Murphy v. State, 3 Div. 769

• Citation: 355 So.2d 1153
• Decision Date: 21 February 1978
• Docket Number: 3 Div. 769
• Parties: Julian Allen MURPHY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1153

355 So.2d 1153

Julian Allen MURPHY v. STATE.

3 Div. 769.

Court of Criminal Appeals of Alabama.

Feb. 21, 1978.

C. Collier Carlton, Jr., Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State.

LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a conviction of carnal knowledge of a girl under twelve years of age, for which the jury fixed defendant's punishment at imprisonment for ten years, the minimum provided by the applicable statute. Code of Alabama Recompiled 1958, Tit. 14, § 398.

The victim testified that defendant, her father, had had sexual relations with her at numerous times commencing when she was eight or nine years of age and continuing to a day in the first week of December, 1976, which last incident occurred when she was nearly thirteen years of age and which incident she reported to the police within a day or two after its occurrence.

The indictment followed the Code form and did not specify the time of the crime charged. The State made no effort to confine its proof to a specific time or to point out the particular separate offense for which it sought a conviction. Under these circumstances, it should be noted that if defendant's conviction stands, the principles of former jeopardy will preclude any other prosecutions of appellant under Tit. 14, § 398 as to the same girl. Eastep v. State, 25 Ala.App. 593, 151 So. 616 (1933); 22 C.J.S. Criminal Law § 280. This probably explains the handling of the defendant's case and sets at naught any possible contention that he should have insisted that the State point out specifically the separate crime for which defendant was being tried.

Appellant's principal contention for a reversal is that the trial court erred in overruling defendant's motion to suppress certain evidence which defendant urges was obtained by an unreasonable search and seizure of defendant's property. It consisted of three T-shirts and a pair of corduroy pants of defendant taken by the officers from the house where defendant lived, 404 Fourth Street in Boylston, which they entered without his consent and without a search warrant.

Prior to obtaining the evidence sought to be suppressed by defendant, officers had arrested and imprisoned him on a warrant sworn to by his daughter Mary Lula, the alleged victim, who, accompanied by an older sister, reported the crime to the police. Mary Lula had been taken by juvenile authorities to the Jackson Hospital for a gynecological examination by Dr. Michael H. McCallum who testified as to physical findings indicative of a crime of the nature of that charged in the indictment.

About the middle of the afternoon of December 4, 1976, officers investigating the case obtained a written consent to search the house in which defendant lived, as the tenant thereof, for clothing "that might contain some stains" and other items. ¹ Consent was obtained from Julian Randy Murphy, twenty-two-year-old son of appellant, who also had been arrested and confined to jail on a warrant sworn to by Mary Lula charging him with carnal knowledge of her. Mary Lula met the officers at the house, opened the door for them and showed them the T-shirts and corduroy pants. The pants were in the "first bedroom to the right," where Mary Lula said the last crime was committed, and the T-shirts were in the back part of the house in a pile of dirty laundry.

A witness from the State Department of Toxicology and Criminal Investigation, whose qualifications as an expert were admitted by defendant, testified that upon chemical and physical analysis of the clothing, seminal fluid and sperm were detected on one of the shirts, and seminal fluid was detected on another of the shirts, but the chemical analysis of the other two items of clothing was negative though they did contain suspicious stains.

No effort was made to obtain a consent from the defendant to conduct a search; no effort was taken to obtain a search warrant.

The parties are in disagreement on the question whether the evidence on the motion to suppress shows that Randy had "common authority over or other sufficient relationship to the premises or effects sought to be inspected," declared to be a determinant as to a valid third party consent in United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242, 250 (1974). See also, Scott v. State, Ala.Cr.App., 337 So.2d 1342, 1346 (1976); Hawkins v. State, Ala.Cr.App., 333 So.2d 846 (1976); Myers v. State, 55 Ala.App. 404, 316 So.2d 235 (1975).

Randy took the stand on behalf of defendant on the hearing on the motion and testified that he did not live at 404 4th St. in Boylston, but that he stayed there at times and some times he stayed at other places. Other witnesses for defendant, including defendant himself, testified in a similar vein. However, there was evidence that at the time officers entered the house, recent mail was found therein addressed to Randy at that address. Furthermore, his then current automobile driver's license gave the place as his address. According to testimony of the officers, Randy told them he lived there; he gave them no other address; upon being brought to the municipal jail he signed a card showing he lived at the same address and signed his name on an envelope bearing the same address, which envelope contained his personal property turned over to the warden; at the county jail he gave the same address, which appears on his fingerprint card. Randy was at that address at or about the time of his arrest and a day or two before. In his testimony on the hearing, Randy admitted living there until he was married; at the time he had been divorced about a year.

Mary Lula had five brothers and one sister, all children of appellant and of the mother of Mary Lula, who died in 1975. Mary Lula had a half-brother, the son of appellant by a previous marriage, who had a family of his own, and there is no claim by anyone that he lived at the same place as his father.

There is a conflict in the evidence as to where the sister of Mary Lula was living in the early part of December, 1976, but she was staying with her father part of the time. The evidence is without dispute that Mary Lula, her brother fourteen years of age and another brother a few years older had been living with their father since they were born.

We find it unnecessary to make detailed comparisons, contrasts or distinctions between or among the several cases involving third party consent to a warrantless search, or the like, some of them holding the search reasonable and others holding to the contrary, for we find in none of them circumstances so similar to those presented here as to be controlling. We find little difficulty, however, in determining whether the circumstances here meet the established criterion of showing "common authority over or other sufficient relationship to the premises or effects sought to be inspected" so as to justify a warrantless search. Authorities supra. An accused is not protected by the Constitution against all warrantless searches and seizures, but only against unreasonable warrantless searches and seizures. The validity of the conduct of the officers hinges on the reasonableness vel non thereof.

As to the argument of appellant that Mary Lula was too young to have given consent to the conduct of the officers in entering the house and taking therefrom the items of clothing mentioned, reference is made to Palmore v. State, 283 Ala. 501, 506, 218 So.2d 830, 834 (1969), wherein it is stated:

"We recognize the holding in Mapp that testimony unlawfully obtained is not admissible. We do not believe, however, that an officer is making an unreasonable or unlawful search when he enters a home (the defendant's) to which he has gone in response to a phone call, and, on his arrival has been told by a child, apparently the oldest member of the family present, that her mother is in the kitchen dead. Under the circumstances of this case, we are of the opinion that his going into the kitchen was reasonable and that it would be unreasonable to require the officer to go first to a magistrate and obtain a search warrant before entering the house. Being of opinion that the testimony of the officer and toxicologist, as to the condition of the body, was not the fruit of an unreasonable or unlawful search, we hold that it was not error to admit the testimony."

The officers knew, or should have known, that they did not have to obtain the consent of every person that might have had some interest in the house and contents of the house in order to enter it lawfully in quest of demonstrative evidence of the crimes against Mary Lula charged against appellant and Randy. The first and only one of the two they asked readily gave his consent. There is no contention that they first asked Randy in a belief that he would give consent, but...