Stevens v. State

• Decision Date: 23 July 1968
• Docket Number: No. 873,873
• Citation: 443 P.2d 600
• Parties: Alexander Thomas STEVENS, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 600

443 P.2d 600

Alexander Thomas STEVENS, Appellant, v. STATE of Alaska, Appellee.

No. 873.

Supreme Court of Alaska.

July 23, 1968.

Donald L. Craddick, Juneau, for appellant.

Ronald G. Birch, Dist. Atty., Juneau, for appellee.

Before NESBETT, C. J., and DIMOND and RABINOWITZ, JJ.

OPINION

NESBETT, Chief Justice.

The principal question is whether a delay of approximately ten hours in conducting a homicide investigation on premises legally entered by the police in response to an emergency call, is fatal to the constitutionality of the investigation and to the admissibility of the evidence obtained.

Appellant shot and killed Frederick LaViolette during a drinking bout in appellant's home in Hoonah, Alaska in the early morning hours of January 8, 1967. Sam Knudson, Chief of Police of Hoonah, in response to the telephone call of a neighbor, knocked on the door of appellant's home. Appellant's wife opened the door and Knudson entered. No words were spoken by either Knudson or appellant's wife prior to his entry. Appellant was sobbing and advised Knudson that he had shot his 'buddy'. Knudson arrested and jailed appellant to prevent him from taking his own life, as he was threatening to do. Knudson then returned to appellant's home in the company of Frank See, Mayor of Hoonah. After they had viewed the body and conducted a superficial inspection of the premises Knudson locked the house with a padlock.

Mayor See then telephoned to Corporal Monagle of the Alaska State Police in Juneau. By this time it was three o'clock in the morning. After being advised of what had happened Corporal Monagle ordered that the premises be kept locked. Upon Monagle's advice, appellant's wife, who was hysterical and in the streets of Hoonah, was also confined. At approximately 10 a. m. Corporal Monagle, accompanied by a state trooper and the District Attorney, departed Juneau for Hoonah. Upon their arrival Chief Knudson unlocked appellant's home and the party entered.

The activities of Corporal Monagle and his party consisted of photographing the body and the room, retrieving empty cartridge cases, extracting bullets from their point of lodging, taking measurements for use in preparing a diagram and taking possession of a .45 caliber pistol, cartridge clip and shells. The pistol was found in plain view in the magazine rack in the bedroom with a live shell in the magazine, the trigger cocked and the safety in the 'off' position. No search warrant had been obtained. Appellant and his wife were still incarcerated and knew nothing of the entry of the Juneau party into their home.

Appellant's objections to the introduction into evidence of the pistol, empty and live cartridges, bullets, photographs and a diagram were overruled. The case went to the jury on an indictment for second degree murder and a finding of guilty of manslaughter was returned.

Appellant contends that the entry of Corporal Monagle and his party approximately ten hours after Chief Knudson's original entry violated the unreasonable search and seizure provisions of the fourth amendment to the United States Constitution ¹ and of article I, section 14 of the Alaska Constitution. ² Appellant concedes that the original entry of Chief Knudson without a warrant was legal. This is the general rule. In United States v. Barone ³ the majority rule was well stated as follows:

The right of the police to enter and investigate in an emergency without the accompanying intent to either search or arrest is inherent in the very nature of their duties as police officers, and derives from the common law.

In Patrick v. State ⁴ it was suggested that:

(T)he criterion is the reasonableness of the belief of the police as to the existence of an emergency, not the existence of an emergency in fact.

Chief Knudson went to appellant's home in response to a call from a neighbor, who had obtained knowledge of the shooting from appellant's children, who had fled the home. Chief Knudson had reason to believe that an emergency existed when he knocked at the door of appellant's home. His entry without a warrant after the door was opened by appellant's wife was made under the same reasonable belife, although no invitation to enter or no direction not to enter was given by appellant's wife. After his legal entry, and upon learning that a homicide had been committed, it became Chief Knudson's duty to conduct an investigation into the circumstances. This duty carried with it the right to inspect the premises. ⁵

Had Chief Knudson, or other authorized officials, proceeded without delay to conduct an investigation of the homicide by photographing the body and the room, retrieving empty cartridge cases, extracting bullets from or in line with observable bullet holes, taking measurements and taking the loaded, cocked pistol in possession, no constitutional right of appellant against unreasonable search and seizure would have been violated. None of the evidence was concealed, but was available to investigators on the floors, walls and furniture of the kitchen, bedroom and sitting room where the fighting and shooting occurred.

The clear weight of authority is that evidence which is in open view is not the product of a search and that the seizure of such evidence after a lawful entry violates no constitutional right of privacy. ⁶

We do not believe that the fact that approximately ten hours intervened between Chief Knudson's original legal entry on the premises and the commencement of a full scale police investigation converted what would otherwise have been a legal police investigation into a violation of appellant's constitutional right of privacy. The duty police officer who responds to an emergency call and discovers a homicide is not necessarily a competent officer to conduct the type of investigation necessary to protect the interests of society. This is particularly the case with respect to a small frontier village such as Hoonah. In a more populous area the officer discovering a homicide could remain at the scene until trained investigators arrived to conduct an investigation. In that situation the presence of the officer making the legal entry would continue until summoned investigators arrived. Only minutes or possibly no more than an hour or two would ordinarily elapse between the legal entry and the commencement of the police investigation of the homicide. The lapse of time between the legal entry and the commencement of the investigation in the usual case has not been held to be so unreasonable as to affect the legality of the presence of the investigating officers on the premises.

Here the homicide was discovered at three o'clock in the morning in an isolated frontier village located on an island off the coast of southeastern Alaska. No magistrate, or coroner was available closer than Juneau on the mainland. Instead of being able to call upon trained police assistance, Chief Knudson had no alternative but to lock the premises in order to deliver appellant to the jail and to awaken the mayor to request advice and assistance. Upon the mayor's abvice, and in order to comply with applicable state law, ⁷ the assistance of the Alaska State Police in Juneau was solicited by the mayor by telephone. Corporal Monagle and his investigating party departed Juneau for Hoonah by air at the first winter daylight and upon arrival immediately commenced their examination of the body, still lying on the floor where it was found, and then proceeded to conduct a general investigation at the scene.

We are convinced that no time was lost in commencing the investigation that could have been avoided; that neither appellant nor his wife and children were inconvenienced or placed in apprehension by the investigation conducted by Corporal Monagle and that appellant's constitutional right of privacy was not violated.

Appellant next claims error on the part of the court in admitting certain color photographs into evidence.

Exhibit 15 is a color photograph of a probe extending through decedent's head and projecting on each side. Exhibit 16 was a photograph of decedent's brain, placed on a board on his body. Exhibit 17 depicted decedent lying on the floor of appellant's home.

Appellant argues that the photographs were not of sufficient evidentiary value to justify their admission in view of their inflammatory effect on the jurors and the resulting prejudice.

This court has held that a photograph is admissible in evidence in the discretion of the trial judge, as an aid to the court or jury, after it has been shown to be a faithful representation of whatever it purports to depict, provided it is relevant, ⁸ and provided its evidentiary value is not outweighed by any prejudice it might create. ⁹

We do not find that the trial court abused its discretion in admitting the photographs. Plaintiff's Exhibit 15 depicting the probe protruding through decedent's head at an angle was illustrative of the testimony of a state witness as to the angle of penetration of the witness as The photograph was relevant and its probative effect was not cumulative. We do not believe that its prejudicial effect outweighed its evidentiary value.

We reach the same conclusion with respect to the other photographs. Exhibit 16 illustrated the effect on the brain of an exit wound and substantiated oral testimony. Exhibit 17, as well as Exhibits 15 and 16 illustrated decedent's size which evidence was relevant with respect to appellant's defense.

With respect to his last point, we hold that the trial court did not err in refusing to grant appellant's motion for a judgment of acquittal.

Appellant argues that he killed decedent in self defense, in defense of his family and to prevent the commission by decedent of several felonies in appellant's home.

In ruling on appellant's motion for a judgment of acquittal the trial judge stated:

I want to just state very briefly for the record further comment with respect to my ruling on defendant's ...