State v. DeWitt, 02-668.

• Decision Date: 12 November 2004
• Docket Number: No. 02-668.,02-668.
• Citation: 2004 MT 317,324 Mont. 39,101 P.3d 277
• Parties: STATE of Montana, Plaintiff and Respondent, v. Patrick B. DeWITT, Defendant and Appellant.
• Court: Montana Supreme Court

101 P.3d 277

2004 MT 317

324 Mont. 39

STATE of Montana, Plaintiff and Respondent, v. Patrick B. DeWITT, Defendant and Appellant.

No. 02-668.

Supreme Court of Montana.

Submitted on Briefs July 17, 2003.

Decided November 12, 2004.

For Appellant: Penelope Strong, Yellowstone County Public Defender's Office, Billings, Montana.

For Respondent: Mike McGrath, Montana Attorney General, Jim Wheelis, Assistant Attorney General, Helena, Montana; Robert M. McCarthy, Silver Bow County Attorney, Butte, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Patrick DeWitt (DeWitt) was convicted of two counts of aggravated burglary. He appeals his conviction on several grounds. We affirm in part and reverse and remand in part.

ISSUES

¶ 2 A restatement of the issues before this Court is:

¶ 3 Did the District Court err in denying DeWitt's Motion to Suppress?

¶ 4 Did the District Court err in denying DeWitt's Motion to Dismiss and his Motion for a Directed Verdict?

¶ 5 Was DeWitt placed in double jeopardy by his consecutive sentences for two counts of aggravated burglary arising from one illegal entry?

¶ 6 Did DeWitt receive ineffective assistance of counsel?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 7 On July 28, 2001, at approximately 1 a.m., Donna Nicholls, who is legally blind, was awakened by feeling someone on top of her husband Harold, who was lying next to her in bed. She attempted to determine, by touch, who or what it was. When she realized it was a man beating Harold, she began hitting at him in an effort to get him off of Harold. The attacker then began beating her in the face. She managed to turn on a reading light affixed to the headboard of their bed and the intruder fled. With the lamplight, she was able to discern the figure of a man running away. Donna sustained a fractured cheek and multiple bruises on her face, arms and chest.

¶ 8 Meanwhile, Harold Nicholls awoke to find himself lying in a pool of blood and sliding from his bed to the floor. He does not recall the attack that left him with a broken nose, and multiple cuts and bruises. He does recall that as his wife turned on a light, he saw the silhouette of a man running from the room. At the time of the attack, Donna was 72 years old and Harold was 75.

¶ 9 Donna called 9-1-1 and the police arrived promptly. Harold and Donna could not identify their attacker but described a large man wearing a sweatshirt or teeshirt, and Donna thought she felt "something over his face" such as a ski mask. As the police were looking for evidence outside the Nicholls' home, Tiffany Dawes, the Nicholls' next-door neighbor, drove up. Dawes told police that she had received a disturbing phone call from her ex-fiance, DeWitt, shortly after 1 a.m. Dawes said DeWitt sounded intoxicated and uncharacteristically calm, and that she was frightened because she knew DeWitt could be violent. She explained that she had moved since breaking up with DeWitt, but that DeWitt had followed her home one night and knew generally where she lived. She informed the officers that DeWitt had called from the nearby home of Marty Anzik and showed them her caller ID unit confirming this.

¶ 10 The police, who knew DeWitt from previous encounters, found the timing of the disturbing phone call, the proximity of Dawes' house to the Nicholls, and the attack, to be sufficiently suspicious to warrant going to Anzik's house. When they arrived, no one answered the door but DeWitt's truck was in the driveway and its engine was warm. The officers noticed a light on inside Anzik's garage, approached the side entry door, and knocked on it. Both officers testified that the door was not closed or latched and opened upon the impact of the knock. As soon as the door opened, the officers detected smoke hanging in the air and the smell from a two-stroke engine recently being started. The police entered the garage, confirmed that no one was inside and left. They took nothing from the garage and closed the door when they departed. Based upon the presence of DeWitt's truck and the strong smell of exhaust and smoke in the air, the officers surmised that DeWitt may have been at Anzik's home and left on a motorcycle shortly before their arrival.

¶ 11 Again, from previous encounters with DeWitt, the police knew that he was staying with Bill Robinson. Upon arriving at Robinson's residence, the police noticed a two-stroke engine motorcycle parked outside Robinson's house. The engine was warm. The officers knocked on the door and Robinson and his guests opened the door. Robinson, in response to questions, identified the motorcycle as belonging to Anzik and said that it had not been there earlier in the evening. He also said he did not know if DeWitt was there because he had just arrived and had not seen him. Robinson then gave the officers consent to search his home for DeWitt.

¶ 12 The officers found DeWitt sitting on a couch in a dimly-lit basement room drinking a beer. They shone a flashlight on DeWitt and noticed what appeared to be bloodstains on his jeans and dark stains around his fingernails, also possibly blood. They also observed that DeWitt's right knuckle was swollen, red and bloody. They asked him to stand, at which time they handcuffed him and took him to the detention center.

¶ 13 Upon arrival at the detention center, DeWitt was photographed. The photographs document what appeared to be blood on DeWitt's jeans. The pictures also show the blood on DeWitt's hands and behind one of his ears. A serologist testified at trial that the blood from DeWitt's jeans and shirt matched Harold Nicholl's DNA profile.

¶ 14 DeWitt was questioned and videotaped at the police station. DeWitt eventually asked that the video recorder be turned off. DeWitt emotionally told the officers that he had had "a lot of alcohol" and he went into what he thought was Dawes' house to check her caller ID to find out who had been calling her. He claimed that when he went into the bedroom, a man yelled at him and hit him with a club or stick. DeWitt said that he "elbowed" the people in the bedroom in order to get away. The police did not find a club or stick in the Nicholls' home.

¶ 15 The State charged DeWitt with two counts of felony aggravated burglary in violation of § 45-6-204(2)(b), MCA (1999). The State alleged that DeWitt entered and remained unlawfully in the home of Harold and Donna Nicholls and caused them bodily injury while in their home. A jury trial was held from March 19-21, 2002, at the conclusion of which DeWitt moved for a directed verdict and dismissal. The District Court denied the motions without comment. The jury found DeWitt guilty of both counts.

¶ 16 Prior to his sentencing hearing, DeWitt moved to have counsel replaced. At the inception of the hearing, the court considered DeWitt's request and listened to DeWitt's general and vague complaints. The court acknowledged that DeWitt was not satisfied with the outcome of his trial but stated that he had had "great representation" during it. The judge asked DeWitt if he could work with his counsel for the sentencing hearing. DeWitt responded that he would prefer not to but also stated that he was not competent to represent himself during sentencing. The District Court denied DeWitt's motion to stay sentencing pending replacement of counsel and ruled that DeWitt's counsel would act as standby counsel. The court then "urged" DeWitt to cooperate with his counsel.

¶ 17 On July 19, 2002, the District Court sentenced DeWitt to two consecutive ten year sentences at Montana State Prison (MSP). The court also determined that DeWitt was a persistent felony offender. It sentenced DeWitt to a third ten year sentence at MSP to run consecutively with his other sentences.

¶ 18 DeWitt appeals.

STANDARD OF REVIEW

¶ 19 Because multiple standards of review are applicable in this case, each standard of review will be presented with its corresponding issue.

DISCUSSION

¶ 20 Did the District Court err in denying DeWitt's Motion to Suppress?

¶ 21 We review a district court's denial of a motion to suppress "to determine whether the court's findings of fact are clearly erroneous and whether its interpretation and application of the law are correct." State v. Meyer, 2004 MT 272, 323 Mont. 173, 99 P.3d 185 (citation omitted). A court's findings are clearly erroneous if they are not supported by substantial credible evidence, the court has misapprehended the effect of the evidence, or our review of the record convinces us that a mistake has been committed. We review a district court's conclusions of law to determine whether the interpretation of the law is correct. In re Guardianship & Conservatorship of Gilroy, 2004 MT 267, 323 Mont. 149, 99 P.3d 205. In reviewing a district court's conclusion of law, our standard of review is plenary and this Court must determine whether its interpretation of the law is correct. RSG Holdings v. Missoula Irrigation Dist., 2004 MT 214, ¶ 9, 322 Mont. 369, ¶ 9, 96 P.3d 1131, ¶ 9 (citation omitted).

¶ 22 DeWitt sought to suppress the evidence obtained by the officers when they entered Anzik's garage and the evidence obtained during both the search of Robinson's home and DeWitt's arrest. He based his suppression motion on the lack of a warrant authorizing entry into both residences.

¶ 23 DeWitt claims that entry into Anzik's garage was illegal and therefore all evidence and observations directly resulting from that search must be suppressed. He maintains that neither he¹ nor Anzik granted permission to the officers to enter the garage and without such consent or a warrant, entry by the police was a violation of his constitutional rights under the Montana and U.S. Constitutions.

¶ 24 DeWitt posits that the officers did not see the smoke in the garage or smell the exhaust until after they had unlawfully entered the garage. However, the officers maintain that upon knocking on the door, it swung open and the smoke and odor were readily...