Moreau v. State, 2355

• Citation: 588 P.2d 275
• Decision Date: 15 December 1978
• Docket Number: No. 2355,2355
• Parties: Carol MOREAU, Appellant, v. STATE of Alaska, Appellee. Davis STONE, Appellant, v. STATE of Alaska, Appellee.
• Court: Supreme Court of Alaska (US)

Page 275

588 P.2d 275

Carol MOREAU, Appellant, v. STATE of Alaska, Appellee.

Davis STONE, Appellant, v. STATE of Alaska, Appellee.

No. 2355.

Supreme Court of Alaska.

Dec. 15, 1978.

Barbara J. Miracle, Sue Ellen Tatter, Asst. Public Defenders, and Brian Shortell, Public Defender, Anchorage, for appellant Moreau.

Phillip P. Weidner, Drathman, Weidner & Bryson, Anchorage, for appellant Stone.

Monica Jenicek, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

OPINION

Before BOOCHEVER, C. J. and RABINOWITZ, CONNOR, BURKE and MATTHEWS, JJ.

BOOCHEVER, Chief Justice.

Davis Stone and Carol Moreau, convicted after a joint trial of possession of heroin, ¹ bring separate appeals to this court, each raising numerous claims of error. We affirm Stone's conviction and remand for resentencing. Moreau's conviction is reversed.

On October 26, 1973, a grand jury returned an indictment for possession of heroin against Davis Stone, Case No. 73-637 Criminal. That same day, a bench warrant was issued for the arrest of Stone. ²

The indictments in No. 73-637 Criminal and a companion case, that of Debbie Phelps, No. 73-636 Criminal, were based on evidence obtained from a search of the residence of David Bell in Anchorage. The search of that house, which exposed evidence implicating Stone and Phelps, was authorized by a warrant supported by two affidavits: one by C. R. McCoy, a state police investigator, dated October 17, 1973, and one by a confidential informant, John Brodigan, dated simply October 1973. Brodigan subsequently revised his affidavit on December 16, 1973. ³

In order to serve a bench warrant for the arrest of Davis Stone, Investigator John R. Needham of the Metropolitan Narcotic Unit of the Anchorage Police Department and Alaska State Trooper Daniel J. Goodwin, assigned to the Unit, knocked on the door of the Stone and Moreau residence around 3:00 p. m. on November 13, 1973. The record discloses no warrant for the arrest of Carol Moreau. They were dressed, in Goodwin's words, in "civilian clothes very casually." The door of the Stone and Moreau home was answered by Tiffany Powers. Ms. Powers asked the pair if they were from a local TV repair shop. Trooper Goodwin answered "yes." Ms. Powers left and returned to the door in less than a minute with Carol Moreau. When Goodwin asked for Stone, Moreau informed him that Stone was sleeping and that they should come back later.

There is a conflict in testimony as to the subsequent behavior of the officers. Goodwin testified that, at that point, he pulled his badge out of his pocket and displayed it. The door was partially slammed in his face, and he pushed it open, entering the house yelling "troopers" or "state police." Investigator Needham corroborated this testimony and noted that the force of the entry knocked Ms. Moreau over a table. Trooper Goodwin drew his gun upon entering the house. Moreau testified at the suppression hearing that the two men did not identify themselves and that, because their behavior frightened her, she attempted to obstruct their entry into her home. ⁴ Both officers testified that they rushed through the house until they reached the back bedroom. In the bedroom, the officers found Stone, nude, standing at the foot of the bed.

The evidence which formed the basis for the heroin possession charges against Stone and Moreau was a wet and wadded napkin which, according to the officers' testimony, Stone spit out of his mouth at the officers' command and which Moreau picked up. She may have made a movement toward the bathroom, the officer grabbed her and took the napkin. The damp napkin, which one officer believed contained a "brown residue," was subsequently determined to contain three to four percent heroin. It formed the basis for the indictment for possession in No. 73-765 Criminal, the instant case. ⁵

In preliminary proceedings, Stone moved to quash the arrest warrant, alleging that it was void because it was not signed by a judge or magistrate but by a deputy clerk. It was noted that the arresting officers allegedly found the heroin when Stone was searched incident to arrest.

Both Stone and Moreau moved to suppress "certain evidence" as the fruit of an illegal search and seizure. In documents filed in support of this motion, the invalidity of the arrest warrant was alleged, without elaboration. In addition, it was alleged that the search of the defendants' premises exceeded the scope of permissible search incident to arrest. In a hearing on the motion to suppress, defense counsel stated that he was not at that time seeking to suppress the napkin, which formed the basis for the present conviction. The trial judge, as a basis for determining credibility of the witnesses at the hearing, permitted questioning as to whether Moreau was a prostitute and a drug addict and as to the illegality of Stone's earnings. ⁶ The judge stated that he believed the defendants to be "leeches on society" and found their testimony to lack credibility. The motion to quash the warrant was denied; the suppression motion was granted in part.

At the trial, Stone was the only witness for the defense. He testified that he had never seen the napkin, that he did not know what heroin was, nor did he know people who dealt in or used heroin.

On the second day of trial, the defense moved to dismiss the indictment as to appellant Moreau, on the ground that she had had no knowing possession and as to both defendants, on the ground that the residue of heroin on the napkin was unusable and thus not sufficient to sustain a conviction. The motions were denied. The jury returned a verdict of guilty for both defendants. Moreau was sentenced to a term of eight years; and Stone, to six years.

I. SUPPRESSION OF THE NAPKIN

A. Revision of the Affidavit.

Both appellants argue that the napkin should not have been admitted into evidence. They contend that the revision of the Brodigan affidavit destroys probable cause supporting the Bell search warrant. Thus, they submit, the indictment against Stone was invalid, rendering the arrest warrant and entry into the Stone and Moreau residence illegal. Therefore, the napkin should have been suppressed.

Although this issue was extensively briefed, it has not been shown where the issue was properly presented to the trial court. The defense motions to quash the arrest warrant and to suppress other evidence did not rely on this ground. The only direct reference to a nexus between the Bell search and the napkin was by the prosecutor, when requesting a continuance:

The Stone/Moreau possession . . . that could be interrelated back and it may be a traceable poison fruit problem possibly back to the Phelps leading as far back as the Phelps situation. ⁷ I'm simply not prepared to address myself to the necessity to dismiss certain counts or cases and I must ask the court for additional time . . ..

The defense agreed to the continuance and never introduced the connection between the Bell search warrant and Stone's bench warrant as grounds for excluding the heroin-tinged napkin. Thus, we examine this issue in the context of plain error. ⁸

It is clear that a false affidavit in support of a search warrant can, in appropriate circumstances, nullify the warrant. Franks v. Delaware, --- U.S. ----, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). ⁹ Since defendant's counsel did not question the affidavit at trial or pre-trial motions, the contours of the plain error rule shape our inquiry into whether admission of the heroin-tinged napkin requires reversal. ¹⁰

In Dimmick v. State, 449 P.2d 774, 776 (Alaska 1969), we referred to the plain error doctrine as a device "to prevent a miscarriage of justice" ¹¹ and noted the following purposes underpinning the requirement that points of appeal be preserved at trial:

The main purpose of the rule is to require errors to be drawn to the attention of the trial court in time for their correction so as to avoid the inconvenience and expense of a new trial. Another reason is to obviate the temptation to save defenses for the purpose of obtaining a new trial on appeal.

Id. (footnote omitted).

Here, if proper objection had been raised to the admission of the heroin-tinged napkin, the trial court would have been confronted with issues involving the original search of the Bell apartment. First, the court would have had to decide whether Judge Kalamarides' decision in Case No. 73-637 to suppress the evidence seized as a result of the Bell search was binding on the state in this case, No. 73-635, under the doctrine of collateral estoppel. ¹² If the court found the decision in the earlier case did not bind the state, the court would have then made an independent determination of whether the alteration in Brodigan's affidavit required suppression of the evidence obtained as a result of the search of Bell's apartment.

Furthermore, in Randall v. State, 583 P.2d 196, 200 (Alaska 1978), we stated:

An appellant raising an error as plain error on appeal "must shoulder the heavy burden of demonstrating that the alleged misconduct raises a substantial and important question." Garroutte v. State, 508 P.2d 1190, 1191 (Alaska 1973). Furthermore, such error must be "obviously prejudicial." Bowker v. State, 373 P.2d 500, 505 (Alaska 1962); Kugzruk v. State, 436 P.2d 962, 964 (Alaska 1968).

"Where the misconduct fails to rise to the level of plain error, considerations of judicial economy dictate that we deal with the matter summarily."

Garroutte v. State, supra, at 1191.

Applying these concepts to the search and seizure issue presented here, we do not find plain error. While we do not state that search and seizure issues are incapable of plain error analysis, ¹³ we believe that the exclusionary rule which requires the suppression of illegally obtained evidence is usually not appropriately raised for the first time on appeal. This view finds support from prior Alaska decisions ¹⁴ and...