State v. BrownState v. Brown
A jury convicted defendant of second degree assault; the trial court, in accordance with the jury’s assessment, fined him $1000. He appeals; we affirm.
The state’s evidence was that on the evening of January 16, 1988, a tavern owner called the police to report a disturbance created by two persons who had been drinking. Police Sergeant Lowell responded to the call and found that the persons had already left. Defendant and his brother had been at the tavern earlier in the evening; defendant was asked to leave and his brother followed. As Sergeant Lowell left the tavern, he observed defendant up the street yelling obscenities at him. Defendant retreated into his residence at 2003 Geyer.
Approximately fifteen minutes later, Sergeant Lowell heard a report from the dispatcher that a call for police had been made from defendant’s residence. Lowell returned to the scene. Upon arriving, Lowell observed that other police officers had already approached the residence, knocked on the door and received no response. The tavern owner informed the police that defendant was involved in the earlier disturbance and was now inside the residence at 2003 Geyer. Sergeant’ Lowell, concluding that an intoxicated person was inside 2003 Geyer, departed, but 40 minutes later was dispatched back to the scene to respond to several 911 calls from 2003 Geyer wherein the caller had used obscenities and cursed the police. Lowell, along with two other officers responding to the call, knocked on the front door, announced they were the police and demanded entry, but again got no response. A voice from inside was yelling obscenities at the officers.
All three police officers then heard a female scream. Sergeant Lowell stated, “We’re going to have to get inside this house,” and he unsuccessfully attempted to kick the door in. He broke the glass on the side of the door and unlocked the door from the inside. He entered the building followed by the two other officers. Defendant, whom Lowell recognized from earlier in the evening, was standing in the middle of the room; two other men were seated. Defendant hurled a hammer at Lowell; it passed to the left of him, ricocheted off two walls and landed on the floor. Lowell informed defendant he was under arrest. Defendant, who was considerably taller than Lowell, raised his beer bottle to his mouth, finished it, and as Lowell approached him, brought the beer bottle down as if to strike Lowell. Lowell then struck defendant twice in the head with his
In his first point, movant contends the trial court erred in overruling his motion to suppress evidence of the assault on Sergeant Lowell. He argues that the police entry was illegal and in violation of the Fourth Amendment and that all evidence resulting from the entry was “fruit of the poisonous tree.” Both defendant and the state frame the issue in terms of whether there were sufficient exigent circumstances to obviate the need for a warrant. They rely on cases such as State v. Epperson,
In this case, however, regardless of whether the officers’ entry was legal, another reason supports the trial court’s ruling on the motion to supress. The crimes with which defendant was charged occurred after the officers’ entry. The officers did not enter to seize evidence of a crime already committed. Nor did they enter to witness ongoing criminal activity. The officers entered, and a crime, assault, was committed upon Sergeant Lowell. The exclusionary rule, which defendant seeks to invoke, does not apply in these circumstances. See, Commonwealth v. Saia,
In his remaining point, defendant contends the trial court erred in allowing a tape recording of the 911 calls from 2003 Geyer to be played to the jury. He argues the tape’s content was irrelevant and that the state failed to lay a proper foundation. As to the relevancy claim, we believe the recording was relevant to explain part of the reason underlying the officers’ actions. See e.g. State v. Churchir,
Judgment affirmed.
Notes
. As Justice (then Judge) Cardozo observed, "Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal.” Wagner v. International Ry. Co.,