State v. Koepke

• Decision Date: 28 May 1987
• Docket Number: No. 7262-2-III,7262-2-III
• Citation: 738 P.2d 295,47 Wn.App. 897
• Parties: STATE of Washington, Respondent, v. Richard Stanley KOEPKE, Appellant.
• Court: Washington Court of Appeals

Page 897

47 Wn.App. 897

738 P.2d 295

STATE of Washington, Respondent, v. Richard Stanley KOEPKE, Appellant.

No. 7262-2-III.

Court of Appeals of Washington Division 3, Panel One.

May 28, 1987.

Richard Stanley Koepke, pro se.

John G. Burchard, Okanogan, Jeffrey C. Barker, Wenatchee, for appellant.

Gary A. Riesen, Pros. Atty., Wenatchee, for respondent.

MUNSON, Judge.

Richard S. Koepke appeals his conviction for first degree felony murder contending the court erred in (1) entering the findings of fact and conclusions of law from a suppression hearing after the notice of appeal was filed; (2) admitting into evidence several items seized during an allegedly illegal search; (3) allowing improper closing argument by the prosecutor; and (4) computing his offender score at sentencing. He alleges additional assignments of error pro se.

Mr. Koepke had been living for 2 to 3 weeks with Silas Barkley, his friend and gambling acquaintance, in an apartment Mr. Barkley had been renting in Bridgeport, Washington. On the morning of March 8, 1985, Mr. Koepke arrived at the Keen Spot Tavern in Wenatchee, where he participated in a card game. He had played cards there many times and was acquainted with the owner, employees, and patrons of the tavern. He played cards for about 2 hours and lost about $80. He left the game but remained in the tavern, telling several people he did not have any more money. He asked one person if he could borrow money and asked several people about borrowing a gun. Early in the afternoon, he left the tavern only to return, wearing a new brown cowboy hat and carrying a brown paper bag. Later, he showed someone he had obtained a gun, carrying it in his belt under his coat.

Late in the afternoon, Diane Libby arrived at the tavern, sat at the bar, and visited with the owner and several other acquaintances. Just prior to 5 p.m., Ms. Libby cashed a payroll check in the amount of $404.96. The bartender paid her in $20 bills, except for the small change. Mr. Koepke had a clear view of Ms. Libby and stared at her when she cashed the check. He walked over to the bar and sat down next to her. She was overheard to tell him she wanted $44 he owed her; he said he would pay her if she would give him a ride to his apartment because he had some money there. They left the tavern together sometime around 5:30 p.m.

About 6 p.m. Pete and Dorothy Milos were driving down the hill from the Mission Ridge ski area to Wenatchee when they noticed a vehicle had gone off the road and come to rest in the snow about 40 feet below the road. They stopped to investigate; Mr. Milos got out of the car, looked over the bank, and saw a man standing next to the wrecked car. He did not see any tracks in the snow coming up from the wrecked car. Mr. Milos asked the man if he was hurt; the man answered no. He asked if anyone else was in the car; the man again answered no. The man then walked up the bank and asked Mr. Milos for a ride to Wenatchee. Mr. and Mrs. Milos both identified a large brown cowboy hat, as the hat the man was wearing. The Miloses gave the man a ride to Wenatchee.

Soon after the Miloses left, other people arrived at the accident scene, went down the hill, and found Ms. Libby in the middle of the front seat apparently dead. They found one set of footprints leading from the wrecked car up to the road. She had been shot three times through the right arm and right side of the stomach, and one time through the right side of her head. The cause of death was a gunshot wound to the brain. The driver's door could not be opened because it was resting against a tree. The passenger door was jammed shut and the glass from the window of the passenger door was broken out. Her purse had been emptied and was found in the back seat of the car. On top of the purse was a black clutch purse containing loose change.

About 7 p.m., Joe Evans, an acquaintance of Mr. Koepke, met him at the CC Mini Mart in Wenatchee. He gave Mr. Koepke a ride to Chelan so that Mr. Koepke could catch a bus to Brewster. On the way to Chelan, Mr. Koepke told Mr. Evans he had stabbed a Mexican and killed him. Mr. Koepke also threw something out of the window and told Mr. Evans they were .22 caliber cartridges. When they reached Chelan, Mr. Koepke gave Mr. Evans $8; Mr. Evans observed Mr. Koepke was carrying $200-$300 in $20 bills and wearing a brown cowboy hat. The following day Mr. Koepke went with Mr. Barkley to Spokane to gamble.

On March 10, sheriff's deputies went to Mr. Barkley's apartment, found no one home, and left. On Mr. Barkley's return from Spokane a neighbor told him sheriff's deputies were looking for him. Mr. Koepke had not returned with Mr. Barkley. Mr. Barkley went to the sheriff's department in Bridgeport, talked with Sergeant Daniel LaRoche, and told him he could search his apartment. Sergeant LaRoche and two other deputies accompanied him to his apartment. Mr. Koepke was not present. Mr. Barkley consented to a search of the entire apartment, including Mr. Koepke's room. Sergeant LaRoche could not recall whether the door to Mr. Koepke's room was open or closed, but Mr. Barkley believed it was closed. After briefly looking into the bedroom, Sergeant LaRoche decided to obtain a search warrant; he taped the door shut and left the apartment. Around 5 p.m. the next day, Sergeant LaRoche applied for a search warrant by telephone. After a superior court judge issued the search warrant, Sergeant LaRoche and two other officers went back to Mr. Barkley's apartment, served him the warrant, and searched Mr. Koepke's room. They seized a blue denim jacket, a brown cowboy hat, another jacket, and a shirt.

On March 11, while in Missoula, Montana, Mr. Koepke called the Missoula police department 911 dispatch and stated he wanted to talk about a murder in Wenatchee, Washington. After being arrested, he made several unsolicited statements to the police including, "All I know is I woke up and she was dead." The police video taped an interview with him which was played at trial. The police then took him to the hospital to be examined. There, he told an officer, "She was dead and her guts were hanging out." He was brought to court for an extradition appearance on March 12. He waived his extradition rights and stated at the hearing, "I'm being charged with first degree murder. I was present at the time it took place ..." On the way back from the hearing, he stated to an officer that someone else had killed the victim.

At trial, a laboratory expert testified the cowboy hat was covered with pieces of glass which matched the broken window in Ms. Libby's car. Another expert testified the blood on the jacket was found to be the same blood type as Ms. Libby's. Mr. Koepke presented a brief defense, calling only five witnesses: (1) a custody officer who testified he had $8 on him when he was booked; (2) two fingerprint experts, one of whom said a palm print in the car was not that of Mr. Koepke's; (3) an employee of the Bohemian Tavern testified Mr. Koepke played cards there on the evening of March 8 and bought $40 in chips with two $20 bills taken from his pocket; and (4) a neighbor of Mr. Barkley who recalled seeing an older man in a cowboy hat one evening in early March. Mr. Koepke did not testify. The jury found him guilty of first degree felony murder. He appeals.

Mr. Koepke first contends the trial court erred in entering the suppression hearing findings of fact and conclusions of law on September 11, 1985, after his notice of appeal had been filed. The court held a suppression hearing on March 16, concerning the admissibility of the items found in his room. The jury returned a guilty verdict on May 24, and the court sentenced him on July 1. The State presented its proposed findings of fact and conclusions of law regarding the suppression motion at the sentencing hearing on July 1; defense counsel submitted its proposed findings of fact and conclusions of law on August 19. The court entered the State's findings, plus three disputed findings by defense counsel, on September 11. Mr. Koepke cites CrR 3.6 for his contention. The purpose of the rule is to have a record made. State v. Moore, 61 Wash.2d 165, 175, 377 P.2d 456 (1963). This purpose was served here; Mr. Koepke has not shown any prejudice.

Mr. Koepke next contends the court erred by not suppressing the items seized during the search of Mr. Barkley's apartment because Mr. Barkley did not have the authority to consent to the search of his room. The State has the burden of establishing the validity of a warrantless search. State v. Mathe, 102 Wash.2d 537, 540-41, 688 P.2d 859 (1984). A person consenting to a warrantless search must have the authority to do so. Mathe, at 541, 688 P.2d 859. The issue is whether Mr. Barkley, a lessee of a 2-bedroom apartment, had the authority to consent to a search of a bedroom temporarily used by Mr. Koepke.

In State v. Christian, 95 Wash.2d 655, 628 P.2d 806 (1981), the court recognized the rule a landlord may not consent to a search of a tenant's apartment when the tenant is in sole possession of the property. The court then established two propositions:

First, a former tenant may not have the reasonable expectation of privacy necessary to assert the protections of the Fourth Amendment. Second, a landlord's consent is sufficient to authorize the search of a former tenant's apartment when the lease has terminated, the landlord has notified the tenant of his intent to resume possession on a certain day and the search occurs after that date.

Mathe, at 102 Wash.2d 542, 688 P.2d 859 (summarizing State v. Christian, supra ).

In State v. Mathe, supra, the defendant claimed his landlord had no right to consent to search a room of which he was in exclusive possession. The court adopted the common authority standard developed in United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) to determine questions of consent under the Washington...