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Wahl v. State

Court of Appeals of Alaska

August 4, 2017

KENNETH ARNOLD WAHL, Appellant,
v.
STATE OF ALASKA, Appellee.

         Appeal from the Superior Court, Third Judicial District, Anchorage, Jack W. Smith, Judge. Trial Court No. 3AN-09-8618 CR

          Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

          Eric A 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. [*]

          OPINION

          MANNHEIMER JUDGE

         In the 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.

         About 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 this murder.

         Wahl 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.

         The police discovery and seizure of a pair of blood-stained boots

         Part of 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).

         The 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.

         Wahl's 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 camper.

         A 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.[1]

         The 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.

         Based on this record, we affirm the superior court's ruling that the police lawfully searched underneath the camper and discovered the boots.

         The trial judge's ruling that the defense could not introduce Lewis "Buddy" Hardwick's grand jury testimony at Wahl's trial

         Wahl's 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.

         Beginning 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 ...

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