State v. Girdler

• Citation: 675 P.2d 1301,138 Ariz. 482
• Decision Date: 21 December 1983
• Docket Number: No. 5621,5621
• Parties: STATE of Arizona, Appellee, v. Ray GIRDLER, Jr., Appellant.
• Court: Supreme Court of Arizona

Page 1301

675 P.2d 1301

138 Ariz. 482

STATE of Arizona, Appellee, v. Ray GIRDLER, Jr., Appellant.

No. 5621.

Supreme Court of Arizona In Banc.

Dec. 21, 1983.

Rehearing Denied Jan. 24, 1984.

Robert K. Corbin, Atty. Gen. by William J. Schafer III and Georgia B. Ellexson, Asst. Attys. Gen., Phoenix, for appellee

H.K. Wilhelmsen, Prescott, for appellant.

Ray Girdler, Jr., in pro. per.

CAMERON, Justice.

Defendant, Ray Girdler, Jr., appeals from convictions of arson of an occupied structure, A.R.S. § 13-1704, and two counts of felony murder, A.R.S. § 13-1105. The defendant received two life sentences for the two first-degree murders and twenty-one years for arson, all sentences to be served consecutively. This court has jurisdiction pursuant to A.R.S. § 13-4031 and Arizona Constitution, Article 6, § 5.

The defendant's counsel raised the following questions on appeal:

1. Did the warrantless search of the burned structure violate the Fourth Amendment?

2. Was it error to admit photographs of the decedents at trial?

3. Was the jury instruction on circumstantial evidence erroneous?

4. Was the evidence sufficient to support the verdict?

5. Do consecutive sentences violate the Double Jeopardy Clause of the United States Constitution?

Defendant, in his separate brief, raised two additional questions:

6. Was it error to admit testimony regarding the defendant's deceased dog?

7. Did the court err in denying a motion for change of venue?

The facts necessary for a determination of this appeal are as follows. The defendant lived with his wife and two-year-old daughter in a mobile home just outside Prescott. They had been experiencing financial problems for several months. The defendant testified that on the night of 19 November 1981 his wife had gone to bed at about midnight. He stayed up and painted bicycles in the living room of their 10' X 55' mobile home until about 2:15 A.M. He claimed he was awakened about 2:45 A.M. by the screams of a cat. He noticed smoke and a fire, and went outside to his car to get a fire extinguisher. He had trouble getting the extinguisher from the car, and by the time he returned to the door of the mobile home, heat and smoke prevented him from reentering. After calling for his wife with no response, he called his neighbor and asked him to call the fire department. The call was received by the Central Yavapai Fire Department at approximately 2:59 A.M. The first group of firemen arrived at 3:08 A.M. Just as the firemen arrived, the defendant went to his neighbor's house and remained there until after the fire was extinguished. The bodies of his wife and child were found together in the child's room.

The defendant was interviewed in his neighbor's home shortly thereafter. There were inconsistencies between the statements made by the defendant during the investigation and at trial concerning exactly when he went to bed, when he woke up, whether his wife was awake, and exactly when he first saw flames in the living room. There was also conflicting testimony as to how the death of his wife and child affected the defendant.

The defendant contended that cats playing on the stove might have started the fire. Several experts testified that arson using liquid accelerants could be the only cause of the fire consistent with the facts as disclosed in the ensuing investigation. The county coroner testified as to the condition of the bodies and the cause of death. An inmate who had been in the Yavapai County Jail with the defendant testified that the defendant had commented, "I shouldn't have killed my baby" under his breath during a religious discussion. Other

witnesses' testimony indicated the defendant had loved his wife and child and was deeply hurt by their death. The jury returned a verdict of guilty on two counts of felony murder and one of arson. The defendant was sentenced to consecutive terms of twenty-one years for arson, life imprisonment without possibility of parole for twenty-five years for the felony murder of his wife, and an identical life sentence for the murder of his child. Defendant appeals the convictions, judgments, and sentences.

WARRANTLESS SEARCH OF THE BURNED MOBILE HOME

After the fire had been extinguished, Ron Prince, the deputy fire marshal on the scene, took a few photos and had the area roped off and secured. It was still early in the morning (4 A.M.), and he did not think an investigation would be appropriate at that time, even though he had already found multiple points of ignition and thought the fire was arson. Later that day, the state fire investigators went to the home of the defendant's mother to obtain consent for a further search of the mobile home. The defendant was not there, and it was not known how long he would be gone. The defendant's mother stated she was a joint tenant of the property and could give the necessary consent. The officers explained the consent form and she signed it. Pursuant to that consent, the mobile home was searched the afternoon of the fire. Two later searches were conducted pursuant to a warrant based in part on the results of this warrantless search.

The defendant claims the consent was not valid and therefore the searches were unconstitutional, and the evidence seized should have been suppressed. He contends that his mother's only incidents of ownership in the mobile home were that she was listed as a joint owner and was evidently listed on the insurance policy covering the mobile home. He asserts she had no control over the premises, did not have a key and had only visited a few times, and therefore could not give a valid consent to search. The defendant also claims that the later searches pursuant to warrant were improper because the warrant was based, in part, on evidence obtained during the allegedly invalid consent search, and was therefore the "fruit of the poisonous tree" under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We do not agree.

The search of the home immediately after the fire was permissible. The United States Supreme Court has held that fire officials

need no warrant to remain in a building for a reasonable time to investigate the cause of a blaze after it has been extinguished. And if the warrantless entry to put out the fire and determine its cause is constitutional, the warrantless seizure of evidence while inspecting the premises for these purposes also is constitutional.

Michigan v. Tyler, 436 U.S. 499, 510, 98 S.Ct. 1942, 1950, 56 L.Ed.2d 486, 499 (1978) (footnote omitted). In Tyler the court also held that a search made a few hours after the fire was permissible because at the time of the extinguishment in darkness, smoke and steam obstructed visibility. However, later searches made without a warrant were held improper and the evidence thus obtained was suppressed. In the instant case, we do not believe that the afternoon search was a "continuation of the first." By the time the afternoon search took place, arson was suspected, and the investigation was a criminal investigation. As the court in Tyler indicates, if the purpose of the search is to gather further evidence of a crime, the usual warrant restraints apply. See id., at 508, 98 S.Ct. at 1949, 56 L.Ed.2d at 498. See also United States v. Acklen, 690 F.2d 70, 73 (1982).

We believe, however, that the search was proper because of the consent given by the defendant's mother. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242, 250 (1974). A third party consent to search is valid if (1) the consent is voluntarily given and (2) the third party has a sufficient relationship We now align ourselves with those authorities, representing the majority view, which hold that apparent authority alone is required. We adopt this view because it is more consistent with the fourth amendment proscription of unreasonable searches and seizures than a rule requiring actual authority regardless of reasonable appearances.

to the premises. State v. McGann, 132 Ariz. 296, 300, 645 P.2d 811, 815 (1982). In the instant case, we have no difficulty finding the consent voluntary. The question of sufficient relationship is one of apparent authority. McGann, supra. We agree with the Alaska Supreme Court which held:

State v. Nix, 621 P.2d 1347, 1349-50 (Alaska 1981) (footnote omitted). In the instant case, Mrs. Girdler told the police she was a joint owner of the property which, in fact, she was, and that she had authority to consent to a search. The investigators reasonably believed her, and, possibly in reliance upon this authority, did not obtain a search warrant which apparently would have been supported by the facts in their possession at the time. We believe the consent was valid and that the search did not violate the Fourth Amendment. Because the consent search was valid, the search warrant based in part on evidence obtained during that search was also valid. We find no error.

Defendant further contends, however, that a later warrantless search was contrary to the Fourth Amendment. On 2 December, the prosecutor and a police officer went to the scene to determine how long it would take to go from the back door of the mobile home, over to the defendant's car, and then back. During the experiment in question, the prosecutor and the officer measured the time needed to walk or to run from the back door of the burned-out mobile home to the defendant's car (which was still parked near the burned-out mobile home) and back. The intent was to discredit the defendant's claim it took him three to five minutes. By this time (2 December), the consent form signed by Mrs. Girdler on 20 November, by its terms, had expired. The defendant claims the "evidence" (i.e. the time) was illegally "seized" (and inadmissible) because "the parties were without a warrant and discovery was not inadvertent but rather for conducting a test * * *." We do not agree. We have previously stated:

A search is an intrusion into an...