State v. Whiteley

• Decision Date: 09 July 1993
• Docket Number: No. 19503,19503
• Citation: 858 P.2d 800,124 Idaho 261
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Michael WHITELEY, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 800

858 P.2d 800

124 Idaho 261

STATE of Idaho, Plaintiff-Respondent, v. Michael WHITELEY, Defendant-Appellant.

No. 19503.

Court of Appeals of Idaho.

July 9, 1993.

Petition for Review Denied Sept. 15, 1993.

Weinpel, Woolf & Combo, Idaho Falls for defendant-appellant. Stevan H. Thompson argued.

Larry EchoHawk, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., for plaintiff-respondent. Michael A. Henderson argued.

SWANSTROM, Judge.

Michael Whiteley was convicted by a jury of first degree kidnapping and rape. I.C. §§ 18-4501, 18-4502, 18-6101. He was sentenced to a minimum period of confinement of twelve years on each count with a maximum period of twenty-five years on the rape count and a maximum life term on the first degree kidnapping count. Whiteley claims that the district court erred by denying a supplemental motion to suppress which sought to exclude evidence found in his duffel bag and his pretrial statement to a law enforcement officer. Next, Whiteley asserts that the court erred by not admitting into evidence taped telephone conversations between Whiteley and the victim. Finally, Whiteley asserts that the record lacks sufficient evidence to support his convictions. This final issue on appeal requires us to examine the evidence supporting the convictions, thus we will explore the facts in more detail below. We affirm the judgments of conviction.

The victim and Whiteley had a vacillating relationship. They first met in August, 1990, a month after Whiteley had left his wife and shortly after the victim had come to this country. The victim cleaned Whiteley's house, and the two began seeing each other socially. In September, 1990, the victim filed for a civil protection order (CPO) against Whiteley to prevent him from coming near her. Three days later, the court dismissed the CPO pursuant to Whiteley and the victim went to Utah three times in January, 1991. The victim testified that these trips were against her will. The final trip, which was on January 15, gives rise to the charges for which Whiteley was convicted. After they had returned to Idaho Falls, the police arrested Whiteley for violation of the CPO. Although the police arrested him for a CPO violation, after questioning the victim and Whiteley and discovering physical evidence at the scene of the arrest, he was charged with and convicted of rape and first degree kidnapping.

                [124 Idaho 264] the victim's request. 1  They married in October, 1990.  Later that same month, the victim left Whiteley and obtained an annulment.  In November, 1990, the victim filed for another CPO against Whiteley, which was granted.  She filed aggravated assault charges in December, but later requested that they be dropped
                

I. SUPPLEMENTAL MOTION TO SUPPRESS

After he had filed a motion to suppress which was granted and is not at issue in this appeal, Whiteley filed a supplemental motion to suppress evidence found in his duffel bag and statements made to a law enforcement officer after his arrest. The district court found that Whiteley had consented to the search of his duffel bag. The court also found that Whiteley was not in custody during the officer's initial questioning, and further, that Whiteley had knowingly, intelligently, and voluntarily waived his Miranda ² rights after his arrest. As a result, the court denied the supplemental motion to suppress.

Whiteley maintains that he did not consent to the search of his duffel bag, that the search was not conducted pursuant to a valid arrest, and that the search exceeded the scope of searches authorized under case law for weapons or where the law enforcement officer reasonably believes that evidence may be destroyed. The other portion of the supplemental motion to suppress attempted to prevent the introduction of statements made by Whiteley to a law enforcement officer after his arrest. Whiteley contends that the arrest was invalid and that the statements are too closely connected to the arrest.

We recently addressed the standard of review we apply in appeals from orders denying motions to suppress. State v. Aitken, 121 Idaho 783, 828 P.2d 346 (Ct.App.1992). Where findings of fact are supported by substantial evidence, we will not disturb them; however, we freely review the trial court's determination as to whether constitutional requirements are satisfied in light of the facts. State v. Weber, 116 Idaho 449, 776 P.2d 458 (1989).

A. Evidence in Duffel Bag

The Fourth Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, and Art. 1, § 17 of the Idaho Constitution guarantee people to be secure from unreasonable searches and seizures. A search of a person or of one's belongings is generally unreasonable unless a valid warrant exists or unless the facts authorize the application of a judicially recognized exception to the warrant requirement. State v. Rusho, 110 Idaho 556, 716 P.2d 1328 (Ct.App.1986) (citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). Consent is an established exception to the warrant and probable cause requirements. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The state must show that the consent was free and voluntary and not a result of duress or coercion, either direct or implied. Id. The voluntariness of a defendant's consent to search is to be determined in light of all of the circumstances. Id.; State v. Aitken, 121 Idaho at 784, 828 P.2d at 347.

The officer who arrested Whiteley testified at the suppression hearing that when called to the victim's residence on January 16, he was aware there had been problems between Whiteley and the victim Throughout this time Whiteley was holding a duffel bag, a briefcase and a pillow. He wanted to set these items down; however, there was snow on the ground. The second officer offered to allow Whiteley to place the items into a patrol car, and Whiteley agreed. When the first officer came back out, he arrested Whiteley for violation of the CPO. After handcuffing Whiteley, but before he placed him in the patrol car, the officer asked him if he could search his bags. The officer testified at the suppression hearing that Whiteley had agreed to the search. However, Whiteley testified at the hearing that he had refused the officer's request to search his bags. The evidence found in Whiteley's duffel bag consisted of a "stun gun" or shocking device and a pair of handcuffs.

[124 Idaho 265] and was aware that a CPO existed barring contact between the two. The officer testified that en route to the victim's house, he had asked the dispatcher to confirm that the CPO was still valid and was told that it was. When the officer arrived at the scene, the victim, her mother, another man, and Whiteley were all outside. He told the other man, the victim and her mother to go inside the house while he questioned Whiteley. After another officer arrived, the first officer went into the house to talk to the victim and the other two. The victim told the officer that Whiteley had forcibly taken her to Utah and raped her. She also told the officer that Whiteley had threatened her with a stun gun and handcuffs which she said were in his duffel bag.

In denying this portion of the supplemental motion to suppress, the district court expressly found that Whiteley had given the officer consent to search his duffel bag. Whiteley contends that due to the conflicting testimony of the officer and himself, the state did not show by clear and convincing evidence that he had voluntarily consented to the search of his duffel bag. He offers no authority to support the asserted requirement that the state must show consent by this level of proof. The state has correctly recited the required burden of proof to be by a preponderance of the evidence. State v. Aitken, 121 Idaho at 785, 828 P.2d at 348. The state contends that the supplemental motion to suppress was properly denied with regards to the duffel bag evidence because Whiteley had consented to the search.

The district court's factual finding that consent had been given was based on a credibility determination. The officer's testimony constitutes substantial and competent evidence to support the court's finding that consent was given. "The credibility of witnesses and the weight to be given their testimony is exclusively within the province of the trier of facts." Thomson v. Marks, 86 Idaho 166, 384 P.2d 69 (1963). We will not substitute a different conclusion on appeal regarding conflicting testimony.

Notwithstanding the voluntary consent, Whiteley further claims that the arrest was illegal. Where consent and the subsequent search accompany an arrest, the events are intertwined to the extent that if the arrest is illegal, the search pursuant to the consent is illegal as well. State v. Weber, 116 Idaho at 453, 776 P.2d at 462 (quoting State v. Barwick, 94 Idaho 139, 142, 483 P.2d 670, 673 (1971)). The consent given by Whiteley immediately followed his arrest by the officer; therefore, in order for the evidence found in the duffel bag to be admissible, the arrest must have been legal.

Whiteley rests his argument that the arrest was illegal primarily on the ground that the CPO was invalid. The state asserts that Whiteley challenges the validity of the CPO for the first time on appeal. Our review of the transcript of the suppression hearing indicates that Whiteley testified as to his beliefs regarding the CPO's validity and counsel argued the issue below. The state is correct, however, that Whiteley did not cite in the written motion as a reason to suppress the evidence, the alleged invalidity of the CPO. Nevertheless, the district court was presented with the issue, and the state noted at the suppression hearing that Whiteley was challenging the validity of the CPO where it had not been challenged in the First, Whiteley relies on testimony from the victim where she answered "yes" after being asked whether exhibit H was a copy of the...