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THE COURT OF APPEALS OF THE STATE OF ALASKA
JAMES J. McLAUGHLIN, )
) Court of Appeals No. A-3126
Appellant, ) Trial Court No. 3KO-S88-525CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1159 - September 20, 1991]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kodiak,
Brian C. Shortell, Judge.
Appearances: Susan S. McLean, Gray, McLean,
& Razo, Kodiak, for Appellant. Nancy R.
Simel, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and Charles E. Cole, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
James J. McLaughlin was tried for two counts of
misconduct involving a controlled substance in the third degree.
Superior Court Judge Brian C. Shortell granted a judgment of
acquittal as to one count. The jury convicted McLaughlin on the
other. McLaughlin appeals, challenging the validity of a search
warrant that led to evidence against him. He also argues that
the superior court erred in failing to dismiss his indictment, in
allowing the two charges against him to be tried jointly, in
admitting certain evidence, and in failing to declare a mistrial
as to the second count after granting a judgment of acquittal as
to the first. We affirm.
On the night of August 5, 1988, a confidential
informant made a controlled buy of cocaine from McLaughlin's
residence in Kodiak. Kodiak police officers, who had given the
informant cash to buy drugs, watched him enter McLaughlin's home.
They maintained surveillance for several minutes until the
informant departed the premises, and they then accompanied him to
the police station, where he turned over two slips containing
approximately one-quarter ounce of cocaine. The informant
indicated that McLaughlin had sold him the cocaine and that
McLaughlin's girlfriend, Jeanne Erickson, had been present. The
fingerprints of both McLaughlin and Erickson were later found on
one of the slips of cocaine.
Later that night, two police officers appeared before
the Kodiak magistrate with the confidential informant and applied
for a warrant to search McLaughlin's residence. Both officers
testified briefly about the informant's background and the
circumstances surrounding the controlled buy. The informant then
testified, describing the transaction itself. The magistrate
issued a search warrant.
The next day, August 6, police executed the warrant and
seized a quantity of cocaine, as well as assorted drug
paraphernalia, cash, and other evidence. McLaughlin was charged
in two single-count indictments with misconduct involving a
controlled substance in the third degree. One indictment charged
McLaughlin with the August 5 sale of cocaine to the undercover
informant; the other charged him with possessing, with intent to
deliver, the cocaine found in his home on August 6.
Prior to trial, McLaughlin moved to suppress the
evidence resulting from the August 6 search. He argued that the
August 5 warrant was based on misstatements and omissions
concerning the confidential informant's background and that the
reliability of the state's confidential informant was not
adequately established at the warrant hearing. After conducting
an evidentiary hearing, the superior court denied the suppression
motion.
McLaughlin now challenges the court's ruling.
McLaughlin first renews his claim that the police officers who
testified at the warrant hearing intentionally omitted or
misstated facts concerning the confidential informant's
background and reliability. A warrant based on inaccurate
or incomplete information may be invalidated only when the
misstatements or omissions that led to its issuance were either
intentionally or recklessly made. State v. Malkin, 722 P.2d 943
(Alaska 1986). Here, the superior court concluded that any
omissions or misstatements resulted at most from negligence. The
court's findings are factual determinations involving witness
credibility; as such, they must be upheld unless clearly
erroneous. Substantial evidence was adduced below to support the
conclusion that the officers who testified before the issuing
magistrate did not intentionally or recklessly omit or misstate
any pertinent information. The court was not clearly erroneous
in finding that no intentional or reckless omissions or
misstatements occurred.
McLaughlin further contends that the police officers
who testified before the issuing magistrate did not provide
sufficient independent information to establish the veracity of
the confidential informant. Specifically, McLaughlin argues that
the officers' testimony does not withstand scrutiny under the
Aguilar-Spinelli test. See Aguilar v. Texas, 378 U.S. 108
(1964); Spinelli v. United States, 393 U.S. 410 (1969). See also
State v. Jones, 706 P.2d 317 (Alaska 1985).
McLaughlin misunderstands the scope of the Aguilar-
Spinelli doctrine, which is meant to apply only when information
provided by a confidential informant is communicated to the
issuing magistrate in the form of hearsay. In the present case,
the confidential informant actually appeared before the
magistrate and presented sworn testimony. As with any other
similarly situated witness, the informant's willingness to submit
to an oath, and his personal presence and the availability for
questioning by the magistrate provided adequate procedural
safeguards to assure a sound basis for assessing veracity and
reliability. No independent corroboration was required under the
circumstances. See Latham v. State, 790 P.2d 717, 720 (Alaska
App. 1990); Hodsdon v. State, 698 P.2d 1224, 1226-27 (Alaska App.
1985). We find no error in the denial of McLaughlin's
suppression motion.
McLaughlin next alleges that the court erred in denying
his motion to dismiss the second indictment against him.
McLaughlin's two indictments for misconduct involving a
controlled substance in the third degree were issued by the same
grand jury. The grand jury first returned the indictment
charging McLaughlin with the August 5 sale of cocaine to the
undercover informant. The state presented no evidence concerning
the August 6 search until after the grand jury had issued this
charge. The state then presented evidence concerning the August
6 search of McLaughlin's home and the seizure of cocaine found
therein, asking the grand jury to charge McLaughlin for
possession of cocaine with intent to deliver. The state
instructed the grand jury that, to decide whether McLaughlin
acted with the requisite intent, it could consider the evidence
it had heard in connection with the August 5 sale.
In moving to dismiss the second indictment, McLaughlin
argued that the grand jury might have been confused by the
instruction that it was free to consider evidence presented in
connection with the first indictment for purposes of determining
whether McLaughlin acted with intent to distribute. McLaughlin
maintained that, as a result of the confusion, the second
indictment might have been nothing more than a reindictment for
the same conduct charged in the first indictment.
We find no merit to this argument. Although the two
indictments against McLaughlin allege violations of the same
statute, each, on its face, specifies a different act occurring
on a different date. The first charge expressly alleges the sale
of cocaine to an undercover informant on August 5; the second
alleges possession with intent to sell on August 6. Having
reviewed the record of grand jury proceedings, we find nothing to
suggest that the grand jury's issuance of these two plainly
separate charges was in any way the product of confusion.
McLaughlin argues that the superior court erred in
allowing his two charges to be tried jointly. He complains
initially that the court should have denied the state's motion to
join the two charges. Given the similarity of the charges,
however, joinder was appropriate under Alaska Criminal Rule
8(a)(1) and (3). McLaughlin asserts that he was nevertheless
prejudiced by the lateness of the state's motion to join the
charges. He made the same claim before the superior court. In
response, the superior court allowed a continuance to enable
McLaughlin to prepare. Given the superior court's willingness to
grant a continuance, its decision to allow joinder did not amount
to an abuse of discretion.
McLaughlin alternatively contends that, even if
properly joined, the two charges should have been severed once
the state determined that it would not call its confidential
informant to testify concerning Count I -- the August 5 sale.
This claim is predicated on the trial court's eventual decision
to grant a judgment of acquittal as to the first count, charging
the August 5 sale. At the outset of trial, the state, apparently
unable or unwilling to present its confidential informant as a
witness, elected to attempt to prove the August 5 sale without
the informant's testimony. The state sought to establish its
case through the testimony of the officers who maintained
surveillance over the informant as he entered and exited
McLaughlin's house, as well as through expert testimony
establishing that McLaughlin's fingerprint was found on a slip of
cocaine in possession of the informant after he left McLaughlin's
house. Because the same slip of cocaine also bore the
fingerprint of McLaughlin's girlfriend, Jeanne Erickson, however,
the trial court decided to grant a judgment of acquittal on this
charge.
McLaughlin claims that, as a result of the failure to
sever, he suffered substantial prejudice because the jury was
allowed to consider evidence relating to the dismissed charge
involving the August 5 sale when it decided the charge of
possession with intent to sell. McLaughlin asserts that, since
the evidence relating to the August 5 sale was insufficient to
support the first charge, it was necessarily irrelevant and
inadmissible as to the second. According to McLaughlin, because
the court should have known that the state would be unable to
prove the first charge without its informant, it should have
severed the second charge from the first when the state elected
to proceed without its informant. Alternatively, McLaughlin
contends that the trial court should have declared a mistrial
when it ordered an acquittal on the first count, so that the
second count could be retried without being tainted by evidence
relating to the August 5 sale.
McLaughlin's argument mistakenly assumes that evidence
relating to the first count became irrelevant and inadmissible as
to the second count merely because it was insufficient to
withstand a motion for judgment of acquittal. The fact that the
state's evidence of the August 5 sale was insufficient to
establish McLaughlin's guilt on Count I beyond a reasonable doubt
does not altogether deprive that evidence of probative value. To
be relevant, evidence need not be conclusive; it need only have
some tendency to advance the proposition for which it is offered.
See A.R.E. 401; Byrne v. State, 654 P.2d 795 (Alaska App. 1982);
Denison v. Anchorage, 630 P.2d 1001 (Alaska App. 1981).
Though insufficiently conclusive to allow Count I to
stand, the evidence presented in connection with that count still
tended to show McLaughlin's participation in a delivery of
cocaine on August 5. In turn, McLaughlin's participation in the
August 5 sale tended to make it more likely that he intended to
sell the cocaine found in his possession the next day.
Accordingly, evidence relating to the August 5 transaction was
relevant to prove the August 6 charge, regardless of its
technical sufficiency to support a finding of guilt beyond a
reasonable doubt on Count I.
Because evidence relating to the August 5 transaction
would have been admissible on the August 6 charge even if the
August 5 sale had not been formally prosecuted, McLaughlin was
not prejudiced by the trial court's failure to sever the two
charges. Nor was it incumbent on the trial court to order a
mistrial as to the second charge after granting a judgment of
acquittal as to the first.
McLaughlin lastly advances various evidentiary claims,
most relating to the state's failure to present its undercover
informant in connection with the August 5 transaction.
McLaughlin contends that the trial court erred in admitting the
slips of cocaine involved in the August 5 sale and the
fingerprint evidence relating to those slips. He asserts that,
since the informant did not testify, there was insufficient
foundation for this evidence. However, the state's witnesses
established a chain of custody as to the challenged evidence that
was sufficient to meet the requirements of A.R.E. 901(a). We
find no support for McLaughlin's conclusory assertion that the
evidence should not have been admitted without the testimony of
the confidential informant.
McLaughlin argues that the evidence relating to the
August 5 sale was more prejudicial than probative and should
therefore have been excluded under A.R.E. 403. He premises this
argument, however, entirely on the assertion that the challenged
evidence was entirely irrelevant because it was insufficient to
withstand his motion for a judgment of acquittal as to the first
charge. We have already rejected this argument in connection
with McLaughlin's severance and mistrial claim.
McLaughlin also contends that the testimony of police
officers concerning the August 5 controlled buy amounted to
hearsay because the confidential informant's actions, as
described by the officers, were "nonverbal conduct." See A.R.E.
801(a)(2). However, since there is no realistic indication that
the informant's conduct was "intended by him as an assertion,"
id., we find no merit to this claim.
McLaughlin finally claims that he was deprived of his
right to confrontation by the state's failure to make its
informant available for questioning as to the August 5 cocaine
sale. McLaughlin advances his confrontation claim in a single,
conclusory paragraph that is wholly unsupported by authority. We
decline to consider the issue.
The judgment is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
