Brandon v. State, s. A-3721

• Decision Date: 02 October 1992
• Docket Number: Nos. A-3721,A-3722,s. A-3721
• Citation: 839 P.2d 400
• Parties: Richard C. BRANDON, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 400

839 P.2d 400

Richard C. BRANDON, Appellant, v. STATE of Alaska, Appellee.

Nos. A-3721, A-3722.

Court of Appeals of Alaska.

Oct. 2, 1992.

Rehearing Denied Oct. 29, 1992.

John Murtagh, Anchorage, for appellant.

Kenneth M. Rosenstein, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, Charles E. Cole, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., COATS, J., and ANDREWS, Superior Court Judge. ^*

OPINION

COATS, Judge.

A jury convicted Richard C. Brandon of two counts of assault in the first degree, a class A felony, and one count of kidnapping, an unclassified felony. AS 11.41.200(a)(1), (a)(2); AS 11.41.300(a)(1)(C). This court reversed the conviction. Brandon v. State, 778 P.2d 221 (Alaska App.1989). On retrial, the jury again convicted Brandon of first-degree assault and kidnapping. Brandon brings this appeal, raising several issues. We affirm.

At around 11:45 a.m. on March 7, 1987, Anchorage Police Officer William Thompson was dispatched to an apartment in response to a "911" telephone call. Thompson testified that a man in a bathrobe at that address identified himself as Richard Brandon and told Thompson Brandon's birth date and Social Security number. Thompson explained to Brandon that a 911 telephone call had been made from that location and been disconnected, and Brandon stated that his young son had possibly been playing with the phone. Thompson testified that a small boy standing in the doorway appeared to have been crying. Brandon assured Thompson that nothing was wrong. Thompson saw a woman in the apartment standing partially behind some drapes; the woman told Thompson that everything was all right.

At about 6:30 p.m. that same day, J.B. arrived at an Abused Women's Aid in Crisis (AWAIC) shelter. Intake counselor Kay White testified that J.B., who had an infant with her and appeared to be severely battered, requested shelter for the evening. J.B. told White that she had been beaten "all day" by her husband, Richard Brandon. J.B. said that she had tried to call 911 during the beating, but Brandon had pulled the phone from the wall. J.B. stated that her two children, the infant and her three-year-old son, had been present during the beating and that she was only able to leave the apartment when Brandon took the three-year-old to McDonald's. Concerned that J.B.'s injuries might be fatal, White told J.B. that J.B. would need to see a doctor before she could be admitted to the shelter. White drove J.B. to Humana Hospital, where she was examined by nurses and doctors and interviewed by the police. Doctor David Claman described J.B.'s injuries and testified that such a beating entailed a significant risk of death, and emergency room nurse Linda Kile testified that she had never seen anyone else with the same magnitude of injuries as J.B.

Officer Kathy Brewster went to the hospital and obtained J.B.'s signature consenting to a police entry into her home to search for and retrieve specifically listed items evidencing J.B.'s beating. Other police officers went to the Brandon residence at approximately 11:15 that night. When the police officers arrived at the residence, Brandon and his son, R.B., were present. Officer John Daily testified that Brandon told him that he had been sleeping until 2:00 that afternoon, that he thought J.B.'s boyfriend must have beaten her up, and that J.B. had later disappeared while Brandon was away from the apartment. Brandon was then arrested and taken before a magistrate. Brandon told Magistrate Roy V. Williams at a bail hearing in the early hours of March 8 that when "my wife came in this afternoon she was already beaten" by J.B.'s lover, a G.L., who lived about a block away. Sergeant William Gifford testified that, while the police were searching the apartment for the evidence that J.B. had been beaten, R.B. picked up a broom handle and said, "This is what daddy spanked mommy with." Officer Brewster testified that R.B. also told her that he had seen his father beat his mother with his father's belt.

The grand jury convened on March 24, 1987. At grand jury J.B. testified that, although she had told the AWAIC counselor and others that Brandon had beaten her, she had in fact been beaten by her lover, G.L. J.B. testified that Brandon and R.B. had left the apartment around 8:00 or 8:30 on the morning of March 7 and that G.L. had arrived shortly afterwards. She testified that G.L., who had been drinking, kicked and beat her with his hands and with Brandon's belt for several hours, and that it was G.L. who disabled the telephone when J.B. tried to call 911. She stated G.L. eventually left the apartment, and Brandon returned at about 11:30 a.m. J.B. testified to the grand jury that Brandon had wanted to report the assault immediately but that J.B., embarrassed about the love affair, asked him not to; when Officer Thompson arrived in response to the aborted 911 call, Brandon told Thompson that everything was all right only at J.B.'s request. J.B. testified that she later went to the AWAIC shelter to avoid discussing her extramarital affair with Brandon, and that she told the AWAIC counselor that Brandon had beaten her because she was ashamed of her love affair and because she was unsure AWAIC would shelter her unless she implicated her husband. The prosecutor presented to the grand jury testimony from White and several other witnesses reporting J.B.'s prior inconsistent statements that Brandon had beaten her. The grand jury indicted Brandon.

Brandon's first trial ended in a mistrial. At the retrial the jury found Brandon guilty; this court reversed the conviction, holding that, while J.B.'s hearsay statements to White that Brandon had beaten her were admissible as excited utterances, J.B.'s statements to others and R.B.'s statements were inadmissible hearsay. Brandon, 778 P.2d at 225-27.

Following the reversal, the state retried Brandon. At the retrial R.B. testified that he had seen Brandon "hurt" and "hit" J.B. in the living room and that was why J.B. had been in the hospital. However, R.B. was unsure whether he had told the police that Brandon had beaten J.B. The police officers then testified to R.B.'s prior inconsistent statements. J.B. did not testify at the third trial. However, during opening statement Brandon read the jury J.B.'s grand jury testimony in which she accused G.L. of being the person who beat her. ¹ Following the evidence, the jury convicted Brandon of first-degree assault and kidnapping. Brandon now appeals from this conviction.

THE SEARCH OF BRANDON'S RESIDENCE

In Brandon v. State, 778 P.2d 221, 223-24 (Alaska App.1989) this court rejected Brandon's claim that the trial court erred in failing to suppress evidence which the police derived from the search of Brandon's residence.

We reject Brandon's attempt to relitigate this issue. The doctrine of the law of the case prohibits the reconsideration of issues that this court has adjudicated in a previous appeal in the same case. Wolff v. Arctic Bowl, Inc., 560 P.2d 758, 763 (1977). We accordingly apply the law of the case doctrine and conclude that the disposition of this issue is controlled by our original decision in Brandon v. State. ²

BRANDON'S STATEMENT TO THE MAGISTRATE

Brandon next contends that Superior Court Judge John Reese erred in denying Brandon's motion to suppress the statement which he made before Magistrate Williams. In the patrol car after the March 7 arrest, Officer Daily advised Brandon of his Miranda rights, and Brandon asserted his right to remain silent. At the initial hearing shortly thereafter, Magistrate Williams did not fully advise Brandon of his rights as set out in Criminal Rule 5(c). ³ Magistrate Williams told Brandon, "At a bail hearing I have the officer tell me what kind of a case he has against you. It may seem one-sided to you but I'm not going to ask you anything about the facts of the case. The reasons for that is that because what you say could be used against you later on.... It's not always in your best interest to talk about the case at this time." After the police officer recounted the facts of the offense, Brandon provided his address and other booking information. Magistrate Williams then set bail at $10,000. Brandon then made the following statement:

Your honor. If I could have a chance to explain something. I tried to offer to the officers. But my wife came in this afternoon she was already beaten. I'm not the one that beat her. See I took care of her. I gave her a bath. I put ice packs on her face. I ran and got her ice water, you know. She has a boyfriend that lives right there in the neighborhood. This is not the first time this has happened and she's accused me of it, you know. And I tried to give, she gave his name, and address, and telephone number that I tried to give to the officers and they refused to take it from me.

Magistrate Williams then asked, "And what was, what was his name?" Brandon stated:

His name is [G.L.] I don't have the telephone number and the address. But my wife had some charges like this against me just a few months ago which she changed her story on and told the truth about this boyfriend of hers. ⁴ And he just lives about a block away. And she spends a lot of time, in fact, she spends about as much time there as she did and more time than she stayed at home. Lately I've been the one taking care of the children.

Brandon moved to suppress this statement as a violation of his constitutional rights and of Rule 5(c). Judge Reese denied the motion, finding that the statement was unsolicited and voluntary. The prosecutor played the tape recording of Brandon's statement at trial.

Brandon does not assert the constitutional issue on appeal but argues that the fact that the magistrate did not inform him of all the information within Criminal Rule 5(c) mandates suppression of his statement and reversal of his conviction. The state argues that there was no violation of Brandon's constitutional...