A.C. v. STATE, A-9396 (Alaska App. 7-5-2007)

A.C., Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-9396.Court of Appeals of Alaska.
July 5, 2007.

Appeal from the Superior Court, Third Judicial District, Palmer, Beverly W. Cutler, Judge, Trial Court No. 3PA-03-07 DL.

David E. George, Anchorage, for the Appellant.

Blair M. Christensen, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.

MEMORANDUM OPINION
STEWART, Judge.

A.C. was adjudicated a delinquent minor for conduct that would be criminal if A.C. was an adult. A jury found A.C. guilty of six charges, including the charges that A.C. burglarized the home of Sean Owen, and later participated in burning Owen’s house down to destroy evidence of the burglary.Page 2

A.C. contends that a search warrant application for his residence did not establish the reliability of two informants who provided hearsay tips. We uphold the warrant because we conclude the application established probable cause.

A.C. argues that incriminating statements the police obtained from an accomplice, Daryl Stahly, should have been suppressed because Stahly’s Fifth Amendment rights against self-incrimination had been violated. The Superior Court assumed that Stahly was in custody when interviewed by the police, and found that any Miranda violation that may have occurred was not “gross or shocking.” We uphold this ruling.

Finally, A.C. argues that insufficient evidence supported his convictions for second-degree arson and tampering with physical evidence. He also asserts that insufficient evidence corroborated the testimony of his accomplice, Daryl Stahly. We reject these claims because a fair-minded juror exercising reasonable judgment could conclude that the State had proven these charges. Furthermore, sufficient evidence corroborated Stahly’s testimony.

Background facts and proceedings

On June 13, 2002, Sean Owen’s house on South Medora Cross Street in Big Lake burned to the ground. Owen worked on the North Slope, and was scheduled to return the morning his house was destroyed. Trooper Eric Spitzer investigated the fire and learned that Owen’s Chevrolet Blazer should have been parked outside Owen’s house at the time of the fire, but was missing. Trooper Spitzer later discovered that the truck had been towed by Alaska Night and Day Towing and Recovery.

Gary Jacobsen, the owner of Alaska Night and Day Towing and Recovery, told Trooper Spitzer that he towed the Blazer from a swamp behind A.C.’s father’s home on June 6, and that the truck had “earmarks of being stolen.” Jacobsen said that Adam,Page 3

A.C.’s older brother, had called to tow the truck. He also said that he found the Blazer with a “kicked out” dashboard and no stereo. A.C. and Adam told Jacobsen that they wanted to take the tires from the truck before it was towed away.

Trooper Spitzer searched the Blazer and found a remote control and a computer cable that were later determined to be missing from Owen’s house. He also observed that the truck’s stereo equipment had been stripped.

Trooper Spitzer interviewed Jennifer Moe, who told him that she and several others were at the C. residence the morning the Blazer was stuck in the swamp. She told Trooper Spitzer that she saw Tim Russell removing the Blazer’s stereo.

Moe told Trooper Spitzer that Russell, Adam C., and another boy named Cody McBride told her that they had broken into a house on Medora Cross Street in Big Lake and that they had stolen things from the house. Moe said that the boys told her that the owner of the house worked up on the North Slope and would not be home for another week. Moe also said that she saw Russell put the stereo equipment from the Blazer into Adam C.’s trailer, which was located behind the C. residence. Finally, Moe told Trooper Spitzer that, a week later, she heard Russell, Adam C., and McBride say they set fire to the Medora Cross Street house.

Trooper Spitzer went to Russell’s residence and, with the consent of Russell’s mother, seized property that had been stolen from Owen’s house. Russell allowed Trooper Spitzer to search his car, and Trooper Spitzer found more property stolen from Owen’s house. Russell admitted that he had stolen the property from Owen’s house, and he told Trooper Spitzer that A.C. and two other boys — Daryl Stahly and Jan Larsh — had also been involved in burglarizing the house. Russell said the three boys set the house on fire to destroy evidence of the burglaries, and then took a trip to Hawaii.

Trooper Spitzer and Owen went to the C. residence. After knocking and getting no answer at the front door they walked to the back of the property, wherePage 4

Adam’s trailer was located, but no one responded there either. They walked back to the main residence, and Owen noticed some of his property sitting just inside the sliding glass back doors of the residence.

Based on the above information, Trooper Spitzer telephoned the court to apply for a search warrant for the C. residence.[fn1] The court granted the application, and Trooper Spitzer recovered several pieces of Owen’s property inside the C. residence when he executed the warrant.

Months later, police interviewed Daryl Stahly about his involvement in the burglaries and arson of Owen’s house. Stahly admitted that he burglarized the house and burned it down. He said that he, Larsh, and A.C. burglarized the house and then stole the Blazer to help carry away stolen items. They later got the Blazer stuck in the swamp behind A.C.’s house. They called Alaska Night and Day Towing and Recovery, reporting that the Blazer had probably been stolen and that they didn’t know how it had gotten there. Stahly said that days later, he had the idea to burn down Owen’s house, and A.C. — with knowledge of Stahly’s intentions — went along with him to the house.

Based on these events, the State filed a petition for adjudication of delinquency against A.C., charging him with second-degree arson, second-degree burglary, second-degree theft, third-degree criminal mischief, first-degree vehicle theft, and tampering with physical evidence.[fn2]

A.C. filed a motion to suppress the evidence seized when the search warrant was executed at the C. residence, claiming that Owen’s view of his property through the sliding glass doors was illegal and could not serve as the basis for the warrant. A.C. alsoPage 5
moved to suppress Stahly’s confession, arguing that Stahly’s Fifth Amendment rights were violated when Stahly mentioned that he might want to speak with a lawyer and the investigator continued to question him. After an evidentiary hearing, Superior Court Judge Beverly W. Cutler held that Owen’s viewing his property through the sliding glass doors was improper, but even if that portion of Trooper Spitzer’s testimony was disregarded, there was still sufficient evidence to establish probable cause to support the search warrant. Judge Cutler also ruled that A.C. did not have standing to claim that Stahly’s Fifth Amendment rights were violated.

The State brought all six charges to trial.[fn3] A.C. admitted to all of the counts except second-degree arson and tampering with physical evidence. At the end of the State’s case, A.C. moved for a judgment of acquittal on the arson and tampering charges, but Judge Cutler denied the motion. A.C. did not present any evidence on his own behalf.

The jury found A.C. guilty on all six charges. A.C. appeals his convictions for second-degree arson and tampering with physical evidence.

Discussion
A.C.’s claim that the search warrant was not supported by probablecause

A.C. argues that Judge Cutler erred by finding that there was probable cause to support the search warrant when the evidence of what Owen saw through the sliding glass door of the C. residence was redacted from the application.

A search warrant must be based on probable cause,[fn4] which requires only a fair probability or substantial chance of criminal activity, not an actual showing that suchPage 6
activity occurred.[fn5] In addition to Owen’s observations through the sliding doors, Trooper Spitzer testified in his request for a search warrant that Owen’s stolen Blazer had been towed from the swamp behind the C. residence, that someone at the C. residence had called for the truck to be towed, and that the tow truck driver told Trooper Spitzer that Adam C. and A.C. asked if they could take the Blazer’s wheels before it was towed. Trooper Spitzer searched the Blazer and found a television remote control and a computer cable that were stolen from Owen’s house.

Trooper Spitzer also interviewed Jennifer Moe, who reported that she was at the C. residence the morning the Blazer was stuck in the swamp and that she saw Tim Russell stealing the stereo from it. Moe also said that Adam C., Russell, and Cody McBride had talked about breaking into the house where they had stolen the Blazer, and that Adam C. told her that he drove the truck into the swamp. Moe told Trooper Spitzer that she saw Russell put the stereo in the trailer behind the C. residence.

Trooper Spitzer also testified that he recovered some of Owen’s stolen property from Tim Russell’s house, and that Russell told him that both A.C. and Adam C. were involved in burglarizing Owen’s house. Russell said some of the stolen items had been brought back to the C. residence.

A.C. argues that the information provided by Moe and Russell should not have been considered by the court because they were not credible or reliable informants. When A.C. moved to suppress at trial, A.C. did not argue that Moe and Russell werePage 7
unreliable under the Aguilar-Spinelli test[fn6]; he presents this argument for the first time on appeal. The Alaska Supreme Court has held that suppression issues are not appropriately raised for the first time on appeal,[fn7] and that only “singularly egregious violations” will be considered.[fn8] Even so, we will address A.C.’s claim.

We use the Aguilar-Spinelli test to determine whether statements from informants are sufficiently reliable to help establish probable cause.[fn9] The test has two prongs: the affidavit must establish the informant’s basis of knowledge, and the informant’s credibility or the reliability of the information.[fn10]

In State v. Jones,[fn11] the supreme court held that “[t]o establish the informant’s basis of knowledge, the information must be based on the informant’s personal observations, not his suspicions or beliefs.”[fn12]
The supreme court also held that “[i]f the affidavit lacks an affirmative allegation of the informant’s personal knowledge, the facts supplied must be so detailed as to support an inference of personal knowledge.”[fn13] A.C. appears to concede that Trooper Spitzer established Moe’s basis ofPage 8
knowledge — Moe was at the C. residence the morning after the truck was stolen, she saw the Blazer stuck in the swamp, and she saw Russell stealing the stereo from it and putting it in Adam C.’s trailer.

A.C. argues, however, that Russell’s statement that some stolen property had been taken from Owen’s house to the C. residence was unsupported by a basis of knowledge. The State contends that Russell’s basis of knowledge was established in three ways. First, Moe told Trooper Spitzer that she saw Russell at the C. residence taking the stereo from the Blazer. Second, Moe identified Russell as one of the boys who was talking about burglarizing Owen’s house and stealing the Blazer. Third, several items of Owen’s property were recovered from Russell’s home, “verifying that [Russell] had been involved with the burglaries of Owen’s house and had personal knowledge of the others who were also involved.” The State is correct that Moe’s statements and the recovery of the stolen items at Russell’s house sufficiently established that Russell was at the C. residence and had a basis of knowledge for knowing that stolen items were located there.

A.C. next argues that Moe’s and Russell’s statements were unreliable. This second prong of the Aguilar-Spinelli test requires the police officer to “inform the magistrate or judge of some of the underlying circumstances that led the [officer] to conclude that the informant was credible or that his information was reliable.”[fn14] The supreme court explained that “[a]n informant’s veracity may be established by demonstrating his past reliability, or by independent police corroboration of detailed facts in the informant’s story.”[fn15] We have held that “[t]here are basically three ways in whichPage 9
an informant can be shown to be trustworthy: by evidence that the same informant has proved reliable in the past, by evidence that independently corroborates the informant’s present tip, or by evidence that the informant is among the class of people presumptively deemed credible, such as the `citizen informants.'”[fn16]

The information provided by both Moe and Russell was independently corroborated. Moe told Trooper Spitzer that Russell was involved in the burglaries, and Trooper Spitzer found several items of stolen property at Russell’s house. Moe’s information about the Blazer being stuck in the swamp was corroborated by Gary Jacobsen, the owner of Alaska Night and Day Towing and Recovery. Moe also reported that the man whose house was burglarized was away on the North Slope, and this information was confirmed by Owen. Moe’s information was adequately corroborated, and she was thus a reliable informant under Aguilar-Spinelli.

Russell told Trooper Spitzer that both A.C. and Adam C. had taken property from the Owen residence to the C. residence. This information was corroborated by Moe, who saw Russell at the C. residence and heard Adam C. and Russell say they had stolen things from Owen’s house. Russell too was a reliable informant underAguilar-Spinelli.

We agree with Judge Cutler that there was adequate probable cause to support the search warrant served on the C. residence, even after Owen’s testimony was excluded. (We express no opinion on the appropriateness of the exclusion of this evidence.) Trooper Spitzer found Owen’s truck in the swamp behind the C. residence, Owen’s property was found inside the Blazer, Moe reported that the boys at the C. residence admitted stealing things from Owen’s house, Russell reported that he, Adam C., and A.C. were involved in the burglaries and brought items to the C. residence, andPage 10

Russell had several stolen items at his house. This information was sufficient to support the warrant.

A.C.’s claim that Stahly’s confession should be suppressed

On October 11, 2002, nearly four months after Owen’s house burned down, two Alaska State Troopers, Investigator Odean Hall and Sergeant Dallas Massey, interviewed Daryl Stahly about his potential involvement in the burglary and arson of Sean Owen’s house. Stahly was eighteen years old at the time of the interview, and arrived at the Palmer Trooper Post on his own. By the end of the tape-recorded interview, Stahly had confessed and implicated A.C. in the burglaries and arson. A.C. alleges that during the interview, the investigators ignored requests by Stahly to speak with an attorney.

Before trial, A.C. moved to suppress Stahly’s confession, arguing that Stahly’s Fifth Amendment rights were violated when the officer continued to question him after he mentioned he might want to speak with a lawyer.[fn17]

At the evidentiary hearing, Investigator Hall testified that he knew very little about the Big Lake fire before questioning Stahly. He said that Stahly told him that he “didn’t know what he wanted to do . . . [or] if he needed to speak with a lawyer or not.” Investigator Hall also said that he intended “simply to ask and see if [Stahly] was willing to talk about other portions of it . . . [a]nd if he didn’t, that we’d contact a lawyer.”

Judge Cutler found that A.C. did not have standing to claim that Stahly’s Fifth Amendment rights had been violated. She ruled that Trooper Hall did not act in bad faith, and “it seems to be we’re really not close to the Court finding that [A.C.] has standing to claim that Daryl’s rights were violated.” Judge Cutler also noted that StahlyPage 11
may not have been in custody for Miranda purposes when he was questioned. She denied A.C.’s motion to suppress.

The United States Supreme Court has held that the Fifth Amendment right against self-incrimination is a personal right that cannot ordinarily be raised by another person.[fn18] In Waring v.State,[fn19] the Alaska Supreme Court held that defendants have standing to assert a violation of a co-defendant’s rights only if they can show that a police officer obtained evidence as a result of gross or shocking misconduct, or that the officer deliberately violated the co-defendant’s rights.[fn20] In Giel v. State[fn21] we held that the Waring rule applied to a defendant raising the violation of another defendant’sMiranda rights.[fn22]

A.C. argues that Investigator Hall’s testimony during the evidentiary hearing that he knew little about the Big Lake fire before interviewing Stahly was not credible. A.C. argues that Investigator Hall actually knew very well that Stahly was involved in the incident, and that Investigator Hall’s “only possible motivations [in questioning Stahly] were to coerce a confession and to see whom else Daryl might implicate.” However, Investigator Hall testified that, before he interviewed Stahly, he had only a transcript of Trooper Spitzer’s interviews, and “had little or no knowledge of what even actually occurred.” Judge Cutler found that Investigator Hall “seemed very honest in his recollection of the situation.”Page 12

The transcript of the interview supports Judge Cutler’s ruling that Investigator Hall’s questioning of Stahly did not amount to gross or shocking misconduct, and that Investigator Hall did not deliberately violate Stahly’s Fifth Amendment rights. The record shows that Stahly never unambiguously stated that he wanted to speak to a lawyer. (Stahly made the following statements during the interview: “I kind of . . . want to [wait] for a lawyer’s advice or something, I don’t know”; “in a way I kind of don’t want to answer questions like this because like I’ve been told by family, and all that, you know, you need to talk to like a lawyer, someone like that.”) In this circumstance, Alaska law does not require that an officer stop an interview immediately; instead, “[f]urther questioning . . . must be limited to clarifying the reference.”[fn23]

After each of Stahly’s references to attorneys, Investigator Hall asked Stahly to clarify, and said they could stop if he wanted to. Each time, Stahly elected to continue. No Miranda violation occurred.

Investigator Hall’s comments to Stahly upon returning to the interview after a short break are, as Judge Cutler acknowledged, a closer issue. Judge Cutler accurately notes that Investigator Hall “basically says [to Stahly that] you have these Miranda rights, but, you know, that’s not really what’s important. Your rights aren’t important. The important part is that you say you’ll talk to me.” But the record does not show that Judge Cutler was clearly erroneous when she found that Investigator Hall had acted in good faith, and A.C. is unable to explain how this alleged Miranda violation constitutes “gross or shocking misconduct.”

In Waring, the supreme court discussed this concept. Police misconduct is subject to exclusion if it shocks the conscience, or is of a nature that requires the judicialPage 13
system to disassociate itself from the misconduct.[fn24] We uphold Judge Cutler’s ruling that A.C. lacked standing to claim that Stahly’s Fifth Amendment rights were violated because the police did not engage in gross or shocking misconduct.

The State also argues that Stahly was not in custody forMiranda purposes, but since we have found that A.C. does not have standing to claim a violation of Stahly’s Miranda rights, we need not address that issue.

A.C.’s convictions were supported by sufficient evidence

A.C. was prosecuted as an accomplice to both second-degree arson and tampering with physical evidence. To establish accomplice liability, the State had to prove that A.C., “with intent to promote or facilitate the commission of the offense, . . . aid[ed] or abet[ted] [the] other in planning or committing the offense.”[fn25] We have held that this means “the accomplice must act with the intent to promote or facilitate theconduct that constitutes the actus reus of the offense.”[fn26] The accomplice must also act with the culpable mental state that applies to the result of the substantive crime.[fn27] Here, the State was required to show that A.C. intended to aid or abet Stahly’s arson, and that A.C. intended that the house be damaged and that evidence be destroyed.

A.C.’s culpable mental state was established by evidence that Stahly told A.C. that he planned to burn Owen’s house down and destroy their fingerprint evidence, and that A.C. went along with him to the house. Stahly testified that A.C. waited outside the house, holding additional stolen items, while Stahly was inside starting the fire. A.C.Page 14
started yelling for Stahly to get out of the house once the fire was started and the house became smoky. A.C. told Brittany Dilley, another friend of his, that they burned the house down because there were too many fingerprints inside it, and he told her specifically how they started the fire. A reasonable jury could conclude that this behavior demonstrated A.C.’s intent to help Stahly start the fire, and his intent for the house to burn and for evidence to be destroyed.

A.C. argues that the State did not offer sufficient evidence of hisactus reus — i.e., the physical act of aiding or abetting Stahly’s lighting of the fire. There is no direct evidence that A.C. himself started the fire. Stahly testified that A.C. was outside the house when Stahly lit the fire. But the State argued at trial that A.C. aided Stahly by acting as a “lookout” — that he made sure that Stahly was not caught by authorities while he set the house on fire and that Stahly was able to leave the house safely once the fire had started and the house became smoky. And Dilley testified that A.C. told her how they started the fire — including that they opened the valve of a propane tank inside the house, and that they positioned boxes and towels on a stove to enhance the fire.

Based on this evidence, a reasonable jury could conclude that A.C.’s presence at the house — holding the stolen items, acting as a lookout, and helping prepare the house for the fire — aided Stahly in setting the house on fire. And because it was also reasonable to conclude that A.C. intended for Stahly to set the fire, thereby damaging the house and destroying the fingerprints, there was sufficient evidence for the jury to convict A.C. of second-degree arson and tampering with physical evidence under a theory of accomplice liability.

A.C. also argues that the case against him should have been dismissed because there was insufficient evidence to corroborate the testimony of his accomplices as required by AS 12.45.020. Alaska Statute 12.45.020
provides:Page 15

A conviction shall not be had on the testimony of an accomplice unless it is corroborated by other evidence that tends to connect the defendant with the commission of the crime; and the corroboration is not sufficient if it merely shows the commission of the crime or the circumstances of the commission.

Evidence corroborates the testimony of an accomplice “when it induces a rational belief that the narrative of the accomplice is a correct one; when it dispels the assumed notion that he was an inventor of facts and incidents.”[fn28]

Corroborating evidence is sufficient if that evidence “can be brought into contact with the circumstances related by the accomplice, and if at all points of contact there is consistency and harmony, rather than incongruity and discord, then there is good ground for presuming that what the accomplice said was true.”[fn29] To meet this requirement, the State “must show no more than that the corroborating evidence strengthens or confirms the testimony of the accomplice; it must induce `in the minds of the jurors a rational belief that the accomplice was speaking the truth when he implicated the defendant in the criminal event.'”[fn30] Furthermore, there is no requirement that every element of the offense testified to by an accomplice be independently corroborated by other evidence.[fn31]Page 16

There was no direct evidence of A.C.’s guilt other than Stahly’s testimony about A.C.’s conduct at Owen’s house when it was set afire. But Trooper Spitzer testified that Cody McBride reported that both A.C. and Stahly started the fire. Brittany Dilley testified that a group of boys that included A.C. claimed to have burned the house down. Dilley also testified that A.C. told her that they burned the house down because there were too many fingerprints inside it, and he told her specifically how they started the fire — including that they opened a propane tank inside the house, and that they positioned boxes and towels to enhance the fire. This evidence was consistent with Stahly’s recollection of events, and corroborated his testimony.

Conclusion

The judgment of the superior court is AFFIRMED.

[fn1] See AS 12.35.015.

[fn2] AS 11.46.410, AS 11.46.310(a), AS 11.46.130(a)(1), AS11.46.482(a)(1), AS 11.46.360(a)(1), and AS 11.56.610(a)(1), respectively. The petition also included three other allegations based on unrelated events.

[fn3] For some reason that is not apparent from the record, the charge that appears in the delinquency petition as second-degree burglary, AS11.46.310, was brought to trial as first-degree burglary, AS11.46.300.

[fn4] Way v. State, 101 P.3d 203, 208 (Alaska App. 2004).

[fn5] State v. Joubert, 20 P.3d 1115, 1118-19 (Alaska 2001).

[fn6] Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584,21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509,12 L. Ed. 2d 723 (1964). See also State v. Jones, 706 P.2d 317, 322-25 (Alaska 1985) (holding that, as a matter of state law, theAguilar-Spinelli test continues to govern the evaluation of hearsay information offered to support a search or seizure).

[fn7] Moreau v. State, 588 P.2d 275, 280 (Alaska 1978).

[fn8] Id. at 280 n. 13.

[fn9] Jones, 706 P.2d at 320-22.

[fn10] Id. at 320.

[fn11] 706 P.2d 317.

[fn12] Id. at 324.

[fn13] Id. (citation and quotation marks omitted).

[fn14] Id. at 324-25.

[fn15] Id. at 325.

[fn16] Rynearson v. State, 950 P.2d 147, 150 (Alaska App. 1997).

[fn17] See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,16 L. Ed. 2d 694 (1966).

[fn18] Rakas v. Illinois, 439 U.S. 128, 140 n. 8, 99 S. Ct. 421, 428 n. 8,58 L. Ed. 2d 387 (1978).

[fn19] 670 P.2d 357 (Alaska 1983).

[fn20] Id. at 362-63.

[fn21] 681 P.2d 1364 (Alaska App. 1984).

[fn22] Id. at 1366.

[fn23] Hampel v. State, 706 P.2d 1173, 1180 (Alaska App. 1985). See alsoNoyakuk v. State, 127 P.3d 856, 868-69 (Alaska App. 2006).

[fn24] Waring, 670 P.2d at 362.

[fn25] AS 11.16.110(2)(B).

[fn26] Riley v. State, 60 P.3d 204, 221 (Alaska App. 2002).

[fn27] Id.

[fn28] Oxenberg v. State, 362 P.2d 893, 896 (Alaska 1961). See alsoDimmick v. State, 473 P.2d 616, 617 (Alaska 1970).

[fn29] Oxenberg, 362 P.2d at 897.

[fn30] Brown v. State, 693 P.2d 324, 329 (Alaska App. 1984) (quotingOxenberg, 362 P.2d at 897).

[fn31] Id.Page 1