from the Superior Court, Third Judicial District, Anchorage,
Jack W. Smith, Judge. Trial Court No. 3AN-09-8618 CR
Barr, Assistant Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Ringsmuth, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Craig W. Richards, Attorney General,
Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
spring of 2009, Kenneth Arnold Wahl approached an Anchorage
homeowner, Colette Fry, and asked her if she needed help with
her landscaping. Fry hired Wahl on the spot to help her with
yard work. Soon after she met Wahl, Fry realized that Wahl
was homeless, and she offered to let him stay in a camper on
her property, free of charge.
six weeks later, Fry's next-door neighbor, Elisa Orcutt,
was found murdered in her home. Wahl was quickly identified
as a suspect, and he was ultimately tried and convicted for
now appeals his conviction on two grounds. He claims that
some of the State's evidence (a pair of blood-stained
boots) was obtained illegally, and he also claims that his
trial attorney should have been allowed to introduce the
grand jury testimony of a witness whose presence could not be
procured for trial. For the reasons explained in this
opinion, we conclude that there is no merit to either of
Wahl's claims, and we therefore affirm his conviction.
police discovery and seizure of a pair of blood-stained
the physical evidence introduced against Wahl at his trial
was a pair of blood-stained boots that were discovered
beneath the camper where Wahl was staying (the camper located
on Colette Fry's property).
camper was situated on Fry's lawn, but it was raised off
the ground, held up by jacks and wooden pallets. After Fry
gave the police permission to search her property for
evidence of her neighbor's murder, the police looked
underneath the camper and discovered the boots.
attorney filed a pre-trial motion seeking suppression of
these boots on the ground that the police violated Wahl's
Fourth Amendment rights when they looked underneath the
camper. But following an evidentiary hearing, the superior
court found that Colette Fry consented to this search. The
court further found that Fry had the authority to permit this
search, even after she gave Wahl permission to stay in the
warrantless search does not violate the Fourth Amendment if
the police have obtained the consent of a person having
actual or apparent authority over the property.
record clearly supports the superior court's finding that
Fry consented to the search. Both Fry and police detective
David Cordie testified that Fry authorized the police to
search her property, including the camper, for evidence
relating to the murder. The record also supports the superior
court's finding that Fry had sufficient authority over
the camper to consent to the search. Fry testified that even
after she gave Wahl permission to live on her property, she
continued to store her belongings both inside the camper and
in the space beneath it. (In particular, Fry stored fishing
and camping gear in the camper itself, and she stored seat
cushions, buckets, hoses, and jack fluid underneath the
camper.) Fry also testified that she did not need to ask
Wahl's permission to retrieve these items.
on this record, we affirm the superior court's ruling
that the police lawfully searched underneath the camper and
discovered the boots.
trial judge's ruling that the defense could not introduce
Lewis "Buddy" Hardwick's grand jury testimony
at Wahl's trial
defense to the murder charge was that someone else had killed
Elisa Orcutt-and that the murderer was possibly Lewis
"Buddy" Hardwick, an acquaintance of Wahl's.
with her opening statement, Wahl's attorney told the
jurors that Hardwick had been in many of the same locations
as Wahl around the time of the murder - and that the police
had failed to adequately investigate whether Hardwick might
have committed the murder:
Defense Attorney: The State cannot go back and fix
their investigation. It's too late for that. They chose
which leads to follow and which leads to abandon, but they
chose wrong. Ladies and gentlemen, this is the ...