent and policy.” 22 We also review constitutional interpretation 

issues de novo.23 

IV. DISCUSSION 

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

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

24 25 asserted.” As a general rule hearsay is not admissible, but the Rules of Evidence 

contain exceptions26 and define certain types of out-of-court statements as not hearsay.27 

The proposed evidence in this case contains two levels of hearsay, each of which must 

be individually admissible for the exclusions Sanders challenges to have been 

21(...continued) 

review a trial court’s decision to admit or exclude evidence solely as an application of 

a correctly interpreted rule of evidence to the facts of the instant case, we apply the abuse 

of discretion standard of review. See Greene v. Tinker, 332 P.3d 21, 31, 37-38 (Alaska 

2014) (evaluating for abuse of discretion a trial court’s decision to admit testimony of 

late-identified witness). 

22 Barton, 268 P.3d at 350 (internal quotation marks omitted); see also 

ConocoPhillips Alaska, Inc. v. Williams Alaska Petroleum, Inc., 322 P.3d 114, 122 

(Alaska 2014). 

23 See Khan v. State, 278 P.3d 893, 896 (Alaska 2012). 

24 Alaska R. Evid. 801(c). 

25 See Alaska R. Evid. 802. 

26 See Alaska R. Evid. 803-04. 

27 See Alaska R. Evid. 801(d). 

-14- 7058
 
 

 

 

 

 

 

 

 

erroneous.28 If either Richards’s statement to Bacod or Bacod’s statement to Detective 

Huelskoetter was inadmissible, the proposed evidence was entirely inadmissible. 

A.	 Richards’s Statement To Bacod Was Admissible As Evidence of 

Richards’s Then Existing State Of Mind Under Alaska Rule Of 

Evidence 803(3). 

Under Alaska Rule of Evidence 803(3), “[a] statement of the declarant’s 

then existing state of mind, emotion, sensation, or physical condition (such as intent, 

plan, motive, design, mental feeling, pain, and bodily health) offered to prove the 

declarant’s present condition or future action,” is not excluded by the hearsay rule. 

Sanders argues that Richards’s statement to Bacod was admissible to show Richards’s 

intent and conduct in going to Sanders’s apartment. We agree. 

The superior court found that “[t]here is no evidence Ms. Richards actually 

stated she or Mr. Moore planned to assault and rob [Sanders].” Instead, the superior 

court concluded, “Ms. Bacod extrapolates the inevitability of violence from 

Ms. Richards’s statement.” The court of appeals agreed, stating that “even according to 

Bacod, Richards never said that she or Moore intended to use violence; instead Richards 

said that they wished to talk to Sanders about the money.”29 The court of appeals also 

concluded that “[i]n Bacod’s statements to the police, she acknowledged that the 

possibility of violence was only her speculation, or her after-the-fact gloss on her 

conversation with Richards.”30 

We disagree with this interpretation of Bacod’s statement. Bacod’s first 

recorded words to Detective Huelskoetter were, “Everything happened, and she told me, 

28 See Alaska R. Evid. 805. 

29 Sanders v. State, Mem. Op. & J. No. 5991, 2013 WL 6229377, at *5 

(Alaska App. Nov. 27, 2013). 

30	 Id. 

-15-	 7058
 
 

 

 

 

 

 

 

like, actually it’s been goin’ on for like, about two weeks now. Um, the — Ryan 

Sanders, he stole money from one of our friends, and they wanted to go beat him up to 

get the money back.” (Emphasis added.) Bacod later stated, “Ashlee just told me that 

they wanted the money back, and then they were gonna jump ‘em for it,” and said “[s]he 

told me that earlier they tried before or something like that.” (Emphasis added.) She also 

answered in the affirmative when Detective Huelskoetter twice asked her direct questions 

verifying that Moore was planning to go beat up Sanders: 

Q. So — but you know that Travis [Moore] wanted to 

beat Ryan [Sanders] up over the money? 

A.	 Yeah. 

Q. And that when they were goin’ over there that was 

pretty much the idea, is that Travis [Moore] was gonna beat 

[Sanders] up? 

A.	 Yeah. 

Only after verifying with Detective Huelskoetter that Porterfield and 

Ketzler, who were both still alive, had been present the night of the shooting did Bacod 

partially backtrack: 

Q. So, now, just let me see if I understand correctly, that 

you knew that kinda the plan was that Travis [Moore] and his 

girlfriend and Ashlee [Richards] and — and some other girl 

named Raven [Ketzler] were gonna go over there and 

essentially jump them to get their money back? 

A.	 Not - not jump, like, you know, like, talk. 

. . . . 

A. [T]hey’re young, so, you know, there’s gonna be 

violence in it. 

. . . . 

A.	 But, I couldn’t stop them. 

-16-	 7058
 
 

 

 

 

 

 

 

 

 

Q. Right. So, they — they — I mean basically the only 

reason they were going over there was to get the money back. 

A. Probably. 

The State does not forcefully contest that Richards told Bacod about the 

plan to confront Sanders. Instead it argues that Richards’s statement was not of her own 

intent, but instead the intent of “an unidentified ‘they.’ ” But the “they” in question is 

not unidentified. Bacod named the four people involved, including Richards. When 

Detective Huelskoetter summarized what Bacod had told him — “the plan was that 

Travis [Moore] and his girlfriend and Ashlee [Richards] and — and some other girl 

named Raven [Ketzler] were gonna go over there and essentially jump them to get their 

money back” — Bacod did not say that Richards was not part of the group making the 

plan. The State’s argument that only Moore, and not Richards, intended to beat up 

Sanders fails for similar reasons: Bacod, in recounting her conversation with Richards, 

said multiple times that “they” — not just Moore — were going to beat up Sanders. 

The State argues that the statements regarding Sanders stealing money are 

inadmissible hearsay because they are being offered to prove that Sanders stole money. 

But Sanders offered the statements about the theft to show Richards’s motive, not 

whether Sanders actually stole money. Richards’s belief that the theft was committed 

by Sanders explained her motive in going to Sanders’s apartment.31 

31 The State also argues that Richards’s statements regarding Sanders’s theft 

of money may not have been based upon her own personal knowledge and thus would 

be inadmissible under Alaska Rule of Evidence 602, which permits a witness to testify 

only to matters about which she has personal knowledge. But the statements were being 

offered to prove Richards’s belief that Sanders stole the money as her motive to attack 

him. Richards had personal knowledge regarding her own belief, just as she had 

personal knowledge regarding her own plan to beat up Sanders. 

-17- 7058
 
 

 

 

 

 

 

 

The State also contends the word “jump” as used by Bacod meant “talk,” 

not assault. The State argues that Bacod “expressly defined jump for her purposes.” 

This is contradicted by the statement itself. Before using the word “jump,” Bacod stated 

that the group was planning to “beat [Sanders] up.” Bacod twice answered in the 

affirmative Detective Huelskoetter’s direct questions verifying that Moore was planning 

to go “beat up” Sanders. 

Bacod stated that Richards directly expressed her intent to beat up Sanders 

and her motive for doing so. This statement of Richards’s intent and motive was 

admissible under Rule 803(3) to show her future action.32 Because we conclude that the 

superior court’s factual finding that Bacod merely extrapolated violence from Richards’s 

statement to her was clearly erroneous, we must reverse the court of appeals’ decision 

upholding the superior court’s Rule 803(3) ruling. 

B.	 Richards’s Statement To Bacod Was Admissible As Evidence of 

Moore’s Future Actions Under Alaska Rule Of Evidence 803(23). 

Although Richards’s statement to Bacod was relevant to explain some of 

Richards’s conduct at Sanders’s home, its greater potential relevance was to explain 

Moore’s conduct, which, according to Sanders, included pistol-whipping Sanders 

without provocation. However, as Chief Judge Mannheimer noted in his concurring 

opinion below, “the Commentary to Evidence Rule 803(3) explains that Rule 803(3) 

32 Sanders’s stated purpose in requesting admission of Richards’s statement 

of her own motive and intent includes showing “Richards’[s] conduct at Sanders’[s] 

home” — that “she would have behaved like Moore would have behaved after Sanders 

fought him off” and in particular that she chose to flee Sanders’s home to get to the 

“getaway car” (instead of “fighting, hiding, staying in place, or withdrawing”) and “did 

nothing to rescue Sanders from his assailant.” Sanders also states that “evidence of 

Richards’[s] robbery plot would have show[n] that Richards shared Moore’s escape route 

— Porterfield’s SUV” and that “Richards ran because she had made the mistake of 

bringing a knife to attack a man with a gun.” 

-18-	 7058
 
 

 

 

 

 

 

 

 

 

 

 

does not allow a litigant to introduce one person’s statement about their current mental 

state (including their current plans) for the purpose of proving another person’s future 

actions.” 33 Thus, if Richards’s statement to Bacod was admissible only to demonstrate 

Richards’s future actions, and not Moore’s, its probative value might have been 

outweighed by the danger of unfair prejudice,34 making it proper for the trial court to 

exclude it or subject it to a limiting instruction. 35 But the circumstances in this case 

demonstrate that Richards’s statement was admissible not only to prove Richards’s intent 

and conduct, but also Moore’s. 

The Commentary to Rule 803(3) explains that “[f]or the statements of one 

person as to his mental or emotional condition to be used against another, [Evidence 

Rule 803](23) must be satisfied.” 36 Rule 803(23) is a residual hearsay exception. It 

permits the admission of a statement that would otherwise be excluded as hearsay if it 

has “circumstantial guarantees of trustworthiness” that are “equivalent” to the listed 

exceptions, and “if the court determines that (a) the statement is offered as evidence of 

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

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

(c) the general purposes of these rules and the interest of justice will best be served by 

admission of the statement into evidence.” 

33 Sanders, 2013 WL 6229377, at *8 (Mannheimer, C.J., concurring) 

(emphasis in original). 

34 See Alaska R. Evid. 403. 

35 Cf. Linton v. State, 880 P.2d 123, 130-31 & n.6 (Alaska App. 1994) 

(affirming introduction of murder victim’s hearsay statements, with limiting instruction, 

under Rule 803(3) even though the statements concerned the victim’s fear of the 

defendant and the defendant’s alleged threats to the victim). 

36 Commentary Alaska E. R. 803(3). 

-19- 7058
 
 

 

 

 

 

 

 

 

In this case, the party seeking to introduce a statement under the residual 

exception is a criminal defendant. This fact is important in two interrelated ways. First, 

Sanders, like all criminal defendants, enjoys a constitutional right to due process of law 

before he is convicted of a crime.37 “Although it is not absolute, a defendant’s right to 

present a defense is a fundamental element of due process.”38 Evidentiary rulings can 

so infringe this right to present a defense that they constitute a violation of the guarantee 

of our constitution’s due process clause,39 which requires admission even of evidence 

that the legislature has specifically barred if its exclusion “substantially limits the right 

to present a defense.” 40 Here, however, as we explain below, it is an incorrect 

application of the evidence rules that encroaches on this right. 

Sanders presented five defense theories to the jury: justified self-defense, 

heat of passion, defense of premises, defense of a third person, and reasonable mistake 

of fact (regarding Richards’s identity). The credibility of each of these theories was tied 

to the jury’s willingness to believe Sanders’s account of Moore striking him without 

provocation, an account that the State argued “doesn’t make any sense” during closing 

argument. The exclusion of Richards’s statement to Bacod effectively excluded all 

evidence of the alleged conspiracy to rob Sanders and thus excluded critical evidence 

relevant to the credibility of Sanders’s account of the events that preceded the shootings. 

The jury was left with an account in which, as the State put it in closing argument, 

Sanders “tells us for no reason, no reason whatsoever, no reason that he’s willing to 

admit, Mr. Moore whacks him on the head and causes that gash, that gash above his eye, 

37 See Alaska Const. art. I, § 7. 

38 Smithart v. State, 988 P.2d 583, 586 (Alaska 1999) (citation omitted). 

39 See id. 

40 Valentine v. State, 215 P.3d 319, 326 (Alaska 2009). 

-20- 7058
 
 

 

 

 

 

 

 

 

 

for no reason whatsoever.” The exclusion prevented the jury from hearing the only 

available evidence of the missing “reason” the State rhetorically lamented.41 

The second way that Sanders’s status as a criminal defendant is important 

is the fact that the State likely could have used Richards’s statement against Moore if it 

had sought to prosecute Moore for conspiracy to commit robbery.42 Alaska Rule of 

Evidence 801(d)(2)(E) provides that a statement is not hearsay if it “is offered against 

a party and is . . . a statement by a co-conspirator of a party during the course and in 

furtherance of the conspiracy.” Richards told Bacod about an on-going plan to rob 

Sanders — a plan that Richards shared with Moore and which they had already 

attempted to put into action, only to be resisted by Sanders’s armed brother. Bacod was 

apparently supposed to join her four friends when they went to Sanders’s house on the 

night of the shootings. Moore’s actions, including going to Sanders’s home with the 

other alleged participants in the conspiracy while carrying a pistol and, according to 

Sanders’s account, striking Sanders in the face, corroborate his connection to the 

conspiracy Richards described.43 

Rule 801(d)(2)(E) is not directly applicable to this case because Moore is 

not a party to the State’s prosecution of Sanders and thus Richards is not a party’s coconspirator. But Rule 803(23), which must be satisfied “[f]or the statements of one 

41 Cf. Keith v. State, 612 P.2d 977, 982-83 (Alaska 1980) (“If the superior 

court’s refusal to admit the journal did, in fact, substantially limit Keith’s opportunities 

to prove his innocence affirmatively, the due process right to a fair trial would have been 

denied him.”). 

42 See AS 11.31.120 (conspiracy); 11.41.500 (robbery in the first degree). 

43 Cf. Stewart v. State, 756 P.2d 900, 904-05 (Alaska App. 1988) (discussing 

evidence that corroborated a defendant’s connection to a plan described in a 

co-conspirator’s statement). 

-21- 7058
 
 

 

 

 

 

 

 

 

 

 

person as to [her] mental or emotional condition to be used against another,”44 allows for 

the admission of statements that have “circumstantial guarantees of trustworthiness” that 

are “equivalent” to the other exceptions to the bar on hearsay. Statements made by a coconspirator in furtherance of a conspiracy were traditionally defined as an exception to 

the hearsay rule, but under the revised Alaska Rules of Evidence they are defined as 

nonhearsay.45 Their characterizaion as nonhearsay is largely predicated on expectations 

of trustworthiness, just like the exceptions listed in Rule 803.46 Richards’s statement 

establishing Moore’s participation in a conspiracy to rob Sanders did not become less 

trustworthy because Sanders, rather than the State, sought to introduce it. 

The “interest of justice” factor identified in Rule 803(23) dovetails in this 

case with the right to present a defense. In light of this factor, Richards’s statement fits 

within the residual hearsay exception even as it pertains to Moore’s future actions. Here 

the only reasonably available evidence explaining Moore’s alleged unprovoked assault 

on Sanders was his co-conspirator’s statement that she, Moore, and others “wanted to go 

beat [Sanders] up to get the money back.” Richards’s statement to Bacod was therefore 

admissible. 

44 Commentary Alaska E. R. 803(3). 

45 See Hawley v. State, 614 P.2d 1349, 1357 n.20 (Alaska 1980); Commentary 

Alaska E. R. 801(d)(2) (“[I]f these rules [—801(d)(2)(C),(D), and (E)—] were written 

on a clean slate without reference to the Federal Rules, admissions would be treated as 

exceptions to the hearsay rule and placed under Rule 803.”). 

46 See MODEL CODE OF EVIDENCE, Rule 508 cmt. b (1942) (“[T]he tendency 

in the authorities is to receive evidence of all declarations of a conspirator concerning the 

conspiracy when made during its pendency. These statements are likely to be true, and 

are usually made with a realization that they are against the declarant’s interest.”). 

-22- 7058
 
 

 

 

C.	 Bacod’s Statement To Detective Huelskoetter Was Admissible As 

Evidence Of Richards’s Statement Under Alaska Rule Of Evidence 

804(b)(5). 

1.	 The superior court and court of appeals excluded Bacod’s 

statement to Detective Huelskoetter based on an overly 

demanding test for determining sufficient trustworthiness under 

the unavailable declarant residual hearsay exception. 

Alaska Rule of Evidence 804(b)(5) is, like Rule 803(23), a residual hearsay 

exception. It permits the admission of a statement by an unavailable declarant that would 

otherwise be excluded as hearsay if it has “circumstantial guarantees of trustworthiness” 

that are “equivalent” to the listed exceptions, and “if the court determines that (A) the 

statement is offered as evidence of a material fact; (B) the statement is more probative 

on the point for which it is offered than any other evidence which the proponent can 

procure through reasonable efforts; and (C) the general purposes of these rules and the 

interests of justice will best be served by admission of the statement into evidence.”47 

The superior court stated that Bacod’s statement did not fall within 

Rule 804(b)(5)’s residual exception because it was not “so trustworthy that adversarial 

testing would add little to its reliability.” The court of appeals agreed, and quoted the 

same language in support of its conclusion that the superior court did not abuse its 

discretion in excluding Bacod’s statement.48 The quoted standard is from the court of 

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

48 See Sanders v. State, Mem. Op. & J. No. 5991, 2013 WL 6229377, at *5 

(Alaska App. Nov. 27, 2013). 

-23-	 7058
 
 

 

appeals’s decision in Ryan v. State,

49 which in turn was quoting the United States 

Supreme Court’s decision in Idaho v. Wright. 

50 

Both Wright and Ryan are Confrontation Clause cases.51 They were 

decided based on the precedent established in Ohio v. Roberts, under which even 

testimonial hearsay could be admissible against a criminal defendant as long as it fell 

“within a firmly rooted hearsay exception” or bore “particularized guarantees of 

trustworthiness.”52 Both cases considered “residual” hearsay evidence offered by the 

government against a criminal defendant protected by the Confrontation Clause, and both 

erected a demanding standard for admission: The courts would only allow a criminal 

defendant to be tried based on the word of a declarant he could not confront if the 

statement was “so trustworthy that adversarial testing would add little to its reliability.”53 

49 899 P.2d 1371, 1375 (Alaska App. 1995). 

50 497 U.S. 805, 821 (1990). 

51 See id. at 808 (“This case requires us to decide whether the admission at 

trial of certain hearsay statements made by a child declarant to an examining pediatrician 

violates a defendant’s rights under the Confrontation Clause of the Sixth Amendment.”); 

Ryan, 899 P.2d at 1375 (“Because the hearsay issue in this case arises in the context of 

a criminal prosecution, the hearsay must satisfy not only the requirements of Evidence 

Rule 804(b) but also the requirements of the Confrontation Clauses of the Federal and 

Alaska Constitutions (the Sixth Amendment to the United States Constitution and 

Article I, Section 11 of the Alaska Constitution).”). 

52 448 U.S. 56, 66 (1980). 

53 Wright, 497 U.S. at 821; see also Ryan, 899 P.2d at 1375. The United 

States Supreme Court disapproved the Ohio v. Roberts approach in Crawford v. 

Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006), which 

established that “hearsay evidence may violate a defendant’s right of confrontation even 

though that evidence might be admissible under the hearsay rules.” Clark v. State, 199 

P.3d 1203, 1210 (Alaska App. 2009). By decoupling the Confrontation Clause and the 

(continued...) 

-24- 7058
 
 

 

 

 

 

 

In contrast, in this case it was Sanders, rather than the State, who sought to 

admit Bacod’s statement. The State is, of course, not protected by the Confrontation 

Clauses in the Alaska and United States Constitutions. And the State has not identified 

any case in which the test the superior court used has been applied to evidence 

introduced by a criminal defendant. The superior court thus erred by applying the 

heightened reliability standard that limited the residual hearsay exception in 

Rule 804(b)(5) to evidence “so trustworthy that adversarial testing would add little to its 

reliability” to Bacod’s statement. Instead, the superior court should have applied the test 

set out in Evidence Rule 804(b)(5) itself: A statement by an unavailable declarant is 

admissible if (1) “the statement is offered as evidence of a material fact,” (2) “the 

statement is more probative on the point for which it is offered than any other evidence 

which the proponent can procure through reasonable efforts,” (3) “the general purposes 

of these rules and the interests of justice will best be served by admission of the 

statement into evidence,” and (4) the statement has “circumstantial guarantees of 

trustworthiness” that are “equivalent” to the guarantees of trustworthiness that justify the 

enumerated hearsay exceptions when a declarant is unavailable. 

Importantly, the enumerated exceptions to which Rule 804(b)(5) refers are 

those that apply only when the declarant is unavailable. “The traditional exceptions to 

the hearsay rule form two general classes: (1) those statements which are so inherently 

reliable that cross-examination is thought unnecessary (Rule 803); and (2) those 

statements which are sufficiently reliable to be admitted in light of their great evidentiary 

53(...continued) 

rules of evidence, Crawford and Davis removed the need to erect a demanding residual 

hearsay standard to serve the purposes of the Confrontation Clause. Cf. Whorton v. 

Bockting, 549 U.S. 406, 413-14 (2007) (“Roberts potentially excluded too much 

testimony because it imposed Confrontation Clause restrictions on nontestimonial 

hearsay not governed by that Clause.”). 

-25- 7058
 
 

 

 

 

value when the declarant is unavailable (Rule 804).”54 The exceptions to which 

804(b)(5) refers all have circumstantial guarantees of trustworthiness, such as the 

unavailable declarant’s belief of her impending death55 or admission to civil or criminal 

liability,56 but they are not necessarily “so trustworthy that adversarial testing would add 

little to [their] reliability.” In fact, the limitation of these exceptions to circumstances in 

which the declarant is unavailable suggests that cross-examination would add to their 

reliability, and would be required if it were possible.57 Thus, the superior court’s 

application of the demanding “adversarial testing would add little” standard to Sanders’s 

efforts to admit Bacod’s statement under Rule 804(b)(5) was a legal error. 

2.	 It was legal error for the superior court to refuse to consider 

evidence that corroborated Bacod’s statement to Detective 

Huelskoetter. 

The superior court ruled that “[t]he trustworthiness of [Bacod’s] statement 

[to Detective Huelskoetter] may not be established by corroborating evidence.” The 

54 In re A.S.W., 834 P.2d 801, 804 (Alaska 1992) (emphasis added). 

55 See Alaska R. Evid. 804(b)(2). 

56 See Alaska R. Evid. 804(b)(3). 

57 See Commentary Alaska E. R. 804(b) (“Rule 803 . . . is based upon the 

assumption that a hearsay statement falling within one of its exceptions possesses 

qualities which justify the conclusion that whether the declarant is available or 

unavailable is not a relevant factor in determining admissibility. [Rule 804(b)] proceeds 

upon a different theory: hearsay which admittedly is not equal in quality to testimony 

of the declarant on the stand may nevertheless be admitted if the declarant is unavailable 

and if his statement meets a specified standard. The rule expresses preferences: 

testimony given on the stand in person is preferred over hearsay, and hearsay, if of the 

specified quality, is preferred over complete loss of the evidence of the declarant.”). 

-26-	 7058
 
 

 

 

 

 

 

 

 

court of appeals did not specifically consider this claim of error. 58 The superior court’s 

ruling on this point is legal error and is inconsistent with our cases interpreting Evidence 

Rule 804(b)(5). 

The superior court cited Ryan v. State in support of its no-corroboratingevidence rule. As discussed above, Ryan was a Confrontation Clause case. Like the 

heightened reliability requirement for unavailable declarant hearsay testimony, the 

requirement that “[t]he required ‘guarantees of trustworthiness’ may not be established 

by showing that the hearsay statement is corroborated by other evidence” was based on 

the court of appeals’ interpretation of Idaho v. Wright.

59 The court of appeals in Ryan 

limited this holding to cases implicating the Confrontation Clause.60 The application of 

the prohibition on corroborating evidence to a criminal defendant’s attempt to introduce 

hearsay evidence is error,61 particularly in light of a criminal defendant’s constitutional 

58 See generally Sanders v. State, Mem. Op. & J. No. 5991, 2013 WL 

6229377 (Alaska App. Nov. 27, 2013). 

59 See Ryan v. State, 899 P.2d 1371, 1375 (Alaska App. 1995) (citing Idaho 

v. Wright, 497 U.S. 805, 822-24 (1990)). 

60 See id. (“In Idaho v. Wright, the United States Supreme Court held that, at 

least for Confrontation Clause purposes, a hearsay statement’s ‘guarantees of 

trustworthiness’ must be ‘inherent’ in the statement.” (quoting Wright, 497 U.S. at 822)). 

61 See Brumley v. Albert E. Brumley & Sons, Inc., 727 F.3d 574, 578 (6th Cir. 

2013) (“[Wright’s] requirement that the truthfulness of a statement be so clear [from only 

the circumstances surrounding the statement] that the test of cross-examination be of 

marginal utility is specific to the Confrontation Clause; thus, the requirement is 

inapplicable in this [civil] case.”); United States v. NB, 59 F.3d 771, 776 n.5 (8th Cir. 

1995) (“Wright has no effect on hearsay analysis when there is no Confrontation Clause 

issue.”); 5 CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE 

§ 8:141, at 286-88 (4th ed. 2013) (“Obviously Wright does not affect use of the catchall 

[hearsay exception] in civil cases, nor limit defense use of the catchall in criminal cases, 

(continued...) 

-27- 7058
 
 

 

 

 

 

right to present a defense. 

In cases that do not feature the specific protections of the Confrontation 

Clause, extrinsic corroborating evidence often supports the admission of evidence 

offered under the residual hearsay exceptions in Evidence Rules 804(b)(5) and 803(23).62 

Permitting trial courts to consider extrinsic corroboration appears to be the majority rule 

in jurisdictions which have specifically addressed the issue.63 This 

61(...continued) 

and in these settings independent corroboration continues to count in assessing 

trustworthiness.”). 

62 See, e.g., Kristen L. v. Benjamin W., Mem. Op. & J. No. 1502, 2014 

WL 2716842, at *3 (Alaska June 11, 2014) (corroborating notes supported admission 

of counselor’s testimony about children’s statements under the catchall hearsay 

exception); In re T.P., 838 P.2d 1236, 1241-42 (Alaska 1992) (approving of trial court’s 

admission of minor’s hearsay statement under Evidence Rule 804(b)(5) partially because 

a reference in the statement to the location of an alleged sexual touching was 

corroborated); cf. Matanuska Elec. Ass’n v. Weissler, 723 P.2d 600, 610 n.17 (Alaska 

1986) (approving of trial court’s ruling that the fact that a hearsay “statement also 

corroborates other testimony” makes it more appropriate to admit under Evidence 

Rules 804(b)(5) and 803(23)). 

63 See United States v. Turner, 718 F.3d 226, 233-34 (3d Cir. 2013) (“[When 

determining] whether a document is sufficiently trustworthy to be admitted under [the 

residual hearsay exception] . . . , the district court may not rely exclusively on 

corroborating evidence.” (emphasis added) (citation omitted)); United States v. 

Redlightning, 624 F.3d 1090, 1118 (9th Cir. 2010) (concluding that a hearsay statement 

lacked “circumstantial guarantees of trustworthiness” under residual hearsay exception 

in part because it was uncorroborated and in part because extrinsic evidence contradicted 

it); United States v. Hunt, 521 F.3d 636, 643-44 (6th Cir. 2008) (finding hearsay 

statements lacked “circumstantial guarantees of trustworthiness” because they were 

uncorroborated); United States v. Abreu, 342 F.3d 183, 191 (2d Cir. 2003) (finding 

hearsay statements lacked “circumstantial guarantees of trustworthiness” in part because 

they were “uncorroborated”); United States v. Hall, 165 F.3d 1095, 1110-11 (7th Cir. 

1999) (stating relevant factor when determining “circumstantial guarantees of 

(continued...) 

-28- 7058
 
 

 

 

 

 

 

 

 

 

 

 

63(...continued) 

trustworthiness” is “whether the declarant’s statement was insufficiently corroborated”); 

United States v. Panzardi-Lespier, 918 F.2d 313, 316-17 (1st Cir. 1990) (listing 

corroboration as one factor in determining “circumstantial guarantees of trustworthiness” 

and using extrinsic corroboration, after Wright); State v. Allen, 755 P.2d 1153, 1164 

(Ariz. 1988) (“We do not require corroboration under the residual hearsay exceptions, 

but its existence is nevertheless helpful.”); Martin v. State, 57 S.W.3d 136, 142 

(Ark. 2001) (concluding in the context of determining “circumstantial guarantees of 

trustworthiness,” that details from the accomplice’s post-crime hearsay statements, 

including “the detailed directions to the abandoned house, the fact that [the victim’s] face 

and mouth had been duct-taped, and the fact that her arms and legs were hogtied[, ]were 

highly indicative of the truthfulness of [the] statements . . . .”); Cabrera v. State, 840 

A.2d 1256, 1268 (Del. 2004) (“[The] statements fail to satisfy the . . . circumstantial 

guarantees of trustworthiness [requirement under the residual hearsay exception] for the 

same reasons that they were not admissible under [the statement against penal interest 

exception] — they were not supported by sufficient corroborating evidence.”); State v. 

Weaver, 554 N.W.2d 240, 248 (Iowa 1996), overruled on other grounds by State v. 

Hallum, 585 N.W.2d 249 (Iowa 1998) (“Factors to consider in making a trustworthiness 

determination under [the residual hearsay exception] include: . . . corroboration . . . .”); 

People v. Katt, 662 N.W.2d 12, 24 n.12 (Mich. 2003) (“[C]orroborative evidence may 

be used to determine the trustworthiness of statements [offered under the residual 

hearsay exceptions] . . . [if] the Confrontation Clause is not implicated.” (emphasis 

omitted) (citations omitted)); State v. Griffin, 834 N.W.2d 688, 693 (Minn. 2013) (listing 

corroborating evidence as a relevant factor for determining “circumstantial guarantees 

of trustworthiness” under a residual hearsay exception); State v. Cottier, 755 N.W.2d 

120, 131 (S.D. 2008) (“[F]actors for a trial court to consider in assessing trustworthiness 

of hearsay offered under the residual hearsay rule . . . include: . . . the existence of 

corroborating evidence . . . .”); State v. Lopez, 843 N.W.2d 390, 437 (Wis. 2014) (stating 

that factors to consider in determining “circumstantial guarantees of trustworthiness” 

under a residual hearsay exception include “the existence of other corroborating 

evidence”); Lafond v. State, 89 P.3d 324, 339 (Wyo. 2004) (“[C]ircumstantial guarantees 

of trustworthiness . . . may be established . . . through other corroborating evidence . . . .” 

(quoting Johnson v. State, 930 P.2d 358, 366 (Wyo. 1996))); 2 GEORGE E. DIX ET AL., 

MCCORMICK ON EVIDENCE § 324, at 565-66 (Kenneth S. Broun ed., 7th ed. 2013) 

(“[E]ven before Crawford v. Washington eliminated the precedential value of Wright, 

some lower courts used corroboration as a factor establishing trustworthiness of hearsay 

(continued...) 

-29- 7058
 
 

 

 

 

 

 

interpretation makes sense, as a court testing a statement’s admissibility under the 

residual hearsay exceptions is concerned with the trustworthiness of the specific 

statement at issue, rather than the category of statements to which the statement belongs. 

There is no logical reason that extrinsic corroborating evidence cannot contribute to 

creating “circumstantial guarantees of trustworthiness.”64 Indeed, one of the unavailable 

63(...continued) 

admitted under a catchall exception when the confrontation issue was otherwise 

eliminated.”); 5 FEDERAL EVIDENCE, supra note 61, § 8:141, at 286-88; HEARSAY 

HANDBOOK §§ 47:1-2 (4th ed. 2014); 5 JACK B. WEINSTEIN & MARGARET A. BERGER, 

WEINSTEIN’S FEDERAL EVIDENCE § 807.03[2][b], at 807-15 to -18 (Joseph M. 

McLaughlin ed., 2d ed. 2014). 

But see United States v. El-Mezain, 664 F.3d 467, 498 (5th Cir. 2011) (“The 

determination of trustworthiness is ‘drawn from the totality of the circumstances 

surrounding the making of the statement, but it cannot stem from other corroborating 

evidence.’ [United States v.] Ismoila, 100 F.3d [380,] 393 [(5th Cir. 1996)] (citing Idaho 

v. Wright, 497 U.S. 805, 820-22 (1990)).”); Vasquez v. People, 173 P.3d 1099, 1106-07 

(Colo. 2007) (relying upon Wright to conclude that extrinsic corroboration is not 

appropriate consideration when determining “circumstantial guarantees of 

trustworthiness” under residual hearsay exception); State v. Aaron L., 865 A.2d 1135, 

1144 n.20 (Conn. 2005) (“Only factors related to the circumstances surrounding the 

making of the challenged statement may be considered to support the reliability of the 

hearsay statement at issue.” (emphasis in original)); Larchick v. Diocese of Great 

Falls-Billings, 208 P.3d 836, 845 (Mont. 2009) (“[The residual hearsay exception] looks 

to the circumstances surrounding a hearsay statement when it is made — the 

circumstantial guarantees of trustworthiness that lend reliability to the hearsay statement 

in lieu of cross-examination.” (internal quotation mark omitted)); State v. Johnson, 557 

S.E.2d 811, 817 (W. Va. 2001) (“Reliability must be shown from the circumstances 

surrounding the making of the statement.”). 

64 The State argues that the word “circumstantial” in “equivalent 

circumstantial guarantees of trustworthiness” means only the immediate circumstances 

of the statement, not any extrinsic corroborating circumstances. But the word 

“circumstantial” could just as easily include any circumstances indicating 

trustworthiness, including extrinsic corroboration. The wording of Rule 804(b)(5) does 

(continued...) 

-30- 7058
 
 

 

 

 

 

 

 

 

 

 

 

 

declarant hearsay exceptions to which evidence offered under the residual hearsay 

exception is compared contemplates the use of extrinsic evidence to support the hearsay 

65 66 statement, and another, in some circumstances, requires it. We therefore agree with 

the majority of jurisdictions that extrinsic corroborating evidence may properly be 

considered in determining whether a statement proffered under Rule 804(b)(5)’s residual 

hearsay exception exhibits “circumstantial guarantees of trustworthiness” equivalent to 

the other unavailable declarant hearsay exceptions. 

64(...continued) 

not exclude the consideration of extrinsic evidence, and we will not read such a 

prohibition into the rule. See State v. Robinson, 718 N.W.2d 400, 409 n.4 (Minn. 2006) 

(“Nor does the residual exception itself prevent us from considering corroborating 

evidence. The rule contains no specific limitation . . . .”). 

The State additionally argues that the presence of extrinsic corroboration 

precludes the statement from being “more probative on the point for which it is offered 

than any other evidence which the proponent can procure through reasonable efforts.” 

Though it is possible that extrinsic corroborating evidence could be more probative than 

the hearsay statement it supports, this will not always be the case. 

65 See Alaska R. Evid. 804(b)(4)(B) (exception for statement of personal or 

family history about a person other than the unavailable declarant “if the declarant was 

related to the other by blood, adoption, or marriage or was so intimately associated with 

the other’s family as to be likely to have accurate information concerning the matter 

declared”). 

66 See Alaska R. Evid. 804(b)(3) (Although statements against interest are 

generally admissible, “[a] statement tending to expose the declarant to criminal liability 

and offered to exculpate the accused is not admissible unless corroborating 

circumstances clearly indicate the trustworthiness of the statement.”). The State argues 

that Rule 804(b)(3)’s explicit inclusion of corroborating evidence means that the drafters 

of the rules intended to disallow the use of corroborating evidence for the other hearsay 

exceptions, including Rule 804(b)(5). But the requirement of corroboration in one area 

does not necessarily entail its prohibition in another. The drafters of Rule 804(b)(5) 

could have stated that no extrinsic corroboration could be used to find “equivalent 

circumstantial guarantees of trustworthiness,” but they did not. 

-31- 7058
 
 

 

 

 

 

 

3.	 In light of the correct test of admissibility and the proffered 

corroborating evidence, Bacod’s statement to Detective 

Huelskoetter should have been admitted. 

As discussed above, a statement by an unavailable declarant is admissible 

if (1) “the statement is offered as evidence of a material fact,” (2) “the statement is more 

probative on the point for which it is offered than any other evidence which the 

proponent can procure through reasonable efforts,” (3) “the general purposes of these 

rules and the interests of justice will best be served by admission of the statement into 

evidence,” and (4) the statement has “circumstantial guarantees of trustworthiness” that 

are “equivalent” to the guarantees of trustworthiness that justify the enumerated hearsay 

exceptions when a declarant is unavailable.67 The State contests two of these 

requirements: the circumstantial guarantees of Bacod’s statement’s trustworthiness and 

whether the statement is more probative on the point for which it was offered than other 

evidence Sanders could have reasonably procured. 

a.	 Bacod’s statement to Detective Huelskoetter had the 

required circumstantial guarantees of trustworthiness. 

Whether a particular hearsay statement offered under the residual hearsay 

exception at Rule 804(b)(5) has sufficient circumstantial guarantees of trustworthiness 

is necessarily a case-by-case question. Many courts focus upon idiosyncratic aspects of 

the particular proffered statement which suggest trustworthiness.68 Particularly 

significant relevant factors relied on by multiple jurisdictions include: 

whether the declarant had a motivation to speak truthfully or 

otherwise; the spontaneity of the statement, including 

whether it was elicited by leading questions, and generally 

67 Alaska R. Evid. 804(b)(5). The Rule also requires adequate notice to the 

opposing party, a requirement not at issue in this case. 

68 See MCCORMICK ON EVIDENCE, supra note 63, § 324, at 561-66. 

-32-	 7058
 
 

 

the time lapse between event and statement; whether the 

statement was under oath; whether the declarant was subject 

to cross-examination at the time the statement was made; the 

relationship between the declarant and the person to whom 

the statement was made; whether the declarant has recanted 

or reaffirmed the statement; whether the statement was 

recorded and particularly whether it was videotaped; and 

whether the declarant’s firsthand knowledge is clearly 

[ ] demonstrated. 69

And, as discussed above, in cases that do not implicate the Confrontation Clause it is 

appropriate to consider extrinsic corroborating evidence. 

The State correctly notes that the residual hearsay exceptions apply “only 

on rare occasions,”70 and are not invitations to discard the general prohibition on the 

admission of hearsay. But in this case at least five factors — Bacod’s motivation to 

speak truthfully, the spontaneity of her statement, the professional relationship between 

her and Detective Huelskoetter, the fact that her statement was recorded, and the clear 

demonstration of her firsthand knowledge of Richards’s plan — argue in favor of the 

statement’s trustworthiness, as does the extrinsic corroborating evidence. The particular 

guarantees of trustworthiness attached to Bacod’s statement to Detective Huelskoetter 

convince us that, given the importance of the statement to Sanders’s defense, the 

statement should have been admitted.71 

69 Id. 

70 In re A.S.W., 834 P.2d 801, 804 (Alaska 1992). 

71 See id. (explaining that the unavailable declarant hearsay exceptions in 

Rule 804 relate to “statements which are sufficiently reliable to be admitted in light of 

their great evidentiary value”); see also Smithart v. State, 988 P.2d 583, 586 (Alaska 

1999) (recognizing that exclusion of evidence proffered by a criminal defendant can 

violate the defendant’s due process rights). 

-33- 7058
 
 

 

 

 

 

 

i. Motivation to speak truthfully 

Bacod’s statement provides no reason to believe she was speaking 

insincerely in an effort to help Sanders. She told Detective Huelskoetter that she had 

known Richards, whom she described as her “best friend,” since the third grade, and that 

she had known Moore for months. She connected her social life to theirs, telling 

Detective Huelskoetter that she was supposed to have been with Richards, Moore, 

Ketzler, and Porterfield on the night of the shooting. In contrast, she explained that she 

had never met Sanders. Despite this asymmetry of bonds, she relayed information that, 

whether she knew it or not, would have been helpful to Sanders’s defense and implicated 

her friends in a conspiracy to commit robbery. The fact that Sanders did not learn of the 

call until the State disclosed its existence fifteen months after Bacod placed it further 

diminishes the chances that Bacod was somehow lying for Sanders’s benefit. 

ii. Spontaneity 

It is also relevant that Bacod initiated the call to Detective Huelskoetter. 

The fact that she sought Detective Huelskoetter out rather than vice versa diminishes the 

chances that she was telling him what she thought he wanted to hear. Bacod answered 

Detective Huelskoetter’s open-ended questions and stated that she told him everything 

she knew about the events. She invited him to call her back if he had any further 

questions, in the process giving him her full name, home address, and phone number. 

And she apparently did all of this in the presence of her mother. 

The dissent complains that “the most relevant portion” of Bacod’s statement 

“was obtained through the detective’s leading questions.”72 But only after Bacod 

Dissent at 44. 

-34- 7058 

72 
 

 

 

 

 

 

 

 

reported what she had learned about the plan from her conversation with Richards73 did 

Detective Huelskoetter ask the two follow-up questions cited by the dissent. Both 

questions were posed immediately after Bacod stated, “I can’t think right now,” and they 

are therefore best interpreted not as leading questions but as attempts to elicit 

clarification of Bacod’s previous statements. 

iii. Under oath 

Bacod’s statement to Detective Huelskoetter was not under oath. But 

because Bacod was speaking with a peace officer about a crime, knowingly providing 

false information in this call could have possibly subjected Bacod to criminal liability.74 

This possibility, much like an oath, provided a strong incentive to be truthful. 

iv. Cross-examination 

Bacod was not subject to cross-examination when she made the statement. 

Although Detective Huelskoetter asked some clarifying questions, this was no substitute 

for cross-examination. This factor does not weigh in favor of her statement’s 

admissibility. 

73 “[Sanders] stole money from one of our friends, and they wanted to go beat 

him up to get the money back . . . .” Bacod then stated, “Ashlee [Richards], . . . Raven 

[Ketzler], . . . Travis [Moore], and Travis’s fiancée Sherrell [Porterfield]. . . woke up with 

money gone, and they were guessing it was [Sanders] . . . .” 

74 See AS 11.56.800(a)(1)(A) (“A person commits the crime of false 

information or report if the person knowingly gives false information to a peace officer 

with the intent of implicating another in an offense.”). The State argues that Bacod could 

not have faced charges for false information or report because “it was Richards who 

supposedly suggested that others intended to commit a crime,” while “Bacod was merely 

a conduit for that information.” But this section applies as readily to “conduits” as to 

primary souces, so long as the requisite knowledge and intent are present. 

-35- 7058
 
 

 

 

 

 

 

 

v. Relationship 

The fact that Detective Huelskoetter was the police officer charged with 

investigating the recent shooting deaths of two of her friends strongly favors Bacod’s 

statement’s admissibility. Bacod provided the detective background information about 

what she believed “triggered it to happen.” These serious circumstances invited careful 

and somber reflection and explanations. Indeed, as discussed above, knowingly lying 

to Detective Huelskoetter could have subjected Bacod to criminal liability. 

vi. Recantation and reaffirmation 

The record does not contain any evidence that Bacod ever recanted or 

reaffirmed her statement to Detective Huelskoetter. The dissent charges that Bacod 

“changed her account in real time in response to what she learned” in the interview with 

Detective Huelskoetter.75 But Bacod initially indicated, without any prompting from the 

detective, that Moore, Richards, Ketzler, and Porterfield wanted to“beat . . . up” Sanders. 

And while Bacod later added that the four of them were going to “try to talk . . . it out,” 

the dissent omits Bacod’s very next statement to the detective: “But . . . obviously. . . 

they’re young, so . . . there’s gonna be violence in it.” And for most of the time between 

Bacod’s statement and her death Sanders was not aware that she had called and spoken 

with Detective Huelskoetter. 

vii. Recording 

Detective Huelskoetter recorded Bacod’s statement when she called him. 

If the only record of the statement was Detective Huelskoetter’s recollection and 

testimony there would be risks that he misunderstood or misremembered the 

conversation. The fact that the jury could have heard the statement eliminates those 

Dissent at 43. 

-36- 7058 

75 
 

 

 

 

 

 

 

risks, although it does not eliminate the risks of Bacod’s faulty perception or memory of 

her conversation with Richards. 

viii. Clear demonstration of firsthand knowledge 

Bacod’s statement to Detective Huelskoetter demonstrated her firsthand 

knowledge of the plan and conflict Richards described. Bacod listed the number of her 

friends that went to Sanders’s house and provided their names. She identified the 

relationships among them. Her close ties with Richards, whom Bacod described as her 

“best friend,” and whom Bacod was supposed to join on the night of the shooting, 

provides further reassurance that Bacod had firsthand knowledge of the conversation 

with Richards. 

ix. Corroboration 

Extrinsic corroborating evidence provides further circumstantial guarantees 

of trustworthiness in this case. Bacod correctly identified the group of four people that 

went to Sanders’s home together on the night of the shootings without assistance from 

Detective Huelskoetter. Bacod stated that “they wanted to go beat [Sanders] up to get 

the money back,” and that because the four were young “there’s gonna be violence in it.” 

On the night of the shooting, little more than a week after Bacod reported she spoke with 

Richards, those four people traveled to Sanders’s house with a pistol, a push knife, and 

a machete. According to Sanders, one of them struck him with the pistol without 

warning, an action consistent with the plan to “jump” Sanders that Bacod described. 

Taken together, the “idiosyncratic factors”76 surrounding Bacod’s statement 

to Detective Huelskoetter convince us that it had the circumstantial guarantees of 

trustworthiness that Evidence Rule 804(b)(5) requires. Bacod’s statement was essential 

to the defense theories Sanders had a constitutional right to present, and it, like the rest 

76 MCCORMICK ON EVIDENCE, supra note 63, § 324, at 561. 

-37- 7058 
 

 

 

 

 

 

 

 

of the Rule 804 exceptions for unavailable declarants, was “sufficiently reliable to be 

admitted in light of [its] great evidentiary value.”77 

b.	 Bacod’s statement to Detective Huelskoetter was more 

probative on the point for which it was offered than other 

evidence Sanders could have reasonably procured. 

The State also argues that Bacod’s statement to Detective Huelskoetter was 

inadmissible because Porterfield and Ketzler were available to testify, “and both would 

have presumably known about the purported plan.” It follows, the State argues, that the 

statement Sanders sought to introduce was not “more probative on the point for which 

it is offered than any other evidence which the proponent can procure through reasonable 

efforts,” as Rule 804(b)(5) requires.78 

Although it is difficult to precisely define the scope of “the point for which 

[evidence] is offered,” it is clear that Bacod was in a unique position in this case. She 

had allegedly learned about an ongoing conspiracy from a close friend, but she did not 

join in the enterprise. This gave her crucial insight into the aims of the acting parties 

without exposing her to the threat of criminal liability that would normally silence a 

participant in a criminal scheme. The record contains no hint of another witness 

prepared to testify that Richards and Moore planned to “jump” Sanders or of any other 

person who was aware of the plan but not participating in it. The State acknowledges 

in its brief that Porterfield, one of the witnesses it faults Sanders for not interviewing, 

denied knowledge of any plan to rob and beat up Sanders. And the fourth alleged 

confederate, Ketzler, similarly denied any role in, or knowledge of, a plan to rob Sanders 

77 In re A.S.W., 834 P.2d 801, 804 (Alaska 1992). 

78 The State also alludes to the availability of Sanders’s brother, Joseph, to 

testify that Moore attacked Sanders first, but Bacod’s statement was probative of more 

than just Moore’s physical actions in Sanders’s bedroom and came from a source much 

less likely to fabricate testimony on Sanders’s behalf. 

-38-	 7058
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

when questioned by police. Moreover, Bacod learned about the plan from Richards, one 

of the victims and one of the three people whose states of mind, intentions, and actions 

were central to the case. 

Under these circumstances, and again informed by Sanders’s constitutional 

right to present a defense, we do not believe that Sanders could have reasonably procured 

any evidence more probative on the points for which Sanders offered Bacod’s statement 

to Detective Huelskoetter. We therefore reject the State’s argument that Bacod’s 

statement was inadmissible for this reason and, in conjunction with our determination 

above that the statement had the required circumstantial guarantees of trustworthiness, 

and the State’s well-reasoned concession that admission of the statement would serve the 

interests of justice, hold that it should have been admitted under Evidence 

Rule 804(b)(5).79 

D. The Exclusion Of The Two Statements Was Not Harmless. 

Although the superior court’s exclusion of Richards’s statement to Bacod 

and Bacod’s statement to Detective Huelskoetter was erroneous, it is not a basis for 

reversing Sanders’s conviction if the error was harmless.80 The trial record in this case 

79 In its respondent’s brief, the State clarified that “[t]he state does not dispute 

the potential materiality of the report by Bacod — it refers to the purported statements 

by Richards, which if admissible, would be relevant. Nor does the state dispute that 

admission of Bacod’s report would be consistent with the evidence rules and the interests 

of justice. The state, however, disputes that Bacod’s report is more probative than other 

reasonably available evidence.” 

80 See Alaska R. Crim. P. 47(a) (“Any error, defect, irregularity or variance 

which does not affect substantial rights shall be disregarded.”). 

-39- 7058
 
 

 

 

 

 

 

 

 

indicates that the exclusion was not harmless because we cannot “fairly say that the error 

did not appreciably affect the jury’s verdict.”81 

The State argues that the evidence that Richards and Moore had conspired 

to attack and rob Sanders would not have appreciably affected the jury’s verdict because 

the focus of the State’s case was on the excessiveness of Sanders’s response, not whether 

Sanders or Moore was the initial aggressor. The State focuses particularly on the 

prosecutor’s rebuttal argument, during which he appeared to implicitly concede that 

Moore struck Sanders first. But the strength of the prosecutor’s concession was 

significantly undercut by its context. Just before those statements, the prosecutor noted 

that he was arguing based on “words from [Sanders’s] mouth,” but he did not tell the 

jury to accept them as true. Indeed, much of the prosecutor’s first closing argument 

provided the jury with reason not to credit Sanders’s account, including Sanders’s 

explanation of what had provoked the shootings. The prosecutor was hardly conceding 

that Sanders was credible when he told the jury that Sanders “tells us for no reason, no 

reason whatsoever, no reason that he’s willing to admit, Mr. Moore whacks him on the 

head and causes that gash, that gash above his eye, for no reason whatsoever.” The 

prosecutor rhetorically asked the jury, “[W]ould it make any sense for Mr. Moore to 

whack somebody in the head with an unloaded gun when the other guy’s got two loaded 

81 Love v. State, 457 P.2d 622, 634 (Alaska 1969). Sanders argues that, given 

the constitutional nature of his claim of error, the State is required to demonstrate that the 

error was harmless beyond a reasonable doubt. See, e.g., Adams v. State, 261 P.3d 758, 

773 (Alaska 2011) (“A constitutional violation will always affect substantial rights and 

will be prejudicial unless the State proves that it was harmless beyond a reasonable 

doubt. An error that is not constitutional in nature will be prejudicial if the defendant 

proves that there is a reasonable probability that it affected the outcome of the 

proceeding.”). Because we find that the error was not harmless under the lessdemanding standard for non-constitutional errors, we need not determine whether the 

error was harmless beyond a reasonable doubt. 

-40- 7058
 
 

 

 

 

 

 

 

guns right there on the bed? That makes no sense.” The prosecutor also told the jury 

that “[w]e know intuitively” that Sanders told the other witnesses to the events that “[t]he 

story will be he hit me first.” And the prosecutor told the jury that Sanders had “a motive 

to lie to the detectives to make himself look good and to leave out the parts of the story 

that make it look like . . . the shooting of Mr. Moore had a lot more to do with preexisting 

animosity than we discovered in this case.” 

In light of the extensive argument against Sanders’s account that the State 

presented during closing argument, we cannot fairly conclude that the exclusion did not 

have an appreciable effect on the jury’s verdict. 

V. CONCLUSION 

Because the excluded evidence should have been admitted and because its 

exclusion was not harmless, we REVERSE Sanders’s convictions and REMAND for a 

new trial. 

-41- 7058
 
 

 

 

 

 

 

BOLGER, Justice, with whom STOWERS, Justice, joins, dissenting in part. 

I. INTRODUCTION 

I agree with the general legal framework the court uses to decide this case. 

I am troubled, however, by the court’s conclusion that Carmela Bacod’s statement to 

Detective Huelskoetter was so trustworthy that the superior court was required as a 

matter of law to admit it under Alaska Evidence Rule 804(b)(5).1 Even considering 

corroborating evidence, I would hold that Bacod’s statement does not evince the 

“circumstantial guarantees of trustworthiness” required for admission under 

Rule 804(b)(5), and I would affirm the superior court’s evidentiary ruling. In the 

alternative, I would remand to allow the superior court to exercise its discretion in 

making this determination under this court’s newly announced standard.2 

II. DISCUSSION 

The court adopts nine “[p]articularly significant relevant factors”3

 for 

determining whether a proffered hearsay statement, despite failing to meet any of the 

enumerated hearsay exceptions, is nevertheless sufficiently trustworthy to be admitted 

into evidence.4 The court concludes that “at least five” of these factors favor the 

1 Op. at 28, 39. 

2 See Patterson v. GEICO Gen. Ins. Co., 347 P.3d 562, 568 (Alaska 2015) 

(“We . . . review the superior court’s application of the evidence rules . . . for abuse of 

discretion.”). 

3 See Op. at 32. 

4 The court adopts eight of these factors from 2 GEORGE E. DIX ET AL., 

MCCORMICK ON EVIDENCE § 324, at 565-66 (Kenneth S. Broun ed., 7th ed. 2013) and 

analyzes evidence of corroboration as a final, standalone factor. See Op. at 32-38. 

-42- 7058
 
 

 

 

 

 

statement’s admission.5 But for the reasons discussed below, I am not persuaded by the 

court’s analysis, and I would conclude that, on the record before us, only one of these 

nine factors — the recording of the statement — unambiguously favors admission, while 

the remaining eight either cut against the statement’s trustworthiness or provide little 

insight into the trustworthiness of the statement. 

A. Motivation To Speak Truthfully 

The court concludes that “Bacod’s statement provides no reason to believe 

she was speaking insincerely in an effort to help [Ryan] Sanders.”6 But while I agree 

that Bacod had no reason to lie for Sanders, Bacod’s broader motivations for speaking 

with Detective Huelskoetter remain unknown. If anything, Bacod’s statement suggests 

that Bacod contacted Detective Huelskoetter partly to determine what the police 

7 knew about the shooting, and it is undisputable that she changed her account in real time

in response to what she learned.8 This casts some doubt on the idea that Bacod called 

Detective Huelskoetter for the civic-minded purpose of providing a truthful statement to 

help the police with their investigation. I would therefore conclude that this factor 

weighs neither for nor against finding Bacod’s statement sufficiently trustworthy. 

5 Op. at 33. 

6 Op. at 34 (emphasis added). 

7 Specifically, Bacod asked Detective Huelskoetter: 

•	 “[W]ere you there at the scene?”

 •	 “Was . . . it just [Richards] and [Moore] alone?” 

•	 “[W]as there other people with [Moore] and . . . [Richards]? . . . 

Were there two females there?” 

8 Bacod initially indicated that Travis Moore, Ashlee Richards, Raven 

Ketzler, and Sherrell Porterfield wanted to “jump” and “beat . . . up” Sanders, but she 

later said “[t]hey were . . . gonna try to talk . . . it out.” 

-43-	 7058
 
 

 

 

 

 

 

B. Spontaneity 

In discussing spontaneity, the court focuses primarily on the fact that Bacod 

initiated the call to Detective Huelskoetter and states that the detective’s questions to her 

were “open-ended.” 9 But though it is true that much of Bacod’s statement was made in 

response to open-ended questions, the most relevant portion — Bacod’s claims about 

Travis Moore’s intent10 — was obtained through the detective’s leading questions. 

Bacod never independently stated (or even implied) that Moore was the ringleader of the 

alleged assault. She indicated this only by affirmatively answering two very leading 

questions: (1) “So . . . you know that [Moore] wanted to beat [Sanders] up over the 

money?” and (2) “[W]hen they were goin’ over there[,] [it] was pretty much the idea . . . 

that [Moore] was gonna beat him up?”11 I do not think that Bacod’s responses to the 

detective’s leading questions on this critical issue can be considered spontaneous, and 

I would conclude that this factor weighs against the trustworthiness of Bacod’s 

statement. 

C. Under Oath 

Bacod’s statement was not sworn testimony. Accordingly I would conclude 

that this factor weighs against the statement’s trustworthiness. 

D. Cross-examination 

Bacod’s statement was not subjected to thorough cross-examination. 

Although Detective Huelskoetter asked several leading questions, none was particularly 

9 Op. at 34. 

10 Moore’s intent was important and perhaps critical to the admissibility of 

Bacod’s statement, as the court notes. Op. at 18-19. 

11 Moreover, this second question would have been objectionable if it had 

been asked at trial because Bacod had no personal knowledge of Moore’s state of mind 

at the moment “when [the alleged conspirators] were goin[g]” to Sanders’s apartment. 

-44- 7058
 
 

 

pointed or intended to cast doubt on Bacod’s truthfulness, as the State’s questions would 

have been had Bacod been able to testify at trial. Indeed, cross-examination would have 

been particularly helpful in clarifying this particular statement, because it might have 

shed light on whether Richards actually told Bacod that the alleged conspirators were 

planning to “jump” and “beat . . . up” Sanders or merely indicated an intent to “talk” with 

him. Because the State was unable to press Bacod on this point, I would conclude that 

this factor weighs against the trustworthiness of Bacod’s statement. 

E. Relationship 

The court concludes that Bacod’s decision to talk to a police officer 

investigating the deaths of two friends strongly favors the trustworthiness of Bacod’s 

statement.12 The court also notes that knowingly providing false information to the 

police could have subjected Bacod to criminal liability.13 And elsewhere in its analysis, 

the court suggests that Bacod’s statement was more trustworthy because she made it in 

the presence of her mother.14 But as a general matter, I suspect police officers and 

parents of teenagers would be skeptical of the court’s reasoning, since it is not 

uncommon for individuals to lie to the police, or teenagers to their parents. And as noted 

above, the idea that Bacod was highly motivated to tell the truth — either by the death 

of her friends or by the potential for criminal liability — is somewhat belied by the fact 

that she changed her account halfway through her statement. 

For these reasons, I would conclude that the relationship between Bacod 

and Detective Huelskoetter provides, at best, weak support for trustworthiness. I do not 

think there is enough information in the record about Bacod’s relationship with her 

12 Op. at 36. 

13 Op. at 36. 

14 Op. at 34. 

-45- 7058
 
 

 

 

 

 

 

mother and with Detective Huelskoetter (or police officers in general) to support the 

conclusion that these relationships “strongly favor” her statement’s trustworthiness. 

F. Recantation Or Reaffirmation 

There is no evidence to suggest Bacod recanted or reaffirmed her statement 

after talking with Detective Huelskoetter, and she died before the evidence of her 

statement came to light. As already noted, however, Bacod walked back a critical part 

of her account — namely, that Moore, Richards, Ketzler, and Porterfield intended to 

assault Sanders — midway through her statement. Although it seems likely that Bacod’s 

reason for changing her narrative was to protect Ketzler and Porterfield once she learned 

they had been present at Sanders’s house during the shootings, Bacod’s shift of narrative 

was indisputably a “partial[] backtrack,”15 as the court puts it, or a partial recantation, as 

I would put it. For this reason, I would conclude that this factor weighs against finding 

Bacod’s statement trustworthy. 

G. Recording 

Bacod’s statement was recorded. As the court correctly concludes,16 this 

weighs in favor of the statement’s trustworthiness. 

H. Firsthand Knowledge 

The court notes that Bacod had firsthand knowledge of her conversation 

with Richards, which seems indisputable. 17 Nevertheless, I am not persuaded that this 

factor favors admissibility. It is difficult to imagine proffered evidence of hearsay within 

15 See Op. at 16. 

16 See Op. at 33. 

17 See Op. at 37. The court also notes that Bacod had close ties with Richards 

and knew the identities of the other three alleged conspirators. Id. For the reasons 

discussed in the next section, however, I am unpersuaded that this corroborating 

evidence supports the trustworthiness of Bacod’s statement. 

-46- 7058
 
 

 

 

 

 

hearsay where the out-of-court declarant will not have firsthand knowledge of the second 

declarant’s statement, so this factor would appear to support the admission of hearsay 

within hearsay in most cases. But each level of hearsay compounds the risk that the 

original statement was miscommunicated or misunderstood, and a factor that usually or 

always favors the admission of hearsay within hearsay seems an unreliable indicator of 

whether the statement is trustworthy. Therefore, while firsthand knowledge (or lack 

thereof) seems a particularly relevant factor in determining whether a typical hearsay 

statement should be considered reliable,18 I would conclude that this factor has little or 

no weight in determining the trustworthiness of hearsay-within-hearsay statements, 

including Bacod’s. 

I. Corroborating Evidence 

Finally, the court concludes that corroborating evidence supports the 

trustworthiness of Bacod’s statement. The court highlights Bacod’s identification of 

Moore, Richards, Ketzler, and Porterfield early in her statement without prompting from 

Detective Huelskotter.19 And the court notes that the four friends had three weapons in 

their possession the night of the shootings: (1) Richards’s push knife, (2) the machete 

in the car, and (3) Moore’s unloaded pistol.20 

But the fact that Bacod could identify the alleged conspirators provides 

minimal corroboration for Bacod’s statement, since Bacod’s statement suggests that the 

friends regularly spent time together, and Bacod did not actually know whether Ketzler 

18 See United States v. Hall, 165 F.3d 1095, 1111 (7th Cir. 1999) (holding 

third-party suspect’s confession unreliable where it was “clear” that suspect “knew 

nothing about the specifics of the crime”). 

19 Op. at 36. 

20 Id. at 37. 

-47- 7058
 
 

 

 

 

 

 

and Porterfield visited Sanders the night of the shootings. Moreover, Bacod’s 

identification of her friends does not corroborate the critical portion of Bacod’s 

statement: her explanation for why those friends visited Sanders’s apartment. 

Likewise, the existence of the three weapons adds little corroborative force 

to Bacod’s statement. The push knife and machete are conditionally relevant only if the 

weapons were intended to be used to assault Sanders,21 but there is no evidence of such 

intent. To the contrary, Richards never brandished the push knife and the machete 

remained in the car.22 And while Moore’s pistol provides some corroboration for the 

general thrust of Bacod’s statement, the weapon’s existence rebuts the portion of 

Bacod’s statement that specifically addresses Moore’s relationship with firearms. When 

asked whether she had ever observed Moore with a gun, Bacod responded: “No, . . . no. 

I can’t imagine [Moore] with a gun.” 23 Bacod further speculated that Ketzler was the 

only one of the alleged conspirators who might have had a gun, but there is no evidence 

in the record suggesting that Ketzler possessed a firearm either on the night of the 

shootings or in general. 

For these reasons, I do not share the court’s confidence that Bacod’s 

identification of the group of friends who visited Sanders on the night of the shootings 

— or the existence of the friends’ three weapons — significantly corroborates Bacod’s 

statement. I would conclude that the corroborating evidence here provides only weak 

support for the statement’s trustworthiness. 

21 See Alaska R. Evid. 104(b). 

22 Indeed, Sanders was not aware of either weapon, and the superior court 

concluded they were irrelevant and inadmissible. 

23 It also seems odd that Moore would take an unloaded weapon to Sanders’s 

house if he intended to assault Sanders. 

-48- 7058
 
 

 

 

 

 

III. CONCLUSION 

I disagree with the court’s conclusion that Bacod’s statement was 

sufficiently trustworthy to be admissible under Rule 804(b)(5), and I am especially 

troubled by the court’s holding that Bacod’s statement was so trustworthy that it must be 

admitted as a matter of law.24 

The court attempts to narrow the breadth of this holding by stating that the 

residual hearsay exceptions apply “only on rare occasions,” should not be treated as 

“invitations to discard the general prohibition on the admission of hearsay,” and must be 

applied on a “case-by-case” basis. 25 But litigants — both criminal and civil — will no 

doubt cite this case to support the admission of hearsay statements under the residual 

hearsay exceptions. And Bacod’s unsworn, telephonic statement seems less trustworthy 

than evidence from sworn affidavits or in-person interviews if such evidence can be 

partially corroborated. Though the court has not previously held that these types of 

hearsay evidence should be admissible at trial, I fail to see why today’s ruling will not 

lead to the regular admission of such statements. 

I fear the court will come to regret its expansion of the residual hearsay 

exceptions, and I respectfully dissent. 

24 See Op. at 39. 

25 See Op. at 32-33. 

-49- 7058 
 

 

 

 

 

 

 

 

 

 

Anchorage Police Department Transcript 

Q - DETECTIVE M. HUELSKOETTER 

A - CARMELA BACOD 

A.	 Everything happened, and she told me, like, actually it’s been goin’ on for like, 

about two weeks now. Um, the - Ryan SANDERS (Phonetic), he stole money 

from one of our friends, and they wanted to go beat him up to get the money back, 

‘cause it was pretty much a lot of money, and I think that’s what like, triggered 

it (clears throat) to happen. 

Q.	 Do you know who, uh - which friend had the money stolen? 

A.	 I don’t know her last name. I’ve met her just one time. Her name is RAVEN 

(Phonetic), though. 

Q.	 Okay. So, what - what exactly do you know about the s - stealing of the money? 

A.	 Um, well, ASHLEE (Phonetic) told me, uh, like about a week and a half ago, she 

told me on the phone that hi - her, RAVEN, and TRAVIS (Phonetic), and 

TRAVIS’s fiancée SHERRELL, (Phonetic) and RYAN were all hangin’ out, and 

then RYAN ended up the one only awake. Everyone was sleeping and they woke 

up with money gone, and they were guessing it was him, ‘cause he was the only 

one awake, and he was gone when they came - when they woke up. 

Q.	 Humph. 

A.	 So, they assumed that he had stolen the money and ASHLEE told me that she 

heard around that RYAN had bought, uh, marijuana and alcohol and other drugs 

with the money. 

Q. Uh-huh. 

BACKGROUND NOISE 

A. So, that’s what I’ve heard. 

BACKGROUND NOISE 

Q.	 Okay. Do you - do you know of any other, uh, bad blood between RYAN and 

TRAVIS and that group? Any other things goin’ on? 

BACKGROUND NOISE 

A.	 Um, I don’t know RYAN - I’ve never met RYAN, but his name sounds really 

familiar, and I’ve known TRAVIS for a couple months, and I’ve known 

ASHLEE, she - she was my best friend, and I’ve known her since third grade. 

Q.	 Okay. 

A.	 But, that was pretty much what she told me. 

Q.	 So, what did . . . 

Appendix - 1 of 6	 7058 
 

 

 

 

 

A. 	 She . . . 

Q.	 . . . they tell you about, uh, wanting to go, uh, beat them up over this? I mean, 

what specifically do you know about that? What was the plan? 

BACKGROUND NOISE 

A.	 (Clears throat) Um, actually he had - he wanted to hang out with them . . . 

Q.	 He, as in TRAVIS? 

A.	 Uh, RYAN. He wanted to hang out with all of us. I was supposed to go with 

them to their house . . . 

Q.	 Oh, okay. 

A.	 . . . that night. (Clears throat) Um, I really don’t know, like - oh, I can’t think right 

now. 

Q.	 Okay. 

A.	 Sorry. 

Q. So - but you know that TRAVIS wanted to beat RYAN up over the money? 

BACKGROUND NOISE 

A. Yeah. 

BACKGROUND NOISE 

Q.	 And that when they were goin’ over there that was pretty much the idea, is that 

TRAVIS was gonna beat him up? 

BACKGROUND NOISE 

A.	 Yeah. Um, were you there at the scene? 

Q. I’ve - I was at the scene. 

BACKGROUND NOISE 

A.	 Was, uh - was it just ASHLEE and TRAVIS alone? 

Q.	 I - I’m sorry? 

A.	 Like, um, was there other people with TRAVIS and SHERRELL, like - I mean, 

ASHLEE? 

Q.	 Yeah. There were. 

A.	 Were there two females there? 

Q. Yes. 

BACKGROUND NOISE 

Q.	 So, do you know somethin’ about that? 

A.	 Well, um, RAVEN, she’s a Native. I don’t know if that was one of her females, 

but, she had long hair . . . 

Q.	 ‘Kay. 

A.	 . . . that’s RAVEN. SHERRELL’s a Black female. 

Q.	 Uh-huh. 

A.	 She was, uh, TRAVIS’s fiancée. 

Appendix - 2 of 6	 7058 
 

 

Q. Okay. 

BACKGROUND NOISE 

A.	 Um, ASHLEE just told me that they wanted the money back, and then they were 

gonna jump ‘em for it. But, uh, she told me that earlier they tried before or 

something like that, and RYAN’s brother got mad or something and pulled a gun 

on RAVEN’s face, or something like that. I don’t know. She didn’t tell me much 

about that. 

Q. So, uh, [your] name’s CARMELA, is that right? 

BACKGROUND NOISE 

A. Yes. 

BACKGROUND NOISE 

Q.	 So, now, just let me see if I understand correctly, that you knew that kinda the 

plan was that TRAVIS and his girlfriend and ASHLEE and - and some other girl 

named RAVEN were gonna go over there and essentially jump them to get their 

money back? 

A.	 Not - not jump, like, you know, like, talk. 

Q.	 Okay. They were . . . 

A.	 But . . . 

Q.	 . . . gonna try to talk . . . 

A.	 . . . obviously . . . 

Q.	 . . . it out, or . . . 

A.	 . . . they’re young, so, you know, there’s gonna be violence in it. 

Q.	 Okay. 

A.	 But, I couldn’t stop them. 

Q.	 Right. So, they - they - I mean basically the only reason they were going over 

there was to get the money back. 

BACKGROUND NOISE 

A.	 Probably. 

Q. Okay. Alright. 

BACKGROUND NOISE 

Q. Um, you ever see TRAVIS with a gun? 

BACKGROUND NOISE 

A.	 No, he - no. I can’t imagine TRAVIS with a gun. 

Q.	 You can’t imagine TRAVIS with a gun? 

A.	 No. He’s so nice. 

Q. Is he? 

BACKGROUND NOISE 

Q.	 (Sighs) Um, who on that side would - would have had a gun? 

Appendix - 3 of 6	 7058 
 

BACKGROUND NOISE 

A.	 Definitely not ASHLEE. 

Q. Okay. 

BACKGROUND NOISE 

Q. Anyone else that you can think of that mighta had a gun? 

BACKGROUND NOISE 

A.	 I can’t really, like - I don’t know RAVEN that much, but probably she could. I’ve 

only met her once. 

Q.	 Okay. 

A. And I don’t know her. 

BACKGROUND NOISE 

Q. Okay. I - is there anything else that, uh . . . 

BACKGROUND NOISE 

Q. . . . you think I should know? 

BACKGROUND NOISE 

A.	 That’s - I told you everything I know. 

Q. Okay. CARMELA, what’s your last name? 

BACKGROUND NOISE 

A.	 BACOD. 

Q.	 Can you spell . . . 

A.	 B . . . 

Q.	 . . . that? 

A.	 B as in boy . . . 

Q.	 Uh-huh. 

A.	 . . . A-C-O-D as in dog. 

Q. B-A-C-O-D? 

BACKGROUND NOISE 

Q.	 BACOD? 

A.	 Yeah. 

Q.	 What’s your date of birth? 

A. [Bacod provided her date of birth] 

BACKGROUND NOISE 

Q. Um, and how do I get a hold of you again, just call this number? 

BACKGROUND NOISE 

A.	 This is my mom’s cell phone. 

Q.	 Okay. You have your own cell phone, then? 

A.	 Yeah. 

Appendix - 4 of 6	 7058 
 

Q.	 Okay. And, uh, is that, uh, [Detective Huelskoetter recited Bacod’s phone 

number]? 

BACKGROUND NOISE 

A.	 Yeah. 

Q. Okay. 

BACKGROUND NOISE 

Q. And where do ya live? 

BACKGROUND NOISE 

A.	 Um, [Bacod provided her home address] . . . 

. . . . 

Q.	 . . . Alright. If, uh, if I have any other questions, can I, uh, give you a call back 

or come see you? 

BACKGROUND NOISE 

A.	 Yeah. 

Q. Okay. And, uh, do you have somethin’ to write my name and number down with? 

BACKGROUND NOISE 

A.	 Mom, can I get a pen? 

Q. ‘Cause I’ll give you my direct number. 

BACKGROUND NOISE 

A.	 Okay. 

Q. Okay, my first name is MARK. 

BACKGROUND NOISE 

Q.	 My last name, I’ll spell it for you, ‘cause it’s really long. It’s spelled H-U-E-L-SK-O-E-T-T-E-R. 

BACKGROUND NOISE 

Q. And my telephone number is [Detective Huelskoetter provided his phone number] 

BACKGROUND NOISE 

A.	 Okay. 

Q.	 Okay? 

A.	 Thank you. 

Q.	 So, if you think of anything that - that I should know about, will you please give 

me a call? 

A.	 Yes. 

Q.	 Alright, well thank you very much. 

A.	 You’re welcome. 

Q.	 We’ll talk to you later. 

Appendix - 5 of 6	 7058 
A. Alright. 

Q. ‘Bye. 

A. ‘Bye. 

BACKGROUND NOISE 

RECORDER SHUTS OFF 

END OF PHONE CONTACT 

Appendix - 6 of 6 7058