People v. Foster

Opinion

COLE, J.

*

In a court trial appellant Shelley Ann Foster was convicted of the murder of her husband. The court fixed the offense as being in the second degree, and sentenced appellant to the state prison. She appeals. We affirm.

Facts Relating to Motion to Suppress

At about 11:45 p.m. on July 25, 1977, Long Beach Police Officer Milovich, assigned to the narcotics section received a telephone call from an unidentified informant. The caller said there was a dead body in the area of 23d and Lime in the first white garage south of 23d Street on the west side of the alley. The caller also said that “The broad in the front house did the dude in.” Within a half hour of the call, or sooner than that, Officer Milovich, together with Sergeant Sutton and Officer Scholtz, went to the alley. All three noted a very strong odor of decaying flesh, and as they walked down the alley and approached the white garage, the odor become stronger. The garage was locked. There was an opening of about eight inches in the garage where a wooden slat had been broken. Shining a flashlight through the opening the officer saw something wrapped in a green blanket but could not tell what it was, although he did note that there were flies around the blanket and trails of ants leading to and from the inside. Thus the officer, not illogically, suspected that there was decaying flesh or possibly a dead body in the blanket. Sergeant Sutton called for a homicide crew and the officers went back to the garage and broke in by prying a lock.

Officer Martinson and four other officers arrived at the location at about 2 a.m., July 26, 1977. Officer Scholtz pried open the lock and Officers Martinson and Bertrand entered the garage and determined that the smell was coming from the wrapped up object. Opening up the wrapping, the witness and Officer Bertrand found that it contained a

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human body. A witness who lived in a rear house on the premises looked at the body from a distance and gave information which led the officers to believe the victim was a person who lived in the front residence and who rented or owned the garage. The witness stated that the victim lived there with his wife. Another witness gave the officer the name of appellant and her husband Frank (the victim) and also gave a description of Frank that matched that of the deceased. She also gave a description of appellant that was used later for a broadcast description of a possible suspect. A third witness stated that he had not seen Frank for several days but had seen the defendant and another person removing furniture and household items from the residence. One of the witnesses also stated that appellant and Frank were constantly fighting, to a degree audible to the neighbors. The victim’s automobile was also described by one of the neighbors as was a van which had been seen at the location. A warrant was issued to search appellant’s house, and the house was searched between 7:30 and 9 a.m. that morning. A radio broadcast was sent out indicating that officers wanted to question appellant.