State v. Comer

• Decision Date: 27 June 2002
• Docket Number: No. 20010323-CA.,20010323-CA.
• Citation: 2002 UT App 219,51 P.3d 55
• Parties: STATE of Utah, Plaintiff and Appellee, v. Damon and Misty COMER, Defendant and Appellant.
• Court: Utah Court of Appeals

51 P.3d 55

2002 UT App 219

STATE of Utah, Plaintiff and Appellee, v. Damon and Misty COMER, Defendant and Appellant.

No. 20010323-CA.

Court of Appeals of Utah.

June 27, 2002.

Dale M. Dorius and Justin C. Bond, Brigham City, for Appellant.

Mark L. Shurtleff, Attorney General, and Jeffrey S. Gray, Assistant Attorney General, Salt Lake City, for Appellee.

Before JACKSON, P.J., and BILLINGS, Associate P.J., and ORME, J.

OPINION

ORME, Judge:

¶ 1 This appeal addresses, inter alia, the issue of whether a report of domestic violence from an identified citizen informant triggers the emergency aid exception to the Fourth Amendment's warrant requirement, permitting warrantless entry into a home even absent probable cause. We conclude it does not. However, we determine that the warrantless police entry into the residence in this case was nonetheless lawful because it was supported by probable cause and accompanied by exigent circumstances.

BACKGROUND

¶ 2 "We recite the facts in the `light most favorable to the trial court's findings from the suppression hearing'" held in this case. State v. Giron, 943 P.2d 1114, 1115 (Utah Ct.App.1997) (citation omitted). On July 5, 2000, three Brigham City police officers responded to a dispatch call based on a report from an identified citizen informant of a "family fight in progress" at Appellants' residence. Once all three officers arrived, they knocked on the door of the residence. Appellant Misty Comer answered the door, first opening it only a few inches, and then stepping out onto the porch. The officers explained to Misty that they were there to investigate a reported family fight and asked if anyone else was inside the home. Misty stated that her husband was inside and then, without explanation "immediately turned and walked back inside the residence."

¶ 3 The officers followed Misty into the home and down the hallway to a bedroom. Misty stuck her head inside the bedroom door and told her husband that the police were there. Appellant Damon Comer then emerged from the bedroom, and the officers followed the Comers back to the front room, where the Comers acknowledged they had been in an argument. Misty admitted that she had scratched Damon, and the officers observed that Damon had scratch marks on his chest, neck, and back.

¶ 4 The officers arrested Misty for domestic violence assault and, in the course of making that arrest, found drugs and drug paraphernalia. Damon and Misty were each charged with possession of a controlled substance in a drug-free zone, a second degree felony, in violation of Utah Code Ann. § 58-37-8 (Supp.2000), and with possession of drug paraphernalia, a class B misdemeanor, in violation of Utah Code Ann. § 58-37a-5 (1998). After a preliminary hearing, they were each bound over on both of the counts charged.

¶ 5 The Comers then filed a motion to suppress, and the trial court held a hearing on the motion. The hearing included testimony from two of the officers and argument from both sides. The trial court ultimately denied the Comers' motion to suppress, concluding that the officers' warrantless entry into the Comers' home fell under the emergency aid doctrine.¹ See Salt Lake City v. Davidson, 2000 UT App 12, ¶¶ 10-13, 994 P.2d 1283

. The trial court stated:

The court finds the following. There's no question that this involved a residence which creates a higher standard with regards to entry by the police without a warrant. In this case the defendants had a report of a domestic fight in progress....

By itself that wouldn't justify the officers entering the house because, as has been amply testified to, these reports run the whole range from simply having a verbal argument to severe violence. Often times they're nothing more than an argument.

In this case the court finds that the requirements have been met for the following reason. The defendant, Misty Comer, according to the testimony, made a somewhat sudden and unexplained retreat into the house. In other words, without saying why. And during the middle of a conversation with the officers she heads back into the house. Under those circumstances it is reasonable that the officers followed her into the house. Now, had she stayed out on the porch you have an entirely different set of circumstances, but that's not what occurred here.

So, the court finds that the motion to suppress is denied. The[ ] requirements have been met. The basis for the emergency was not only the call, but her behavior at that time and they followed her. There doesn't appear to be any evidence that in following her they said, oh, let's follow her in, maybe we can find drugs. There's no suggestion of that. There does seem to be a reasonable basis that the emergency is associated with the area they searched. In other words, all they did was follow her in and stay on track with her. Sure enough, very shortly thereafter, an individual appears who appears to have been the victim of domestic violence. The indication was scratches on his neck and chest and back. At that point there's the basis for an arrest to occur. So the court denies the motion to suppress.²

¶ 6 During the suppression hearing, defense counsel attempted to impeach the credibility of one of the officers. The officer indicated on cross-examination that upon entering the Comers' home he briefly scanned the room to see if there were any weapons, overturned furniture, or holes in the walls. Defense counsel asked the trial court for permission to retrieve from his car the videotape of the preliminary hearing³ and play it for the trial court to show that the same officer had testified at the preliminary hearing that upon entering the home he had not looked around the front room at all, but simply followed Misty down the hall. The trial court denied defense counsel's request, stating that the alleged difference between the officer's preliminary hearing testimony and his suppression hearing testimony

may have some limited relevance on credibility. On the other hand, this is an incident in the early morning hours, about six or seven months ago. Whether a person went straight in following somebody or as they went in glanced sideways, in the court's view either one certainly could have occurred, but I'm not sure that's a critical issue. I don't think that shows that anybody is lying, if they did one or the other or did both.

¶ 7 Following the trial court's denial of the motion to suppress, Misty pleaded guilty to the felony charge, and, pursuant to a plea agreement, the State dismissed the misdemeanor charge against her. Also as part of the agreement, Misty reserved the right to appeal the court's ruling on the motion to suppress. Misty then timely appealed.

¶ 8 Damon entered into a plea in abeyance agreement on the felony charge, and the State dismissed the misdemeanor charge. His plea in abeyance agreement purported to provide, inter alia, that he also could appeal the trial court's ruling on the motion to suppress. Damon filed a notice of appeal the day after entering into the plea in abeyance agreement.

¶ 9 Damon's and Misty's appeals are each based on the trial court's refusal to view the videotape of the preliminary hearing and on the trial court's denial of their joint motion to suppress evidence. We have consolidated the two appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 10 We first address a jurisdictional issue raised by the State, namely, whether this court has jurisdiction over Damon's appeal. "Whether appellate jurisdiction exists is a question of law which we review for correctness, giving no deference to the decision below." Pledger v. Gillespie, 1999 UT 54, ¶ 16, 982 P.2d 572.

¶ 11 We next address the issue raised by the trial court's refusal to view portions of the video tape of the preliminary hearing, as requested by the Comers, for the purpose of impeaching the testimony of one of the officers. "A trial court has broad discretion to admit or exclude evidence and its determination typically will only be disturbed if it constitutes an abuse of discretion. A trial court abuses its discretion if it acts unreasonably." State v. Whittle, 1999 UT 96, ¶ 20, 989 P.2d 52 (internal citation omitted). ¶ 12 Finally, we review the trial court's denial of the Comers' motion to suppress.

We review the factual findings underlying the trial court's denial of defendant's motion to suppress under a clearly erroneous standard. See State v. Anderson, 910 P.2d 1229, 1232 (Utah 1996)

. We will determine there was clear error "only if the factual findings made by the trial court are not adequately supported by the record." Id. By contrast, we review "the trial court's conclusions of law based on such facts under a correctness standard, according no deference to the trial court's legal conclusions." Id.

Salt Lake City v. Davidson, 2000 UT App 12, ¶ 8, 994 P.2d 1283

.

JURISDICTION

¶ 13 Damon seeks to appeal from a plea in abeyance agreement. Under such an agreement, the court accepts a defendant's guilty plea but does not enter judgment or impose sentence, and all time periods imposed by applicable law regarding the time for entry of judgment and imposition of sentence are waived. See Utah Code Ann. §§ 77-2a-1, -2 (1999). Entry of judgment and imposition of sentence are postponed pending the defendant's successful completion of his obligations under the agreement. See id. Upon the defendant's successful completion of his obligations under the agreement, and depending on the terms of the agreement, the defendant is allowed to withdraw his plea and the charges are dismissed, or judgment is entered and a sentence imposed for a lower degree of offense. See Utah Code Ann. § 77-2a-3(2) (1999).

¶ 14 The law is well-settled that, because there has been no final judgment, a direct appeal cannot be taken from a plea in abeyance agreement. See State v. Hunsaker, 933 P.2d 415, 416 (Utah Ct.App.1997) (per curiam)

; State v. Moss, 921 P.2d 1021, 1025 n. 7 (Utah Ct.App.1996). "In...