State v. Stevenson

• Decision Date: 18 October 1989
• Docket Number: No. 12524-2-II,12524-2-II
• Citation: 55 Wn.App. 725,780 P.2d 873
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Sean Allen STEVENSON, Appellant.

Page 725

55 Wn.App. 725

780 P.2d 873

The STATE of Washington, Respondent, v. Sean Allen STEVENSON, Appellant.

No. 12524-2-II.

Court of Appeals of Washington Division 2.

Oct. 18, 1989.

John Thomas Day, Stevenson, Leslie O. Stomsvik, Tacoma (court-appointed), for appellant.

Grant E. Hansen, Deputy Pros. Atty., Stevenson, for respondent.

REED, Judge.

Sean Stevenson appeals from his convictions of two counts of first degree murder and one count of aggravated first degree murder, contending that the State conducted an illegal search and seizure and failed to preserve evidence, that the trial court erred in declining juvenile jurisdiction, and that his sentence was both improperly excessive and cruel and unusual. We affirm.

The charges were based on the January 1, 1987 murders of James Butler, Margaret Butler and Amy Stevenson, Stevenson's stepfather, mother and sister. Each victim was shot in the head at close range with a high-powered firearm. Amy had been raped. Stevenson, who was then 16 years of age, fled the area on the morning of the murders taking most of his personal belongings with him. He asked his girlfriend to go to Mexico with him, explaining to her and several other people that he had killed his family. Later that same morning, when he was approached by Police Officer Steve Graves at a Long Beach, Washington telephone booth, he also told Graves that he had just killed three members of his family. Officer Graves placed the defendant under arrest and telephoned the Skamania County Sheriff's Office, which dispatched Officer Tom Converse to the defendant's home.

Officer Converse peered into a window of the house and saw the body of Margaret Butler lying in a bed. She clearly had been shot. He called for a backup unit, and Officer Chris Ford responded. The two officers entered the house to determine whether any of the victims were still alive and whether any assailant was still present. They discovered the body of James Butler, lying on the floor in the bedroom with Margaret Butler. They found Amy Stevenson in the basement. She was naked from the waist down and was lying on a bed. Semen was visible in her pubic area, and a .22 caliber rifle was lying close by. Throughout their initial sweep, the officers took note of numerous evidentiary items in plain view, including pools and spatterings of blood and other human tissue, a wallet, a broken pottery bank, shell casings, the semen stain on Amy Stevenson's body, and the .22 caliber rifle nearby. Because of their desire to preserve the scene, they did not remove any of these items, but, instead, waited outside the house for the arrival of the County's Criminal Investigation Unit. ¹ Members of the unit arrived shortly thereafter and spent several hours collecting the evidence including firearms, bullets, spent shell casings, blood and semen samples, and clothing. Over 200 photographs of the scene were taken. After completing the investigation, the authorities turned over the house to the relatives of the victims, who cleaned it, washing blood and other matter off the walls and burning bloodsoaked mattresses, bedding and the chair in which James Butler had been shot.

Following a hearing pursuant to RCW 13.40.110, the juvenile court elected to decline jurisdiction. Stevenson was tried by jury and found guilty of one count of aggravated first degree murder and two counts of first degree murder. His sentence for the aggravated murder was life imprisonment without the possibility of parole. For the other crimes, he received two concurrent 320-month sentences, which were made consecutive to his life sentence.

I

Stevenson first contends that the evidence obtained from his house should have been suppressed because it was illegally seized. He acknowledges that Officers Converse and Ford had a right to enter the house. However, he maintains that the emergency created by the discovery of the crimes had ended by the time the officers from the investigatory unit entered the house, and that they were, therefore, required to obtain a warrant before they could properly search the premises and collect evidence. He is wrong.

Warrantless searches and seizures are per se unreasonable. Fourth Amendment to the United States Constitution; Washington Constitution, Art. 1, § 7; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Chrisman, 100 Wash.2d 814, 818, 676 P.2d 419 (1984). There are, however, a few "jealously and carefully drawn exceptions" to the warrant requirement which provide for those cases where the societal costs of obtaining a warrant outweigh the reasons for insisting upon prior recourse to a neutral magistrate. State v. Williams, 102 Wash.2d 733, 736, 689 P.2d 1065 (1984), quoting State v. Houser, 95 Wash.2d 143, 149, 622 P.2d 1218 (1980). One such exception applies to emergency situations, including the discovery of a crime. Thus, when the police come upon the scene of a homicide, they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. They may also seize any evidence that is in plain view "during the course of their legitimate emergency activities." Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290, 300 (1978); State v. Sanders, 8 Wash.App. 306, 313, 506 P.2d 892 (1973). Here, there is no question that an emergency existed. The officers dispatched to the Butler home were told that a shooting had occurred and that there might be multiple victims. They did not know how many assailants were involved. They saw one body through the window, entered, and embarked upon an initial sweep of the house to assess the situation and render emergency assistance, if needed.

Stevenson concedes that these actions were proper, and that those officers could have seized any evidence that was in plain view. ² He simply contends that the right to collect this evidence without a warrant was foreclosed when they left the house. This is not the law.

There is no requirement that the evidence be collected at the time it is observed, no requirement that the circumstances which justified the initial intrusion exist at the time of the seizure, and no requirement that the officers who originally observed and identified it as evidence of a crime, personally seize it. See State v. Bell, 108 Wash.2d 193, 198-201, 737 P.2d 254 (1987), in which the court held proper the seizure by police of marijuana plants earlier observed by firefighters who responded to an alarm at the defendant's residence, and Michigan v. Tyler, 436 U.S. 499, 511, 98 S.Ct. 1942, 1950, 56 L.Ed.2d 486 (1978), which held that fire officials were not required to obtain a search warrant to determine the cause of a fire when they re-entered the burned building four hours after steam, smoke and darkness had forced them to postpone their initial lawful investigation. The court concluded that the later entries were "no more than an actual continuation of the first, and the lack of a warrant thus did not invalidate the resulting seizure of evidence." 436 U.S. at 511, 98 S.Ct. at 1950. See also State v. Martin, 274 N.W.2d 893 (S.D.1979), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 112 (1979); State v. Johnson, 413 A.2d 931 (Me.1980), affirmed, 434 A.2d 532 (Me.1981); State v. Anderson, 42 Or.App. 29, 599 P.2d 1225 (1979), cert. denied, 446 U.S. 920, 100 S.Ct. 1857, 64 L.Ed.2d 275 (1980); People v. Harding, 620 P.2d 245 (Colo.1980); La Fave, Search and Seizure, § 6.5(e) (2nd ed. 1978). As the Bell the court observed, once the privacy of the residence lawfully has been invaded, it is senseless to require a warrant for others to enter and complete what those already on the scene would be justified in doing. ³

We see no reason why this rule should not apply to the present situation. Having other more immediate concerns, the officers had not collected evidence during the first sweep. Rather, they waited for the better equipped investigative unit to arrive on the scene. This was surely reasonable in view of the need to be certain the evidence properly would be preserved. ⁴ The second entry followed hard on the heels of the initial sweep and was nothing more than a continuation of the prior lawful search.

Of course, the officers who enter later may not exceed the scope of the earlier intrusion. See Mincey v. Arizona, 437 U.S. at 393, 98 S.Ct. at 2413, 57 L.Ed.2d at 300; State v. Bell, 108 Wash.2d at 201, 737 P.2d 254. In this case the "plain view" doctrine supports the seizure of all evidence with the exception of the bullet that killed Margaret Butler, ⁵ and the admission of that item was harmless. As noted in Part II, infra, the State presented a remarkable quantity of evidence far more damaging than this single bullet. Its admission could not possibly have affected the result of the trial. State v. Guloy, 104 Wash.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1208, 89 L.Ed.2d 321 (1986); State v. Wood, 45 Wash.App. 299, 311, 725 P.2d 435, review. denied, 107 Wash.2d 1017 (1986).

II

The defendant next alleges that certain items of evidence were destroyed or improperly preserved and that others never were collected. He specifically asserts that three kinds of potentially exculpatory evidence were not available to him: (1) the State did not keep careful records of body temperatures or stomach contents, which could have demonstrated the sequence in which the victims were killed; (2) the State did not take hair samples from James Butler, nor did it preserve blood samples taken from him or semen samples taken from Amy Butler so as to permit cross matching in a manner other than an A-B-O typing system; and (3) the State did not preserve the chair in which James Butler was sitting when he was shot, blood spatter patterns, and possible fingerprints and footprints which could have demonstrated the angle of fire and approximate range from which the firing...