Brandon v. State, A-2362
| Decision Date | 28 July 1989 |
| Docket Number | No. A-2362,A-2362 |
| Citation | 778 P.2d 221 |
| Parties | Richard C. BRANDON, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Court of Appeals |
Rex Lamont Butler, Anchorage, for appellant.
Cynthia M. Hora, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee.
Before BRYNER, Chief Judge, COATS, Judge, and ROWLAND, Superior Court Judge. *
Richard C. Brandon was convicted, following a jury trial, of two counts of assault in the first degree, AS 11.41.200(a)(1), (a)(2), and of one count of kidnapping. AS 11.41.300(a)(1)(C). Superior Court Judge Ralph E. Moody sentenced Brandon to twenty years of imprisonment on the two assault in the first degree convictions, and to fifteen years, consecutive, on the kidnapping conviction. Brandon's total sentence is thirty-five years of imprisonment. Brandon appeals his conviction and sentence. We reverse the conviction.
On March 1, 1987, Joyce Brandon arrived at the Abused Women's Aid in Crisis (AWAIC) shelter at approximately 6:00 p.m. She had been severely beaten over her entire body. She reported to counselor Kay White that her husband, Brandon, had beat her throughout the day. Joyce Brandon told White that she had escaped when Brandon took their three-year-old son, R.B., to McDonalds.
White conducted an intake interview with Joyce Brandon that lasted approximately forty-five minutes. White described Joyce as being "very upset," and said that Joyce was crying. She described Joyce as having a swollen face, one eye almost swollen shut, and said that she "appeared to be severely beaten." White stated that areas of Joyce's entire body were bruised and swollen and that Joyce appeared to be in pain. Joyce told White that Brandon began beating her at about 8:00 a.m. that day and that he had just recently stopped. Joyce stated that her husband had hit her with his hands, feet, and a belt. She said that Brandon had tied her to a broom handle and had tied her hands behind her back. White urged Joyce to go to the hospital. Joyce was initially reluctant, but ultimately agreed to go with White.
White took Joyce Brandon to Humana Hospital. There Joyce initially saw nurse Linda Kile. Joyce Brandon made statements to Kile implicating Joyce's husband, Brandon, in the beating. Joyce made her statement to Kile around 7:30 p.m., approximately one and one-half hours after Joyce had arrived at AWAIC.
Joyce was examined by Dr. Claman at the Humana Hospital Emergency Room at about 7:30 p.m. Joyce told Dr. Claman that she had been beaten throughout the day and that she was restrained during the beatings. Doctor Claman testified that Joyce had undergone a severe beating. Doctor Claman also testified that Joyce's injuries fell within the legal definition of serious physical injury.
Anchorage Police Officer Kathy Brewster and Reserve Officer Rhea Ferranti were dispatched to the hospital to talk to Joyce Brandon. The officers contacted Joyce at approximately 8:00 p.m. Officer Brewster took a taped statement from Joyce at 9:55 p.m. The statement was a summary of an approximately two-hour interview that the officers had conducted with Joyce Brandon. Officer Brewster had Joyce Brandon sign a consent to search form, authorizing Anchorage Police Officers to search the Brandon residence. The consent form authorized the police to search for and seize several items connected with the alleged assault. Joyce Brandon told Officer Brewster that she was concerned that her husband might also beat R.B., whom she had left with Brandon.
Officers Gifford, Gilliam, and Daily proceeded to the Brandon residence with the consent to search form. The officers knocked on the door, and the door was opened by Brandon. Officer Daily entered the house first and handcuffed Brandon. The officers then proceeded to search the residence. The police found a broom handle, a belt, nylons, and other items which were ultimately entered in evidence at Brandon's trial.
R.B. was at the Brandon residence during the police search. Sergeant Gifford testified that R.B. was running around, engaging in "[a] normal child's actions[.]" Officer Daily described R.B. as "nice, talkative." When Officer Daily found a broken broom, R.B. stated that the broom "had been broken while Daddy had been spanking Mommy." Sergeant Gifford reported that R.B. made a similar statement in his presence.
The state presented the case against Brandon to the grand jury, seeking indictments for assault in the first degree and for kidnapping. Joyce Brandon testified before the grand jury, but she testified that she had been beaten by another man, not by Brandon. However, the grand jury concluded that there was sufficient evidence to indict Brandon on both the assault and the kidnapping charges.
At Brandon's trial, Joyce Brandon exercised her fifth amendment rights and refused to testify. However, the statements that Joyce Brandon had made shortly after the alleged offense to White, Kile, and Officers Brewster and Ferranti were admitted in evidence as "excited utterances." A.R.E. 803(2). In addition, Judge Moody found that R.B. was unavailable as a witness, but allowed his statements to the police officers to be admitted under the special residual exception to the hearsay rule. A.R.E. 804(b)(5). The jury ultimately convicted Brandon of both the assault and the kidnapping charges.
Brandon argues that the trial court erred in failing to suppress evidence which was derived from the search of the Brandon residence. The state argues that the police were authorized to search the Brandon residence because Joyce Brandon consented to the search. Brandon essentially argues that Joyce Brandon's consent to search was not effective because he was the only adult present at the residence and did not agree to allow the police to search.
In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the defendant was arrested in the yard of the house where he lived. The police were admitted into the house by a Mrs. Graff who stated that she and the defendant jointly occupied the house. Graff allowed the police to search the house, and the police found money taken in a robbery. The court stated that it was clear that [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 premise or effects sought to be inspected.
Id. at 171, 94 S.Ct. at 993 (footnote omitted). The court stated in a footnote:
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 or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.
Id. at 171 n. 7, 94 S.Ct. at 993 n. 7 (citations omitted).
In Matlock, however, the court also stated that "the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared." Id. at 171, 94 S.Ct. at 993. Courts and commentators appear to be split regarding what circumstances allow the police to search a premises based upon the consent of a third party cotenant when the defendant cotenant is present on the premises and objects to the search. W. LaFave, Search and Seizure § 8.3(d), at 248-53 (1987); compare United States v. Hendrix, 595 F.2d 883 (D.C.Cir.1979) () with Silva v. State, 344 So.2d 559 (Fla.1977) ().
Even assuming that under some circumstances the present cotenant can object to a search of the premises, we believe that in this case the police could rely on Joyce Brandon's consent to search the Brandon residence. Joyce Brandon had recently been severely beaten. She authorized the police to go to her residence to obtain evidence of the beating. She also expressed concern for the welfare of her three-year-old son. Joyce Brandon had authority to allow the police both to go to her house and to enter the house. It would be impractical and unreasonable for us to require the police to have Joyce Brandon accompany them. Given the recency and severity of the beating, it was reasonable for the police to proceed promptly to the Brandon residence. The police did not know whether Brandon would be home when they arrived. If Brandon were not at home, Joyce Brandon's consent to search would clearly have been effective. Because the police encountered Brandon at the residence, it was necessary for them to arrest Brandon or face the possibility that he would destroy evidence.
Once Brandon was arrested, it would be possible for us to require the police to guard the residence and obtain a search warrant. However, we see no reason why Joyce Brandon, having an equal right to possession of the premises, could not consent to a search of the residence. Because the police already had Joyce Brandon's consent to search, we conclude that the police were authorized to search the residence after Brandon's arrest. We therefore uphold Judge Moody's decision refusing to suppress the evidence in this case.
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