State v. McGarrett

• Court: South Dakota Supreme Court
• Writing for the Court: AMUNDSON; MILLER; GILBERTSON
• Citation: State v. McGarrett, 535 NW2d 765 (S.D. 1995)
• Decision Date: 21 March 1995
• Docket Number: No. 18754,18754
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Brendan A. McGARRETT, Defendant and Appellant. . Considered on Briefs

Page 765

535 N.W.2d 765

STATE of South Dakota, Plaintiff and Appellee, v. Brendan A. McGARRETT, Defendant and Appellant.

No. 18754.

Supreme Court of South Dakota.

Considered on Briefs March 21, 1995.

Decided Aug. 2, 1995.

Mark Barnett, Atty. Gen., Frank E. Geaghan, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Terry Pechota of Viken, Viken, Pechota, Leach & Dewell, Rapid City, for defendant and appellant.

AMUNDSON, Justice.

Brendan McGarrett (McGarrett) appeals his convictions for first-degree robbery (SDCL 22-30-1), commission of a felony while armed (SDCL 22-14-12), and aggravated assault (SDCL 22-18-1.1(5)). We affirm.

FACTS

On or around August 20, 1993, McGarrett and his traveling companion, Robert Surrell (Surrell), left Massachusetts enroute to California. Along their journey, they decided to stop in Rapid City, South Dakota, to visit the Badlands and Mount Rushmore. The two were driving a black 1984 Dodge Daytona.

At approximately 9:45 p.m., on August 23, 1993, a masked gunman robbed Big John's Liquor Store in Rapid City, holding the clerk and two patrons at gunpoint. The two customers, Monica Ulmer (Ulmer) and Desiree Baxter (Baxter), described the robber as wearing a red Union Bay sweatshirt, green sweatpants and a white-hooded mask. No scent of alcohol was detected by either of these witnesses, although Ulmer stated the man's actions were slow. The next day, Ulmer and Baxter were shown a picture of Surrell, McGarrett's companion, but rejected him as the robber because they said he was too heavy to be the perpetrator.

At approximately 11:30 p.m. on the night of the robbery, in a seemingly unrelated event, police were summoned to the Outer Limits Bar in Rapid City. There was a complaint that windows had been broken out of several vehicles in the parking lot. Upon arriving at the scene, the manager of the bar pointed to McGarrett, who was sitting in the Dodge Daytona, and indicated to Officer Stafford (Stafford) that he suspected McGarrett in the wrongdoing. Stafford approached McGarrett and, while speaking with him, noticed a metal pipe in the vehicle. Stafford asked if he could search the vehicle. McGarrett consented, stating "go ahead," the car was not his, but "a friend's." Stafford reconfirmed McGarrett's consent a second time, then conducted the search.

McGarrett was arrested for felony damage to private property. A .22-caliber long-barrel pistol was recovered from the vehicle, and the car was impounded. On the way to the police station, McGarrett became ill and vomited a $50 bill. The next day, August 24, 1993, Bruce Evans (Evans) contacted Surrell, who McGarrett claimed to be the vehicle's true owner. Surrell gave consent for a second search of the car which was being housed at the police impoundment lot. Evans found a mask, sweatshirt and sweatpants fitting eyewitness descriptions of the robber.

McGarrett was charged with the Big John's robbery and a trial commenced. During the trial, McGarrett testified contrary to his statements to Officer Stafford, that he owned the vehicle and had purchased it from Surrell's brother-in-law. He also denied consenting to the search at the Outer Limits. The jury returned a guilty verdict for first-degree robbery, commission of a felony with a firearm, and two counts of aggravated assault. On April 12, 1994, McGarrett was sentenced to twenty-five years on the robbery conviction, fifteen years for commission of a felony with a firearm, and fifteen years on each of the aggravated assault charges, to run concurrently with each other. McGarrett appeals his convictions.

DECISION

I. Motion To Suppress Evidence From Automobile.

The standard of review on a motion to suppress is whether or not the trial court abused its discretion. State v. Almond, 511 N.W.2d 572, 574 (S.D.1994); State v. Johnson, 509 N.W.2d 681, 683 (S.D.1993). When consent to search is at issue, a question of fact, the trial court's findings will be affirmed unless they are clearly erroneous. Almond, 511 N.W.2d at 573; Johnson, 509 N.W.2d at 683. We must determine whether the trial court's findings are against the weight of the evidence. Id.

The Fourth Amendment to the United States Constitution and Article VI, § 11, of the South Dakota Constitution generally require a warrant based on probable cause in order to search a person or place. State v. Zachodni, 466 N.W.2d 624, 627 (S.D.1991). However, certain exceptions exist. For example, once a person consents to a search, probable cause is no longer necessary. Id. at 628. State has the burden to establish by clear and convincing evidence that "the search was the result of free, intelligent, unequivocal and specific consent without any duress or coercion, actual or implied." Almond, 511 N.W.2d at 576.

Stafford testified at the suppression hearing that he first observed McGarrett while McGarrett was sitting in his vehicle with the door open. Investigating the vandalism, Stafford approached the vehicle, shined his flashlight into the passenger compartment and noticed a pipe covered with glass particles. Stafford then asked McGarrett to consent to a search of the car. Stafford testified that McGarrett gave consent, telling him to "go ahead" because the car was not his.

Contrary to Stafford's testimony, McGarrett testified that he at no time consented to a search of the car. He acknowledges the police asked for his consent twice, but said he declined both times. McGarrett further argues the police made no effort to obtain consent from Surrell or discover the identity of the true owner of the car. Consequently, he concludes the .22-caliber pistol should be suppressed. We disagree.

This court in Zachodni, 466 N.W.2d at 628, stated that a search may be valid when police erroneously but " 'reasonably ... believe that the person who has consented' " to the search possesses authority to do so. Id. (quoting Illinois v. Rodriguez, 497 U.S. 177, 186, 110 S.Ct. 2793, 2800, 111 L.Ed.2d 148, 160 (1990)). Courts in other jurisdictions have likewise held that drivers of vehicles can validly authorize searches. Pupo v. State, 187 Ga.App. 765, 371 S.E.2d 219, 222 (1988); People v. Harris, 199 Ill.App.3d 1008, 146 Ill.Dec. 90, 93, 557 N.E.2d 1277, 1280 (1990). In Harris, the court stated:

A driver of a car has the authority to consent to a search of that car because he is the person having immediate possession and control of the vehicle. (Citations omitted.) As the driver, he has joint access and control over the entire vehicle[.] 3 W.LaFave, Search & Seizure § 8.6(a), at 316 (2d ed. 1987) (citations omitted.) A nonowning driver, of course, is limited in his authority to those parts over which he has been given access, and not over other parts which he has been restricted from accessing.

Harris, 146 Ill.Dec. at 93, 557 N.E.2d at 1280. McGarrett had exclusive control over and was the sole occupant of the vehicle when it was sitting in the bar parking lot.

We have stated the finder of fact is the exclusive judge of the credibility of witnesses. State v. Krebs, 504 N.W.2d 580, 585 (S.D.1993) (citing State v. Lingwall, 398 N.W.2d 745, 747 (S.D.1986)). Here, the trial court had an opportunity to hear testimony and make an evidentiary ruling based on that testimony. It is obvious that the trial court found Officer Stafford's testimony more credible in his claim that McGarrett consented to a search of the car at the Outer Limits than McGarrett's denial of the same. Therefore, we cannot say the trial court abused its discretion in denying McGarrett's motion to suppress.

McGarrett further claims the second search of the vehicle at the impoundment lot was illegal, which he claims should result in the exclusion of the red sweatshirt and green sweatpants as evidence against him. The trial court rejected this argument and found that Surrell consented to that search. The facts support this finding and indicate that, after McGarrett told the police the vehicle belonged to Surrell, Detective Evans contacted Surrell at the motel. Surrell responded that he was indeed the owner of the vehicle and produced a bill of sale to verify his claim. He consented to the search, which lifted both warrant and probable cause requirements. Almond, 511 N.W.2d at 575; Zachodni, 466 N.W.2d at 628. We do not find the trial court abused its discretion in admitting this evidence.

II. McGarrett's Proposed Jury Instructions.

McGarrett argues the trial court erred in denying that lesser included instructions be read to the jury. He offered lesser included instructions for grand theft, aggravated assault, and simple assault as alternative instructions to first-degree robbery. However, before a lesser included offense instruction is given, two tests--one legal, the other factual--must be satisfied. State v. Tammi, 520 N.W.2d 619, 620-21 (S.D.1994); State v. Latham, 519 N.W.2d 68, 72 (S.D.1994) (citations omitted). The requirements of the legal test mandate:

(1) All of the elements of the included offense are lesser in number than the elements of the greater offense;

(2) The penalty for the lesser included offense must be less than that of the greater offense; and

(3) Both offenses must contain common elements so that the greater offense cannot be committed without also committing the lesser offense.

Tammi, 520 N.W.2d at 621 (citing State v. Wall, 481 N.W.2d 259, 264 (S.D.1992)). The

legal test also requires that the essential elements of the lesser offense must be incorporated into the corpus delicti of the greater offense. Id. (citing State v. Black, 506 N.W.2d 738 (S.D.1993)). We have held that when the legal test is not satisfied, it is not necessary to consider the factual test before denying the lesser included instruction. Id.

McGarrett was charged and convicted for robbery under SDCL 22-30-1, which is defined in relevant part as "the intentional taking of personal property ... in the possession of another from his person or immediate presence, and against his will,...