Howard AMIDON, Appellant, v. STATE of Alaska, Appellee. Carol Sue MENARD, Appellant, v. STATE of Alaska, Appellee.
Nos. 2511, 2512
Supreme Court of Alaska
June 2, 1977
565 P.2d 1248
Patrick J. Gullefsen, Asst. Dist. Atty., and Harry L. Davis, Dist. Atty., Fairbanks, Avrum M. Gross, Atty. Gen., Juneau, for appellee.
OPINION
Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, ERWIN and BURKE, JJ.
RABINOWITZ, Justice.
After trial by jury appellant Carol Sue Menard was found guilty of the crime of embezzlement by bailee1 and appellant Howard Amidon was found guilty of aiding and abetting Menard in violation of the same statutory provision.2 The superior court thereafter sentenced appellants each to serve a term of three years imprisonment.
In this appeal Amidon and Menard have raised numerous specifications of error ranging from challenges to the sufficiency of the evidence before the grand jury through a challenge asserting the excessiveness of the sentences which the superior court imposed. The relevant factual background is as follows:
Suza Ellen Wagner, a 62-year-old woman, owned and operated Sue‘s Polaris Cafe in Fairbanks. During the course of her employment, Grace Vetter, an employee of the restaurant, was injured. After the injury, Mrs. Wagner learned that she had failed to obtain workmen‘s compensation insurance, and sought advice of her lawyer. Her attorney allegedly counseled her to liquidate and remove her assets from banks in Fairbanks and deposit them elsewhere. Mrs. Wagner then withdrew money from her bank account, but instead of redepositing it, she secreted some $26,500 cash in her home.
Appellant Carol Sue Menard is Mrs. Wagner‘s granddaughter. She lived in Anchorage with her friend, Howard Amidon. In August of 1973 Menard‘s mother, Mrs. Wagner‘s daughter, became ill and was hospitalized. Menard drove to Fairbanks to see her mother but upon arrival learned she had been moved to Anchorage.
Menard returned to Anchorage accompanied by her grandmother, Mrs. Wagner, and the secreted cash.3 Wagner stayed with Menard and Amidon at their apartment in Anchorage. Testimony is conflicting as to who first brought up the subject of a safe deposit box for the money, but the end result of the discussion between these parties was that the money was counted, denominations noted, and the following day some $26,500 was placed in a box in Menard‘s name to which Menard had the key.4 Mrs. Wagner testified that she was under the impression that anytime she needed any of the money a bank draft would be sent to her.
Subsequently, a triplex apartment owned by Mrs. Wagner in Fairbanks was destroyed in a fire and, as a result, she received insurance proceeds of $63,781.55. Mrs. Wagner did not cash the draft from the insurance company at the time of receipt, but later, when in Anchorage, deposited it in Menard and Amidon‘s account. The understanding was that when the draft cleared, the proceeds would be placed in the safety deposit box.
In November of 1973 Amidon and Menard decided to move to Fairbanks. Prior to leaving Anchorage, they withdrew $63,781.55 from their joint account in the form of a cashier‘s check payable to Menard. They also took the cash from the safety deposit box.
In late November the cashier‘s check and $15,950 in cash were deposited in the Mt. McKinley Mutual Savings Bank in Fairbanks. Shortly thereafter an additional $13,075 was deposited, of which $10,000 was Mrs. Wagner‘s. Wagner claimed she was told her money had been transferred to a safety deposit box in Fairbanks at that time. At about this same time, Wagner directed that $10,000 be used to make a loan to her friends, Quentin (Dale) and Goldie Setzer. Repayments were to be made to an account in Menard‘s name with Wagner as beneficiary. Wagner permitted Amidon and Menard to have the interest on the loan, as well as an amount of interest sufficient to pay income taxes attributable to the interest.
Because she suffered from headaches, dizziness and other symptoms, Wagner made plans to visit a Seattle clinic in April 1974. Three to five days prior to her intended departure date, Mrs. Wagner requested $3,000 of Menard. She did not receive the requested money prior to leaving for Seattle on April 16, 1974. She asserted Menard told her on the day of departure that Amidon was bringing the money home that evening, but Wagner declined to delay her departure.5 Four days earlier, Menard and Amidon had withdrawn $80,778.35 in the form of a cashier‘s check from Mt. McKinley Mutual Savings Bank and had cashed the check at Alaska National Bank.6
Wagner returned from Seattle around June 25 and found Menard and Amidon to be cold and distant toward her. In the early afternoon of July 9, Mrs. Wagner, in the company of the Setzers, went to Menard‘s house to request the return of the money. Prior to their arrival at Menard‘s house, Goldie Setzer had placed a cassette recorder in her purse for the purpose of recording any conversations they would have with Menard. At that time Wagner‘s money was in a briefcase in a bedroom closet not far from the room in which the conversation took place. When Mrs. Wagner asked Menard for the money, Menard asserted she had to do laundry and could not get it right away. Mrs. Wagner was under the definite impression that the money was still downtown in a bank account. Menard appeared to indicate by words and acts that Amidon would be her spokesman. The conversation ended with an understanding that Mrs. Wagner would return at 6:30 p. m. when Amidon was expected home.
When Mrs. Wagner and Goldie Setzer returned that evening, Amidon denied knowledge of what money she was talking about, stated they had given her money back before she went outside, further stated they did not have any of her money, and dared Mrs. Wagner to call the police. Wagner turned the matter over to the police on or about July 10, and indictments charging Menard with embezzlement by bailee and Amidon with aiding and abetting were returned on October 22, 1974. A search warrant executed on October 24 uncovered a briefcase in appellants’ bedroom closet containing some $59,000 in cash and an I.O.U. note for $16,000 from one Chris Katsekures.
We now turn to appellants’ numerous specifications of error, the bulk of which do not require extended discussion. Appellants assert that the indictments failed to charge an offense. The indictment which was returned against Menard reads as follows:
That on or about the 9th day of July, 1974, at or near Fairbanks in the Fourth Judicial District, State of Alaska, Carol Sue Menard, a bailee without hire, did knowingly, wilfully, unlawfully and feloniously refuse to deliver and account for money, to-wit: more than Sixty-three Thousand ($63,000) Dollars: said money belonging to Suza E. Wagner, and which had been entrusted on or about October 19, 1973, to the care of said Carol Sue Menard, by Suza E. Wagner on the condition that the total amount or any fraction thereof demanded would be returned to Suza E. Wagner on demand.7
Appellants argue that this indictment fails to charge with sufficient specificity the requisite intent for the crime, namely, the specific intent to permanently deprive Wagner
[A]n indictment should be read in the light of common sense and should not be vulnerable to attack for technical defects. The fundamental purposes of the indictment are to furnish the accused with a description of the charge against him to enable him to prepare his defense and to permit him to claim double jeopardy in the future should he again be charged with the same offense.
The requirement that every element of the offense should be alleged must be read in the light of this “fairness” approach.9
In Thomas we concluded that we would follow the weight of authority and held that an indictment charging a person with “unlawfully and feloniously” doing an act constitutes sufficient allegation of intent to support an indictment for sale of a narcotic. 522 P.2d at 531. In our view, the question is whether the accused was sufficiently alerted to the elements of the offense to defend against the charge. That question was answered by our holding in Thomas that the general allegation of felonious and unlawful met the test.
In addition contending that the indictment here is defective because of the failure to allege that Menard had the intent to permanently deprive Wagner of the money she had entrusted to Menard, appellants further argue that the indictment failed to specify a demand by Wagner for the monies in question. When read against the Thomas criteria and the provisions of
Appellants claim that they were improperly charged with embezzlement by bailee under
In Maulding v. United States, 257 F.2d 56, 17 Alaska 592 (9th Cir. 1958), a trust relationship between a mobile home dealer and a bank under the Uniform Trust Receipts Law of Alaska, ch. 40, SLA 1951, was found. There the court explained why no bailment was created by this relationship:
A bailor has a general property interest in the property; an entruster has only a security interest. A bailee has no property interest in the bailment. Thus, upon repossession and sale by the bailor, the bailee has no interest in the proceeds other than as compensation for services performed while holder of the property. The trustee in a trust receipt transaction, on the other hand, usually has a property interest in entrusted property which entitles him to the surplus proceeds of any sale, upon repossession by the entruster.
No debtor-creditor relationship exists between a bailor and bailee, and the bailee may return the property to the bailor without incurring liability. On the other hand, in a trust receipt transaction, a debtor-creditor relationship always exists between a trustee and his entruster. The trustee cannot discharge his obligation by returning the property.
257 F.2d at 61-62. The court in Maulding concluded that
the trust receipt transaction here in question did not create a bailor-bailee relationship between the bank and Maulding. It follows that his conversion of the trailer which was the subject of the trust receipt could not be “embezzlement by bailee,” within the meaning of the Alaska statute. (footnote omitted)
State v. Chapin, 74 Or. 346, 144 P. 1187 (1914), provides further elucidation of the question at hand. There, a Mr. and Mrs. Grace gave $3,500 to the defendant and his partner, who were in business together as a mortgage and trust company for the purpose of the defendants investing the funds in first real estate mortgages. The Graces had known Mr. Chapin for about 20 years and placed a great deal of confidence in his integrity. 144 P. at 1189-90. An attempt was made on behalf of the Graces to collect the money from the defendants, and judgment was obtained on part of the notes exchanged for the certificate of deposit, but the judgment could not be collected. 144 P. at 1192. The Oregon Supreme Court said, in upholding the conviction of Chapin for the crime of larceny by bailee under a statute somewhat similar to the current Alaska statute:
A wrongful conversion of money of another intrusted to a bailee or a failure, neglect, or refusal to deliver, keep, or account for such money according to the nature of the trust would be a violation of the statute. . . . In other words, if Chapin was the bailee of the $3,500, the property of Mr. and Mrs. Grace, and wrongfully converted the same to his own use and failed to account for or deliver the same according to the nature of his trust, he would violate the statute, although at the time he appropriated the money he may have intended to speculate therewith and repay the same at some future time. (citations omitted)
144 P. at 1190. The Chapin court did not discuss the issue of whether the defendant was more appropriately characterized as a trustee. Although he was an officer and partner of a mortgage and trust company, a financial institution, the court held he was properly convicted of larceny by bailee.
Several of the comments to the Restatement (Second) of Trusts, section 5 (1957), Trust and Bailment are helpful in making a clear distinction between a bailment and trust. Subsections a and b state, in part:
a. The distinction between bailment and trust. The owner of a chattel may give to another person possession of the chattel without giving him the title to the chattel. In such a case a bailment and not a trust is created.
b. Manifestation of intention. Whether a trust or a bailment is created upon the delivery of a chattel by the owner to another person for the benefit
of the former or of a third person depends upon the manifestation of intention of the parties. If the manifested intention is that the person to whom delivery is made shall thereby acquire the title to the chattel, the transaction creates a trust. If the manifested intention is that he shall not thereby acquire the title to the chattel, but that he shall acquire only the interest of a possessor, the transaction creates a bailment.
Other aspects of the bailment or trust and the parties thereto are described in subsections e and f of the comments to Restatement (Second), section 5:
e. Character of interests and duties. The interest of a bailor is a legal interest, whereas the interest of a beneficiary of a trust is an equitable interest. The interest of a bailee is a legal interest, whereas the interest of a trustee is normally a legal interest although it may be an equitable interest.
f. Transferees. A bailee, having merely possession of and not title to the chattel, normally has no power to transfer the chattel free of the bailor‘s interest. On the other hand, a trustee of a chattel has power to transfer the chattel free of the trust of a bona fide purchaser, since the trustee has title to the chattel, although holding it subject to the equity of the beneficiary, and can transfer it free of equities.13
Guided by the foregoing authorities, we have concluded that the facts of this case demonstrate that a bailee-bailor relationship was established between Mrs. Wagner and Menard. The primary purpose of this relationship was to place the monies in question out of Mrs. Vetter‘s reach. Mrs. Wagner transferred the possession of the
In regard to the indictment in the case at bar, appellants further contend that the indictments were not supported by sufficient evidence. As we stated in State v. Parks, 437 P.2d 642, 644 (Alaska 1968):
[A]n indictment [would] be insufficient and subject to dismissal if it appeared that no evidence was presented to the grand jury that rationally established the facts. . . . We now adopt that rule for this jurisdiction.
Under such a rule, the question is one of sufficiency of the evidence—whether it is adequate to persuade reasonable minded persons that if unexplained or uncontradicted it would warrant a conviction of the person charged with an offense by the judge or jury trying the offense.15 (footnote omitted)
Our review of the record here persuades us that the indictments are supported by sufficient evidence. The facts which we have set out at the beginning of this opinion were brought before the grand jury through the testimony of Mrs. Wagner and the Setzers. In our view, this evidence was sufficient to establish the existence of a bailor-bailee relationship between Wagner and Menard, an intent on Menard‘s part to permanently deprive Wagner of the entrusted sums, and the fact that Amidon aided and abetted Menard in the commission of the embezzlement.16 Concerning Menard‘s subsidiary contention that the evidence failed to show a refusal on her part to return Wagner‘s money, we find the evidence on this question sufficient.17 The refusal by Amidon is clear; by claiming the money had already been given back, Amidon implied there remained no duty on Menard to pay. Further, even if Amidon‘s assertion could not be attributed to Menard, Menard‘s conduct, namely, her failure to actually deliver after demand was made, constitutes a refusal.18
Amidon and Menard next specify as error the trial court‘s granting the state‘s motion for consolidation and the court‘s subsequent refusal to grant their motion for severance. Consolidation of the two cases was made pursuant to a motion by the state under
(a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies, misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
(b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count. The disposition of the indictment or information as to one of several defendants joined in the same indictment or information shall not affect the right of the state to proceed against the other defendants.
For offenses to be joinable they must be of the same or similar character or be based on the same act or transaction. The predominant consideration here is whether joinder will serve the goals of trial economy or convenience.22 For defendants to be joinable they must be alleged to have participated in the same act or transaction. It is firmly established in the case law that the propriety of joinder in cases where there are multiple defendants must be tested by Rule 8(b) alone.23 The rule should be read as allowing joinder of defendants if they are alleged to have participated in (1) the same act or transaction constituting an offense of offenses, or (2) the same series of acts or transactions constituting an offense or offenses.24 Thus, judged by these standards, the superior court did not abuse its discretion in ordering a joinder of the sepa-
A more serious challenge to joinder is the constitutional one appellants raise with reference to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The thrust of appellants’ argument here is that it was error for the trial judge not to order severance at the point where inconsistent defenses were alleged. The apparent inconsistency is that Menard asserts she never authorized Amidon to speak on her behalf. It was Amidon who stated at the second confrontation (on July 9, 1974) that the money involved had already been returned. An additional point of inconsistency concerns the apparent purpose of Amidon‘s attorney‘s cross-examination of witnesses. The record reveals that several times counsel sought admissions from witnesses to the effect that Amidon was not a bailee, and was not, in short, part of the arrangement.
Bruton involved a codefendant‘s refusal to testify at trial, thereby denying the defendant his constitutional right of confrontation and cross-examination when the codefendant‘s confession was introduced in evidence. The Bruton court held that an instruction admonishing the jury to consider the incriminating confession only against the maker could not cure the error.26
The key to appellant Menard‘s reliance on Bruton is her contention that she never authorized Amidon to speak for her at the second confrontation on July 9. We consider Bruton inapplicable in the factual setting of the instant case and hold that the superior court did not abuse its discretion in denying appellants’ motion for severance. Our holding is reflective of our agreement with the state‘s position that it was not an abuse of discretion to deny the motion for severance because Amidon‘s extrajudicial statements are admissible against Menard under a recognized exception to the hearsay rule which renders appellants’ reliance on Bruton inapposite.27
In Kay v. United States, 421 F.2d 1007, 1010 (9th Cir. 1970), the court stated:
It is well settled that admissions and statements of a co-defendant are admissible against another defendant even in the absence of a conspiracy count in the indictment, provided there is sufficient independent evidence of a concert of action between the defendants.28
In order for the statement of the codefendant to be admissible, the declaration must have been made while the joint undertaking was continuing, and must have been in furtherance thereof.29 While the trial court may, in its discretion, vary the order of proof,30 the existence of the joint undertaking must be proven independently to justify the admission of the codefendant‘s statement.31 This latter prerequisite leads into a discussion of appellants’ separate but related specification of error, more particularly, whether the superior court committed prejudicial error in admitting the July 9, 1974, statement of Amidon against Menard.
The preliminary question of whether a joint undertaking exists is for the trial court to determine. The quantum of proof required has been alternatively stated as proof sufficient to support a finding,32 or as a fair preponderance of the evidence.33 The showing necessary to support such a finding must be by evidence from another source.34 In our view, there is sufficient evidence aliunde to support the trial court‘s decision that a joint undertaking existed and therefore statements of a codefendant are admissible if made during the continuance of the joint undertaking and in furtherance of the criminal endeavor.
Thus, we conclude that the superior court did not err in admitting Amidon‘s statements against Menard, nor did it err in its
Appellants next assert that the superior court improperly denied their motion for mistrial. In support of this specification of error, appellants point to three separate instances during Mrs. Wagner‘s testimony, the cumulative impact of which they contend denied them a fair trial. In response to the prosecution‘s question, “Did you make a decision about your money?“, Mrs. Wagner replied, “Dale and Goldie [Setzer] they said, ‘Sue, I don‘t think they even intend to give you that money back.‘”36 Then, in response to a question regarding her will, Mrs. Wagner stated: “Mr. Belland had talked to me about making out a will and I didn‘t know just exactly what to do . . . because my granddaughter had used dope and I knew it. . . .”37 Finally, in regard to the Vetter suit, Mrs. Wagner volunteered an alleged statement of Amidon: “. . . and Howard said, ‘Well . . .’ he says, ‘. . . there‘s a way of getting around that.’ He said, ‘You could have her put away‘—have her done away with.”38
We have previously held that the trial court is vested with “wide discretion” in determining whether a mistrial should be granted and its decision will be disturbed only if an abuse of discretion is shown.39 In light of our review of the entire trial testimony, we have concluded that the superior court did not abuse its discretion in denying appellants’ motion for mistrial. Here Mrs. Wagner‘s remark concerning what Mr. Setzer said cannot be characterized as prejudicial considering Mr. Setzer‘s repetition of the statements in the course of his own testimony. Mrs. Wagner‘s remark about “knowing” her granddaughter “had used dope” is equally unimpressive as a basis for granting a mistrial. First, there is no implication in the statement itself that Menard currently was using drugs. Second, the jury was instructed to disregard the remark. Finally, the jury was well aware of the witness’ own prejudice in the whole matter, she being the prosecutrix and stating that she had “written off” her granddaughter. Mrs. Wagner‘s final remark, reporting Amidon‘s alleged suggestion of murder, is also not persuasive as a source for a mistrial. The jury was instructed to disregard the comment and the jury was well aware of Mrs. Wagner‘s own possible motives for fabricating such a remark. Consequently, we conclude that the trial court correctly ruled the grounds raised in support of the motion for mistrial were collateral and would not confuse or prejudice the jury.
Appellants, in a somewhat parallel specification, contend that the superior court erred in denying their motion for a new trial. As part of this motion, appellants incorporated by reference the three allegedly prejudicial remarks Mrs. Wagner made while she was testifying. In addition, appellants objected to that portion of the prosecutor‘s closing remarks where he referred to Wagner as a “truthteller” and then, after quoting Dale Setzer as saying, “I think you‘ve got your hands on about $80 grand . . . and you don‘t want to let go . . .,” asserted, “I think that‘s true. That‘s exactly what happened.”
We have previously discussed the alleged errors flowing from Mrs. Wagner‘s testimony in connection with the mistrial specification of error. Remaining is the prosecutor‘s remark, “I think that‘s true, that‘s exactly what happened.”40 In Darling v. State, 520 P.2d 793, 794 (Alaska 1974), we first adopted the rule prohibiting counsel from personally vouching for the credibility of a witness. In Darling we cited People v. Perez, 58 Cal.2d 229, 23 Cal.Rptr. 569, 373 P.2d 617, 627 (1962). In Perez the court stated the general rule to be that where misconduct is likely to result in prejudice and the court sustains the objection and properly admonishes the jury, the misconduct will not furnish sufficient grounds to justify the granting of a new trial. The obvious exception to this is where the misconduct is so prejudicial that curative instructions are useless in remedying the taint. In this regard the record shows that the following exchange took place immediately after the prosecutor‘s remark concerning Setzer‘s testimony:
MR. HACKETT: Your Honor, I‘ll object to the prosecutor giving his version of whether it‘s true or not. That‘s for the jury to decide.
THE COURT: You may proceed, Mr. Michalski.
MR. MICHALSKI: That is correct. That—what Mr. Hackett submits, it is for you to decide facts and not for you to take my arguments as facts. You look to those facts that you heard here in this courtroom—the evidence that the court said was admissible, and you decide whether this argument—my—this theory is correct. Even if that particular theory isn‘t correct, then you have to ask, was a crime committed? And has the State proved beyond a reasonable doubt the elements of this crime which the court will explain to you.
Thus, it can be seen that the minor prejudice engendered by the prosecutor‘s improper remark was cured by his subsequent explanation. In addition the jury was instructed that:
Arguments, statements, and remarks of counsel are intended to help you in understanding the evidence and applying the law; but are not evidence.
In light of the entire record and counsel‘s further comments with regard to the questioned statement, we conclude that the prosecutor‘s remark was harmless error.41 Thus, we hold that the superior court did not err in its denial of appellants’ motion for a new trial.
Appellants have advanced as another specification of error the contention that the superior court should have granted their motion for a judgment of acquittal. They argue that under the evidence and inferences most favorable to the state, no reasonable man could have found them guilty.
The standard of appellate review governing denials of motions for judgments of acquittal is as follows:
‘[The Supreme Court] must view the evidence and the inferences to be drawn therefrom in a light most favorable to the state’ . . . [and] determine whether ‘fair minded men in the exercise of reasonable judgment could differ on the question of whether guilt has been established beyond a reasonable doubt.’42
Judged against this criterion and based upon our study of the evidence in the case, we find no error on the part of the superior court in its denial of appellants’ motion for judgment of acquittal.
Another action of the superior court which appellants attack in this appeal is the superior court‘s refusal to grant their motion for new trial which was grounded on the assertion that the verdicts were against the weight of the evidence. Unlike its function in passing upon a motion for judgment of acquittal, the trial court, in deciding a motion for new trial on the ground that the verdict is contrary to the weight of the evidence, may weigh the evidence and determine the credibility of witnesses.43 Based on our review of the record, we cannot say that the superior court committed an abuse of discretion in denying appellants’ motion for new trial.44
This brings us to the last aspect of this appeal. Appellants claim that the sentences of three years imprisonment they received are excessive and do not appear to be the result of a measured application of recognizable sentencing standards. After the verdicts were returned, presentence investigations were conducted and presentence reports filed. The author of these reports noted that neither appellant had any prior criminal record, and that appropriate punishments for each defendant would be a three-year suspended sentence, together with the requirement that appellants pay all prosecution and trial costs of the state as well as Mrs. Wagner‘s cost resulting from the embezzlement.45 The author of the presentence reports further stated that “[f]rom a rehabilitation standpoint . . . neither [Amidon nor Menard] will let themselves get involved in this type of matter again“;46 and that it was his belief that a prison term would do more harm than good for either Amidon or Menard.
Our review of the evidence in the case at bar, the presentence report, and the sentencing proceeding has convinced us that the superior court was clearly mistaken in imposing three-year prison sentences for each offender. Given the highly unusual factual situation of the case at bar, the fact that the crime did not involve any physical danger to other persons, the fact that substantially all of Mrs. Wagner‘s money was returned to her, the fact that neither Amidon nor Menard have previous criminal records, we are of the view that three years imprisonment is too harsh a sanction. In the factual context of this record, if any term of imprisonment is warranted, such term of imprisonment should not exceed one year.47
BOOCHEVER, Chief Justice, concurring.
While I concur with the results in this case, I do so on one issue for reasons different from those stated by the majority.
I cannot agree with the majority‘s application of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), or with its conclusion that the joint undertaking exception to the hearsay rule automatically satisfies the right to confront witnesses. Furthermore, I see no need to reach that issue in this case.
During the course of the felony, Amidon made statements denying any knowledge of the money and indicating that the money had been returned. These statements were introduced against Menard in a joint trial in which Amidon did not testify and was not subject to cross-examination. Relying on the case of Kay v. United States, 421 F.2d 1007, 1010 (9th Cir. 1970), the majority seems to indicate that Menard‘s rights to confrontation1 are automatically satisfied because Amidon‘s statements fall within the recognized exception to the hearsay rule as statements of a codefendant made in furtherance of a joint undertaking.
A Ninth Circuit case decided after Kay holds that even conceding sufficient evidence to satisfy the foundational requirements of the joint undertaking exception, statements still might be excluded because their admission denies the constitutional rights to confront and cross-examine the accuser. United States v. Snow, 521 F.2d 730 (9th Cir. 1975). The court stated:
The fact that evidence is admissible under the co-conspirator exception does not automatically demonstrate compliance with the Confrontation Clause. United States v. Baxter, 492 F.2d 150, 177 (9th Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974).
The Snow decision explains that the test is whether:
under the circumstances, the unavailability of the declarant for cross-examination deprived the jury of a satisfactory basis for evaluating the truth of the extrajudicial declarations.
In this case, I can concur because under the standard established in Snow, Menard was not denied her rights of confrontation. It is clear that Amidon‘s statements were not being introduced to prove the truth of matters asserted in the statements. To the contrary, everyone recognized that Amidon‘s statements were false and, in fact, that is why the state introduced them. Confronting Amidon as to those statements would have minimal value since Menard had no need to prove the statements were false. Menard presumably could have cross-examined Amidon at trial as to whether or not the statements were actually said, but the same effect could probably be obtained by cross-examining the witnesses who testified to hearing the statements. Under these circumstances, it is my opinion that the unavailability of the declarant for cross-examination did not “deprive[d] the jury of a satisfactory basis for evaluating the truth of the extrajudicial declarations.” Snow, Id.
While the above analysis leads me to concur with the majority opinion in this case, I believe there are circumstances when the joint undertaking exception to the hearsay rule might not automatically resolve a defendant‘s rights to confront witnesses and
We have described the right to cross-examination to be “. . . as beyond any doubt the greatest legal engine ever invented for the discovery of truth.”3 I would caution against unnecessarily adopting a broad rule which, under a different fact situation, could conflict with a defendant‘s fundamental rights to confrontation.
BURKE, Justice, dissenting in part.
I dissent from that portion of the majority opinion holding that the superior court was clearly mistaken in imposing sentences of three years’ imprisonment. I would affirm the judgment in all respects. Otherwise, I concur.