Andrews v. State

• Decision Date: 15 February 2002
• Docket Number: No. 99-332.,99-332.
• Citation: 2002 WY 28,40 P.3d 708
• Parties: Stanislaus Patrick ANDREWS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

40 P.3d 708

2002 WY 28

Stanislaus Patrick ANDREWS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 99-332.

Supreme Court of Wyoming.¹

February 15, 2002.

Sylvia Lee Hackl, Public Defender; Donna Domonkos, Appellate Counsel; Diane E. Courselle, Director, Wyoming Defender Aid Program; Gordon Ellis, Student Intern; and Casey Martin, Student Intern., Representing Appellant. Argument by Mr. Martin.

Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Kimberly A. Baker, Senior Assistant Attorney General, Representing Appellee. Argument by Ms. Baker.

Before LEHMAN, C.J., and GOLDEN, HILL, and KITE, JJ.

LEHMAN, Chief Justice.

[¶ 1] A Sheridan County jury convicted appellant Stanislaus Patrick Andrews of two counts of burglary. Andrews complains that the State conducted illegal searches of a duffel bag and his wallet and that the trial court erred by failing to suppress the evidence seized as a result of those searches. Andrews also claims that the trial court erred by refusing to give the jury his proposed lesser-included offense instructions and by recommending that, upon commutation or parole, the Department of Corrections require him to register as if he were a sex offender. This court concludes that the searches did not violate Andrews' constitutional rights and that he was not entitled to have the jury instructed on the lesser-included offense. Andrews' conviction is, therefore, affirmed. We do, however, modify his sentence to remove the recommendation that he be required to register as a sex offender.

ISSUES

[¶ 2] Andrews presents the following issues on appeal:

[I] Was Mr. Andrews denied his right against unreasonable search and seizure, as guaranteed by the U.S. Constitution and the Wyoming Constitution, when his duffel bag was searched without a warrant and Mr. Andrews had not consented to the search nor physically abandoned the duffel bag?

[II] Was Mr. Andrews denied his right against unreasonable search and seizure as guaranteed by the U.S. Constitution and the Wyoming Constitution when his wallet was searched without a warrant, after he had placed it out of reach and was kneeling on the ground with his hands cuffed behind his back?

[III] Did the trial court commit reversible error when it refused to instruct the jury on the lesser-included charge of criminal entry for both counts of the indictment against Mr. Andrews?

[IV] Did the trial court impose an illegal sentence when it instructed the Department of Corrections that Mr. Andrews should be required to register as a sex offender as a condition of commutation or parole?

FACTS

[¶ 3] On February 25, 1999, Donna Woody reported to the Sheridan County Sheriff's Department that her trailer house had been burglarized. The front door was broken, and Ms. Woody was missing $400 in cash. Ms. Woody subsequently reported that a camera, a jacket, and a black bra had also been taken in the February 25th burglary.

[¶ 4] On March 2, 1999, Robin Wendling reported a burglary at her trailer house, which was located in close proximity to Ms. Woody's home. The exterior doors were damaged, and there were a number of items missing from the Wendlings' home, including women's underwear, bras, a dress, a slip, a pair of shoes, nylons, and an "Outdoor Products" brand backpack. Ms. Wendling also found some articles of clothing and shoes in her bedroom which did not belong to her, including a navy blue dress, women's underwear, bras, nylons, and a pair of ladies' black pumps.

[¶ 5] On March 23, 1999, Ms. Woody's home was burglarized for a second time. She reported that some jewelry, various coins and paper money, and a bra were missing after the second burglary of her home. A deputy sheriff questioned Ms. Woody about whether she was missing any other items of clothing. Ms. Woody searched and discovered that she was missing a pair of black pumps and a navy blue dress. A few days later she reported that she was also missing an Oneida silverware set which had the letter "T" engraved on each piece.

[¶ 6] On March 26, 1999, officers met with Andrews' parents, Joyce and Gerald Willis, at the sheriff's office. Andrews had been staying at the Willises' home which was located in the same trailer park as the victims' homes. During the interview, the Willises gave the officers permission to search their home.

[¶ 7] Deputy Jenkins proceeded to the Willis home and knocked at the door. Andrews answered, and they conversed on the front deck. Deputy Jenkins questioned Andrews about the burglaries, but he denied any involvement in the crimes. Andrews informed Deputy Jenkins that he slept in the living room and kept his belongings in the dining room. Deputy Jenkins repeatedly asked Andrews for permission to search his belongings. Andrews finally agreed to allow Deputy Jenkins to search, on the condition that the Willises would allow the deputy to enter the house. Andrews asked his parents, and they invited the deputy into the house.

[¶ 8] Andrews took the deputy into the dining room and handed him two duffel bags. Deputy Jenkins searched the two bags and discovered that one contained dirty laundry and the other contained clean laundry. The deputy also discovered a screwdriver, which was consistent with the shape and size of the tool used on the victims' doors to gain access to their homes, and a blue "Outdoor Products" backpack during his search of the two duffel bags.

[¶ 9] Deputy Jenkins asked Andrews about a third duffel bag which was located in the same area as the other two duffel bags. Andrews stated that the bag did not belong to him. Deputy Jenkins questioned Andrews: "Do you understand that if it's not yours you have no standing to object to me searching it?" Andrews affirmed his understanding.

[¶ 10] The deputy requested and received consent from Mr. Willis to search anything in the house that did not belong to Andrews. Deputy Jenkins opened the third duffel bag and discovered a folder which contained papers with Andrews' name. Andrews stated that those items belonged to him, but the remainder of the contents of the bag were not his. During his search of the third duffel bag, Deputy Jenkins discovered a number of items of significance to the investigation of the burglaries, including various coins meeting the description of those stolen from the Woody residence, Ms. Wendling's birth certificate, and a pair of shoe liners for women's shoes.

[¶ 11] Deputy Jenkins informed Andrews that he was under arrest. Andrews immediately removed his wallet from his back pocket and placed it on the kitchen counter directly in front of him. Deputy Jenkins handcuffed Andrews and retrieved the wallet. Andrews told the deputy that he wanted to leave his wallet at the house, but the officer opened it and discovered some silver dollars and fifty-cent pieces. The officer seized the wallet as evidence.

[¶ 12] Andrews was transported to jail. Deputy Jenkins also took the third duffel bag and the wallet and conducted a full inventory search of them, discovering more coins of the type that had been stolen from Ms. Woody's home and credit cards and a receipt containing the Wendlings' names.

[¶ 13] The State charged Andrews with two counts of burglary. Count I pertained to the February 25, 1999 burglary of the Woody home, and Count II involved the burglary of the Wendling home. Andrews moved to suppress the evidence discovered during the searches of the third duffel bag and his wallet. The trial court held a hearing, and Andrews testified at the hearing that the third duffel bag did, in fact, belong to him. The trial court denied Andrews' motion to suppress.

[¶ 14] Andrews was subsequently tried before a jury. During the trial, the State elicited testimony from an Oregon police officer, showing that Andrews had committed similar crimes in that state. He apparently broke into homes to steal items and to try on women's clothing. Ms. Woody and Ms. Wendling testified about the burglaries of their homes and the items missing after the burglaries. The defense presented proposed jury instructions on the lesser-included offense of criminal entry, but the trial court refused to give those instructions. The jury found Andrews guilty of both counts of burglary.

[¶ 15] The trial court sentenced Andrews to serve consecutive terms of imprisonment in the Wyoming State Penitentiary. The trial court also included the following statement in the Judgment and Sentence:

THE COURT RECOMMENDS to the Department of Corrections that if the Defendant should be considered for a commutation or parole, a condition of his release should require the Defendant to register with the County Sheriff where the Defendant intends to live within five days of his release from custody, as if he were a sex offender under Wyoming laws, pursuant to W.S. 7-19-302.

Andrews subsequently appealed his conviction and sentence.

DISCUSSION

A. Search and Seizure of Evidence

[¶ 16] Andrews challenges the searches of the third duffel bag and his wallet as being in violation of the United States and Wyoming constitutional prohibitions against unreasonable searches and seizures. He maintains, therefore, that the trial court erred when it refused to suppress the evidence seized during the search of the third duffel bag and his wallet.

When reviewing an order denying a motion to suppress evidence, the findings of the trial court regarding the motion to suppress are binding on this Court unless clearly erroneous. Neilson v. State, 599 P.2d 1326, 1330 (Wyo.1979), cert. denied, 444 U.S. 1079, 100 S.Ct. 1031, 62 L.Ed.2d 763 (1980). Whether an unreasonable search or seizure occurred in violation of constitutional rights presents a question of law and is reviewed de novo. Gronski v. State, 910 P.2d 561, 563 (Wyo.1996).

Vasquez v. State, 990 P.2d 476, 480 (Wyo. 1999).

[¶ 17] The Fourth Amendment to the United States Constitution provides:

The right

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