Martel v. State, No. 1712

• Court: Supreme Court of Alaska (US)
• Writing for the Court: Before RABINOWITZ; PER CURIAM; EITZGERALD
• Citation: 511 P.2d 1055
• Parties: Raymond Gilmore MARTEL, Appellant, v. STATE of Alaska, Appellee.
• Decision Date: 09 July 1973
• Docket Number: No. 1712

Page 1055

511 P.2d 1055 Raymond Gilmore MARTEL, Appellant,
v.
STATE of Alaska, Appellee. No. 1712. Supreme Court of Alaska. July 9, 1973.

Stephen C. Cowper, Fairbanks, for appellant.

John E. Havelock, Atty. Gen., Juneau, Monroe N. Clayton, Dist. Atty., and Robert B. Downes, Asst. Dist. Atty., Fairbanks, for appellee.

Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, JJ.

PER CURIAM.

Appellant Martel was hospitalized as a result of a shooting incident at Ester, Alaska where he and the complaining witness exchanged gunfire. A search of appellant's home and unattached garage pursuant to a search warrant for the revolver he used revealed an air compressor which subsequently led to Martel's conviction for concealing stolen property and which is the subject of the present appeal.

Martel challenges the sufficiency of the affidavit to obtain the search warrant. In addition, he challenges the admissibility of a statement taken at the hospital six days after the shooting on the grounds it was the result of two previous statements which the trial court ruled inadmissible because of appellant's physical condition at the time they were given.

We have examined the affidavit for a search warrant and find it legally sufficient. ¹ We have also reviewed the

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circumstances leading up to the taking of the statement by the state police trooper, six days after Martel's hospitalization. We conclude that the statement was both voluntary ² and untained by the exclusions of previous statements made on the day of the shooting incident and some three days later. ³

Appellant additionally urges the court to adopt the standards that the trial court must find the statement was voluntary beyond a reasonable doubt ⁴ before it was admissible. Since appellant did not raise such an issue in the trial court, we decline to consider it for the first time on appeal.

The judgment and conviction of the trial court is affirmed.

EITZGERALD, Justice (dissenting).

I do not agree that the affidavit on which the initial search warrant in this

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case was issued was sufficient to establish probable cause that appellant had concealed firearms, including a shotgun and a revolver, in an unattached garage 30 feet from appellant's dwelling house.

The search warrant affidavit was made by Corporal Turner of the Alaska State Police. It stated that the officer had reason to believe that on the premises, described as a 'wooden frame residence occupied by . . . Martel' and 'an unattached garage located approximately 30 feet west of the main structure' with a 'keep out' sign on the door, two or more weapons, one a revolver and the other a shotgun, would be found. The weapons were said to have been used by Martel on October 25, 1971 in the commission of several felonies: assault with a dangerous weapon, felon in possession of a firearm, and malicious destruction of property.

The affidavit recited that one R. E. Reichmann had stated that on October 25th, he discovered his car had been damaged by a shotgun while it was parked in front of the residence of one Daniel Knutsen. Reichmann was said to have further stated that he recently had a serious argument with Martel over money, and that on the evening of October 25th had observed Martel pointing a gun at Knutsen while in front of Martel's residence. The affidavit included a further statement from Daniel Knutsen that Martel had pointed and fired a revolver at Knutsen while the latter was inside Reichmann's car. Finally, the affidavit stated that investigation by the police revealed that the damage of Reichmann's vehicle was probably caused by several shotgun blasts, that a bullet hole was found in the seat of the vehicle, and that a spent projectible was recovered therefrom.

The fourth amendment to the United States Constitution protects against unreasonable searches, not only of 'houses ' or dwelling places, but also of outbuildings or other structures located within the curtilage of a dwelling house. Care v. United States. ¹ And while a single search warrant may authorize a search of more than one building, the warrant must specifically describe ² each place to be searched and must adequately establish probable cause ³

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for the search of each structure. United States v. Hinton. ⁴

Here the affidavit offered no direct evidence to indicate that the firearms would found in either Martel's residence or the garage. Thus, it must be examined in order to determine what inferences may be reasonable drawn from the known facts and circumstances to establish probable cause that the weapons might be found in the unattached garage. In my view it seems reasonable to assume that a person will tend to keep a revolver close at hand in one's residence, since firearms are relatively expensive articles. Further, Martel was observed to standing in front of his residence with a gun. One reasonable inference to be drawn from the foregoing...