Johnson v. State

• Decision Date: 29 April 1983
• Docket Number: No. 5376,5376
• Parties: Henry JOHNSON, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 981

662 P.2d 981

Henry JOHNSON, Appellant, v. STATE of Alaska, Appellee.

No. 5376.

Court of Appeals of Alaska.

April 29, 1983.

A. Lee Petersen, Anchorage, for appellant.

Elizabeth H. Sheley, Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

SINGLETON, Judge.

Henry Johnson was convicted of kidnapping, former AS 11.15.260, and rape, former AS 11.15.120. He was sentenced to concurrent fifteen-year sentences with five years suspended on each count. Johnson appeals challenging his conviction and sentence. Johnson contends that the police illegally arrested him in his home without a warrant. ¹ He further contends that certain statements which he made conceding that he had engaged in intercourse with the complaining witness at the time in question were the product of the arrest and should have been suppressed. ² We affirm the judgment of the trial court.

At approximately 3:00 a.m. on March 24, 1979, Johnson kidnapped M.H. from the parking lot of Chilkoot Charlies, an Anchorage nightclub. Johnson initially transported M.H. in her vehicle to a secluded spot where he sexually assaulted her. Thereafter, he returned her to the parking lot, obtained his own vehicle, and took her in that vehicle to his home where he kept her for approximately six hours repeatedly subjecting her to sexual abuse. Johnson fell asleep at approximately 9:30 a.m. M.H. grabbed her clothes, got out of the house and ran directly across the street to a Catholic church. M.H. was able to contact a priest and a nun who immediately called the police. Within thirty minutes, at approximately 10:00 a.m., Officer Patricia Buccilli responded to M.H.'s call for assistance. M.H. told Buccilli that the man who had raped her was a large very muscular black man who was asleep in his house (a duplex) directly across the street. She believed his name was Johnson. Officer Buccilli called for a backup unit, put M.H. in her police car, and drove to the front of the defendant's duplex.

When the officers arrived, Johnson was upstairs in the bedroom asleep. Officer Buccilli hoped to obtain a positive identification from M.H., so she and officer Marquart, who had responded to Buccilli's request for assistance, went to Johnson's front door and knocked. They left M.H. in the police car directly in front of the duplex where she would have an unobstructed view of anyone who came to the door. The record reflects that a friend of M.H., an airport security guard, was also present and agreed to go into the back yard of Johnson's duplex to prevent an escape.

Buccilli rang the doorbell several times. After about thirty to forty-five seconds, she knocked on the door with her night stick jarring it slightly open. Johnson stuck his head out of an upstairs bedroom window and asked Buccilli what she wanted. M.H. testified at trial that she saw Johnson at this point and recognized him as her assailant. At the suppression hearing, however, M.H. was not asked this question and the trial court ruled that M.H. had not been able to see Johnson at the window.

Officer Buccilli told Johnson that they wanted to have him come down for questioning. He said that he would be right down as soon as he got dressed, and "zipped" back in the window. At this point, Officer Buccilli nudged the already open door and walked twelve feet into the downstairs entry to Johnson's apartment. She said she did this because she was afraid Johnson might have a gun. She based this fear on M.H.'s statement to Buccilli that Johnson had threatened to blow her (M.H.) away if she opened her eyes during the trip from Chilkoot Charlies to Johnson's residence and if she did not consent to his sexual demands. It does not appear that M.H. actually saw Johnson with a gun. Officer Marquart was still at the door. In a few moments, Johnson came down the stairs dressed only in a pair of jeans, and saw Officer Buccilli. He asked her what she was doing in his house, and he told her he wanted her out. Officer Buccilli told Johnson that they wanted to talk to him about a rape incident that had occurred that morning. He identified himself as Henry Johnson. Buccilli backed up toward the door so that Johnson would follow her, thus allowing M.H. a good view of him from the car. Johnson did follow Buccilli to the door, where M.H. saw him. Officer Buccilli then went back to the car to see if M.H. could identify Johnson as the man who raped her, which she did. Officer Marquart followed Johnson upstairs where Johnson finished dressing. Marquart permitted Johnson to call an attorney at that time. Johnson made three calls but was unsuccessful in reaching counsel. After Buccilli returned from the car, entered the house, climbed the stairs, and informed Marquart of M.H.'s positive identification, Johnson was arrested. Johnson was transported to the police station and given Miranda warnings. He refused to answer questions and requested an attorney. Interrogation ceased. A few minutes later he was asked to furnish pubic hair samples. Johnson refused and said, "there's no reason to take any samples because I do admit I did have sex with the woman." He was then asked, "when did you have sex with the woman?" Johnson replied, "well, what do you mean?" The officer said, "well, did you have sex a week ago or did you have sex this morning?" Johnson said, "no, I had sex this morning with her."

JOHNSON'S ARREST

M.H.'s complaint to Officer Buccilli, coupled with her statement that the sexual assault had occurred in a duplex directly across the street and continued until thirty minutes before M.H.'s interview with Buccilli, gave the police probable cause to believe that a crime had been committed and that the culprit could be found in the residence across the street. Under prior Alaska law, the officers arguably could have entered Johnson's house and given M.H. an opportunity to observe him. Then, if she positively identified him as her assailant, they could arrest him. In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the United States Supreme Court held that the fourth amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest. Here, the officers had no warrant, and consequently could not under Payton have arrested Johnson within his home. However, Johnson committed his crimes on March 24, 1979, almost a year before Payton was decided. In Pascua v. State, 633 P.2d 1033, 1035-37 (Alaska App.1981), we held that Payton would not be applied retroactively to arrests occurring before it was decided. We followed this decision in Unger v. State, 640 P.2d 151, 154-55 (Alaska App.1982), but allowed limited retroactivity where the trial court had anticipated Payton and ruled in the defendant's favor. Recently, however, the United States Supreme Court decided United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), and held that Payton would be applied retroactively to any case that was not final at the time it was decided. Since Johnson's case was pending at the time Payton was decided, he is entitled to the benefit of the Johnson holding. To the extent that our decisions in Pascua and Unger are to the contrary, they are in conflict with Johnson and must be overruled. We therefore hold, on the authority of Johnson, that Payton will be applied to all Alaska cases that were not final at the time Payton was decided.

A warrantless entry into a person's home to arrest him is per se unreasonable and therefore in violation of the state and federal constitutions unless it falls within one of the limited exceptions to the warrant rule. See, e.g., State v. Myers, 601 P.2d 239, 241 (Alaska 1979). The trial court found the entry of Johnson's home justified by "exigent circumstances." He concluded that:

the exigent circumstance as I see it here, it had been about 30 minutes--she--she had given them very good information and description, but they had no way of knowing that this guy was ... still in there, the one that she claimed. She--he hadn't been identified.... And isn't it reasonable to think that if a person had raped someone, and woke up and found the person he'd raped gone, that he would leave? ... You're saying ... as I understand it, you're saying they should ... have gone and put somebody around this house and taken an hour and a half or 2 hours to go get a search warrant. And they may have been guarding an empty house as far as the defendant is concerned. Sure, they knew ... there was ... a black person in there, but they didn't know who that was until after they had gone in the door and he'd come down the stairs.... There's exigent circumstances and ... the pursuit, and they had every reason to do what they did, and therefore the motion to suppress is denied.

The Alaska Supreme Court, and this court, have addressed the "exigent circumstances" exception to the warrant requirement in a number of cases. These cases might suggest that there are a number of discreet exceptions governing specific situations which must be separately considered. See, e.g. (1) emergency entries, Schultz v. State, 593 P.2d 640 (Alaska 1979) (emergency entry to ascertain cause of fire), Gallmeyer v. State, 640 P.2d 837 (Alaska App.1982) (emergency entry to neutralize armed suspect in preparation for the rescue of an infant from a place of peril); (2) entries to preserve evidence, Finch v. State, 592 P.2d 1196 (Alaska 1979); (3) entries to make a protective search undertaken to safeguard the officers themselves while carrying out a legal investigation, Mattern v. State, 500 P.2d 228, 231 (Alaska 1972), but see Taylor v. State, 642 P.2d 1378 (Alaska App.1982), and State v. Spietz, 531 P.2d 521, 525 (Alaska 1975) (searches did not qualify as protective searches); and (4) entries in hot pursuit, Gray v. State, 596 P.2d 1154 (Alaska 1979).

A review of the...