Shaffer v. State

• Decision Date: 05 February 1982
• Docket Number: No. 5496,5496
• Citation: 640 P.2d 88,31 A.L.R.4th 166
• Parties: James C. SHAFFER and Karin G. Shaffer, Appellants (Defendants) v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 88

640 P.2d 88

31 A.L.R.4th 166

James C. SHAFFER and Karin G. Shaffer, Appellants (Defendants) v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5496.

Supreme Court of Wyoming.

Feb. 5, 1982.

Richard H. Honaker, State Public Defender, Cheyenne; Donald H. Hall and David B. Hooper, Asst. State Public Defenders, Riverton, for appellants (defendants).

Steven F. Freudenthal, Atty. Gen.; Gerald A. Stack, Deputy Atty. Gen., Criminal Division; John W. Renneisen and Michael L. Hubbard, Asst. Attys. Gen., Cheyenne, for appellee (plaintiff).

Before ROSE, C. J., and RAPER, THOMAS, ROONEY, and BROWN, JJ.

BROWN, Justice.

The appellants, James and Karin Shaffer, were convicted by a Fremont County jury of arson in violation of § 6-7-101, W.S.1977, ¹ for the willful and malicious burning of their mobilehome. Additionally, each appellant was convicted of two counts of felony murder in violation of § 6-4-101, W.S.1977, ² for the deaths of their children, Glenn and Opal Shaffer, who occupied the mobilehome along with their younger brother, Robbie.

Appellants were each sentenced to two consecutive life sentences for felony murder and to a term of two to five years for arson. They appeal from their convictions.

We will affirm.

Appellants assign errors as follows:

I

The court's denial of appellant's first and second motion to suppress was contrary to law and in violation of appellant's constitutional rights.

II

Admission into evidence of State's Exhibit No. 7 (a photograph of Robbie Shaffer's burned body) was prejudicial error and abuse of the court's discretion because any probative value was outweighed by its inflammatory effect.

III

Allowing the State to have a State's expert witness testify during the defense's case in chief was prejudicial error and contrary to law.

IV

The denial of appellant's motion for change of venue, sequestration of the jury and the court's failure to dismiss jurors for cause created cumulative errors which were prejudicial to appellants.

V

Comment during the trial by the court and comments by the prosecutor in closing argument present grounds for mistrial in this case where the evidence is insufficient to sustain the verdict.

In the early morning of November 9, 1979, a fire occurred in appellants' mobilehome, located seven miles from Riverton, Wyoming, near Arapahoe. Appellants' children were alone inside the mobilehome while Jim Shaffer drove his wife Karin to work at the Fremont County Memorial Hospital in Riverton, Wyoming. Mrs. Shaffer arrived at the hospital a little before 7:00 a. m. Mr. Shaffer proceeded to a service station in Riverton, where he remained for approximately 30 minutes. He then drove back to the mobilehome. When he arrived at the mobilehome, he said smoke was coming from the front door. After a brief attempt to enter, he ran to a neighbor's mobilehome and had the neighbor phone the Riverton Fire Department. Mr. Shaffer then ran back to the mobilehome with the neighbor's son and removed the two older children, Glenn and Opal, who were still alive. Glenn and Opal were transported by ambulance to Fremont County Memorial Hospital, where efforts to save them failed. Shortly before the ambulance departed, Mr. Shaffer reentered the mobilehome to see about Robbie, the youngest child. Robbie was dead. Mr. Shaffer said, "Robbie's cremated in his crib."

After the ambulance taking Opal and Glenn to the hospital left, Mr. Shaffer talked to some people in the area of the mobilehome. He told one woman, "I sure had a mess. I didn't have any insurance or anything on that trailer. I didn't know how I was going to pay for all of this." Mr. Shaffer's counsel asked him at trial why he mentioned the mess and the insurance. Mr. Shaffer replied, "Because it was the truth." At this same time Shaffer testified that he wanted to go into the mobilehome but 'they' wouldn't let him in there. Shaffer's counsel asked him why he wanted to go into the mobilehome, and Mr. Shaffer said, "I wanted to get a beer. I hadn't had any breakfast."

We could delineate the facts in further detail, but appellants devote only one sentence in their brief to the sufficiency of the evidence. For that reason, further detail about the gruesome and bizarre facts will be kept to a minimum.

I

A

The Riverton Volunteer Fire Department was called to the fire at 7:52 a. m. on November 9, 1979. The fire was extinguished by approximately 8:30 a. m. At approximately 8:30 a. m., Deputy County Coroner Edward McAuslan arrived at the scene and began taking photos for the Fremont County Coroner's Office. At substantially the same time Gary Pfisterer took some photographs of the fire scene for the Riverton Fire Department.

The Riverton Fire Marshal was out of state November 9 on official business. Between 9:00 a. m. to 10:00 a. m., Fire Chief Kenneth H. Crymble and County Coroner McAuslan discussed the situation and agreed to call the State Fire Marshal in Cheyenne to investigate the fire. The call was made about 10:00 a. m., and an investigator left Cheyenne immediately. It was estimated that the investigator would arrive from Cheyenne in about six to eight hours. Don Shatto, an investigator from Lander, arrived at about 10:30 a. m.. The State Fire Marshal had asked Mr. Shatto to assist in the investigation. The fire equipment was removed from the scene between 10:00 a. m. and 11:00 a. m. David Harrington, a deputy for the State Fire Marshal, arrived from Cheyenne between 3:30 and 4:00 p. m. According to Fire Chief Crymble, in a fire death situation only qualified firemen are allowed in and around the area. Officials present did not do much to determine the cause of the fire because they did not want to disturb anything before the State Fire Marshal's investigation. Chief Crymble testified that before calling the Fire Marshal he had observed nothing that caused him to suspect arson. He also testified that he and his men never left the scene unattended, and that at approximately 10:30 a. m. to 11:00 a. m. they roped the entire area off. Crymble and Fireman Wingert remained at the scene until Mr. Harrington arrived to secure it for the investigation. Crymble, Wingert and Shatto accompanied Harrington during his investigation, which he completed at approximately 5:00 p. m. ³

Because no search warrant was obtained in connection with the fire investigation, the appellants made a suppression motion. Just before trial appellants again raised the issue of a warrantless search. They claimed that the fire investigation violated their rights under the Fourth Amendment to the United States Constitution and Article 1, § 4, Wyoming Constitution, which are identical:

"The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by affidavit, particularly describing the place to be searched or the person or thing to be seized."

The trial judge denied the suppression motions and allowed David Harrington from the State Fire Marshal's office and others involved in the investigation to testify. Physical evidence taken from the mobilehome and pictures taken at the fire scene were also admitted into evidence.

The appellants and the State both quote Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) and seem to agree that this case is the leading case in fire searches without a warrant. Since the relevant facts there are similar to the facts in this case, we will set out Justice Stewart's summary of the facts in detail:

"Shortly before midnight on January 21, 1970, a fire broke out at Tyler's Auction, a furniture store in Oakland County, Mich. * * * (T)he fire department responded to the fire and was 'just watering down smoldering embers' when Fire Chief See arrived on the scene around 2:00 a. m. It was Chief See's responsibility 'to determine the cause and make out all reports.' Chief See was met by Lt. Lawson, who informed him that two plastic containers of flammable liquid had been found in the building. Using portable lights, they entered the gutted store, which was filled with smoke and steam, to examine the containers. Concluding that the fire 'could possibly have been an arson,' Chief See called Police Detective Webb, who arrived around 3:30 a. m. Detective Webb took several pictures of the containers and of the interior of the store, but finally abandoned his efforts because of the smoke and steam. Chief See briefly '(l)ooked throughout the rest of the building to see if there was any further evidence, to determine what the cause of the fire was.' By 4 a. m. the fire had been extinguished and the firefighters departed. * * * "Four hours after he had left Tyler's Auction, Chief See returned with Assistant Chief Somerville, whose job was to determine the 'origin of all fires that occur within the Township.' The fire had been extinguished and the building was empty. After a cursory examination they left, and Somerville returned with Detective Webb around 9 a. m. * * * Somerville also searched through the rubble 'looking for any other signs or evidence that showed how this fire was caused.' Again, there was neither consent nor a warrant for these entries and seizures. * * *

"On February 16 Sergeant Hoffman of the Michigan State Police Arson Section returned to Tyler's Auction to take photographs. * * * Over the course of his several visits, Hoffman secured physical evidence and formed opinions that played a substantial role at trial in establishing arson as the cause of the fire * * *. His entries into the building were without warrants or Tyler's consent, and were for the sole purpose 'of making an investigation and seizing evidence.' * * * " Michigan v. Tyler, supra, 436 U.S. at 501, 98 S.Ct. at 1946, 56 L.Ed.2d at 493.

The majority in Tyler, supra, stated general principles of law as follows:

" * * * Fire officials are charged not only with extinguishing fires, but with...