State v. Hanley, CO-83-630

• Decision Date: 15 February 1985
• Docket Number: No. CO-83-630,CO-83-630
• Citation: 363 N.W.2d 735
• Parties: STATE of Minnesota, Respondent, v. Lloyd Allen HANLEY, Appellant.
• Court: Minnesota Supreme Court

Page 735

363 N.W.2d 735

STATE of Minnesota, Respondent, v. Lloyd Allen HANLEY, Appellant.

No. CO-83-630.

Supreme Court of Minnesota.

Feb. 15, 1985.

Rehearing Denied March 30, 1985.

Syllabus by the Court

1. One who had the key to an apartment in which the appellant resided, paid the rent, kept clothing and personal belongings in the apartment, and more or less regularly lived there had authority to freely and voluntarily consent to a search of the apartment by the police.

2. Appellant failed to substantiate allegations that he was deprived of effective assistance of counsel because law enforcement officers allegedly intercepted communications between appellant and his attorney.

3. Statements of an accomplice to a crime made to police were not excludable hearsay because they were not admitted in evidence to prove the truth of the matter asserted.

4. When evidence is conflicting and susceptible of different interpretations, the question of whether the witness is an accomplice is for jury resolution.

Robert D. Goodell, Minneapolis, for appellant.

Hubert H. Humphrey III, Atty. Gen., St. Paul, Robert M.A. Johnson, Anoka County Atty., J. Diane Savage, Asst. Anoka County Atty., Anoka, for respondent.

Heard, considered and decided by the court en banc.

OPINION

KELLEY, Justice.

The appellant, Lloyd Allen Hanley, was convicted of committing the first degree murder of David Studler in Anoka County. He here challenges that conviction by claiming that evidence used against him at his trial was illegally seized during a warrantless search of his apartment; that he was denied effective assistance of counsel because of alleged conduct of jailers in intercepting communications between himself and his attorney; that the trial court erred in admitting statements made by an accomplice into evidence; and that the trial court erred in refusing to instruct the jury that a woman present during part of the evening that the murder was committed was an accomplice as a matter of law. We find all of the appellant's contentions to be meritless, and accordingly affirm.

On March 26, 1982, David Studler was kidnapped, beaten, and taken to a rural area in Anoka County where he was executed by shooting. ¹ Edward Albrecht, Donald Dahn, Scott Berrisford, and appellant were all originally charged with the crimes. ² Approximately three months before that date, Donald Dahn's apartment had been burglarized. He and Appellant Hanley suspected David Studler, among others, as being involved in the burglary. Jeanne Gosselin lived in an apartment building across the hall from Appellant Hanley. On the evening of March 25, 1982, she, together with the four men, went to the Clover Club bar where they knew Studler would be. The men persuaded Studler to leave the bar with them. Once outside the bar, the four men commenced to beat and kick Studler. The group then put Studler in the back of Dahn's Pinto and took him to Appellant Hanley's apartment. He was there placed in the trunk of an Oldsmobile driven by Berrisford. The four men then decided to take Studler to Forest Lake. Before the men left, Gosselin asked appellant if he was going to kill Studler and received the reply from appellant, "Only if I don't get the answer I want from him." Gosselin did not go with the four men when they took Studler to a dirt road in Anoka County, removed him from the trunk, beat and kicked him again. After the beating and kicking, appellant stated that he was the "judge, jury and executioner" and instructed Berrisford to carry out the sentencing. Berrisford then shot Studler in the back of the head, and he was left lying in a ditch. Following the execution, and in the panic of leaving the scene, the Oldsmobile was driven off the road and abandoned. The four men then returned to St. Paul in the Pinto. For the remainder of the night and into the day, appellant and Berrisford "kept watch" out of Gosselin's apartment window overlooking an alley and the parking lot of appellant's apartment building. They were arrested on March 27 while trying to leave the building in a car owned by appellant's girlfriend, Sandra Fellman.

1. On March 27, 1982, police officers searched appellant's apartment without first having secured a warrant. The police conducted the search pursuant to consent given by Sandra Fellman. Appellant contends that search was illegal because Fellman did not possess the authority to consent to the search, and that Fellman's consent to the search was not freely and voluntarily given.

(a) The evidence is more than ample to sustain the court's finding that Fellman had sufficient access and control of appellant's apartment to validly consent to the search on Saturday afternoon, March 27, 1982. On that day, two St. Paul police officers were asked to ascertain if Appellant Hanley lived in the apartment building at 1396 White Bear Avenue. In checking the mailboxes at that apartment building, they found the names of Sandra Fellman and Appellant Hanley on the mailbox for Apartment 1. Shortly thereafter, they noted an American Motor's car registered to Fellman, containing two occupants resembling descriptions given to them of Berrisford and appellant, begin to drive away from the apartment complex. They stopped that vehicle. Berrisford and appellant were arrested. While this activity was occurring, Sandra Fellman came out of the building several times. The officers then went to Apartment 1 and sought permission from Fellman to look around the apartment. She agreed and informed the officers that she lived there. She was asked if she would sign a consent to search form. She was told that she did not have to do so, but that it would be nice if she would cooperate. Without objection, she agreed and then did sign the form in the presence of the officers. Though they did not conduct a full search, the officers did look around the apartment and observed some weapons therein. An officer was left to secure the apartment until a search warrant could be obtained.

Shortly thereafter, Investigator Terry Larkin of the Anoka County Major Crime Investigation Unit arrived at the apartment. Although he was informed that Fellman had signed the consent to search form, he proceeded to question her further in detail about her living situation to determine whether she did have the authority to consent to a search of appellant's apartment. Fellman's answers revealed she was living with appellant although she also lived occasionally with her mother. For a number of months she had been paying the rent on appellant's apartment and produced for Larkin's inspection a check register and cancelled checks demonstrating that she, in fact, paid the rent on the apartment up to and including the rent due in March. She told Larkin she kept clothing and jewelry at the apartment and produced a letter addressed to her at that apartment. Fellman was informed by Larkin that if she continued to give consent, anything found in the apartment could be used in court against Appellant Hanley. She was also informed that Larkin could get a search warrant. When again asked if she would consent, she replied, "Fine, go ahead." Investigator Larkin then took a taped statement, later transcribed and signed by Fellman. This taped statement confirmed the facts she had previously related relative to her living arrangements in the apartment. Larkin then searched this apartment. Three days later the apartment was again searched pursuant to a warrant. At that time additional evidence was seized, including white cotton rope similar to the rope used to bind Studler. At the omnibus hearing, contrary to what she had told the officers on March 27, Fellman claimed she was only a guest at appellant's apartment, and claimed she consented to the search because she felt the officers would have searched the apartment even if she had withheld assent. She did, however, admit that she had a key to the apartment, that she had consented to the search, and that she at all times understood her rights.

It is well settled under the Fourth and Fourteenth Amendments to the United States Constitution that a search conducted without a warrant issued upon probable cause is "per se" unreasonable * * * subject only to a few specifically established and well delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564 (1971). It is equally well-settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). Moreover, a number of cases hold that under certain circumstances a third party can validly consent to a search of a defendant's premises or effects. Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); State v. Martin, 261 N.W.2d 341 (Minn.1977). The leading case of United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), sets forth the test to be applied:

[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.

Matlock, 415 U.S. at 171, 94 S.Ct. at 993 (emphasis added). The Court in Matlock, supra, further defined the term "common authority":

Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements * * * but rests rather on mutual use of the property by persons generally having joint access...