State v. Gallo
| Decision Date | 18 July 1978 |
| Docket Number | No. 2778-II,2778-II |
| Citation | 20 Wn.App. 717,582 P.2d 558 |
| Parties | The STATE of Washington, Respondent, v. William Edward GALLO, Appellant. |
| Court | Washington Court of Appeals |
Michael H. Hicks (appointed), Vancouver, for appellant.
James M. Peters, Deputy Pros. Atty., Vancouver, for respondent.
The defendant, William Gallo, was convicted by a jury of first-degree assault in Clark County Superior Court. On appeal to this court, the defendant presents six assignments of error; (1) the trial court's failure to suppress a derringer as having been the product of an unlawful search; (2) the admission of testimony as to conversations overheard by the victim on the night preceding the shooting; (3) the admission of testimony by a police officer that a derringer filled with birdshot "could be" lethal; (4) the denial of defendant's motion to dismiss which was made at the close of the State's case; (5) the denial of defendant's motion in arrest of judgment or for new trial; and (6) the failure of the trial court to instruct the jury that it must be unanimous as to the manner in which the crime had been committed. We find the defendant's contentions to be without merit and therefore affirm the rulings of the trial court.
At 5:30 a. m. on December 7, 1976 Barbara Johnson and her fiance, Dane Walla, were awakened by a disturbance outside their bedroom window. The noise was coming from in front of the house next door and sounded as if someone was being beaten. She heard a voice say that he had a gun and would use it. Another party responded, "No, Billy; no Billy, don't." Although Ms. Johnson looked outside, she was unable to see anyone. However, she did hear someone say: "That girl saw us," and the other responded that they would take care of it. Despite this remark, which she took to be a threat, the police were not notified.
The following morning Mr. Walla left for work. Immediately thereafter, Ms. Johnson heard the doorknob rattling back and forth. When she asked who it was, the rattling stopped. She once again inquired and a voice responded, "Hi, it's your neighbor." As she opened the door to peek outside, defendant walked into her apartment and sat down on the couch. He identified himself as "Bill" and began a friendly conversation with Ms. Johnson about a variety of topics. During this conversation, he mentioned that he was carrying a gun. Alarmed by this, Ms. Johnson quickly informed him that she was expecting her parents at any moment and began to get ready to leave. Defendant responded by turning off the lights and attempting to kiss her. She resisted these advances and tried to leave the apartment by running towards the outside door. Defendant caught her and began choking her. He then placed a derringer to her head and began pushing her upstairs to the bedroom. As they went upstairs, he told her that he didn't want to hurt her, but he would if necessary.
In the bedroom, he made further sexual advances towards her, but she ran towards the door and screamed. Again he was able to catch her, and striking her with his hand he called her a "bitch." She broke free and ran towards the bed, intending to hide under it. As she crouched next to the bed, she could see the defendant about five feet away, pointing the gun towards her. She managed to cover her head with her hands before the gun discharged. She was struck in the hands and head with the birdshot pellets the derringer contained.
After a few minutes, she saw he was gone and she telephoned the police. Upon their arrival, she gave the police a brief description of the assailant, told them that his name was "Bill" and that he had gone to the house next door where he resided. This latter information was apparently concluded by Ms. Johnson from various things which "Bill" had said during their conversation. Armed with this information, the police went to this house where they discovered two apartments on the ground floor. After talking with the tenant of the first apartment, they learned that a person named "Bill" lived in the other ground floor apartment. The police then knocked on this apartment's door several times. Each time they identified themselves as police officers and asked for "Bill" to come out. After having waited a couple of minutes, they heard a noise that sounded as if something was being dragged across the floor. Upon hearing this, the police forced their way in and found a person lying on a mattress on the floor of the front room as if asleep. This individual was taken outside where the victim informed the police that he was not the assailant. At this time, Ms. Johnson remembered that the assailant had tattoos on his arms and so told the police. The officers reentered the apartment and found the defendant hiding in a small closet. Since he matched the description given by the victim, he was arrested and searched. In defendant's pocket the police found a two-shot derringer with one live shell and one spent shell. The live shell contained birdshot. The total time elapsed from the time the police received the call until the time of the arrest was between 10 and 20 minutes.
The primary issue raised on appeal is the denial of defendant's motion to suppress the derringer as being the product of an illegal search. Defendant has raised several challenges to the validity of the search. Initially he challenged the search based on the lack of a warrant as well as the alleged lack of probable cause to support the officer's action.
Although warrantless searches and seizures are prima facie suspect, they will be upheld if the exigencies of the situation are such as to make the foregoing of a warrant imperative. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948); State v. Smith, 88 Wash.2d 127, 559 P.2d 970 (1977). Such an exigent situation has been recognized to exist where a violent crime has been committed and there is no time to delay the search for the suspect due to the possible danger to either the lives of the police officers or of others, or due to the danger of his escape with the aid of a weapon. Warden v. Hayden, supra; United States v. Holland, 511 F.2d 38 (6th Cir. 1975); United States v. Shye, 492 F.2d 886 (6th Cir. 1974). In applying these rules of law to the case at hand, we note that the police received the telephone call from the victim at 9:06 a. m. and were told that she had just been shot. Upon arriving at the scene just a few minutes later, the officers were told that the assailant, "Bill," had gone to his apartment in the house immediately to the south of her residence. In light of the timing, we have no hesitancy in saying that circumstances made it imperative that the officers act quickly so as to prevent the possibility of further bloodshed or escape. 1 We hold that the requirement of a search warrant was excused by the exigencies of this situation.
Although exigent circumstances may excuse the necessity of a warrant, the search must, nevertheless, be founded upon probable cause. State v. Smith, supra. We find that probable cause existed so as to permit the initial entry into defendant's apartment. The information provided by the victim when considered with the neighbor's identification of the apartment as belonging to "Bill," certainly provided the police with a well-founded reason for believing that the assailant could be found within the defendant's apartment. United States v. Scott, 520 F.2d 697 (9th Cir. 1975).
The second challenge to the search is based upon the alleged failure of the police to comply with the statutory "knock and wait" rule, RCW 10.31.040. Under that statute, the police, in carrying out a search, must give notice of their office and purpose and may only make a forcible entry upon refusal of their demand. 2 Defendant's challenge is without merit. The police identified themselves as such and expressed their desire for "Bill" to come out. Although the police repeatedly knocked and announced their office and purpose, there was no response. When the sound of something being dragged across the floor was ultimately heard, the police were justified, under the circumstances, in believing that their entry was being refused. The noise also provided a basis for the belief that either an escape was being attempted or some fortification was being erected so as to resist arrest. Therefore, the forcible entry was also justified by the escape exception to the "knock and wait" rule. Warden v. Hayden, supra. See State v. Young, 76 Wash.2d 212, 455 P.2d 595 (1969). Furthermore, in light of the officers' reasonable belief that the assailant was within the apartment and that he had just shot someone, the officers were justified in making a forcible entry for their own protection when the noise from within the apartment clearly indicated the presence of a suspect thought to be armed. State v. Wilson, 9 Wash. 909, 515 P.2d 832 (1973); and Compare State v. Toliver, 5 Wash.App. 321, 487 P.2d 264 (1971) With State v. Johnson, 11 Wash.App. 311, 522 P.2d 1179 (1974).
Defendant also alleges that the reentry constituted a second search and as such it lacked the necessary probable cause. The latter contention is based upon the theory that since the First person seized in the apartment was named "Bill" and since the victim admitted that he was not the assailant, the police, thereafter, had no probable cause to conduct a second search of the apartment.
This theory for suppression was not raised in the court below, and generally issues raised for the first time on appeal are not subject to review. State v. Talley, 14 Wash.App. 484, 453 P.2d 348 (1975). However, the defendant did make a general challenge to this evidence at the suppression hearing, and it is not necessary to point out the precise defect in order to secure review of an alleged invasion of a constitutional right. State v. Vining, 2 Wash.App. 802, ...
To continue reading
Request your trial
-
Burnet v. Spokane Ambulance, 63443-2
...for new trial under CrR 7.6(a)(3) where witness did not appear at trial and defendant failed to move for continuance); State v. Gallo, 20 Wash.App. 717, 728, 582 P.2d 558 (error not considered where counsel objected to answer after it was given, but failed to move to strike the answer), rev......
-
State v. Hoffman
...at 560, 749 P.2d 725; Giffing, 45 Wash.App. at 375, 725 P.2d 445.44 Hughes, 106 Wash.2d at 200, 721 P.2d 902.45 State v. Gallo, 20 Wash.App. 717, 729, 582 P.2d 558, review denied, 91 Wash.2d 1008 (1978); State v. Odom, 83 Wash.2d 541, 550, 520 P.2d 152, cert. denied, 419 U.S. 1013, 95 S.Ct.......
-
State v. Smith
...or more ways of committing the crime, and the jury was not instructed on more than one statutory means. See also State v. Gallo, 20 Wash.App. 717, 730, 582 P.2d 558 (1978) (first degree assault statute provided a single offense that may be committed by various means; jury was instructed on ......
-
State v. Coyle
...at 217, 455 P.2d 595. The possibility that a suspect may escape clearly can create such an exigency. See, e. g., State v. Gallo, 20 Wash.App. 717, 724, 582 P.2d 558, review denied, 91 Wash.2d 1008 (1978). To prove that exigent circumstances are present, the State must be able to "point to s......
-
Survey of Washington Search and Seizure Law: 1988 Update
...588 P.2d 1328 (1979) §§ 2.4(e), 7.11 State v. Frye, 26 Wash. App. 276, 613 P.2d 152 (1980) § 2.5(b) State v. Gallo, 20 Wash. App. 717, 582 P.2d 558 (1978) § 5.17(a) State v. Galloway, 14 Wash. App. 200, 540 P.2d 444 (1975) §§ 3.8(a), 3.8(b), 4.9 State v. Garcia, 605 F.2d 349 (7th Cir. 1979)......
-
Survey of Washington Search and Seizure Law
...Penitentiary v. Hayden, 387 U.S. 294, 298, 18 L. Ed. 2d 782, 87 S. Ct. 1642, 1645-46 (1967); State v. Gallo, 20 Wash. App. 717, 722, 582 P.2d 558, 562 (1978). While the police are on the premises, the scope of the intrusion is limited to its purpose; if the purpose is to prevent escape or h......
-
Survey of Washington Search and Seizure Law: 2013 Update
...of the initial search. State v. Koepke, 47 Wn. App. 897, 905-06, 738 P.2d 295 (1987) (citing State v. Gallo, 20 Wn. App. 717, 725, 582 P.2d 558 (1978)). Lastly, consent to a search or seizure may be implied by statute. For example, drivers of motor vehicles in Washington give implied consen......
-
Survey of Washington Search and Seizure Law: 2005 Update
...P.2d 1171 (1991) (escape, destruction of evidence); State v. Hendricks, 25 Wn. App. 775, 610 P.2d 940 (1980) (escape); State v. Gallo, 20 Wn. App. 717, 582 P.2d 558 (1978) (intent to 5.17(b) Imminent Arrest Even when a suspect has not been arrested, police may make a warrantless entry into ......