State v. Smith

• Decision Date: 10 February 1975
• Docket Number: No. 969--II,969--II
• Parties: The STATE of Washington, Respondent, v. Harold Bernard SMITH, Appellant.
• Court: Washington Court of Appeals

Page 720

12 Wn.App. 720

531 P.2d 843

The STATE of Washington, Respondent, v. Harold Bernard SMITH, Appellant.

No. 969--II.

Court of Appeals of Washington, Division 2.

Feb. 10, 1975.

J. Dean Morgan (appointed), Clark County Legal Defender, Michael Hicks, Asst. Public Defender, Vancouver, Jack E. Tanner (appointed co-counsel), Tacoma, for appellant.

James E. Carty, Pros. Atty., George O. Darkenwald, Chief Crim. Deputy Pros. Atty., Vancouver, for respondent.

ARMSTRONG, Chief Judge.

Harold Bernard Smith's appeal from a conviction of first-degree murder raises several issues, three of which warrant detailed discussion: (1) whether the warrantless search and seizure of Smith's clothes, placed in an anteroom outside his hospital room, was reasonable; (2) whether the state established a prima facie case of the corpus delicti; and (3) whether the verdict was supported by substantial evidence. We hold that the items seized were properly admitted because the search was consented to by the hospital which had joint control of them, that a prima facie case of the corpus delicti was established and that the verdict was supported by substantial evidence. We also reject the other challenges to the proceedings in the trial court and therefore affirm.

Only a brief recital of the facts is necessary at this point; the facts surrounding each issue will be set forth during its discussion. Around 12 midnight on July 30, 1972, Smith left his home and took his 2 1/2-year-old son for a walk. When his wife, Kathy Smith, awoke the next morning, they had not returned. At approximately 7:15 a.m. Smith returned home alone. He was acting strangely and to his wife's inquiries about their son, he made inconsistent statements. Kathy Smith telephoned his parents, who went to their son's house and drove him to the hospital, where he was admitted. The elder Smiths had called the police, who went to the Smith house and with Kathy Smith began to search for the boy. She found him in a stream which ran close to their home. He was dead at that time. An autopsy determined that death was caused by drowning.

I. Search and Seizure. Smith challenges the admission of the clothing which he wore on the evening and morning in question and which were seized without a warrant under the following circumstances. Pursuant to the telephone call from the elder Smiths, Sheriff's Deputy Gary Lentz went to the younger Smith's home about 8:20 a.m. on the morning in question. He was informed by the elder Smiths and Kathy Smith that the child had been missing since the night before when he went for a walk with his father, that there was a possibility that the child was in the stream, that Smith's clothes were wet and covered with sand, and that Smith had indicated he had been in or near the stream. Lentz, Kathy Smith, and other officers who had arrived both before and after Lentz, conducted a search for the child. After Kathy Smith found the child, Lentz observed that the child was dead, that he had some bruises on his neck and head and that his legs appeared not to be scratched by brambles as Lentz figured they probably would have been had the child gone to the stream of his own volition. Lentz attempted to calm Kathy Smith, and called for an ambulance. Fifteen minutes after the ambulance arrived and based on what he had learned, Lentz went to Vancouver Memorial Hospital where Smith had been taken. After determining that Smith was no longer in the emergency room he learned from the information desk that he was on the third floor. Lentz proceeded to the nursing station on the third floor, arriving about 10:20 or 10:30 a.m. and learned Smith's room number. Upon determining from the ward clerk that Smith's clothes were at the hospital he requested them. She retrieved for him a pair of pants, a jacket, a pair of shoes and a pair of socks. He signed a receipt for them and took them to the police station. The sand extracted from the clothing was analyzed by an expert from the Federal Bureau of Investigation laboratory, who testified as to his findings at trial. Lentz testified at trial as to the wet condition of the clothes when he removed them from the hospital.

At the time Lentz arrived on the third floor, Smith had been placed in room 320, a security room. The room itself contained a bed, nightstand, two windows, both of which were well screened, and two doors. One door led to a bathroom which contained a sink, stool and shower stall. There were no other doors leading into the bathroom. On the same wall of the security room and just to the left of the door leading to the bathroom was another door. It had a small window in it and led to an anteroom. This door was usually locked, though no one testified as to its being locked when Lentz was on the floor. On the anteroom wall opposite the door into the security room was a door which opened onto a main hallway. In the anteroom was a sink where docters and nurses working in both the main room and other hospital rooms sometimes washed up. It was rarely used by patients, and was considered more a part of the hallway than the security room. In a cabinet in the anteroom were stored extra pajamas and towels for the patient in the main room. Also in the anteroom was a closet. It was in this closet that the clothes of the patient assigned to room 320 were kept, including Smith's. The clerk retrieved the clothes from this closet for Lentz.

We are persuaded that no warrant was required here; the search was justified on the basis of consent given by one in joint control. It is clear that

Where two persons have equal right to the use or occupancy of the premises, either one can authorize a search and the evidence thus seized can be properly admitted into evidence against either or both parties.

State v. Bellows, 72 Wash.2d 264, 268, 432 P.2d 654, 657 (1967). Joint control occurs where the area searched is jointly occupied. State v. Bellows, Supra, (joint occupancy of motel room); State v. Rye, 2 Wash.App. 920, 471 P.2d 96 (1970) (joint occupancy of a residence), 31 A.L.R.2d 1078 § 6 (1953). There may be joint control through joint use of an item. Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969) (two persons jointly used a duffel bag). Most analogous to the case at bar are cases in which the defendant has exclusive control over some area (such as his apartment) but has joint control with another over common areas of the building or grounds. E.g., United States v. Mojica, 442 F.2d 920 (2d Cir. 1971) (joint control with brother of basement in house occupied by both, there being no indication that the defendant had exclusive control of the basement); Commonwealth v. Connolly, 356 Mass. 617, 255 N.E.2d 191 (1970), cert. denied, 400 U.S. 843, 91 S.Ct. 87, 27 L.Ed.2d 79 (1970) (all tenants have joint control of basement which was common area and freely available to all tenants); State v. Breckenridge, 4 Wash.App. 328, 481 P.2d 26 (1971) (though occupier of residence had given defendant right to use the garage, since occupier retained right to use the garage he was in joint control). Especially apposite to the case at bar is People v. Manning, 239 Cal.App.2d 416, 49 Cal.Rptr. 433 (1966). In that case, the police went to the defendant's apartment building based on a tip that contraband was stored in a closet in the hallway. On discovering that the closet was locked, the police requested that the manager open it, which she did. Though most of the items in the closet belonged to the defendant, the manager, her husband and the defendant each had a key to the closet. The court distinguished the case from the situation where a manager lets the police into a private apartment of a defendant, and held that the manager's consent was valid because she had joint control of the closet.

We hold that where a patient in the hospital turns over his clothes to a representative of the hospital, such as a staff member, and allows them to be placed in a common area outside the room to which he is assigned, he has relinquished exclusive control over them. The hospital, therefore, has at least joint control and may consent to their search and seizure. The record in the case at bar established that doctors and nurses, as well as the ward clerk who actually obtained the clothes, had free access to the area for a variety of uses. Though the anteroom was the only connection between Smith's room and the hallway, it was considered more a part of the hall. In fact, it seems likely that it was used as a buffer between the security room and the outside. This evidence was not controverted and there was no evidence that Smith did not freely acquiesce in the placing of his clothes in a common area and having the door locked between him and his clothes. For all he knew they were being taken to a place in the hospital far from his room and open to anyone. Smith made no attempt to conceal his clothes from public scrutiny, as contrasted, for instance, to one who hands over to a shipper a sealed case as in Corngold v. United States, 367 F.2d 1 (9th Cir. 1966). Corngold was distinguished in Clarke v. Neil, 427 F.2d 1322 (6th Cir. 1970), cert. denied, 401 U.S. 941, 91 S.Ct. 943, 28 L.Ed.2d 221 (1971). There the police had iearned that the defendant had taken a suit, worn on the night of the crime, to the cleaners. They went to the establishment, and the manager consented to the search and seizure of the clothes. The court found that the defendant had made no effort to preserve as private the clothes or anything on them which could be found in cleaning, as contrasted to Corngold where the sealing of the packages indicated the intent that no one look inside. Smith's actions are analogous to those of the defendant in Clarke v. Neil, supra. See also People v. Misquez, 152 Cal.App.2d 471, 313 P.2d 206 (1957) (babysitter was in joint control when upon being arrested, defendant gave her a key to his apartment, probably so that she could care for...