Jones v. State

• Decision Date: 24 August 1995
• Docket Number: No. 93-259,93-259
• Parties: Nathan E. JONES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 686

902 P.2d 686

Nathan E. JONES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 93-259.

Supreme Court of Wyoming.

Aug. 24, 1995.

Leonard D. Munker, State Public Defender; Gerald M. Gallivan, Director of Defender Aid Program, and Tammy J. Richards and Diane M. Lozano, Student Interns for Defender Aid Program, for appellant.

Joseph B. Meyer, Attorney General, Sylvia Lee Hackl, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Mary Beth Wolff, Senior Assistant Attorney General, for appellee.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.

MACY, Justice.

Appellant Nathan Jones appeals from his convictions for one count of aiding and abetting aggravated robbery and one count of conspiracy to commit aggravated robbery.

We affirm.

ISSUES

Appellant's counsel presents six issues:

I. Whether Jason Stricker possessed actual authority under United States v. Matlock to permit a consensual entry or search when Jason Stricker was an overnight guest in appellant's home and did not possess the common authority over the premises necessary to validly consent to a search.

II. Whether Jason Stricker possessed apparent authority under Illinois v. Rodriguez [497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) ] to permit a consensual entry or search of appellant's home when it was not reasonable for Officer Ritter or Officer Beran to believe Jason Stricker had authority to consent.

III. If this court holds that Jason Stricker had authority to consent to search appellant's home, then consent to "look around" was not a consent to search and that the subsequent seizure was thus beyond the scope of consent given by Jason Stricker.

IV. Whether search and seizure of the coat and knife found in appellant's home was justified under the plain view doctrine when probable cause to believe they were used in a crime was not present because Officer Ritter did not have knowledge of facts establishing a reasonable nexus between the coat and knife and criminal activity.

V. The trial court erred in denying defense Motion for Acquittal as the state did not present sufficient evidence to prove the second element of aiding and abetting, that appellant associated himself with and actively participated in the success of the criminal venture, beyond a reasonable doubt.

VI. Count II of the information was defective as it charged Appellant only with conspiring to commit larceny, a misdemeanor, and[,] therefore, the trial court lacked jurisdiction under Walker to try and convict appellant for the felony of conspiring to commit armed robbery.

Appellant presents three additional issues in his pro se brief:

I. Was Appellant denied effective assistance of counsel, before, during, and after trial, due to counsel's failure to investigate and call witnesses, to properly investigate jury interference, and to properly investigate the case?

II. Was Appellant denied effective assistance of counsel on this direct appeal, due to not having competent counsel, but by having un-supervised Student Interns prepare brief of Appellant, without affording Appellant the right to consult with III. Is Appellant being denied his constitutional right to assistance of competent counsel in this direct appeal and under prior case law, may he be denied access to this court in violation of the constitution of the United States?

them as to what issues should be raised, and in not affording Appellant the right to read or review both his own trial transcripts and his own brief on appeal?

FACTS

During the evening of January 17, 1993, a man purchased a burrito, a can of Coke, and several other items at the Stop N Go Convenience Store located in Casper. Before the cashier could close the cash register drawer, the man displayed a butcher knife and demanded money from the cashier. The man took the currency, a bundle of food stamps, and several rolls of coins, and he left the store, heading east on foot.

The cashier told an officer who had been dispatched to the scene that the man was wearing a tan canvas jacket and rubber-like gloves and that the man brandished a large butcher knife. Two other officers, who had heard the cashier's description of the robber over their radio, soon arrived and began searching on foot for the suspect in the neighborhood east of the store. They noticed a light in the trailer house which was located across the street from the Stop N Go. Due to the proximity of the trailer to the crime scene, the officers decided to see whether anyone in the trailer had seen or heard anything. When the officers knocked on the door, a young man, Jason Stricker, opened the door. He told the officers that they could "come on in," and then he resumed watching television in the living room with another young man, Jeremy Holmquist. Stricker and Holmquist had been on their way to Cheyenne when they stopped in Casper and spent the night at Stricker's aunt's trailer.

The officer testified that Stricker had stated that he lived in the trailer with his aunt and that he had been inside all evening except for when he went outside to quiet his dog. He also said that, while he was outside, he had seen a man running down the alley who was wearing a gray jacket. One of the officers asked Stricker whether he "could look in the trailerhouse to see if anyone else was there," and Stricker replied, "[S]ure, go ahead."

The officer found a tan canvas jacket on the bathroom floor and a pair of rubber gloves on the bathroom counter. The officer touched the jacket and observed that it was cold. He picked up the jacket and felt something heavy inside it. He found three rolls of coins and some loose change in the pocket of the jacket. The officer also found a large butcher knife on the kitchen counter, which knife matched the description of the one used in the robbery.

The officers seized the jacket and its contents, the gloves, and the knife and took them to the police department. The officers also took Stricker and Holmquist to the police department, where they questioned them. Stricker and Holmquist told the officers that Appellant and another man had offered them an opportunity to participate in the robbery but that the boys had declined the offer. Stricker's aunt signed a form, consenting to allow another search of the trailer to be made. During this second search, the officers recovered a burrito wrapper, a Coke can, $46 in food stamps, and a BB gun.

The police arrested Appellant, and a jury found that he was guilty of one count of aiding and abetting armed robbery ¹ and of one count of conspiracy to commit armed robbery. ² Appellant appealed to this Court.

The State Public Defender's office was appointed to represent Appellant in this appeal. Two law student interns and the director of the Defender Aid Program of the University of Wyoming College of Law assisted with the filing of a brief on Appellant's behalf. Appellant filed a motion in which he asked this Court to appoint new appellate counsel or, in the alternative, to allow him to file a supplemental brief. We denied Appellant's request

for the appointment of new appellate counsel, but we granted his request to file a supplemental pro se brief. ³

DISCUSSION

I. Motion to Suppress

The first four issues address the initial search which was made of the trailer. Appellant argues that the evidence which was seized during the search of the trailer should have been suppressed because: (1) Stricker did not possess either actual or apparent authority to give his consent for the search to be made; (2) if Stricker did possess authority to give his consent, the officers exceeded the scope of that consent; and (3) the search and seizure of Appellant's jacket was not justified under the plain view doctrine.

A. STANDARD OF REVIEW

Findings on factual issues made by the district court considering a motion to suppress are not disturbed on appeal unless they are clearly erroneous. Since the district court conducts the hearing on the motion to suppress and has the opportunity to: assess the credibility of the witnesses; [assess] the weight given the evidence; and make the necessary inferences, deductions and conclusions, evidence is viewed in the light most favorable to the district court's determination. The issue of law, whether an unreasonable search or seizure occurred in violation of constitutional rights, is reviewed de novo.

Wilson v. State, 874 P.2d 215, 218 (Wyo.1994) (citations omitted).

B. CONSENT FOR THE SEARCH

The Fourth Amendment to the United States Constitution generally prohibits the warrantless entry of a person's home. Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 2797, 111 L.Ed.2d 148 (1990). The prohibition, however, does not apply to situations in which consent has been obtained from either the individual whose property is being searched or a third party who has common authority over the premises. Id.; see also City of Laramie v. Hysong, 808 P.2d 199, 203-04 (Wyo.1991).

As with other factual determinations bearing upon search and seizure, determination of consent to enter must "be judged against an objective standard: would the facts available to the officer at the moment ... 'warrant a man of reasonable caution in the belief' " that the consenting party had authority over the premises? Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). If not, then warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid.

Rodriguez, 497 U.S. at 188-89, 110 S.Ct. at 2801.

The district court determined that the officers had reasonable cause to believe that Stricker had authority to give his consent for the initial search to be made. We agree. At the time that the initial search was made, the facts which were available to the officers were that Stricker appeared to be nineteen years old; that he and Holmquist were sitting in the living room, watching...