Lonquest v. State

• Decision Date: 23 March 1972
• Docket Number: No. 4035,4035
• Citation: 495 P.2d 575
• Parties: Harry L. LONQUEST, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 575

495 P.2d 575

Harry L. LONQUEST, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4035.

Supreme Court of Wyoming.

March 23, 1972.

Rehearing Denied May 9, 1972.

Raymond B. Hunkins, of Jones, Jones, Vines & Hunkins, Wheatland, for appellant.

Clarence A. Brimmer, Atty. Gen., and Richard A. Stacy, Asst. Atty. Gen., Cheyenne, for appellee.

Before McINTYRE, C. J., and PARKER, McEWAN and GUTHRIE, JJ.

Mr. Justice GUTHRIE delivered the opinion of the court.

This appeal is taken from a conviction for first degree murder arising from the shooting of appellant's wife in Platte County on July 10, 1970. The case was tried on a change of venue to Laramie County and a verdict of first degree murder without capital punishment was returned on May 3, 1971. Appellant relies

upon four grounds for reversal, stated briefly as follows:

1. Error in receiving in evidence a shotgun and other articles along with pictures thereof taken by the sheriff from the ranch house of deceased and appellant.

2. Error in receiving an alleged confession of appellant.

3. Reception of prejudicial and irrelevant evidence as to prior conduct of appellant.

4. Error in giving of certain instructions and failure to give a certain proffered instruction.

The record is voluminous so no attempt will be made to make a full statement of the facts preliminarily. The facts applicable to and necessary for an understanding of these contentions and for our disposal thereof will be set out in discussing the separate contentions. To present the facts in chronological order, the question of the search and seizure will be first discussed. For convenience appellant will be referred to hereafter as defendant.

CLAIMED ILLEGAL SEARCH AND SEIZURE

At or near the hour of noon on July 10, 1970, Pauline Van Dyke received a telephone call at the LaRamie Hotel in Wheatland from defendant. He said, 'I think Thelma is dead * * * I think I shot her.' The sheriff was advised of this call and after getting investigative equipment went to the hotel to verify the call and find out from whom it had come. He then proceeded to the Lonquest Ranch some 15 miles northeast of Wheatland. Upon his arrival he entered the back porch and knocked upon the inner door. He called, 'Harry' but received no response. He heard certain moaning or mumbling. When he received no answer he entered the kitchen and saw the body of the deceased, whom he believed to be dead. The defendant was slumped against the door sill leading to the living room. After the sheriff's entry defendant said, 'I told her I would shoot her, she wouldn't listen to me so I shot her.' Defendant asked for help and the sheriff helped him in to the bedroom. There was a discharged shell lying on the kitchen table in plain sight. Upon his return to the kitchen he again saw the shotgun shell which was lying on the table in the middle of the kitchen. He observed from the kitchen the opened box of shotgun shells in an open cupboard in the bathroom, the bathroom door being open. There were some bloody clothes outside the bathtub in a pail and others in the bathtub. After defendant was taken to the hospital the sheriff examined the premises further and found a shotgun in the bedroom behind the door which was not in view when he took the defendant into the room because the door was propped open. The sheriff took pictures of these various exhibits and of the scene which were offered and received in evidence.

Defendant filed a motion to suppress this evidence which was heard on January 26, 1971. After hearing the testimony of the sheriff the motion was denied. Immediately prior to the taking of evidence, after objection to the mention of these seized items and pictures in any opening statement, the trial judge heard evidence concerning the seizure to a fuller extent and refused to suppress or withhold such evidence from the jury. The factual situation herein will be drawn from both hearings.

The sheriff went to the ranch to investigate this occurrence because of the telephone call of Pauline Van Dyke. He had no knowledge of the condition of the defendant or what had transpired. Because he did not know the situation at the ranch he had called to have the coroner come out and had also called for an ambulance. When he saw Mrs. Lonquest's body he could tell she was dead and the cause was a wound hole in the back; he was sure it was caused by a shotgun. He did not arrest the defendant. He had no idea whether this death had occurred because of a fight or was accidental. When he departed the sheriff took with him the shell, the box of shells, the shotgun, and the pictures which he had This leaves the question of the shotgun found behind the open door to the bedroom and not in plain view until the door swung out. Defendant places his reliance on the case of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, rehearing denied 396 U.S. 869, 90 S.Ct. 36, 24 L.Ed.2d 124. The factual situation encountered therein and upon which that decision is based makes that case inapplicable to this matter. Chimel does recognize a reasonable search depends upon a totality of the facts and does not deny the right to make 'reasonable' searches. It will be necessary to examine this matter upon its factual background.

taken at the scene prior to the time defendant was taken to the hospital. The record indicates the discharged shell and box of shells and at least a part of the clothes were in plain sight of the investigating officer. His right to be present on the premises could not be seriously questioned, being as it was in response to a call by defendant. No search was involved in the discovery of these items and they could be seized by the officer. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067; Alcala v. State, Wyo., 487 P.2d 448, 453, certiorari denied 405 U.S. --, 92 S.Ct. 1259, 31 L.Ed.2d 466.

The case of State v. Chapman, Me., 250 A.2d 203, is particularly applicable because of similarities in the factual situation. The officer in that case was answering a call to the home of defendant. He saw deceased in a chair. Defendant volunteered that deceased has fallen and hemorrhaged. A second officer arrived, looked around, and took some pictures. Defendant was then taken into custody and to the sheriff's office. No charges were filed at that time. After some cursory checking the house was left in charge of another officer. Upon their return the next day they made a complete and thorough search of the entire house and basement. One officer went into and searched three trash barrels in the garage, in one of which concealed under paper and trash he found a whiskey bottle upon which was coagulated blood and hair and which was alleged to have been the murder weapon. Prior to its removal a picture was taken thereof. Objections were made and it was sought to suppress the picture and bottle. The court in that case upheld the search and seizure, noting the right of the officer to be on the premises where a homicide had occurred. The case suggests the importance of the search being 'part of a continuing series of events which included the original arrest and continued uninterruptedly as lawful police investigation and action,' 250 A.2d at 208. On the same page in Chapman an excerpt from the case of Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 1875, 20 L.Ed.2d 889, which epitomizes a philosophy applicable herein and of which we must not lose sight, is cited with approval as follows:

'The exclusionary rule (excluding from evidence the fruits of unlawful searches and seizures) has its limitations, however, as a tool of judicial control. It cannot properly be invoked to exclude the products of legitimate police investigative techniques on the ground that much conduct which is closely similar involves unwarranted intrusions upon constitutional protections. * * *'

To ignore this would be to hamper and prevent proper investigation in this most serious of crimes with a detrimental effect to society as a whole and to the persons involved. The opinion mentions the two controlling facts for disposal of that matter to be the original lawful entry and that the police had never abandoned their possession or control of the premises. In upholding this search the court further cites the case of Stevens v. State, Alaska, 443 P.2d 600, certiorari denied 393 U.S. 1039, 89 S.Ct. 662, 21 L.Ed.2d 586, particularly with reference to the right to 'process the scene.' The following is then cited from the Stevens case with approval, 250 A.2d at 207:

'* * * and upon learning that a homicide had been committed, it became Chief Knudson's duty to conduct an investigation into the circumstances. This The case of State v. Oakes, Vt., 276 A.2d 18, certiorari denied 404 U.S. 965, 92 S.Ct. 340, 30 L.Ed.2d 285, is very similar and was decided subsequent to Chimel. That court finds no difficulty distinguishing the cases. In that case there was a telephone call from defendant asking for help and reciting, 'She's here on the floor, dying.' 276 A.2d at 21. Accused told the officers he had shot the woman. One of the officers went into an adjoining room where he saw an ironing board set up and upon which there was a 22-410 over-and-under rifle. The officers took this rifle along with some other articles with them when they removed defendant. Defendant moved to suppress and objected to the admission at the trial. The original entry was conceded to be lawful. The court said, 276 A.2d at 24:

duty carried with it the right to inspect the premises. * * *'

'* * * The officers were confronted with the body of Mrs. Oakes and circumstances making it their duty to conduct an investigation on the premises. This, of itself, justified the search and the taking into possession of the related instrumentalities there present. * * *'

Later in the opinion, 276 A.2d at 25, the court further observed:

'It has already been noted that...