State v. Kelly

• Citation: 718 P.2d 385
• Decision Date: 01 May 1986
• Docket Number: No. 19253,19253
• Parties: The STATE of Utah, Plaintiff and Respondent, v. Ronald LeMoyne KELLY, Defendant and Appellant.
• Court: Supreme Court of Utah

Page 385

718 P.2d 385

The STATE of Utah, Plaintiff and Respondent, v. Ronald LeMoyne KELLY, Defendant and Appellant.

No. 19253.

Supreme Court of Utah.

May 1, 1986.

David C. Biggs, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

DURHAM, Justice:

Defendant was charged with first degree murder, a capital offense, under U.C.A., 1953, § 76-5-202(1)(d). After electing to be tried without a jury, defendant was convicted and sentenced to life imprisonment. On appeal, defendant challenges his conviction on the following grounds: improper search and seizure, Miranda violations, lack of jurisdiction based on delay in holding a preliminary hearing, and insufficiency of the evidence. For the reasons stated below, we affirm.

In the early morning of February 10, 1982, Salt Lake City police received a report of a disturbance in an apartment house on Sixth South and Fifth East. Police officers responded to the call and found the body of the victim in her upstairs apartment. The victim was partially clothed and had been stabbed numerous times. The victim also had a number of bruises and scrapes on her body, and a toothbrush had been inserted in her vagina. The autopsy later performed on the body indicated that the victim had two vaginal wounds consisting of a cut and a bruise. Also, during the course of the autopsy, three foreign pubic hairs were found on the victim's buttocks.

After discovering the body, police officers spoke with the two residents of the apartment directly below that of the victim. The residents, one of whom had called the police, stated that they had heard a scream and loud noises and later heard footsteps leaving the apartment and going downstairs. They then saw a man, wearing dark pants, light gloves, and a dark ski jacket with a colored design on the back standing on the front porch. One of the residents stated that he watched the man leave and walk east on Sixth South.

Because it had snowed earlier that evening, the police found and were able to follow a set of distinct footprints which left the building and headed east. The police followed the footprints, which led intermittently to defendant's residence.

One of the investigating officers, Officer Farnsworth, went to the door of defendant's residence, knocked, and identified himself. Defendant came to the door, and the officer again identified himself and stated that he was investigating a homicide and had followed some footprints from the scene of the crime to defendant's front yard. The officer asked if he could come in, and defendant opened the door and stepped back to let the officer in. As soon as he was inside, the officer noticed a dark blue and beige ski parka with a red stripe lying on the couch by the door. The officer then asked if defendant had been out that night. Defendant stated that he had been to the Tri-Arc and that he had been home for two hours. Defendant, who was in his underwear, then walked into his bedroom to put on some pants, and Officer Farnsworth followed him; at about the same time, two other officers, who had been standing outside, came in the open front door of the residence. Officer Farnsworth later testified that defendant was not under arrest at that point and that Officer Farnsworth followed defendant into the bedroom for self-protection. Officer Farnsworth then asked defendant what shoes he had been wearing that night, and defendant indicated a pair of wet tennis shoes on the floor. The shoes appeared to have an unusual tread that matched the footprints in the snow. Officer Farnsworth asked defendant if he had killed anybody that night, to which defendant responded, "Are you serious?" Shortly thereafter, the officer told defendant that he was going to read defendant his rights, as dictated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The officer also told defendant that he would have to go to the police station for questioning. Although the officer was interrupted by defendant, who stated that he was familiar with his rights as he had been on probation, the officer gave defendant a full Miranda warning. When asked whether he understood his rights and whether he wanted to answer questions, defendant responded, "I don't know. It depends." The officer then said that he needed a yes or no answer, but defendant did not respond. However, when asked what he had been wearing that night, defendant pointed out a pair of black pants, a black shirt, and some socks, all lying in the bedroom. Officer Farnsworth picked up those items, as well as the tennis shoes and the ski jacket. Defendant then made the following statement, "I want to level with you guys. I do know someone that lives down there." Defendant also indicated that he had been across the street from the victim's building that night. Later, in an interview with detectives, defendant stated that he had been in the victim's building and had gone upstairs to the apartment next door to the victim's apartment because defendant wanted to use a friend's telephone. The man living in that apartment testified, however, that he did not hear anyone knock on his door that night, although he did hear screams.

Before leaving defendant's house, the police conducted a sweep search to determine if anyone else was in the house. There was testimony at the preliminary hearing that defendant gave his permission for the search. Although no one else was found in the house, the officers did find a pair of gloves on the bathroom floor. The gloves, which had dark spots on them, were also taken into evidence.

Defendant was placed in a patrol car and taken to the scene of the crime and then to the police station. While in the car, defendant talked to the officers rather freely. He also asked the officers to handcuff him and, during the stop at the victim's building, defendant became visibly upset when the victim's children were taken away. At that point, defendant made a statement to the effect, "If only Darla had been there." Darla Cates was a friend of defendant and had been living next door to the victim.

After defendant was taken from his house, the house was secured, and a search warrant was later obtained. The only evidence seized under that warrant which was introduced at trial was a shoelace with human blood on it. Testimony at trial indicated that there were traces of human blood found on defendant's pants, undershorts, parka, gloves, shoes, and the shoelace; the blood on the pants and shoelace was identified by type and enzymes and found to be consistent with the victim's blood and inconsistent with that of defendant. Further, a pubic hair found on the victim's buttock matched a pubic hair sample taken from defendant.

Defendant was convicted of first degree murder based on the aggravating circumstance that the homicide was committed in the course of a rape, attempted rape, or aggravated sexual assault. The trial court sentenced defendant to life imprisonment.

On appeal, defendant first challenges the warrantless seizure of his shoes and other clothing. He argues that although he gave consent for the officer to enter his home, there was no legal authority for the officer to follow defendant into his bedroom. Further, even if Officer Farnsworth had a right to be in the bedroom, the seizure of the shoes did not fall within the plain view exception to the warrant requirement. We disagree.

Defendant admitted Officer Farnsworth to his home and made no objection when the officer followed defendant into his bedroom. Having consented to the officer's entry into his home, defendant's expectation of privacy was substantially reduced. Nor was defendant's consent mere acquiescence to perceived police authority. Defendant's reliance on Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), in this respect is misplaced. In Bumper, the officers announced that they had a warrant, and the consent to enter was given on that basis. The Court held that by claiming authority to enter, the police had used coercion which, although lawful, negated the existence of consent. Id. at 550, 88 S.Ct. at 1792. In this case, there was no coercion, and defendant freely consented to the officer's entry. Once in the house, the officer was fully justified in following defendant into the bedroom. A police officer may "take necessary measures to neutralize [a] threat of harm...." State v. Cole, Utah, 674 P.2d 119, 124 (1983). As the officer had just followed footprints leading from the scene of a grisly homicide to defendant's house and inside the house found a parka closely matching a description given by witnesses, the officer had reason to be concerned about possible danger, and in fact the officer testified that he followed defendant into the bedroom because he feared there might be a weapon there.

Defendant next asserts that the officer's warrantless seizure of the shoes was improper because evidence taken in a plain view seizure must be "clearly incriminating," and the shoes "were not obviously contraband or weapons." This argument, however, is unpersuasive. In State v. Romero, Utah, 660 P.2d 715, 718 (1983), this Court addressed the requirements for a justifiable "plain view" seizure: (1) lawful presence of the officer; (2) evidence in plain view; and (3) evidence which is clearly incriminating. Romero relied on two United States Supreme Court cases: Washington v. Chrisman, 455 U.S. 1, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982), and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (plurality opinion). ¹ More recently, in Texas v. Brown 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion), the Supreme Court further examined the plain view doctrine. In Brown, the Court stated, "The question whether property in plain view of the police may be seized ... must turn on the legality of the intrusion...