Ortega v. State, 83-20

CourtUnited States State Supreme Court of Wyoming
Citation669 P.2d 935
Docket NumberNo. 83-20,83-20
PartiesRichard Albert ORTEGA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Decision Date28 September 1983

Jay Dee Schaefer, Laramie, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Allen C. Johnson, Sr. Asst. Atty. Gen., Michael L. Hubbard, Asst. Atty. Gen., Cheyenne, for appellee.


BROWN, Justice.

Following the death of his wife, a jury convicted appellant of murder in the second degree as that crime was defined in § 6-4-104, W.S.1977, now § 6-2-104, W.S.1977 (June 1983 replacement). Appellant challenges his conviction on two grounds. First, he contends that unconstitutionally seized evidence was improperly used against him at his trial. Second, he argues that the introduction of a neighbor's testimony concerning a domestic quarrel between appellant and his wife, occurring two months before to her death, was prejudicial error.

We affirm.

On the night of August 10, 1982, appellant, along with his wife, Lillian Ortega, and daughters, Robin and Renee, entertained at their home Albany County Deputy Sheriff Ron Franck and his family. At approximately 1:00 a.m., August 11, the Franck family left the Ortega house. Shortly thereafter appellant and his wife began quarreling. Robin Ortega, age 14, heard appellant call his wife "a dumb broad" and order her to get out of bed. Robin then heard a thump and a slapping noise, and soon after a gun shot. Appellant called to Robin and told her he had done a bad thing. She ran into the bedroom and saw her mother's body.

At approximately 1:15 a.m., Ron Franck received a telephone call from appellant. During the conversation, appellant stated that he had shot his wife. Franck told appellant to hang on and that he would be right over.

Sometime around 1:30 a.m. appellant called the Albany County Sheriff's office, and told the dispatcher he had just shot and killed his wife. When appellant was unable to provide directions to his house, Robin gave the directions over the telephone. 1

Deputy Sheriffs Palmer and Osborn, on routine patrol, were directed to the Ortega residence. Upon arrival, they observed lights on in the house. As they left their patrol car, the deputies saw appellant walk out of the house. They instructed him to walk away from the house with his hands over his head, and then told him to lie on the ground with his head looking away from the deputies. After he was lying down with his legs and arms spread, Deputy Osborn handcuffed him. He was then assisted to his feet and placed in the patrol car.

Meanwhile Deputy Sheriff (Lieutenant) Adler had arrived on the scene. Once he saw that appellant had been handcuffed, Lieutenant Adler entered the house to check on the welfare of Lillian Ortega. He went upstairs and found appellant's wife lying on the floor of the bedroom. Her body had been covered with a bedspread which he lowered from her face to check for any signs of life. Lieutenant Adler concluded that she was dead and then departed from the residence. Outside, he told Deputy Osborn to cancel the call for an ambulance. When Deputy Franck arrived and asked about the children, Lieutenant Adler suggested Deputy Franck look after them until they were needed for questioning.

In the meantime Sheriff Fritzen arrived. Lieutenant Adler went back inside and discussed the situation with the Sheriff, who said that investigating detectives were on their way and that they would "handle the house." Lieutenant Adler, Deputy Palmer, and Deputy Osborn were then instructed to go to the sheriff's office and see what statements they could get from appellant, his children, and Deputy Franck.

At approximately 2:17 a.m., Detectives Bennett and Banks arrived at the Ortega residence. Sheriff Fritzen placed Detective Bennett in charge of a follow-up investigation, which included "photographs, diagramming and locating and taking of evidentiary items." Detective Banks had the task of photographing the scene before anything was moved or disturbed, while Detective Bennett surveyed the scene looking for evidence. Around 2:45 a.m., Detective Hays arrived. He was assigned the job of collecting, preserving, and tagging all the evidence taken from the house.

During the course of the follow-up investigation, numerous items were seized. A shoulder holster and a wet purple washcloth were removed from the bed. Another wet purple washcloth was found lying behind the bed. A blood-soaked tissue was discovered inside a wastepaper basket located next to the bed. Taken from a laundry basket in the bathroom were two wash cloths, two shirts, one pair of blue jeans, and one yellow towel. From a dresser top in the bedroom the officers confiscated a Ruger Blackhawk 41 Magnum single revolver, several .357 Magnum cartridges and a couple boxes of .357 Magnum ammunition. Several "guns" were removed from the bedroom closet and one was taken from the kitchen table. The police officers also seized a three-by-five portion of the bedroom wall where the bullet had lodged.

The following day Detective Hays sent the clothing and linen taken from the scene, along with blood and hair samples found in the bedroom, to the Wyoming State Crime Laboratory. The Laboratory reported back on September 1, 1982, that the blood removed from the blue jeans and the tissue "was consistent with the known blood from Lillian Ortega." Blood was also found on the towel, the shirt and the washcloths, but in such minute amounts that no blood type could be determined.

Meanwhile, appellant had been charged with the murder of Lillian Ortega. On September 2, 1982, a preliminary hearing was held and appellant was bound over to the district court for trial.

On October 29, 1982, appellant made several motions in limine. One of these motions asked for the suppression of all evidence seized as a result of the warrantless search of the Ortega residence on August 11, 1982. Another motion sought to bar evidence of appellant's prior misconduct.

On December 8, 1982, the district court conducted a hearing on the motions in limine. At that hearing, it was revealed that the State intended to introduce testimony of a neighbor that, in June of 1982, appellant had knocked Lillian Ortega to the ground and presumably attempted to urinate on her.

The district court ruled on December 13, 1982, that the search of appellant's house and the seizure of evidence were not constitutionally infirm except for the removal of the wall. Thus, all the evidence seized, except for the wall, was admissible at trial. The court also ruled that evidence concerning the June 1982 incident could be introduced at trial.

During the trial which commenced on December 13, 1982, the State offered into evidence the photographs taken on August 11 of the inside of the Ortega residence, a diagram of the Ortegas' bedroom and bathroom, the report of the State Crime Laboratory the Ruger Blackhawk 41 Magnum, four bullets removed from the revolver's chambers, and the blood-soaked tissue. The trial judge granted appellant a continuing objection to the admission of those items seized from his house.

The State also introduced the testimony of appellant's neighbor concerning the June 1982 incident he had witnessed between the Ortegas. Following the testimony, the trial judge, in accord with his order in limine, gave the jury a limiting instruction, informing them the testimony could only be considered "to the extent that you are able to infer from this testimony a motive, malice, preparation or an intent on the part of the Defendant to kill the decedent."

Upon completion of the trial, the jury returned a verdict finding appellant guilty of murder in the second degree. The district court sentenced appellant to 20-25 years in the Wyoming State Penitentiary. From that judgment and sentence, appellant has perfected this appeal.


The first issue we address is whether evidence obtained from the Ortega house on the morning of August 11, 1982, was properly admitted at trial. Appellant contends the district court erred in refusing to allow him to invoke the exclusionary rule as the remedy for the alleged violation of his constitutional rights. In order to determine whether he is correct, we must first consider the underlying Fourth Amendment claim.

The Fourth Amendment to the United States Constitution and Art. 1, § 4, Constitution of the State of Wyoming prohibit "unreasonable searches and seizures." A search, within the meaning of these provisions, occurs when the government intrudes upon a reasonable expectation of privacy. Unreasonable Searches Under the Fourth Amendment: "the Rule Becomes 'Curiouser and Curiouser,' " 15 Land & Water L.Rev., p. 275 (1980). This court has previously adopted standards for determining when an individual possesses a reasonable expectation of privacy. The factors to be considered include: 1) the precautions taken to maintain one's privacy; 2) the likely intent of the drafters of the United States and Wyoming Constitutions as to the privacy interest claimed; 3) the claimant's property rights in the invaded area; and 4) the legitimacy of the individual's possession of or presence on the property which was searched or seized. Parkhurst v. State, Wyo., 628 P.2d 1369 (1981), cert. denied, 454 U.S. 899, 102 S.Ct. 402, 70 L.Ed.2d 216 (1981).

Where the privacy interest is claimed in a home, courts have universally recognized the existence of a reasonable expectation of privacy. Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); and Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). As this court has stated: "A home is entitled to special dignity and sanctity, and the proper way to search a home is to obtain a search warrant." Jessee v. State, Wyo., 640 P.2d 56, 62 (1982). Accordingly, since appellant possessed a reasonable expectation of privacy as to his home, the...

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