Latham v. State

• Decision Date: 13 April 1990
• Docket Number: Nos. A-2397,A-2398,s. A-2397
• Citation: 790 P.2d 717
• Parties: Ben J. LATHAM, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 717

790 P.2d 717

Ben J. LATHAM, Appellant, v. STATE of Alaska, Appellee.

Nos. A-2397, A-2398.

Court of Appeals of Alaska.

April 13, 1990.

John C. Pharr, Anchorage, for appellant.

Tonja Woelber, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

BRYNER, Chief Judge.

Ben J. Latham was convicted by a jury of robbery in the first degree and criminal mischief in the second degree. He also entered a no contest plea to a second, unrelated count of criminal mischief in the second degree. Superior Court Judge Beverly W. Cutler sentenced Latham on all counts to a composite term of eight and one half years with one and one half years suspended. Latham appeals his convictions on various grounds and his sentence as excessive. We affirm.

At about 8:00 a.m. on July 21, 1986, a masked man robbed the Hatcher Pass Grocery at gunpoint and fled in a stolen car. The Alaska State Troopers discovered the car several miles away, abandoned and broken down. Two weeks later, on August 3, 1986, the Crimestoppers line in Anchorage received a call from Ernie Hardt, who reported that Latham had committed the robbery at the Hatcher Pass Grocery. The troopers interviewed Hardt on August 11, 1986. Hardt told the troopers that he and his wife were friends of Latham. According to Hardt, at about 8:30 a.m. on the morning of the robbery, Latham came to Hardt's house in the Matanuska Valley and said that he had just robbed the Hatcher Pass Grocery. Hardt gave the troopers a detailed account of the robbery as Latham had described it.

At the request of the troopers, Hardt agreed to engage in an electronically monitored conversation with Latham. Hardt was then taken before Superior Court Judge Beverly W. Cutler to testify in support of a warrant authorizing an electronically monitored conversation. Judge Cutler found probable cause to issue a warrant, concluding that Hardt's testimony appeared credible because he was able to provide numerous details about the robbery that he would not have been aware of without having spoken with someone who was actually involved in the crime.

On August 12, troopers accompanied Hardt to Latham's home. Hardt was admitted to the residence, and troopers recorded a conversation between him and a man identified by Hardt as being Latham. Although no one actually saw Hardt and Latham together, one of the troopers who recorded the conversation later identified the voice of the person speaking with Hardt as Latham's. During the recorded conversation, Latham openly acknowledged robbing the Hatcher Pass Grocery.

Latham was charged with first-degree robbery for holding up the Hatcher Pass Grocery and with second-degree theft and second-degree criminal mischief for stealing and damaging the car that he used during the holdup. ¹ Prior to trial, Latham moved to suppress his recorded conversation with Hardt, alleging that the warrant authorizing the troopers to record the conversation was not supported by probable cause. Following a hearing, Judge Cutler denied Latham's motion to suppress and admitted the recording in evidence at trial.

On appeal, Latham renews his challenge to the validity of the electronic surveillance warrant. He contends that the truthfulness of Hardt's testimony before Judge Cutler at the warrant hearing was not adequately established. Specifically, Latham argues that Hardt was presented to Judge Cutler as if he was a "citizen informant," even though the troopers had grounds to believe that he had previously possessed stolen property and had previously been involved in using and selling cocaine. Latham argues that, under the circumstances, Hardt was from the "criminal milieu," and his testimony therefore should have been independently corroborated.

Latham's argument is unpersuasive. The distinction between citizen informants and informants from the criminal milieu arises from and derives its primary utility in the context of cases involving warrants based on testimony or affidavits containing hearsay provided to the police by third persons. Because the unsworn, out-of-court statement of an informant from the criminal milieu is presumptively unreliable, it is incumbent on the police to provide the court with sufficient information to establish the informant's truthfulness. See, e.g., Erickson v. State, 507 P.2d 508, 517 (Alaska 1973).

In contrast, when an informant appears before a judge or magistrate and testifies under oath concerning personal observations, there is no comparable need for extrinsic corroboration of the informant's veracity; the presiding judge or magistrate is able to observe the informant's demeanor, is capable of questioning the informant, and is provided further assurance by the fact that the informant's testimony is under oath. See, e.g., Hodsdon v. State, 698 P.2d 1224, 1228 (Alaska App.1985). Latham has cited no cases, and we are aware of none, holding that personally rendered testimony of an informant--even one from the criminal milieu--need be corroborated to support a finding of probable cause.

Here, Judge Cutler heard Hardt's testimony given under oath, observed his demeanor, and questioned him to satisfy herself as to his credibility. There was ample evidence given to support the court's conclusion that Hardt was probably telling the truth and that probable cause for issuance of a warrant existed.

Latham nevertheless suggests that, by withholding unfavorable information concerning Hardt's background, the troopers misled the court as to Hardt's credibility. Certainly, if the troopers had knowingly or recklessly withheld material evidence bearing on Hardt's truthfulness, the omission would have required the warrant to be declared invalid. See State v. Malkin, 722 P.2d 943, 946 (Alaska 1986). However, there was no attempt in this case by the troopers to present Hardt to the court as a model citizen or to misrepresent his background or motives for testifying. To the extent that the troopers were aware of possible prior misconduct by Hardt, their information would at most have had weak and indirect bearing on Hardt's credibility. When presented at the suppression hearing with the totality of the undisclosed facts that the troopers purportedly knew about Hardt, the superior court found that the information would not have altered the decision on probable cause and was therefore not material. The court's finding is not clearly erroneous. Accordingly, the court did not err in denying Latham's motion to suppress.

Latham next argues that the trial court erred in refusing to order a psychiatric evaluation of Hardt. However, Latham's request for a psychiatric evaluation--which was based on disclosure of records indicating that, more than five years before trial, Hardt had been diagnosed as a schizophrenic suffering from homicidal tendencies--was made for the first time in the midst of trial. Although Latham now contends that the requested evaluation was necessary to challenge Hardt's credibility as a witness, at trial he requested the evaluation for the exclusive purpose of questioning Hardt's competency to testify. In denying Latham's motion for a psychiatric evaluation of Hardt, the court found that Hardt easily met the minimal qualifications for competency to testify, a finding that Latham does not challenge on appeal. Subsequently, Latham was allowed to bring...