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THE COURT OF APPEALS OF THE STATE OF ALASKA
CHARLES G. LEWIS, )
) Court of Appeals No. A-
3699/3700
Appellant, ) Trial Court Nos. 3AN-S89-
7513/
)
S84-8440/S84-8746CR
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1323 - November 12,
1993]
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Rene J. Gonzalez,
Judge.
Appearances: John C. Pharr, Law Offices of
John C. Pharr, Palmer, for Appellant.
Cynthia L. Herren, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Charles G. Lewis was convicted of misconduct involving
a controlled substance in the fourth degree (possession of
cocaine), tampering with physical evidence, and misconduct
involving a controlled substance in the third degree (possession
of cocaine with intent to distribute). Lewis appeals, claiming
that the trial court erred in failing to suppress evidence seized
as a result of an improperly issued search warrant and that the
court erred in refusing to declare a mistrial due to the
prosecutor's improper closing argument. We affirm.
FACTS
In July of 1989 Charles Lewis agreed to advance Eric
Long a half-kilogram of cocaine; Long was to pay Lewis
approximately $13,000 for the cocaine after selling it. Although
Lewis and Long were both from Anchorage, Long planned to sell the
cocaine in Seward. On August 2, Long enlisted two friends,
Debbie Jones and Susie Sander, to help in the venture. Jones,
who had lived in Seward, was to solicit customers; Sander was to
monitor the amounts sold.
Sander and Jones were prepared to leave for Seward as
soon as Long received the cocaine from Lewis. On the evening of
August 3, Long called Lewis to confirm that everything was ready,
then picked the cocaine up at Lewis' house. Long then gave the
cocaine to Sander. Sander and Jones, however, had been unable to
obtain a scale to divide the cocaine into smaller quantities.
Long telephoned Lewis and arranged for Lewis to loan his scale to
Sander. Sander drove back to Lewis' home, and Lewis gave her the
scale. Sander and Jones then drove to Seward.
Long evidently contemplated selling the cocaine an
ounce at a time and instructed Jones and Sander to charge at
least $1,300 per ounce, a price sufficient to pay back Lewis and
leave Long a profit of $7,000 - $10,000. Long told Jones and
Sander that they could keep any profit over that amount. Jones
was confident she could sell the entire half-kilogram within
three to five days.
Upon arrival in Seward, however, Jones began selling
the cocaine in smaller amounts and for less money than
anticipated. Moreover, Jones and Sander both began to use the
cocaine themselves. When Long visited Sander and Jones in Seward
on August 8, they had sold only a small portion of the cocaine
and had obtained less than four thousand dollars. Long became
upset that the women had sold so little cocaine and had broken
the stash down into such small quantities. Sander gave Long
$3,200, and Long returned to Anchorage and gave the money to
Lewis. At some point after returning to Anchorage, Long agreed
to give $10,000 worth of stock that he owned in a local
television station to Lewis as payment for the balance owed on
the cocaine.
Jones and Sander continued to have problems following
Long's August 8 visit. Their relationship began to deteriorate.
On August 13, Sander became sick after smoking too much cocaine;
she fled the apartment she shared with Jones and eventually
walked to the Seward police station. The police called an
ambulance, since Sander appeared to be suffering from a drug
overdose. On the way to the hospital, paramedics found cocaine
on Sander's person. Sander was arrested several hours later,
after she regained consciousness.
Upon being questioned by the police, Sander explained
her involvement with Jones and Long in the cocaine distribution
plan. The police questioned Jones, who confirmed Sander's
statements. Sander and Jones also told the police that Long had
received the cocaine from Lewis. Sander gave a description of
Lewis and his trailer. She told the police she had been there
twice, once before the plan to distribute the cocaine had been
formed and again to pick up the scale.
Based on the information they received from Sander and
Jones, and with Jones' cooperation, the police arranged to
monitor and record a telephone call from Jones to Long.1 During
the call, Jones informed Long that the police had seized scales
and other "odds and ends" from her house. Jones also asked if
Long thought Lewis was likely to hurt her. Long assured Jones
that Lewis would not harm her and that the "situation would be
taken care of." Long told Jones that he had already paid Lewis
for the cocaine with the stock.
On August 17, 1989, the state applied to Magistrate
Eugene Murphy for a warrant to search Lewis' trailer. In support
of the warrant, Alaska State Trooper Randy Crawford and Anchorage
Police Investigator Linda O'Brien testified about the information
they had received from Jones and Sander and about the recorded
telephone conversation between Jones and Long. Magistrate Murphy
found probable cause to believe that evidence implicating Lewis
in the cocaine distribution scheme would be found in his trailer
and issued a search warrant.
The police executed the search warrant that night,
entering Lewis' residence as Lewis was flushing cocaine down his
toilet. The search nevertheless yielded a quantity of cocaine,
as well as a police scanner, a booklet about cocaine, a telephone
scrambler, $11,625 in cash, and a promissory note from Long to
Lewis. Lewis' charges followed.
SUPPRESSION ISSUES
Prior to trial, Lewis moved to suppress the evidence
seized from his trailer. He claimed that the warrant had been
based on inadequately verified hearsay, that material
misstatements and omissions had been made to the magistrate, and
that the information relating to Lewis was stale by the time the
warrant was issued. Superior Court Judge Rene J. Gonzalez denied
Lewis' motion. On appeal, Lewis renews the arguments he raised
below.
1. Probable Cause
We first take up Lewis' claim that the warrant lacked
probable cause because it was based on inadequately verified
hearsay. A judge's decision to issue a search warrant is subject
to reversal only when clearly erroneous. State v. Bianchi, 761
P.2d 127, 129-30 (Alaska App. 1988). We give great deference to
the issuing court's findings, upholding the court's determination
in doubtful or marginal cases. Metler v. State, 581 P.2d 669,
673 (Alaska 1978); Kvasnikoff v. State, 804 P.2d 1302, 1306
(Alaska App. 1991).
When a warrant is based on hearsay statements of an
informant, the Aguilar-Spinelli2 doctrine applies. See State v.
Jones, 706 P.2d 317, 321, 324 (Alaska 1985). This doctrine
requires the issuing court to be given evidence enabling it to
independently determine, first, that the informant's source of
information is reliable, and, second, that the informant was
truthful in communicating the information to the authorities.
Id. at 320-21.
In the present case, the challenged warrant was based
on the hearsay statements of Sander and Jones, as related to the
magistrate by Officer O'Brien and Trooper Crawford. Lewis
contends that Sander and Jones were members of the criminal
milieu and must be treated as police informants for purposes of
the Aguilar-Spinelli doctrine. Lewis acknowledges that the
information Sander and Jones gave to the police concerning their
own involvement in cocaine sales with Long was based on personal
knowledge and satisfied the first prong of Aguilar-Spinelli. He
asserts, however, that the second prong of Aguilar-Spinelli was
not met, because neither Sander's nor Jones' truthfulness was
established.
The record fails to support Lewis' assertion. Much of
the information disclosed to the police by Sander and Jones was
corroborated, either circumstantially or by independent police
investigation.3 Moreover, the statements of both women were
substantially against their penal interest.4 Further, Sander's
and Jones' statements were cross-corroborative.5 Finally, Long's
statements to Jones during the recorded telephone call
independently confirmed both Long's and Lewis' participation,
thereby substantiating Sander's and Jones' statements. We find
sufficient information to establish the veracity of the
statements made by Sander and Jones.
Lewis nevertheless further contends that most of the
information Sander and Jones gave concerning Lewis' involvement
with Long was based on Long's hearsay statements to Sander and
Jones. Lewis submits that this second-hand hearsay was
unreliable. Statements attributed by Sander and Jones to Long
were indeed second-generation hearsay. We have previously
recognized that, if multiple levels of hearsay information are
submitted in support of a warrant, the Aguilar-Spinelli doctrine
must be met at each level. Kvasnikoff, 804 P.2d at 1306.
The hearsay statements attributed to Long were plainly
based on Long's personal observations, however, and thus met the
first prong of the Aguilar-Spinelli doctrine. The second prong
of Aguilar-Spinelli was also met: Long's statements were entitled
to be deemed presumptively credible, since they amounted to
statements of a co-conspirator in furtherance of a conspiracy6
and were also against Long's penal interest.
In summary, we find no failure of compliance with
Aguilar-Spinelli here.
2. Misstatements and Omissions
We turn next to Lewis' claim that the information
presented to the magistrate included various misstatements and
omissions. In State v. Malkin, 722 P.2d 943, 946 (Alaska 1986),
the Alaska Supreme Court held that a warrant based on reckless or
intentional misstatements or omissions may be declared invalid.
Under Malkin, once a misstatement or omission is established, the
burden of proving that it was neither reckless nor intentional
shifts to the state. Id. at 946. A failure to meet this burden
will vitiate the warrant if the misstatement or omission is
material, that is, if deletion of the misstated information from
or inclusion of the omitted information in the original affidavit
would have precluded a finding of probable cause. Id. A non-
material omission or misstatement -- one on which probable cause
does not hinge -- requires suppression only when the court finds
"a deliberate attempt to mislead [the magistrate]." Id. at 946
n.6.
In the present case, Lewis suggests that the testimony
in support of the warrant was flawed by several misstatements and
omissions.7 All of these purported misstatements and omissions
involve relatively minor details. Our review of the record
convinces us that they are not material, either individually or
collectively. Moreover, the trial court did not find any of the
misstatements or omissions to have been made recklessly or
intentionally; nor would the record appear to support such a
finding. We conclude that the superior court did not err in
failing to suppress on this ground.
3. Staleness
As a final ground for challenging the validity of his
warrant, Lewis claims that the information before the magistrate
was too stale to support a finding of probable cause to search
his residence. Lewis points out that, even accepting Sander's
and Jones' statements at face value, his last participation in
the Seward venture would have been on August 3, two weeks before
the warrant's issuance. Given this lapse, Lewis contends that
there was no reasonable basis for concluding that any drugs or
evidence connected with the venture would still be found in his
residence.
Lewis' assertion that evidence of his participation was
at least two weeks old, however, overlooks the recorded telephone
conversation of August 16 between Long and Jones, in which Long
mentioned that he had recently paid Lewis for the cocaine by
transferring stock to him. In any event, we have previously held
that offenses involving commercial distribution of controlled
substances are typically ongoing in nature and that this factor
may properly be considered by the issuing magistrate in
determining the existence of probable cause. See, e.g., Morrow
v. State, 704 P.2d 226, 230 (Alaska App. 1985).
In denying Lewis' staleness claim, the superior court
expressly found evidence of "ongoing cocaine distribution." This
finding was not clearly erroneous.
IMPROPER FINAL ARGUMENT
At the conclusion of final argument, Lewis moved for a
mistrial, contending that the prosecution's rebuttal argument had
been improper at two points. The trial court denied Lewis'
motion. Lewis revisits his argument here.
1. Background on China Garden Incident
Both points raised by Lewis below related to his
attempted impeachment of Sander, who testified against Lewis at
trial. At trial, Lewis established that, following his arrest
but prior to his trial, Sander was contacted by the police at an
Anchorage restaurant, the China Garden, and was found to be in
possession of some white powder, which field-tested positive for
and was later determined to be cocaine. Sander, however, was not
arrested. After the incident, Sander called her attorney, and
then also called Trooper Crawford, who then contacted Officer
O'Brien. Both officers had been instrumental in investigating
the Seward venture for which Lewis was on trial.
At trial, Lewis cross-examined Sander on the China
Garden incident, attempting to establish that she might have
agreed to implicate Lewis in the Seward venture in order to avoid
being arrested and charged for the new offense. Sander admitted
being stopped while possessing cocaine but denied any agreement
with the state. On re-direct examination, she testified that, at
the time of the China Garden incident, the police told her the
powder they seized from her had field-tested negative, so she
thought it was not cocaine.
In response to this testimony, Lewis
impeached Sander on re-cross by reading from
the transcript of a tape recording that the
police made during the China Garden incident.
The transcript, in relevant part, established
that an officer had advised Sander: They did
a field test on it and it looks like it
tested positive initially for cocaine
reaction in our test kit. So I don't have a
reason to doubt that it probably is cocaine
right now. Although we are going to send it
off to a lab to make sure. At this point in
time right now I don't anticipate at least
charging you tonight with that, okay?
After hearing this passage from the transcript, Sander
acknowledged its accuracy, saying she had evidently misunderstood
the officer's words: "I don't know that's what he told me because
I don't understand at that time." At some point before final
argument, the parties apparently stipulated that the powder
Sander possessed was in fact cocaine.
During final argument, Lewis' counsel strenuously
argued Sander's lack of credibility. Counsel suggested that the
circumstances surrounding the China Garden incident -- that
Sander had not been arrested at the time, that she had called
Crawford afterward, and that she had never been charged --
indicated that the incident might have motivated Sander to
incriminate Lewis in return for favorable treatment. In the
course of this argument, Lewis' counsel referred to the state's
failure to call O'Brien as a witness:
Now we haven't heard from Linda O'Brien
in this trial so we don't know what explana
tion she would offer for why she apparently
had not filed charges against Ms. Sander; but
it certainly raises some questions.
Somewhat later in the argument, Lewis' counsel also
referred to the state's failure to call Sander's cohort in the
Seward venture, Jones:
Another question; why haven't we heard
from Debbie Jones in this trial? The state
has the burden of proof and the state could
say I suppose, well, you know, [defense coun
sel] could have called Debbie [Jones] to
testify. I don't have that burden[.]
On rebuttal, the prosecutor responded, in pertinent
part, as follows:
And whether or not the China Garden
incident somehow affected [Sander's]
testimony, as I indicated, she indicated that
it was -- that there was no [e]ffect on it.
Because she didn't know what had happened
with that charge. Remember her testimony was
she didn't know what had happened. That they
actually sent it off to the lab because she
had been told by one of the officers that
they weren't sure whether or not it was
cocaine. And why send it off to the lab if
they're so sure. They didn't arrest her that
night.
So she doesn't know what that charge has
done, but it hasn't affected her testimony,
because she's already given statements . . .
between August 13th and August 15th implicat
ing the defendant. Otherwise how could there
be search warrants for the defendant's resi
dence?
The prosecutor also responded to defense counsel's
argument concerning the failure of O'Brien and Jones to appear as
trial witnesses:
Questions about -- or inquiries about
who we haven't heard from. Well, it's not
[the] defense['s] burden to bring witnesses
in, but you saw from Dawn Vogt being in here
that they have a subpoena power and that
witnesses can come in. They could have
called Debbie Jones or Linda O'Brien.
The foregoing comments prompted Lewis' mistrial motion,
the denial of which he now appeals.
2. Comments Concerning China Garden Incident
We consider initially Lewis' arguments concerning the
first disputed prosecutorial comments, which touched on the
circumstances surrounding the China Garden incident. Lewis
complains that the prosecutor argued beyond the scope of the
evidence and impermissibly vouched for Sander's credibility by
speculating that a search warrant could not have been issued for
Lewis' residence if Sander had not given statements against him
shortly before its issuance. Lewis contends that the argument
implied that a magistrate had already found Sander's account of
Lewis' involvement credible. Lewis claims that the prosecutor's
comment was particularly objectionable because it was apparently
based on information the jury did not have before it. Lewis
cites the ABA Standards for Criminal Justice 3-5.8(b)(2d ed.
1982) and the ABA Code of Professional Responsibility as
authority forbidding the prosecution's expression of personal
opinion as to a witness' credibility.
In presenting closing arguments to the jury, however,
counsel may properly discuss the facts actually in evidence and
any inferences that can reasonably be drawn therefrom. Sam v.
State, 842 P.2d 596, 600 (Alaska App. 1992); Dorman v. State, 622
P.2d 448, 461 (Alaska 1981). In this case, the jury heard
testimony that Lewis' residence was searched pursuant to a
warrant that was based in part on statements given to the police
by Sander. That Sander had implicated Lewis in the Seward
venture was a fair inference from this evidence -- an inference
directly relevant to rebut Lewis' contention that Sander had
implicated Lewis for the first time after the China Garden
incident, hoping to receive leniency for possessing cocaine. We
find nothing in the disputed comments that the jury could reason
ably have misconstrued as mere vouching for Sander's credibility.
Lewis also contends that, in this same portion of the
final argument, the prosecution mischaracterized the evidence by
falsely suggesting that the substance seized from Sander during
the China Garden incident had not field-tested positive and may
not actually have been cocaine. As we have already pointed out
above, however, after hearing defense counsel read from the
transcript of the China Garden incident, Sander acknowledged on
re-cross-examination that she had been told the field-test was
positive. The prosecution did not dispute the point and, indeed,
expressly stipulated that the substance Sander had in her
possession was in fact cocaine. The challenged portion of the
prosecution's final argument plainly did not insinuate that the
field test had actually been negative; instead, it merely focused
on Sander's mistaken belief concerning the results of the field
test (a mistake Sander attributed to confusion on her part):
Remember her testimony was she didn't
know what had happened. That they actually
sent it off to the lab because she had been
told by one of the officers that they weren't
sure whether or not it was cocaine. And why
send it off to the lab if they're so sure?
The gist of this argument was that, despite Sander's
confusion over the result of the field test, her basic
explanation for not having been arrested at the China Garden was
accurate: the police were not certain whether the substance she
possessed was actually cocaine. Far from suggesting that the
field test was negative or that the substance taken from Sander
was not actually cocaine, the argument merely emphasized that the
police did not think it appropriate to take immediate action
based on the field test; they believed it preferable to have a
lab test performed before deciding whether to proceed against
Sander.
This argument is hardly unsubstantiated or misleading.
To the contrary, it is expressly borne out by the transcript of
the China Garden encounter. According to the portion of the
transcript defense counsel read aloud to Sander on re-cross-
examination, the police told Sander that in light of the positive
field test they had no reason to doubt that Sander possessed
cocaine but that they were nevertheless "going to send it off to
a lab to make sure. At this point in time right now I don't
anticipate at least charging you tonight." In light of this
evidence, the challenged argument did not mischaracterize the
record.
3. Comments Concerning Lewis' Failure to Call Witnesses
We next consider Lewis' argument concerning the second
portion of the final argument disputed below -- the portion in
which the prosecution commented on Lewis' failure to call O'Brien
and Jones as defense witnesses:
Questions about -- or inquiries about
who we haven't heard from. Well, it's not
[the] defense['s] burden to bring witnesses
in, but you saw from Dawn Vogt being in here
that they have a subpoena power and that
witnesses can come in. They could have
called Debbie Jones or Linda O'Brien.
Lewis insists that this comment was improper because it
shifted the burden of proof from the state to the defense. But
the scope of the impropriety is far from clear.
No Alaska decision has squarely determined the circum
stances under which negative comment on a defendant's failure to
call witnesses is impermissible. In McCurry v. State, 538 P.2d
100, 104 (Alaska 1975) overruled on other grounds by Howe v.
State, 589 P.2d 421 (Alaska 1979), the Alaska Supreme Court
suggested that such comment might be allowed under some
circumstances. Noting that the "usual rule" permits comment
"when the witness is peculiarly within the control of the
defendant and that witness's testimony can reasonably be expected
to elucidate matters already at issue," the court declined to
find plain error in the prosecutor's comment on McCurry's failure
to call his parents to support his alibi defense. Id.
The "usual rule" noted in McCurry has generated
considerable disagreement. Wigmore has criticized it, observing
that even in cases where a witness is equally available to both
parties, "the more logical view is that the failure to produce is
open to an inference against both parties, the particular
strength of the inference depending on the circumstances." 2
John H. Wigmore, Evidence 288 (Chadburn rev. 1979). See also
United States v. Beekman, 155 F.2d 580, 584 (2d Cir. 1946).
Some jurisdictions nevertheless continue to apply the
traditional version of the rule. See, e.g., People v. Paylor,
511 N.E.2d 370, 371 (N.Y. 1987). Others, in keeping with the
spirit of Wigmore's criticism, have relaxed the requirement that
a witness be peculiarly within the control of the defendant and
have allowed comment on the failure to call any available witness
whose testimony "would naturally be expected to be favorable" to
the defendant. People v. Ford, 754 P.2d 168, 178 (Calif. 1988)
(en banc); Wheatley v. State, 465 A.2d 1110, 1111 (Del. 1983);
State v. Moore, 620 S.W.2d 370, 373 (Mo. 1981) (en banc).
Still other jurisdictions lean in the opposite
direction, applying stringent variants of the usual rule. See,
e.g., Dent v. United States, 404 A.2d 165, 169-70 (D.C. App.
1979) (requiring prior hearing to establish that absent witness
is peculiarly within the power of the party to produce, and to
establish the likelihood that absent witness would have been
"likely to elucidate the transaction"); Commonwealth v. Niziolek,
404 N.E.2d 643, 647 (Mass. 1980) (comment permissible if the
evidence is so strong that the defendant, if innocent, could be
expected to call the witness). And at least one state has
forbidden comment under all circumstances. State v. Brewer, 505
A.2d 774, 777 (Me. 1985).
In the present case, both parties pay only cursory
attention to the question of whether the prosecutor's comments
were improper, and neither offers any meaningful discussion of
the relevant case law. Since it appears questionable under the
circumstances of this case whether either O'Brien or Jones could
naturally have been expected to be favorable witnesses for Lewis,
we assume that comment on Lewis' failure to call them would be
impermissible under any of the foregoing authorities.
We nevertheless conclude that any impropriety did not
warrant a mistrial. Since the prosecutor prefaced his comment by
acknowledging that the state, rather than Lewis, bore the burden
of proof, it seems unlikely that the jury might have interpreted
the comment to suggest that the burden be shifted to the defen
dant.
More significantly, the disputed comment did little
more than echo what Lewis' counsel had already told the jury in
his final argument:
The state has the burden of proof and the
state could say I suppose, well, you know,
[defense counsel] could have called Debbie
[Jones] to testify. I don't have that
burden[.]
Given this argument by the defense, the prosecutor's ensuing
comment told the jury nothing it had not already heard. In
context -- as a response to an anticipated argument the defense
had voiced to the jury and refuted -- the prosecutor's remarks
seem to have suggested only that the jury should read no
particular significance into either party's failure to call
O'Brien or Jones.
The trial court had broad discretion to determine the
need for a mistrial in light of the disputed comment. Its
decision to deny a mistrial is reversible only for an abuse of
that discretion. Hines v. State, 703 P.2d 1175, 1176 (Alaska
1985). Under the circumstances of this case, we find no abuse of
discretion.
4. Comments Concerning Sander's Sentence
Lewis' last claim pertains to a portion of the final
argument to which he did not object. We review the claim only
for plain error. Potts v. State, 712 P.2d 385, 390 (Alaska App.
1985).
During the rebuttal portion of his final argument, the
prosecutor said:
So if you listen to Susie Sander's testimony
it's believable because it's consistent, and
when you close your eyes it follows. She --
the detail, the word choice and with regard
to this China Garden incident, that somehow
her testimony has been affected by that.
Well, first of all, it didn't certainly
[a]ffect what she was sentenced to. She
wasn't even on probation then. And what was
she sentenced to? 500 hours of community
work service, 90 days in jail, and she was
convicted of a class B felony. The very same
one that [Lewis] is charged with.
Lewis complains that this reference to Sander's
sentence was improper because it implied that Lewis would only
serve 90 days himself if convicted. Lewis' argument, however,
ignores that during the trial the court allowed the jury to hear
that Sander had been convicted for delivery of cocaine -- the
same offense that Lewis was accused of committing -- and that she
had received a sentence of 90 days with 500 hours of community
work. This evidence was admitted without objection on the issue
of bias: to respond to Lewis' claim that Sander had agreed to
implicate him in return for leniency.
It seems axiomatic that the prosecutor was entitled to
argue the evidence to the jury; the fact of Sander's conviction
and the nature of her sentence were evidence. The point the
prosecutor argued in connection with this evidence was precisely
the point for which the evidence was admitted. We find no
impropriety, let alone plain error.
CONCLUSION
The judgment is AFFIRMED.
_______________________________
1. The police first secured a warrant pursuant to State v.
Glass, 583 P.2d 872, 881 (Alaska 1978).
2. Spinelli v. United States, 393 U.S. 410 (1969); Aguilar
v. Texas, 378 U.S. 108 (1964).
3. For example, Sander's possession of a substantial
quantity of cocaine and Jones' possession of scales suitable for
weighing cocaine tended to corroborate their statements. Sander
and Jones were also able to lead the police to Lewis' Anchorage
residence and accurately described Lewis and identified his car.
Contrary to Lewis' assertion on appeal, corroborating information
need not be per se incriminatory to satisfy the Aguilar-Spinelli
test. See Schmid v. State, 615 P.2d 565, 576 (Alaska 1980).
4. See State v. Jones, 706 P.2d 317, 325 (Alaska 1985);
State v. Malkin, 678 P.2d 1356, 1359 (Alaska App. 1984), rev'd on
other grounds, 722 P.2d 943 (Alaska 1986). Cf. State v. Bianchi,
761 P.2d 127, 131 (Alaska App. 1988).
Lewis claims that Clark v. State, 704 P.2d 799 (Alaska
App. 1985), holds that for admissions against penal interests to
bolster credibility, the declarant must not know or suspect that
she is communicating with law enforcement officials. Clark does
not support this contention.
5. For purposes of the Aguilar-Spinelli doctrine, the
veracity of a statement given by a police informant whose
reliability is unknown may be established by a corroborating
statement from another informant: "Cross-corroboration among
informants is a well-accepted method of demonstrating the
validity of the information given." State v. Prince, 760 P.2d
1356, 1359-60 (Or. App. 1988) (en banc) (citations omitted). See
also Commonwealth v. Marzel, 436 A.2d 639, 643 (Pa. Super. 1981);
People v. Clark, 488 P.2d 565, 566 (Colo. 1971)(en banc).
6. See Alaska Rule of Evidence 801(d)(2)(E); Stumpf v.
State, 749 P.2d 880 (Alaska App. 1988).
7. The argument in Lewis' brief is somewhat cursory on
this point and is not altogether clear in specifying the
purported misstatements and omissions Lewis relies on. We
understand Lewis' brief to suggest that the police affirmatively
misstated facts by telling the magistrate: that Sander stated
Lewis had given her a particular type of scale -- a triple beam
balance -- when in fact Sander did not specify what type of scale
Lewis had given her; that Sander stated she overheard a
conversation between Long and Lewis in which Lewis had said "the
deal was ready and he [Long] would pick things up later," when in
fact Sander had never reported overhearing such a conversation;
that Sander said Lewis had a new Mercedes, when in fact she had
said Lewis had a blue Mercedes; and that information given to the
police by Sander and Jones concerning the financial dealings
between Lewis and Long was consistent with certain statements
made by Long during his recorded conversation with Jones.
We understand Lewis' brief to suggest, additionally,
that the police omitted the following information: that Sander
had told police she saw no drugs during her first visit to Lewis'
residence; that Sander's and Jones' statements disagreed as to
whether Jones had accompanied Sander when Sander picked up the
scales from Lewis before departing for Seward; and that the
police had never verified a transfer of stock from Long to Lewis.
