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State v. Boisselle

Court of Appeals of Washington, Division 1

April 16, 2018



          DWYER, J.

         Michael Boisselle was charged and convicted of second degree murder and unlawful possession of a firearm. On appeal, Boisselle contends that the trial court erred by denying his motion to suppress and by refusing to instruct the jury concerning justifiable homicide in resistance of a felony. Boisselle also contends that the prosecutor committed flagrant misconduct during rebuttal closing argument, thus depriving him of a fair trial. Finding no error, we affirm.


         In July 2014, Michael Boisselle encountered Brandon Zomalt, an old acquaintance. Zomalt told Boisselle that he was homeless, had nowhere to sleep, and that he needed assistance obtaining a food handler's permit in order to secure a job. Boisselle offered to let Zomalt stay with him in his duplex unit.

         With Boisselle's assistance, Zomalt received his food handler's permit and began working at a nearby restaurant. However, Zomalt was fired after one week for fighting at work. Zomalt was addicted to alcohol and methamphetamine. He also had a history of violence. Several people, including Zomalt's mother and two of his former girlfriends, had been granted protection orders against him. After losing his job, Zomalt drank throughout the day. Boisselle did not feel safe around Zomalt and avoided him when possible.

         Boisselle asked Zomalt to move out in the beginning of August. Zomalt apologized for his behavior and asked for another chance. Boisselle agreed to let Zomalt stay, but Zomalt's behavior thereafter worsened. Boisselle believed that Zomalt was following him when he left the duplex. One night, Boisselle woke up to discover Zomalt beside the bed, staring at him. When Boisselle asked Zomalt what he was doing, Zomalt stated that he wanted to ask Boisselle something but changed his mind.

         One morning, after Boisselle and Zomalt began to argue, Boisselle left the duplex to go to a nearby store. Zomalt followed Boisselle to the store, yelling at him the entire way. Boisselle tried to avoid Zomalt when he returned home. Boisselle went to his bedroom on the second floor of the duplex while Zomalt sat on the couch downstairs, consuming alcohol. Later that night, still in his bedroom, Boisselle told Zomalt that he could not stay at the duplex any longer. Zomalt refused to leave. Boisselle threatened to call the police. Zomalt again refused to leave, prompting Boisselle to grab his jacket and walk downstairs.[1] Before he could leave, Zomalt pulled out a gun and pointed it at Boisselle. Boisselle went back upstairs to his bedroom.

         Boisselle could look over the living room from the upstairs railing. Later, from that vantage point, he saw Zomalt sitting on the couch with the gun placed on the arm of the couch. Boisselle went downstairs and into the kitchen, where he pretended to get something to drink. Upon leaving the kitchen, Boisselle grabbed the gun from the arm of the couch.

         At trial, Boisselle testified about what happened next:

Q After you grabbed the gun, what did [Zomalt] do?
A He stood up, turned and started coming in my direction.
Q And what did you think he was going to do at that point?
A I thought he was going to come and grab that gun from me.
I grabbed the gun, he reacted, turned, and he was coming so...
Q What did you do?
A I turned and I fired a few times.
Q Now, how far away were you when you were firing these shots?
A From the love seat to the stairs. I don't know exactly that distance, but I know that it's not a very far distance at all.
Q And at that time he was coming at you?
A Yes.

         On September 1, 2014, South Sound 911 dispatch received an anonymous telephone call from an individual who reported that "somebody by the name of Mike" stated that he shot someone at 13008 Military Road East, No. B (the duplex). Shortly thereafter, the Puyallup Police Department anonymous tip line received a telephone call from an individual who reported that "Mike" had "shot someone" and "possibly killed him, and it was in self-defense." Deputies Ryan Olivarez and Fredrick Wiggins were dispatched to the scene, arriving at 6:50 p.m. Sergeant Christopher Adamson arrived shortly thereafter, at approximately 7:13 p.m. Sergeant Erik Clarkson arrived at the scene at 7:17 p.m.

         Olivarez and Wiggins knocked on the door of the duplex but received no response. There was, however, a dog inside that was barking aggressively.[2]The deputies walked around the outside of the duplex and attempted to look inside, but all of the windows were closed and covered with blinds. There was a light on in the upstairs western bedroom. The deputies smelled a foul odor coming from the house and the garage. Olivarez thought that "something about it just seemed off" and was concerned with "trying to figure out if someone, need[ed] help." Olivarez and Wiggins then contacted the neighbors in order to gather more information. Two neighbors informed the deputies that they had not seen anyone coming or going from the duplex for about "four or five days."

         Adamson listened to the anonymous telephone call made to the Puyallup tip line. Because the anonymous caller provided few details, Adamson was worried "about whether someone was dead or dying in the house." When he arrived, Adamson searched for evidence to substantiate the anonymous telephone calls. Adamson smelled a faint odor coming from the garage that he believed was decaying flesh. Adamson spoke with a neighbor, who told him that a sex offender named Boisselle lived in the duplex. Adamson confirmed that information through the sex offender registry. However, several entries in the computer aided dispatch log indicated that Boisselle did not live at the duplex anymore and that his current location was unknown.

         Adamson directed Olivarez to identify and contact the owner of the duplex. Olivarez contacted the owner and learned that he had rented the duplex to a woman who had stopped paying rent. The owner believed that there was a man named Michael living in the duplex who may be the son of the woman, but the owner had been unable to get Michael to pay rent. As a result, the owner was forced to file for bankruptcy and no longer owned the house. Based on the owner's statements, Adamson did not believe that the owner could give valid consent for the police to enter the duplex.

         Wiggins checked the license plates of the two vehicles parked in the driveway of the duplex through the Department of Licensing and learned that Lola Patterson was the registered owner of both vehicles. Wiggins drove to Patterson's last known address and spoke with her personally. Wiggins learned that Patterson was Michael's[3] mother and that Patterson had not seen or heard from Michael in about three days. Adamson believed that this information "just adds to the concern that we have somebody that is potentially down in the apartment or the duplex" because he could not "account for Mike, or whoever the victim is."

         Upon arriving at the duplex, Clarkson also noticed a "really bad odor" that "might be rotting garbage, or something like that" coming from the garage. Clarkson walked around the duplex and attempted to look inside, but the windows were covered. The dog inside the duplex followed Clarkson around, barking and growling. When Clarkson reached the sliding door at the back of the duplex, the dog aggressively charged at the sliding door and pushed the blinds out of the way. Clarkson looked through the sliding door and could see overturned furniture, which he interpreted as "signs of [a] struggle" and an indication that "something bad could have happened in there." Clarkson and Adamson agreed to contact animal control in case entry into the duplex was necessary. Adamson believed that he had an obligation to force entry into the duplex to determine whether someone was dead or dying and for the abandoned dog's safety.[4]

         Clarkson noticed a man standing across the street who seemed interested in the activities of the police. Clarkson went to talk to the man, who identified himself as Christopher Williamson. Williamson stated that he was a friend of Zomalt and that Zomalt had been staying in the duplex with Michael. Williamson had not seen or heard from Zomalt for several weeks. Clarkson ended his conversation with Williamson at around 7:50 p.m., roughly one hour and ten minutes after the first deputy arrived at the duplex.[5]

         Following his conversation with Williamson, Clarkson received a call from Auburn Police Detective Faini. Faini told Clarkson that Auburn police were investigating a possible missing person and homicide case and that it may be related to Clarkson's welfare check. Faini told Clarkson that the Auburn investigation concerned a roadside carpet burning incident and that he would be interested to know if there was any torn up carpet in the duplex. Faini told Clarkson that the possible victim's name was Zomalt.

         Clarkson then contacted Adamson. Clarkson told Adamson that Zomalt was associated by DNA evidence with a roadside burning incident in Auburn. Adamson told Clarkson that he was able to look through the sliding door and see that carpet had been ripped up from the floor.

         Adamson and Clarkson did not believe that they had enough time or information to get a search warrant. Clarkson testified,

A I don't even know how you would write that, two anonymous tips come in, and torn up carpet. I have no idea what crime, or if any crime we are dealing with, it just doesn't look good....
Q What is it in your mind that you thought you were dealing with at that point?
A Dealing with a suspicious welfare check and possibly someone that's down inside, has been hurt or dead, we don't know. So at that point I'm thinking the bottom line is you can't walk away from this. You have got a duty to do something.

         With no person apparently able to consent to a police entry of the unit and believing that they did not have a sufficient basis to obtain a search warrant, Adamson and Clarkson made a joint decision to force entry into the duplex. Clarkson broke through the front door. An animal control officer secured the dog. The officers then performed a security sweep of the duplex, looking for anyone who was hurt. Adamson and Clarkson searched the second floor of the duplex while Wiggins and Olivarez searched the first floor. The officers checked all of the rooms, looking in closets and other large spaces for a person or a body but ignoring drawers and other areas where a person could not fit.

         Sergeant Clarkson believed that the smell was coming from inside of the garage and was consistent with a dead body. Once all of the rooms inside the duplex had been checked, deputies Wiggins and Olivarez forced entry into the garage from inside of the duplex. Once inside the garage, all four officers could see a large, rolled up carpet with a shoe sticking out and maggots pouring out of the bottom. Sergeant Clarkson opened the garage door using the automatic door opener and all four officers went around to the outside of the garage for a clear view of the carpet. From outside of the house, the officers saw an arm hanging out of the front end of the carpet. Clarkson told the other officers that "this is a crime scene now, " and that "it's time we have to seal this off." None of the officers collected evidence or touched the carpet.


         Boisselle contends that the trial court erred by denying his motion to suppress the evidence obtained as a result of the warrantless search of the duplex. We disagree.

         The United States Constitution prohibits unreasonable searches and seizures. U.S. Const, amend. IV. "The Fourth Amendment does not prohibit 'reasonable' warrantless searches and seizures. The analysis under the Fourth Amendment focuses on whether the police have acted reasonably under the circumstances." State v. Morse, 156 Wn.2d 1, 9, 123 P.3d 832 (2005). A warrantless search based on an officer's reasonable belief that he or she has the authority to do so may mean that the search itself is reasonable under the Fourth Amendment. Morse, 156 Wn.2d at 9-10.

         Article I, section 7 of the Washington Constitution is more protective than the Fourth Amendment, particularly where warrantless searches are concerned. State v. Smith, 177 Wn.2d 533, 539, 303 P.3d 1047 (2013) (citing Morse, 156 Wn.2d at 9-10). Article I, section 7 provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." "Thus, where the Fourth Amendment precludes only 'unreasonable' searches and seizures without a warrant, article I, section 7 prohibits any disturbance of an individual's private affairs 'without authority of law."' State v. Valdez, 167 Wn.2d 761, 772, 224 P.3d 751 (2009). "This language not only prohibits unreasonable searches, but also provides no quarter for ones that, in the context of the Fourth Amendment, would be deemed reasonable searches and thus constitutional."[6]Valdez, 167 Wn.2d at 772.

         A search conducted pursuant to a police officer's community caretaking function is one exception to the warrant requirement. State v. Thompson, 151 Wn.2d 793, 802, 92 P.3d 228 (2004). The community caretaking function was first announced by the United States Supreme Court in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). In that case, addressing the Fourth Amendment to the United States Constitution, the Court observed that:

Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.

Cady, 413 U.S. at 441.

         Our Supreme Court first cited to Cady in State v. Houser, 95 Wn.2d 143, 151, 622 P.2d 1218 (1980), a case involving the impoundment of an automobile. "Subsequent Washington cases have expanded the community caretaking function exception to encompass not only the 'search and seizure' of automobiles, but also situations involving either emergency aid or routine checks on health and safety." State v. Kinzy, 141 Wn.2d 373, 386, 5 P.3d 668 (2000) (footnote omitted).

         We review a trial court's decision on a CrR 3.6 motion to suppress to determine whether the court's findings are supported by substantial evidence and whether those findings, in turn, support the conclusions of law. State v. Cole, 122 Wn.App. 319, 322-23, 93 P.3d 209 (2004). Unchallenged findings of fact are verities on appeal. State v. Acrey, 148 Wn.2d 738, 745, 64 P.3d 594 (2003). We review conclusions of law de novo. Cole, 122 Wn.App. at 323. We may affirm the trial court's ruling on any basis supported by the record and the law. State v. Kelley, 64 Wn.App. 755, 764, 828 P.2d 1106 (1992).


         We first consider whether the trial court was wrong to deny Boisselle's motion to suppress in light of the framework presented in Smith, 177 Wn.2d 533, the most recent Washington Supreme Court case in which a majority of the court considered the community caretaking function exception to the warrant requirement.

         Smith involved a warrantless check of a motel registry and subsequent entry into the room of an overnight guest with an outstanding warrant. 177 Wn.2d at 537. As the police officers were arresting the defendant, they observed an adult female present in the motel room who was badly injured and sobbing. The officers searched the room and discovered that the woman's daughter was also present in the room. The woman told the officers that Smith had beaten her and had sexually assaulted her daughter. Smith, 177 Wn.2d at 537.

         A four justice plurality of the Supreme Court concluded that the warrantless search of the motel room fell under the officers' community caretaking function.[7]

The undisputed facts of this case make it clear that a warrantless, limited intrusion into the motel room was justified by the emergency exception to the warrant requirement, also known as the "save life" exception, a subset of the community caretaking exception to the warrant requirement. Washington courts have held on many occasions that law enforcement may make a warrantless search of a residence if (1) it has a reasonable belief that assistance is immediately required to protect life or property, (2) the search is not primarily motivated by an ...

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