Martel v. State ( 1973 )

PER CURIAM.

Appellant Martel was hospitalized as a result of a shooting incident at Ester, Alaska where he and the complaining witness exchanged gunfire. A search of appellant’s home and unattached garage pursuant to a search warrant for the revolver he used revealed an air compressor which subsequently led to Martel’s conviction for concealing stolen property and which is the subject of the present appeal.

Martel challenges the sufficiency of the affidavit to obtain the search warrant. In addition, he challenges the admissibility of a statement taken at the hospital six days after the shooting on the grounds it was the result of two previous statements which the trial court ruled inadmissible because of appellant’s physical condition at the time they were given.

We have examined the affidavit for a search warrant and find it legally sufficient.¹ We have also reviewed the circumstances leading up to the taking of the statement by the state police trooper six days after Martel’s hospitalization. We conclude that the statement was both voluntary ² and untainted by the exclusions of previous statements made on the day of the shooting incident and some three days later.³

Appellant additionally urges the court to adopt the standard that the trial court must find the statement was voluntary beyond a reasonable doubt⁴ before it was admissible. Since appellant did not raise such an issue in the trial court, we decline to consider it for the first time on appeal.

The judgment and conviction of the trial court is affirmed.

1 . Davenport v. State, 510 P.2d 78 (Alaska 1973); Davis v. State, 499 P.2d 1025 (Alaska 1972). We disagree with the dissenting opinion’s conclusion that there was no probable cause to support that part of the search warrant authorizing the search of the unattached garage. The affidavit was based in part upon the statement of Robert E. Reiehmann that lie observed Martel point a gun at Daniel Knutsen in front of Martel’s residence. The affidavit was also based upon the statement of Daniel Knutsen that “Martel did point a revolver at Knutsen while inside Reichmann’s car and fire it. .” The affidavit noted that a subsequent investigation by the police revealed a bullet hole in Reichmann’s vehicle. The dissent grants that there was probable cause to search Martel’s residence but would hold there was no probable cause to search his garage. We disagree and feel if Martel attempted to conceal the revolver it is as logical to believe he would hide it in the garage as in his residence.

The state concedes that the affidavit was not legally sufficient to support a search for a shotgun not related to the shooting incident where Martel was injured. A shotgun was apparently used in a related incident which took place the day before and which caused damage to a car parked at the same site as the scene of the shooting. The reference to the other incident is contained in the affidavit in sketchy terms but there are no facts related which indicate whether Martel fired the shotgun at the damaged car. The search warrant permitted the officers to search for a shotgun as well as the handguns used in the shootout which led to Martel’s hospitalization.

2 .There is no evidence of overbearing by the state police trooper. The first interview took place on the night Martel was admitted to the hospital when the trooper was attempting to ascertain the events which culminated in the shooting and before the trooper had obtained a search warrant for the garage where the air compressor was found. Martel was not given a Miranda warning but he was not a suspect at that time for concealing stolen property and the questioning lasted less than 10 minutes. The second interview was of similar duration and took place at the hospital three days later. Martel was given a Miranda warning but the trooper left after Martel indicated he did not wish to discuss the matter because he did not feel well. The trial court excluded the conversations on each occasion because of Martel’s physical condition and the medication he had been given. The trial court ruled that the statement at the third interview was voluntary and that Martel’s physical condition was sufficiently improved so that it did not constitute the same problem it had at each of the first two interviews.

3 . While appellant contends the three statements are obviously interrelated, we have difficulty with this allegation. The first two statements related that Martel knew the compressor was in the garage near his house and that he had purchased it from a soldier. The state police trooper knew the compressor was stolen because of police reports, and had found the compressor in Martel’s garage. The third statement was the first indication that Martel knew the compressor was stolen. E. g. Boulden v. Holman, 394 U.S. 478, 480-481, 89 S.Ct. 1138, 22 L.Ed.2d 433, 437 (1969) ; United States v. Knight, 395 F.2d 971 (2d Cir. 1968), cert. denied 395 U.S. 930, 89 S.Ct. 1776, 23 L.Ed. 2d 249 (1969) ; Nobles v. United States, 391 F.2d 602, 603 (5th Cir. 1968) ; Myers v. Frye, 401 F.2d 18, 22 (7th Cir. 1968), appeal after remand, 436 F.2d 579 (7th Cir. 1971) ; Cotton v. United States, 371 F.2d 385, 392 (9th Cir. 1967); United States ex rel. Gockley v. Myers, 314 F.Supp. 839, 843-45 (D.C.Pa. 1970) reversed on other grounds, 450 F. 2d 232 (3rd Cir. 1971), cert. denied 404 U.S. 1063, 92 S.Ct. 738, 30 L.Ed.2d 752 (1972) ; Soolook v. State, 447 P.2d 55, 62 (Alaska 1968). For a discussion of the fruit of the poisonous tree doctrine, see Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407 9 L.Ed.2d 441 (1963).

4 . Cf. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618, 627 (1972).