Doisher v. State

Decision Date09 July 1981
Docket NumberNo. 4369,4369
Citation632 P.2d 242
PartiesBobby DOISHER, Appellant, v. STATE of Alaska, Appellee.
CourtAlaska Court of Appeals

Walter L. Carpeneti, Juneau, and Bobby Doisher, pro se, for appellant.

David Mannheimer, Asst. Atty. Gen., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before COATS and SINGLETON, JJ., and HANSON, Superior Court Judge.

OPINION

COATS, Judge.

On May 17, 1977, the body of Anita Frances (Sherry) Stewart was found on an isolated country road about fifty miles from Anchorage. She had been shot several times by a .45 caliber weapon. State troopers found a shoe print beside the body and took a plaster cast impression.

Several months later, Bobby Doisher was charged with the murder of Sherry Stewart. The case against Doisher will be set forth in more detail as the issues are developed in this opinion.

The basic prosecution theory at Doisher's trial can be summarized as the following: Sherry Stewart was a cocaine dealer. She bought cocaine in large quantities and resold it in smaller quantities at a large profit. Stewart's cocaine supplier quit doing business and she needed a replacement. Doisher, according to the prosecution, offered to obtain a supply of cocaine for her. On May 17, 1977, Sherry Stewart, with several thousand dollars in her possession which she was doing to use to purchase cocaine, met Doisher. According to the prosecution, Doisher shot Sherry Stewart for the money.

Doisher was convicted of felony murder (robbery) in violation of former AS 11.15.010. He was sentenced to serve a term of forty-five years. Doisher appeals to this court raising numerous points.

THE SEARCH WARRANT

Doisher filed a pretrial motion asking the trial court to suppress evidence which the troopers seized from his residence pursuant to a search warrant. The troopers found shoes at Doisher's residence which a state expert witness, John Sauve, testified were probably the same shoes which made the print found beside Sherry Stewart's body. 1

Doisher contends that the evidence before the magistrate was not sufficient to establish probable cause because the hearsay testimony of a police informant, Thomas Mooney, was not sufficiently corroborated. In addition, he claims this court should notice as plain error alleged misstatements which the trooper made at the hearing to obtain the search warrant. Doisher argues that the warrant was obtained because of these misstatements and should therefore be invalidated.

A. PROBABLE CAUSE TO OBTAIN THE SEARCH WARRANT

The sole testimony before the magistrate who issued the warrant was the testimony of trooper Charles Miller. Trooper Miller testified as to his knowledge of the investigation of the murder of Sherry Stewart. However, the major portion of Trooper Miller's testimony concerned information which was given to him by Tom Mooney. Mooney, after he had been arrested for operating a motor vehicle under the influence of alcohol, told the troopers what he knew about Bobby Doisher. At the time of his arrest the troopers also found a trace of cocaine on a spoon in Mooney's possession. Doisher argues that Mooney was motivated to provide information against Doisher in the hope that the troopers would give Mooney favorable consideration on the criminal charges he was facing. He argues that Mooney is therefore a traditional police informant whose testimony must be corroborated under the United States Supreme Court's decision of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). 2

When Doisher brought his motion to suppress in the trial court, the trial court found that Mooney was adequately corroborated. 3 We agree. We need not reach the issue of whether Mooney should be regarded as a police informant since, even if he was, he was adequately corroborated.

According to Trooper Miller's testimony at the hearing to obtain the search warrant, Thomas Mooney told the troopers why he suspected Bobby Doisher of murdering Sherry Stewart. The following statements summarize Trooper Miller's testimony about Mooney's statements concerning Doisher. Mooney told Miller he was in a position to know about Doisher and Stewart since he knew both of them, and lived in the same apartment building as Doisher. Mooney indicated Sherry Stewart was a cocaine dealer who was trying to buy a large amount of cocaine. Mooney was present when Doisher told Sherry Stewart he could possibly arrange a large sale of cocaine. On May 14, 1977, Doisher told Mooney the cocaine for Stewart would be available on May 17, 1977, which was the day Sherry Stewart was shot. Also on May 14, Mooney talked to Doisher about how easy it would be to rob Stewart and take her money. Mooney indicated that shortly after Sherry Stewart's death, Doisher paid off a loan on an automobile and purchased a pick-up truck, along with other large purchases. Mooney told Miller that before Sherry Stewart's death Bobby Doisher did not have much money. He stated that both he and Doisher were unemployed and made trips to the union hall together. Mooney said he saw Doisher's .45 caliber pistol and ammunition. He stated that the only shoes that he had ever seen Doisher wear were earth shoes 4 and tennis shoes.

Trooper Miller also testified before the magistrate concerning the results of his own investigation, and his knowledge of the murder of Sherry Stewart. Trooper Miller found from records that Doisher had made a $2,000 down payment on a pick-up truck, and that he had paid $500 on a car loan shortly after Stewart's murder. Miller stated that the records showed both payments were made in cash. He testified that Sherry Stewart had been shot with a .45 caliber weapon, and that the plaster cast and photos of the print the police found next to Sherry Stewart's body indicated that the print had been made by a shoe similar to an earth shoe.

We hold that the magistrate was correct in finding probable cause to search upon these facts. The first requirement of Aguilar is that the informant must demonstrate a reliable basis for his testimony. The informant must not be merely reporting street rumors or other unreliable information. In this case Mooney claimed first-hand knowledge of all the facts before the magistrate. He therefore clearly meets the first test of Aguilar.

The second requirement of Aguilar is that the magistrate must be given some basis to conclude that the informant is himself reliable. This is usually done by a police officer indicating that the informant has been reliable in the past. However, an informant's statements may be verified by independent corroboration of the incriminating facts. Davis v. State, 499 P.2d 1025, 1029 (Alaska 1972), rev'd on other grounds, Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); See also Schmid v. State, 615 P.2d 565, 574-77 (Alaska 1980). Here the police corroborated the fact that Doisher made large cash purchases shortly after Sherry Stewart was killed. Mooney's statement that Doisher owned a .45 caliber automatic was corroborated by information known to the police that Stewart had been killed with a .45 caliber weapon. Mooney's statement about Doisher's shoes also was consistent with what the police knew about the murder. We find the testimony of Tom Mooney adequately corroborated under Aguilar. 5

B. ALLEGED MISSTATEMENTS OF FACTS

Doisher argues that the search warrant was invalid because it was based upon misstatements of facts to the magistrate. He argues that the magistrate was not informed that Mooney was the person who brought up the subject that Sherry Stewart could be easily robbed. Doisher also argues that the magistrate was never informed that Mooney originally told the police that Doisher owned a .38 caliber automatic, not a .45 caliber automatic. Doisher points out that the record suggests that Mooney became convinced Doisher owned a .45 caliber automatic only after the police had incorrectly told Mooney there was no such weapon as a .38 caliber automatic.

These contentions were never raised in the trial court. Doisher therefore asks us to notice these contentions as plain error. An appellant who raises plain error "must shoulder the heavy burden of demonstrating the alleged misconduct raises a substantial and important question." Garroutte v. State, 508 P.2d 1190, 1191 (Alaska 1973). The appellant must also show the error was "obviously prejudicial." Kugzruk v. State, 436 P.2d 962, 964 (Alaska 1968). 6

The Alaska Supreme Court has ruled courts must examine misstatements of fact which are used to obtain a warrant. 7 The court in Davenport v. State, 510 P.2d 78, 82 (Alaska 1973), said:

We believe that since search warrants issue ex parte, the courts must be willing to investigate the truthfulness of the material allegations of the underlying affidavit in order to protect against the issuance of search warrants based on conjured assertions of probable cause. Thus, we believe that challenges to the search warrant and affidavit may be properly entertained during the suppression hearing.

However, in order for a misstatement of fact in an affidavit to fatally impair the validity of a search warrant, the misstatement must be material to the showing of probable cause upon which the warrant is based. In the case before us, it does not appear that the district judge was influenced by the misstatements in the affidavit to issue a search warrant which he would otherwise have denied.

We hold that the failure to present the fact that Mooney was the person who originally told Doisher Sherry Stewart could be easily robbed was not material. At the hearing on the application for the search warrant, Trooper Miller merely indicated the conversation took place between Mooney and Doisher. Whether Mooney first brought up the subject or whether Doisher did so is not information which would materially influence the magistrate. The important point is that Mooney and Doisher had this conversation shortly before Sherry Stewart was...

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