Riсhard CLARK, Appellant, v. STATE of Alaska, Appellee. Lucy CLARK, Appellant, v. STATE of Alaska, Appellee.
Nos. 7773, 7815.
Court of Appeals of Alaska.
Aug. 9, 1985.
799
Subsequently, the state obtained prints from Fuselier and sought to reсall Officer Morris to testify that the lifted prints were not Fuselier‘s either. Adams requested a continuance of at least one week to get an independent analysis of the palm prints. Judge Carlson denied the request for a continuance but stated that if Adams’ expert said that the prints from the crime scene were Fuselier‘s then he would grant a new trial based upon newly discovered evidence. Adams further argued that he was being deprived of an opportunity to рrepare to cross-examine Officer Morris.
Judge Carlson did not abuse his discretion in denying the request for a continuance. Adams had been aware of the lifted prints and that Morris was to be called as an expert witness. He had prepared to cross-examine Morris as to the lifted prints and their dissimilarity to Adams’ prints. The only unanticipated evidence was the new testimony that the prints did not match Fuselier‘s. Once the defense had adopted its theory that Fuselier сommitted the crime, it should have been evident that comparison of Fuselier‘s prints to those lifted from Gummo‘s apartment would be material. Especially in the light of Judge Carlson‘s offer to grant a new trial if the expert Adams proposed to engage said that the prints lifted from the scene were Fuselier‘s, his denial of the motion for continuance did not prejudice Adams’ rights and was not an abuse of discretion. Nielsen v. State, 623 P.2d 304, 307 (Alaska 1981).
THE SENTENCE
Adams argues that his maximum sentence of ninety-nine years is excessive. He claims that Judge Carlson was clearly mistaken in classifying him as a “worst offender” and in giving little weight to the sentencing goal of rehabilitation.
In concluding that Adams was a worst offender, and thus was subject to a maximum sentence,6 Judge Carlson considered Adams’ history of criminal activity, including a prior conviction for armed robbery. The offense here was a particularly brutal and cold blooded murder; Gummo was hit with a pistol, bound, gagged, and then shot in the head at close range. There is simply no merit to Adams argument that his case “was neither better nor worse than the average first-degree murder case.”
The priority of sentencing goals is within the trial judge‘s discretion. Asitonia v. State, 508 P.2d 1023, 1026 (Alaska 1973). Judge Carlson was not clearly mistaken in imposing a ninety-nine year sentence. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
This case is REMANDED to the trial court for further proceedings consistent with the views expressed in this opinion.
BRYNER, C.J., not participating.
Jeff Deutsch was employed as a Public Safety Officer beginning July 1981. In the course of his employment, Deutsch occasionally brought injured people to the hospital in Barrow. In January or February of 1982, Deutsch met Kignak, who worked at the hospital. Kignak visited Deutsch at home on more than one occasion, and on one such occasion on the 21st or 22nd of February 1982, agreed to give Deutsch information concerning drug sales in Barrow. Kignak was from Barrow, but had just recently returned after living in Fairbanks. He was eighteen years old and on probation for theft offensеs.
Five days after Kignak agreed to provide Deutsch with information, Deutsch applied to Magistrate Jeanne Cross for a search warrant giving the following sworn testimony:1
- Your affiant, Jeff Deutsch, is a Public Safety Officer with the North Slope Borough and has been so employed since July 13, 1981.
- Your affiant is investigating the sale of marijuana on the part of Rick Clark.
- Your affiant has participated in the investigation of approximately half a dozen drug law violation cases during his course of employment.
- On February 27, 1982 at about 8:40 a.m. your affiant received information from a confidential informant, ID#JDD1. Your affiant has received information from this informant in the past and has found this information to be accurate and reliable.
- Your affiant was advised by ID#JDD1 on February 27th, 1982 at approximately 8:42 A.M. that:
- At about 7:00 P.M. on Friday the 26th of February 1982, he went to a single story, unpainted residence at Block 13, on Lot 3 owned by Ernest Kignak and rented by Rick Clark.
John Marston Richard, Anchоrage, for appellant Richard Clark.
Kathleen Strasbaugh, Asst. Public Defender, Barrow, and Dana Fabe, Public Defender, Anchorage, for appellant Lucy Clark.
Michael S. McLaughlin, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.
Before BRYNER, C.J., and COATS and SINGLETON, JJ.
OPINION
COATS, Judge.
This is the consolidated appeal of Lucy and Richard Clark who were convicted, following a joint trial, of possession of marijuana for purpose of sale in violation of former
Evidence introduсed against them at trial included marijuana, baggies, cash, and a set of weighing scales seized at their residence in Barrow in execution of a search warrant on February 27, 1982. The warrant was issued by a magistrate based on the sworn statement of Public Safety Officer Jeff Deutsch concerning information given him by informant Henry Kignak. We hold that the sworn statement was insufficient to allow the magistrate to make an independent probable cause determination, and revеrse the Clarks’ conviction. We address several other points the Clarks raise on appeal since these are likely
He was taken to the residence by a friend for the purpose of purchasing marijuana. - He purchased marijuana on February 26, 1982 at approximately 7:00 p.m.
- He purchased the marijuana inside the residence rented by Rick Clark.
- He purchased the marijuana for $300.00 with (3) one-hundred dollar bills.
- He purchased the marijuana from an individual whо he knows as Rick Clark, who is employed at the Sanitation Department.
- He smoked a portion of the marijuana and experienced a feeling he described as “high“.
- He observed Clark go into the bedroom of the residence and take quantity of marijuana from a larger bag containing marijuana.
- Your affiant personally knows that by smoking marijuana a euphoric feeling is experienced, commonly described as getting “high“.
- Your affiant was advised by Officer Lew Wood that he personally knows Rick Clark to be employed by the North Slope Sanitation Department on February 27, 1982 at 5:20 P.M.
- Your Affiant was advised by Lew Wood on February 27, 1982 at 5:20 p.m. that he personally knows that Rick Clark has been the subject of drug investigations by the North Slope Department of Public Safety in the past.
- Your Affiant was advised by Lew Wood on February 27, 1982 at 5:20 p.m. that he personally knows the Ernest Kignak residence to be located on the west side of the intersectiоn of Tahak Street and Karluk Street and that it is a single story frame dwelling, unpainted, with the door way facing the beach between the Kenneth Brower, Sr. residence and the Arnold Brower Sr. residence, Block 13, Lot 3.
- Your affiant prays for the issuance of a daytime search warrant for the residence of Rick Clark as your affiant believes that such a search will result in the recovery of evidence to support a charge of sale of drugs.
The warrant was granted and executed on the 27th and incriminating items were seized. During the course of the search Lucy Clark was asked to open a locked footlocker, which she declined to do until the officers indicated they would cut the lock off with bolt cutters.
The Clarks were subsequently indicted. The defendants moved to dismiss the indictment because of improper grand jury composition, arguing that because Fairbanks had been designated as a special situs of the grand jury, Inupiat pеople were systematically excluded.2 This motion was denied.
The Clarks also moved for suppression of all items seized pursuant to execution of the search warrant. This motion was denied, and denied again after the taking of further evidence on reconsideration.
At trial, testimony was received that Lucy Clark initially refused to unlock the footlocker. The prosecution commented on this refusal in its opening statement and closing argument.
I.
The Clarks contend that the grand jury which indicted them systematically excluded Inupiat people, violating their rights to equal protection under the law. They claim such exclusion was the result of convening the grand jury in Fairbanks rather than in Barrow. We rejected an identical argument in Brower v. State, 683 P.2d 290 (Alaska App.1984). Brower is controlling here.
II.
The Clarks contend that evidence presented against them was obtained by an illegal search and seizure which violated their rights under the fourth amendment of the United States Constitution and article I, section 14 of the Alaska Constitution. Both provisions guarantee protection against unreasonable search and seizure. Specifically, they argue that information presented to the magistrate issuing the search warrant was insufficient to support the magistrate‘s probable cause finding. We agree.
The “basis of knowledge” prong of the Aguilar-Spinelli test is satisfied by an averment that the informant is passing on what is to him first-hand information. 1 W.LaFave, Search and Seizure, section 3.3 at 536 (1978). See Stanley v. State, 19 Md.App. 507, 313 A.2d 847 (1974). In this case, the informant‘s knowledge was allegedly obtained by first-hand observation. Thus, this prong is satisfied.
It is the “veracity” prong which this sworn statement fails to satisfy. The state urges us to apply a relaxed standard for the veracity showing in this сase, arguing that Kignak was a “citizen informant.”
In Erickson v. State, 507 P.2d 508, 517-18 (Alaska 1973), the court delineated the approach to be taken in evaluating the trustworthiness of “citizen informers:”
When information is provided by a cooperative citizen, or an informant not from the criminal milieu there is less need for establishing credibility of the informant. The court in State v. Paszek, [50 Wis.2d 619, 184 N.W.2d 836 (1971)] stated:
A different rationale exists for establishing the reliability of named ‘citizen-informers’ as opposed to the traditional idea of unnamed police сontacts or informers who usually themselves are criminals. Information supplied to officers by the traditional police informer is not given in the spirit of a concerned citizen, but often is given in exchange for some concession, payment, or simply out of revenge against the subject. The nature of these persons and the information which they supply convey a certain impression of unreliability, and it is proper to demand that some evidence of their credibility and reliability be shown. One practical way of making such a showing is to point to accurate information which they supplied in the past.
An ordinary citizen who reports a crime stands on a much different footing. He acts with an intent to aid the police in law enforcement because of a concern for society or his own safety. Since the citizen informer often provides information only once, there is little opportunity to establish сredibility or reliability in the most common manner-comparison with accurate information provided in the past.
We hold that a valid arrest may be made on information provided by a “citizen informer” and that the informer‘s prior reliability need not be established before the arrest. The only caveat placed on such a rule is that some of the details of the information must be verified before arrest occurs. [Footnotes omitted.]
Judge Jeffery‘s conclusion that the affidаvit was sufficient to support the warrant was based on his determination that a citizen informant was involved. Since we have concluded that Kignak was not a citizen informant, the warrant may only be found valid if other sufficient indicators of veracity are present. The averments here are insufficient.
Officer Deutsch told the magistrate:
Your affiant has received information from this informant in the past and has found this information to be accurate and reliable.
A general assertion by an officer that his infоrmant is a credible or reliable person is insufficient to support a finding of veracity because it fails to identify the underlying circumstances from which the officer concluded the informant was credible. See Aguilar v. Texas, 378 U.S. at 114-115, 84 S.Ct. at 1514; Spinelli v. United States, 393 U.S. at 416, 89 S.Ct. at 584, 21 L.Ed.2d at 643-44. Similarly, an officer‘s general conclusion that unspecified past information has proven “accurate and reliable” should not be used as verification where no information has been presented to the magistrate concerning how this conclusion was drawn. See LaFave, supra, at § 3.3(b), 508-22. The facts of this case, in which the officer‘s conclusion gives the impression that his previous contact with this informer has been greater than it actually was,3 illustrate why such conclusions are properly left to the detached magistrate.
The “corroboration” of the tip presented to the magistrate was likewise insignificant. That Kignak knew where Clark worked, and that Kignak knew where his own grandfather lived, adds nothing to the veracity of his story.4 The statement made to the magistrate that Clark was already suspected of involvement in this type of activity might add somewhat to a veracity determination, see Keller v. State, 543 P.2d 1211, 1218 n. 12 (Alaska 1975), but this type of corroboration again presents the shortcoming of being a police conclusion rather than a fact from which the magistrate can draw an independent conclusion.
In some circumstances declarations against penal interest contain а degree of inherent credibility sufficient to support a finding of probable cause. State v. Malkin, 678 P.2d 1356, 1359 and n. 4
We give great deference to the probable cause determination of a magistrate. See, e.g., Linne v. State, 674 P.2d 1345, 1355 (Alaska App.1983). However, where no information is presented to the magistrate from which he can make a detached and independent determination of probable cause, the warrant cannot be deemed valid. See Spinelli v. United States, 393 U.S. at 415, 89 S.Ct. at 588-89, 21 L.Ed.2d at 643; Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948).
III.
At trial, counsel for Clark objected to the introduction into evidence of a set of weighing scales seized during execution of the search wаrrant. They argued that an insufficient foundation had been laid to show the relevance of the scales to the issue of intent to sell marijuana. The prosecutor argued that the scales were rele-
Relevancy Conditioned on Fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the cоndition.
The Clarks argue that Wood‘s testimony did not adequately support a finding that the condition of fact-i.e. that scales are probative of intent to sell-had been fulfilled. No case law is cited in support of this contention. “The admissibility of evidence is largely within the trial court‘s discretion and its rulings will not be overturned on appeal in the absence of an abuse of discretion.” Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980); Poulin v. Zartman, 542 P.2d 251, 260 (Alaska 1975). A set of scales is not highly prejudicial. Its probative value was to some degree indicated by Officer Wood, albeit weakly. In context, it could have a “tendency to make the existence of” the defendants’ intent to sell “more probable than it would be without the evidence.”
IV.
At trial, testimony was received that Lucy Clark initially refused to unlock a footlocker at the Clark residence during execution of the search warrant. The prosecution commented on this refusal in both opening and closing remarks. Evidence of a refusal to consent to a search is inadmissible regardless of the legality of the search. Elson v. State, 659 P.2d 1195, 1197, 1199 (Alaska 1983). See also Padgett v. State, 590 P.2d 432 (Alaska 1979); Bargas v. State, 489 P.2d 130 (Alaska 1971). If the Clarks are retried, evidence of Lucy‘s initial refusal to unlock the footlocker should not be introduced.
The convictions are REVERSED.
BRYNER, Chief Judge, concurring in part and dissenting in part.
I would hold that the warrant was properly issued. The informatiоn supplied in Officer Deutsch‘s affidavit was at least minimally adequate to permit the magistrate to evaluate the credibility of hearsay statements attributed to Kignak. In reaching the opposite conclusion, the majority of the court is, I believe, unduly skeptical of the information set out under oath in the affidavit and walks too readily in the shoes of the magistrate, to whom, at this stage, considerable deference is owed.
Since I agree with the majority that thе trial court erred in admitting evidence of Lucy Clark‘s refusal to open the footlocker, and since in my judgment that error cannot be deemed harmless as to her, I concur in the court‘s decision to reverse Lucy Clark‘s conviction. However, the erroneously admitted evidence related almost exclusively to the issue of Lucy Clark‘s knowledge and intent. It could have had no significant impact on the jury‘s verdict as to Richard Clark; I would find the error harmless as to Richard Clark and affirm his conviction.
Accordingly, I concur with the court‘s decision to reverse Lucy Clark‘s conviction but dissent from its decision to reverse as to Richard Clark.
Notes
LaFave has noted the credibility inherent in circumstances such as existed here, where a reliable informant relates statements to an affiant, which were told to him by a secondary source who is unaware of the informant‘s police connections.
In the hearsay-upon-hearsay situation, as where an informant of established reliability tells police what someone else has told him, there is a need to establish veracity with respect to each person in the hearsay chain. This can be done by showing that these other links made admissions against their penal interest. Indeed, as a general proposition there is more reason to rely upon such admissions than admissions made directly to police, for in the latter situation there is always the chance that the informеr is a stoolie who perceives he can admit to criminality without significant risk. Thus, in Comi v. State, [26 Md.App. 511, 338 A.2d 918 (1975)] upholding an affidavit reciting what a reliable police informer said an admitted burglary participant had told him, the court correctly reasoned:
The secondary source here was not a paid police informer, nor promised any sort of inducement to speak. In fact, he had no way of knowing his information would eventually arrive at police headquarters. He was merely relating an occurrence to a friend. We conclude that Hustler had no motive to lie and his information was conveyed in circumstances consistent with its reliability.
1 W. LaFave, Search and Seizure, § 3.3(c) at 530 (1978) (footnotes omitted).