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State v. DeWitt11/12/2004
Submitted on Briefs: July 17, 2003
Patrick DeWitt (DeWitt) was convicted of two counts of aggravated burglary. He appeals his conviction on several grounds. We affirm in part and reverse and remand in part.
ISSUES
A restatement of the issues before this Court is:
Did the District Court err in denying DeWitt's Motion to Suppress?
Did the District Court err in denying DeWitt's Motion to Dismiss and his Motion for a Directed Verdict?
Was DeWitt placed in double jeopardy by his consecutive sentences for two counts of aggravated burglary arising from one illegal entry?
Did DeWitt receive ineffective assistance of counsel?
FACTUAL AND PROCEDURAL BACKGROUND
On July 28, 2001, at approximately 1 a.m., Donna Nicholls, who is legally blind, was awakened by feeling someone on top of her husband Harold, who was lying next to her in bed. She attempted to determine, by touch, who or what it was. When she realized it was a man beating Harold, she began hitting at him in an effort to get him off of Harold. The attacker then began beating her in the face. She managed to turn on a reading light affixed to the headboard of their bed and the intruder fled. With the lamplight, she was able to discern the figure of a man running away. Donna sustained a fractured cheek and multiple bruises on her face, arms and chest.
Meanwhile, Harold Nicholls awoke to find himself lying in a pool of blood and sliding from his bed to the floor. He does not recall the attack that left him with a broken nose, and multiple cuts and bruises. He does recall that as his wife turned on a light, he saw the silhouette of a man running from the room. At the time of the attack, Donna was 72 years old and Harold was 75.
Donna called 9-1-1 and the police arrived promptly. Harold and Donna could not identify their attacker but described a large man wearing a sweatshirt or teeshirt, and Donna thought she felt "something over his face" such as a ski mask. As the police were looking for evidence outside the Nicholls' home, Tiffany Dawes, the Nicholls' next-door neighbor, drove up. Dawes told police that she had received a disturbing phone call from her exfiancé, DeWitt, shortly after 1 a.m. Dawes said DeWitt sounded intoxicated and uncharacteristically calm, and that she was frightened because she knew DeWitt could be violent. She explained that she had moved since breaking up with DeWitt, but that DeWitt had followed her home one night and knew generally where she lived. She informed the officers that DeWitt had called from the nearby home of Marty Anzik and showed them her caller ID unit confirming this.
The police, who knew DeWitt from previous encounters, found the timing of the disturbing phone call, the proximity of Dawes' house to the Nicholls, and the attack, to be sufficiently suspicious to warrant going to Anzik's house. When they arrived, no one answered the door but DeWitt's truck was in the driveway and its engine was warm. The officers noticed a light on inside Anzik's garage, approached the side entry door, and knocked on it. Both officers testified that the door was not closed or latched and opened upon the impact of the knock. As soon as the door opened, the officers detected smoke hanging in the air and the smell from a two-stroke engine recently being started. The police entered the garage, confirmed that no one was inside and left. They took nothing from the garage and closed the door when they departed. Based upon the presence of DeWitt's truck and the strong smell of exhaust and smoke in the air, the officers surmised that DeWitt may have been at Anzik's home and l
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