Com. v. Nourse, No. 2003-SC-0220-MR.

• Decision Date: 22 December 2005
• Docket Number: No. 2003-SC-0221-MR.,No. 2003-SC-0220-MR.
• Citation: 177 S.W.3d 691
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Othaniel Cantrell NOURSE, Appellee, and Othaniel Cantrell Nourse, Appellant, v. Commonwealth of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

177 S.W.3d 691

COMMONWEALTH of Kentucky, Appellant, v. Othaniel Cantrell NOURSE, Appellee, and Othaniel Cantrell Nourse, Appellant, v. Commonwealth of Kentucky, Appellee.

No. 2003-SC-0220-MR.

No. 2003-SC-0221-MR.

Supreme Court of Kentucky.

September 22, 2005.

Rehearing Denied December 22, 2005.

COPYRIGHT MATERIAL OMITTED

Lisa Bridges Clare, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, for Appellant.

Gregory D. Stumbo, Attorney General, Ian G. Sonego, Charles R. Orange, Assistant Attorney General, Office of Attorney General, Criminal Appellate Division, Frankfort, KY, for Appellee.

Opinion of the Court by Justice GRAVES.

A jury of the Logan County Circuit Court convicted Appellant, Othaniel Cantrell Nourse, of complicity to murder, tampering with physical evidence, possession of a handgun by a convicted felon, and of being a second degree persistent felony offender. Subsequent to the guilty verdict but prior to sentencing, Nourse moved for judgment notwithstanding the verdict ("JNOV"). The trial court granted the JNOV with respect to the complicity to murder conviction, but denied the motion as to the other convictions. Appellant was sentenced to not more than twenty (20) years imprisonment for the remaining convictions. Both the Commonwealth and Appellant now appeal to this Court as a matter of right. Ky. Const. § 110(2)(b). For the reasons set forth herein, we affirm.

The crimes with which Appellant was convicted stemmed from an early Christmas morning murder and robbery. The evidence presented at trial tended to show the following: between 1:30 a.m. and 2:00 a.m. on the night of December 25, 2001, Denarrius Terry knocked on the apartment door where Appellant and his girlfriend were living. Appellant's girlfriend, Julie Bogel, testified that she and Appellant were awakened by the knocking. Appellant eventually answered the door and after a brief discussion, he gave Terry possession of his handgun, which he kept between the mattresses in the bed.

About thirty minutes later, Terry returned to the apartment and knocked on the door. Bogel testified that Appellant again got up to answer the door. She stated that upon answering the door, he quickly returned to the room and placed something in the dresser drawer. Shortly after that, Bogel stated that Appellant returned to the room again, got dressed, and then displayed bullet cartridge shells which were resting in his hand. Appellant told Bogel that he needed to dispose of the casings and then left the house for about fifteen minutes. Appellant later told police that he threw the spent casings down a storm drain.

At some point, Bogel said that she heard someone (later identified as Terry) enter the residence. She stated that she then heard Appellant return to the apartment and state, "Cuz', you got it lit up like the Fourth of July down there" (presumably referring to emergency vehicles located outside the scene of the murder). Bogel testified that she had known Appellant to refer to Terry as his cousin. Bogel went on to state that she observed Appellant go into the bathroom and wash blood off several dollar bills, later putting the bills on the window sill to dry. Bogel testified that Appellant told her that Terry gave him money for use of the gun. Appellant conceded in his statement that Terry had given him $90, but claimed the money was for marijuana.

Bogel went on to testify that later the next night, Appellant told her that Terry needed the gun because he had been robbed while playing dice or gambling. Appellant went on to explain that Terry killed the robber. In a taped statement, Appellant stated that when Terry first came to the door, Terry told him only that he wanted to borrow the gun to go shooting in the country. Appellant further stated that Terry did not tell him what actually happened until after he disposed of the casings. Terry had, in fact, used Appellant's gun to murder and rob a man at a private gambling club. The murder was allegedly triggered by Terry's repeated gambling losses to the victim. Further evidence was presented at trial and shall be developed herein as necessary.

The jury convicted Appellant of all charges submitted to it; however, the trial court granted Appellant's post trial motion for JNOV with respect to the complicity to murder conviction. Appellant now appeals his remaining convictions to this Court, and the Commonwealth cross-appeals the trial court's order vacating Appellant's conviction of complicity to murder.

I. APPELLANT'S APPEAL

Appellant's primary argument on appeal is that the trial court erred when it denied his motion to suppress evidence generated from the warrantless search of Julie Bogel's apartment. He claims the search was conducted in violation of his rights under both the United States and the Kentucky Constitutions to be free of unreasonable searches. U.S. Const. amend. IV and XIV; Ky. Const. § 10. For the reasons set forth herein, we disagree.

In August 2002, some eight months after the murder, Sergeant Barry Dill of the Russellville Police Department received a telephone call from an unidentified woman. The woman purported to give information regarding the location of a weapon that was used to commit a murder in a gambling club on December 25, 2001. The woman stated further that the weapon was in the possession of either Heather Warden (Appellant's girlfriend at the time, but now wife) or Appellant. The woman called Sergeant Dill a second time and stated that Appellant and his girlfriend were staying at an apartment at 910 Gilbert Street. Sergeant Dill then discovered that Appellant had an outstanding warrant for his arrest.

Based on this information, Sergeant Dill, Officer Ann Phelps, and Officer Troy Robinson proceeded to take steps to serve the arrest warrant on Appellant. Officer Phelps stated that she was familiar with the apartment and had served another unrelated arrest warrant on Appellant at the same address just two or three weeks prior. Officer Phelps further testified that she was informed that two other telephone calls (in addition to the telephone call received from the anonymous tipster) also verified the location of Appellant. Upon arriving at the Gilbert Street address, which was a public housing complex, the officers contacted the Housing Authority Director, Jack McLean (a.k.a. the landlord). McLean informed the officers that the apartment should be vacant because the lessee, Julie Bogel, was being or had been (the testimony is not clear) evicted. The officers told McLean that they had information that people were residing at the apartment. McLean then indicated to the officers that if anyone should be in the apartment, they would be trespassing.

Based on the information provided by McLean, the officers and McLean proceeded to check out the apartment. They knocked loudly on the door for several minutes and received no answer. Upon receiving no answer, McLean attempted to open the door with his pass key. Once the door was partially open, they heard a baby crying inside the apartment. Eventually, a woman (later identified as Heather Warden) came to the door and unhinged the inside chain which prevented the door from opening completely. Warden (now married to Appellant) testified that her two young children were present in the apartment at that time and that she was in her bathrobe when she answered the door. Officer Robinson testified that when he asked Warden where Appellant could be found, she motioned to him that Appellant was at the back of the apartment. Appellant was then apprehended, taken into custody, and removed from the apartment.

After Appellant was removed from the apartment, Officer Robinson testified that he asked and received consent from both McLean (the landlord) and Heather Warden to search the apartment. Warden testified that she did not actually give consent to Officer Robinson, but did admit signing a statement to the contrary. Officer Robinson testified that he believed neither Warden nor Appellant had a right to be in the apartment, but that he asked for Warden's consent as a precaution. Among other things, Robinson's search of the apartment produced the gun used to murder the victim.

Bogel testified that she had not actually been evicted at the time of the search, but had only received a notice of eviction. She also testified that she broke up with Appellant some time in June 2002 and had moved out of the apartment at that time. She stated that she removed her clothes, but left her furniture at the apartment. She further stated that she gave permission to Appellant to continue to live in the apartment, despite the fact that her lease did not permit her to sublease the apartment. Warden testified that she did not actually live at the apartment, but that she simply stayed the night on occasion as a houseguest. However, Warden admitted that she was present at the apartment several weeks earlier, with her children, when Appellant was served with a warrant at that location in an unrelated matter.

The trial court found Officer Robinson's conduct to be permissible, ruling that it was reasonable for him to rely on the consent of both McLean and Warden as authority to conduct the search. He went on to find that it was reasonable for police to believe that Appellant and Warden were essentially "squatters," ruling that "squatters" have no reasonable expectation of privacy in the place where they are "squatting."

Appellant points out that he was not actually a "squatter" because Julie Bogel had not been evicted at the time of the search. Therefore, Julie Bogel still had a right to occupy the apartment up and until the date of actual eviction. See Clay v. Terrill, 670 S.W.2d 492, 493 (Ky.App.1984) (tenant has right to possess apartment until date of actual order of eviction). Since Julie Bogel had a right to be in the apartment, she had the ability to transfer actual possession of the apartment to Appellant (even though her...