State v. Brown

• Decision Date: 30 November 1992
• Docket Number: No. 900148,900148
• Citation: 853 P.2d 851
• Parties: STATE of Utah, Plaintiff and Appellee, v. Donald Wayne BROWN, Defendant and Appellant.
• Court: Utah Supreme Court

Page 851

853 P.2d 851

STATE of Utah, Plaintiff and Appellee, v. Donald Wayne BROWN, Defendant and Appellant.

No. 900148.

Supreme Court of Utah.

Nov. 30, 1992.

Rehearing Denied June 17, 1993.

R. Paul Van Dam, David B. Thompson, Salt Lake City, for plaintiff and appellee.

Nathan D. Hult, Logan, for defendant and appellant.

DURHAM, Justice:

Defendant Donald Wayne Brown and three other men were charged in the beating death of Miguel Ramirez at the Western Brine Shrimp harvesting camp. Brown appeals his convictions of second degree murder, a first degree felony, under Utah Code Ann. § 76-5-203, and aggravated assault, a third degree felony, under Utah Code Ann. § 76-5-103. We reverse and remand for a new trial because of defense counsel's conflict of interest. We also address other issues that may be relevant to the new trial.

In October 1989, Brown and eight other employees were in the Western Brine Shrimp Company's camp on the northwestern The next morning, the police arrived, secured the premises, and conducted two warrantless searches of the Western Brine Shrimp trailer in which Brown resided. Brown, Billy Cayer, Ray Cabututan, and William Cummins were charged with Ramirez's death. Brown was convicted and now appeals his conviction.

shore of the Great Salt Lake. Brown and three other men were drinking in one of the four trailers located at the camp. The four men asked Eddie Apodaca, an employee who resided in a different trailer, to come over. A brief scuffle ensued, after which Apodaca returned to his trailer. The four men followed Apodaca, confronted Miguel Ramirez, Apodaca's roommate, forced Ramirez outside, and beat him. Ramirez died several hours later from the injuries he sustained during the beating.

Among the issues Brown raised on appeal are the following: (1) whether the trial court properly admitted evidence seized without a warrant; (2) whether it was appropriate for a part-time city attorney to represent Brown as appointed counsel; (3) whether the trial court erred in admitting evidence of Brown's prior bad acts; (4) whether the evidence sufficiently supported Brown's conviction of aggravated assault; (5) whether the prosecutor's reference to Brown as a "mad dog" in closing argument was unduly prejudicial; (6) whether the trial court abused its discretion in giving an Allen-type instruction to the jury; and (7) whether it was appropriate for the trial court to assess defense costs to Brown as part of his sentence. Brown also raised other issues, but because we remand due to defense counsel's conflict of interest and because they will not be relevant to the new trial, we do not address them.

WAIVER/PROCEDURAL DEFAULT STANDARD

Defendant raises several of his issues for the first time on appeal. Despite his failure to preserve these issues below, he argues that we should reach the merits of his claims under a "liberty interest" exception noted by this court in State v. Breckenridge, 688 P.2d 440, 443 (Utah 1983).

In Breckenridge, the defendant raised a due process claim for the first time on appeal. The defendant, who worked at a bodyshop, was charged with arson. During a "confession," he stated that he had decided to dispose of a pile of car parts that had accumulated in the corner of the building by burning them with a paint gun and cutting torch. The fire spread out of control and damaged the building. Id. at 442. Without any factual basis indicating that the defendant intentionally damaged the building, the trial court accepted his plea of guilty to a charge of arson under Utah Code Ann. § 76-6-102. On appeal, Breckenridge argued that his right to due process was violated because the court accepted his guilty plea "without his understanding the nature and elements of arson and without a showing that there was any factual basis upon which to base conviction of a crime." Breckenridge at 443. We agreed that his right to due process was substantially affected. Id. at 444.

Rule 103(d) of the Utah Rules of Evidence provides that we may take notice of "plain error" that affects the "substantial rights" of a party even though the error was not brought to the attention of the court. In State v. Eldredge, 773 P.2d 29 (Utah), cert. denied, 493 U.S. 814, 110 S.Ct. 62, 107 L.Ed.2d 29 (1989), we described the two requirements for finding "plain error." First, from our review of the record we must determine that it should have been obvious to a trial court that it was committing error. Second, the error must be harmful in that it affects the substantial rights of the accused. See id. at 35 and cases cited therein. In Breckenridge, this court commented, "The general rule that constitutional issues not raised at trial cannot be raised on appeal is excepted to when a person's liberty is at stake." 688 P.2d at 443. We acknowledge that this language, although only an incidental comment in a case with clear plain error and obvious constitutional ramifications, has resulted in some confusion regarding the waiver/procedural default rule. See State v. Jameson,

800 P.2d 798, 802-03 (Utah 1990); State v. Harrison, 805 P.2d 769, 779 n. 13 (Utah Ct.App.), cert. denied, 817 P.2d 327 (1991); State v. Hargraves, 806 P.2d 228, 231-32 (Utah Ct.App.1991). Breckenridge was a case of plain error in which the Eldredge standard was clearly met. We did not intend in Breckenridge to carve out an additional exception to our traditional plain error standard, and we now expressly disavow any implications to that effect. We therefore review the issues raised in this case for the first time on appeal using the plain error standard.

WARRANTLESS SEARCH

At the hearing on defendant's motion to suppress evidence, the parties presented the following details surrounding the search. On October 26, 1989, three officers of the Box Elder County Sheriff's Department responded to a reported assault at the Western Brine Shrimp camp. The officers arrived at the scene and arrested defendant, Cummins, Cayer, and Cabututan. All four suspects were placed in trailer 4 (the trailers were numerically designated for clarity at trial). The officers entered trailer 3, the trailer in which defendant and the other suspects slept, on several occasions. First, shortly after their arrival, the officers did a quick search for safety reasons to locate additional suspects or weapons. After this search, one officer propped open the door to trailer 3. Second, the officers entered at the arrested defendants' request to retrieve a pack of cigarettes. The officers could not find the correct brand of cigarettes and entered again when defendants gave more specific instructions as to the location of the cigarettes. The officers entered a fourth time to obtain medication for defendant Cayer. Officer Yeates testified that on these trips into the trailer, he saw a box, wet shoes, and a wet wrench.

Approximately two hours after defendants were transported to the jail, the officers talked to the owner and property manager of Western Brine Shrimp by radio and obtained permission to search all of the trailers. Yeates entered trailer 3 and seized, among other things, a pink bag containing Brown's wet clothes. Yeates saw Brown's knife on his bunk but did not seize it until the following day. The question presented is whether the seizure of these articles was permissible under the Fourth Amendment to the United States Constitution. ¹

At the suppression hearing, the trial court ruled that the search was permissible for the following reasons: (1) it was incident to an arrest; (2) there were exigent circumstances, namely, isolation and distance, a homicide, possible dissipation of blood, access of other employees to the premises, rain and snow nearby, and a great deal of agitation and distress on the part of camp personnel; (3) the items seized were in plain view; and (4) the owner consented. We review the factual findings underlying the trial court's decision to grant or deny a motion to suppress evidence using a clearly erroneous standard.

We review the trial court's conclusions of law based on these facts under a correctness standard. State v. Ramirez, 817 P.2d 774, 781-82 (Utah 1991). The State concedes that the search incident to arrest and exigent circumstances exceptions are inadequate and relies only on the consent and plain view exceptions as justifying the search.

The Fourth Amendment prohibits all unreasonable searches and seizures. Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967). Warrantless searches are per se unreasonable unless undertaken pursuant to a recognized exception to the warrant requirement. Id. at 357, 88 S.Ct. at 514. Recognized exceptions include consent searches, Washington v. Chrisman, 455 U.S. 1, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982); searches and seizures incident to lawful arrest based on probable cause under exigent circumstances, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, reh'g denied, 396 U.S. 869, 90 S.Ct. 36, 24 L.Ed.2d 124 (1969); searches and seizures made in hot pursuit, Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); searches and seizures of contraband in areas lawfully accessible to the public, State v. Shreve, 667 P.2d 590 (Utah 1983); and seizure of evidence in plain view after lawful intrusion, State v. Harris, 671 P.2d 175 (Utah 1983).

The core inquiry in a Fourth Amendment analysis is "whether a person has a reasonable expectation of privacy in the area searched." United States v. Bilanzich, 771 F.2d 292, 296 (7th Cir.1985). "[I]t is the right of possession rather than the right of ownership which ordinarily determines who may consent to a police search of a particular place." 3 Wayne R. LaFave, Search and Seizure § 8.5(b) (2d ed. 1987). If a third party rather than the defendant consents to a search, the third party must be one who possesses "common authority" over the area or has some other "sufficient relationship to the premises or effects...